Exhibit 10.2
GSV, INC.
AMENDED AND RESTATED CONVERTIBLE
PROMISSORY NOTE
THE SECURITIES REPRESENTED HEREBY
AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF OR IN RESPECT OF
INTEREST PAYMENTS HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE DISTRIBUTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND LAWS.
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$200,000
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As of May 10,
2009
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FOR VALUE RECEIVED, GSV, INC., a Delaware
corporation (“Company"), with its principal office at 191
West Post Road, Westport, Connecticut 06880, hereby
promises to pay to the order of D. EMERALD INVESTMENTS LTD., an
Israeli corporation ("Holder"), with its principal office at 85
Medinat Ha-Yehudim Street, Herzeliya, Israel (the "Holder's
Office"), or its assigns, on July 10, 2010 (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"). Accrued Contract Interest
shall be payable quarterly in arrears on the last day of each
calendar quarter commencing on May 31, 2009, and on the Maturity
Date (the “Interest Payment Dates”). Unless
the Note has been converted by the Holder prior to the Maturity
Date pursuant to the terms of this Note, the unpaid Principal
Amount, together with the then accrued unpaid Contract Interest and
all other amounts owed hereunder, shall be due and payable on the
Maturity Date. At the Holder’s option, Contract
Interest shall be payable either in cash or in shares of common
stock, $.001 par value per share, of the Company (“Common
Stock”) (the number of shares to be calculated as set forth
below). If the Holder elects to receive any Contract
Interest payment in the form of shares of the Company’s
Common Stock, the Holder shall given the Company notice of such
election at least fifteen (15) business days prior to the
applicable interest Payment Date. The number of shares
of Common Stock to be issued to the Holder shall be calculated by
dividing the amount of Contract Interest payable for the applicable
period by the Conversion Price (as defined
below). Payment of the Principal Amount and Contract
Interest hereunder shall be made by wire transfer of immediately
available good funds, to such bank account as the Holder may
designate by notice to the Company prior to any such payment, or,
with respect to Contract Interest that the Holder has elected to
receive in shares of Common Stock, by delivery of share
certificates of Common Stock to the Holder at the Holder's Office,
or at such other place as the Holder , by notice to the Company,
may designate from time to time for that purpose.
In the event that the outstanding Principal
Amount and all accrued and unpaid Contract Interest are not paid in
full on or before the Maturity Date, then the outstanding Principal
Amount and all accrued and unpaid Contract Interest thereon shall
thereafter bear a default interest ("Default Interest") at a rate
per annum equal to twelve percent (12%) until the outstanding
Principal Amount and all accrued and unpaid Contract Interest and
Default Interest thereon shall have been paid in full by the
Company to the Holder.
This Note is subject to prepayment in whole or
in part at any time and from time to time without penalty or
premium, but with Contract Interest on the amount prepaid to the
date of prepayment. All prepayments will first be applied to the
repayment of accrued fees and expenses, then to Default Interest
accrued on this Note through the date of such prepayment until all
then outstanding accrued Default Interest has been paid, then to
Contract Interest accrued on this Note through the date of such
prepayment until all then outstanding accrued Contract Interest has
been paid, and then shall be applied to the repayment of the
Principal Amount.
1.1.
Events of Default . Upon the occurrence of any of
the following events (herein "Events of Default"):
(i) The
Company shall fail to pay the Principal Amount on the Maturity Date
or any Contract Interest payment on the due date
thereof;
(ii) (A) The
Company shall commence any proceeding or other action relating to
it in bankruptcy or seek reorganization, arrangement, readjustment
of its debts, receivership, dissolution, liquidation, winding-up,
composition or any other relief under any bankruptcy law, or under
any other insolvency, reorganization, liquidation, dissolution,
arrangement, composition, readjustment of debt or any other similar
act or law, of any jurisdiction, domestic or foreign, now or
hereafter existing; or (B) the Company shall admit the
material allegations of any petition or pleading in connection with
any such proceeding; or (C) the Company shall apply for, or
consent or acquiesce to, the appointment of a receiver,
conservator, trustee or similar officer for it or for all or a
substantial part of its property or admit generally an inability to
pay its debts as they become due; or (D) the Company shall
make a general assignment for the benefit of creditors;
(iii) (A) The
commencement of any proceedings or the taking of any other action
against the Company in bankruptcy or seeking reorganization,
arrangement, readjustment of its debts, liquidation, dissolution,
arrangement, composition, or any other relief under any bankruptcy
law or any other similar act or law of any jurisdiction, domestic
or foreign, now or hereafter existing and the continuance of any of
such event for thirty (30) days undismissed, unbonded or
undischarged; or (B) the appointment of a receiver,
conservator, trustee or similar officer for the Company for any of
its property and the continuance of any of such event for thirty
(30) days undismissed, unbonded or undischarged; or (C) the
issuance of a warrant of attachment, execution or similar process
against any of the property of the Company and the continuance of
such event for thirty (30) days undismissed, unbonded and
undischarged;
(iv) Any
of the Company’s representations or warranties contained
herein or in the Purchase Agreement (the “Purchase
Agreement”) between the Company and the Holder or the Warrant
to Purchase Stock (the “Warrant”) issued to the Holder,
each such agreement dated the date hereof, is determined by a court
of competent jurisdiction as false or misleading in any material
respect;
(v) The
Company shall breach or fail to perform or observe any obligation,
covenant, term, condition, provision or agreement of the Company
contained in this Note, the Purchase Agreement or the Warrant,
after giving effect to any applicable notice provisions and cure
periods; provided, however, that with respect to a failure to
comply with any of the provisions of Sections 2.2(a) and (c) of
this Note, such failure is not remedied within twenty (20) days
after the Company's receipt of written notice of same;
or
(vi) Failure
of the Company to ensure that any conversion of this Note or any
Contract Interest hereon properly requested by the Holder is
effected by the Company;
then, and in any such event, the
Holder, at its option and without written notice to the Company,
may declare the entire Principal Amount of this Note then
outstanding together with any accrued unpaid Contract Interest
thereon (payable either in cash or shares of Common Stock) and
Default Interest (if applicable) immediately due and payable, and
the same shall forthwith become immediately due and payable without
presentment, demand, protest, or other notice of any kind, all of
which are expressly waived, and exercise any and all other legal or
equitable rights resulting therefrom. The Events of
Default listed herein are solely for the purpose of protecting the
interests of the Holder of this Note.
1.2.
Non-Waiver and Other Remedies . No course of
dealing, delay or omission on the part of the Holder of this Note
in exercising any right hereunder shall operate as a waiver or
otherwise prejudice the right of the Holder of this
Note. Holder shall not be deemed to have waived any of
its rights under this Note unless such waiver is in writing and
signed by Holder. A waiver in writing by Holder on one
occasion shall not be construed as a consent to or a waiver of any
right or remedy on any future occasion. No remedy conferred hereby
shall be exclusive of any other remedy referred to herein or now or
hereafter available at law, in equity, by statute or
otherwise.
1.3.
Collection Costs; Attorney’s Fees . In the
event this Note is turned over to an attorney for collection or the
Holder otherwise seeks advice of an attorney in connection with the
exercise of its rights hereunder upon the occurrence of an Event of
Default, the Company agrees to pay all actual costs of collection,
including reasonable attorney's fees and expenses and all out of
pocket expenses incurred in connection with such collection
efforts, which amounts may, at the Holder's option, be added to the
Principal Amount hereof.
2.
Obligation to Pay Principal and Interest; Covenants
. No provision of this Note shall alter or impair the
obligation of the Company, which is
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