Exhibit 10.1
AGREEMENT
AGREEMENT (this "Agreement"), dated as of May 7, 2007 (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
"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;
WHEREAS, pursuant to an agreement dated as of May 10, 2005, the
Investor and the Company extended and renewed the Convertible Note and Warrant
such that the maturity date of the Convertible Note became May 10, 2007, the
last date on which the Convertible Note could be converted into common stock
became May 10, 2006 and the expiration date of the Warrant became May 10, 2006;
WHEREAS, pursuant to an agreement dated as of May 10, 2006, the
Investor and the Company extended and renewed the Convertible Note and Warrant
such that the maturity date of the Convertible Note became January 10, 2008, the
last date on which the Convertible Note could be converted into common stock
became May 10, 2007 and the expiration date of the Warrant became May 10, 2007;
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 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 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 July 10, 2008 (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 July 10, 2008, 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 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 (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, 2008 (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:
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(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.
(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,
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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 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
-----------------------------------------
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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