EXHIBIT 10.1
AMENDMENT, EXCHANGE AND PURCHASE AGREEMENT
AMENDMENT, EXCHANGE AND PURCHASE AGREEMENT (this "AGREEMENT"), dated as of
April 8, 2008, by and between InkSure Technologies Inc., a Delaware corporation,
with headquarters located at 1770 N.W. 64th Street, Fort Lauderdale, Florida
33309 (the "COMPANY"), and [Smithfield Fiduciary LLC][OTHER INVESTORS] (the
"INVESTOR").
WHEREAS:
A. The Company, the Investor and certain other investors (the "OTHER
INVESTORS", and collectively with the Investor, the "INVESTORS") are parties to
that certain Securities Purchase Agreement, dated as of September 30, 2005 (the
"EXISTING SECURITIES PURCHASE AGREEMENT"), pursuant to which, among other
things, the Investors purchased from the Company senior convertible notes (the
"EXISTING NOTES"), which are convertible into shares of the Company's common
stock, par value $0.01 per share (the "COMMON STOCK") (the Existing Notes as
converted, the "EXISTING CONVERSION SHARES").
B. In connection with the execution and delivery of the Existing Securities
Purchase Agreement, the Company entered into that certain Registration Rights
Agreement, dated September 30, 2005 (the "REGISTRATION RIGHTS AGREEMENT"), by
and among the Company and the Investors, pursuant to which the Company agreed to
provide certain registration rights with respect to the Registrable Securities
(as defined in the Existing Registration Rights Agreement) under the Securities
Act of 1933, as amended (the "1933 ACT"), and the rules and regulations
promulgated thereunder, and applicable state securities laws.
C. The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, (I) (i) the Company and the Investor
shall amend and restate all of such Investor's Existing Notes for (a) the senior
secured convertible notes of the Company in the form attached hereto as EXHIBIT
A (the "AMENDED NOTES") in the aggregate principal amount set forth opposite
such Investor's name in column (3) on the Securities Schedule attached hereto,
which shall be convertible into shares of Common Stock (the "AMENDED AND
RESTATED CONVERSION SHARES") and (b) warrants (the "SERIES B-1 WARRANTS") to
acquire that number of shares of Common Stock set forth opposite such Investor's
name in column (6) on the Securities Schedule (as exercised, collectively, the
"SERIES B-1 WARRANT SHARES") and (ii) and the Company shall pay to the Investor,
in cash, the interest payable under such Investor's Existing Notes through the
Closing Date (the "2008 INTEREST PAYMENT") in the amount set forth opposite the
Investor's name in column (11) of the Securities Schedule attached hereto and
(II) the Investor wishes to purchase, and the Company wishes to sell, upon the
terms and conditions stated in this Agreement, (i) that aggregate principal
amount of senior secured convertible notes of the Company in the form attached
hereto as EXHIBIT A (the "NEW NOTES", and together with the Amended and Restated
Notes, the "NOTES") set forth opposite the Investor's name in column (4) on the
Securities Schedule attached hereto (which aggregate amount for the Investor and
the Other Investors shall be $3,000,000), which shall be convertible into shares
of Common Stock (the "NEW CONVERSION SHARES", and together with the Amended and
Restated Conversion