Final Execution Copy
Exhibit 4.4
AMENDMENT
This Amendment (the "Amendment") to the Option Agreement (as defined
below) is entered into as of August 7, 2003, by and among (i) Crystal Systems
Solutions Ltd., a public company organized under the laws of the State of Israel
and registered under No. 00-000000-0 ("Crystal"), and (ii) (a) The Israel
Mezzanine Fund L.P., a limited partnership formed under the laws of the State of
Delaware (the "Delaware Fund"), (b) The Israel Mezzanine Fund (In Israel),
Limited Partnership, a limited partnership organized under the laws of the State
of Israel (the "Israeli Fund") and (c) The Jordan (Bermuda) Investment Company
Ltd. (the "Trust" and, collectively with the Delaware Fund and the Israeli Fund,
the "Fund") acting through their authorized representative, First Israel
Mezzanine Investors Ltd., a company organized under the laws of the State of
Israel ("FIMI").
WITNESSETH
WHEREAS, Crystal and the Fund have entered on January 11, 2001 into an
Option Agreement (the "Option Agreement") in connection with the purchase by the
Fund of certain convertible Notes (as defined in the Option Agreement) issued by
Intercomp Ltd., a private Israeli company (registration No. 51-233623-1)
("Intercomp"); and
WHEREAS, the parties wish to amend certain terms in the Option Agreement,
as set forth in this Amendment;
NOW THEREFORE, the parties hereto agree as follows:
Revised Terms of the Put Option
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1. Section 1 of the Option Agreement shall be amended as follows:
The phrase "in accordance with the provisions of Section 6 below"
shall be replaced with the phrase "as more fully set forth below" and
the phrase "or the Deferred Cash Consideration" shall be added after
the phrase "Cash Consideration" and before "or the Crystal Securities"
in the last sentence.
2. The provisions of the first paragraph in Section 2 of the Option
Agreement shall be deemed to apply to each Put Option Exercise Period.
3. Section 3 of the Option Agreement shall be replaced with the following
paragraph:
"(a) The Fund shall be entitled, upon delivery to Crystal of a Notice
of Exercise of the Put Option, to exercise the Put Option in
three installments, each installment exercisable in whole, in
accordance with the provisions more fully set forth below, during
the thirty (30) day period preceding each of the following dates,
respectively:
(i) June 30 2004;
(ii) June 30 2005; and
(iii) June 30 2006.
Each such 30 day period shall be referred to herein as a "Put
Option Exercise Period".
(b) During each Put Exercise Period, the exercisable portion of the
Put Option ("Portion") shall equal one third of (i) the principal
amount of the Notes, which, as of the date of this Amendment,
equals US$1,166,666.6, plus (ii) the Interest incurred on such
amount according to the terms of the Notes as of the date on
which the Notes were issued to the Fund and until the date of
actual payment of Cash Consideration or Deferred Cash
consideration or the date of issuance of Crystal Securities as
part of the Put Consideration, as applicable, less (iii) any
amount previously paid by Intercomp on account of that Portion of
the Notes.
(c) Within 7 business days following its receipt of a Notice of
Exercise of the Put Option from the Fund, Crystal shall notify
the Fund in writing, as to whether it elects to pay the Fund with
Crystal Securities or Cash Consideration with respect to the
portion of the Put Option being exercised, as more fully set
forth in Section 1 of the Option Agreement.
(d) Deferred Cash Consideration. In the event Crystal elects to pay
the Fund Crystal Securities as the Put Consideration, the
following provisions shall apply:
Notwithstanding the provisions of Section 1 of the Option
Agreement:
(a) Within 7 business days following the receipt of Crystal's notice
of its election to issue Crystal Securities, the Fund shall
notify Crystal in writing whether or not it accepts such Crystal
Securities in satisfaction of payment of the applicable Portion
of the Put Option. Failure by the Fund to deliver such notice
within such 7 business day period, shall be deemed to constitute
consent by the Fund to the receipt of the Crystal Securities.
In the event that the Fund notifies Crystal in writing within the
7 business day period set forth above, that it refuses to receive
Crystal Securities as the Put Consideration, Crystal shall have
to pay the Fund the corresponding Cash Consideration in its
stead, but shall be entitled to defer such payment until
September 30, 2006 (the "Deferred Cash Consideration")."
Notwithstanding the provisions of Section 4 below, in the event
that the Put Consideration shall be in the form of Deferred Cash
Consideration, the Put Closing shall take place on September 30,
2006.
4. The words "the applicable Portion of" shall be added before the words
"the original Notes" in Sub-section 4.1.1 of the Option Agreement.
5. Sub-Section 4.1.2 of the Option Agreement shall be replaced by the
following paragraph:
"In the event of an issuance of Crystal Securities as part of the Put
Consideration in accordance with the terms hereof, Crystal shall issue
and allot to the Fund or to the Fund's designee(s) such Crystal
Securities. In the event that the Funds elect to receive the Cash
Consideration or the Deferred Cash Consideration, Crystal shall
transfer the Cash Consideration or the Deferred Cash Consideration, as
applicable, to the Fund's bank account, by wire transfer of
immediately available funds.".
The words "the applicable Portion of" shall be added before the words
"the Notes" in Section 4.2 of the Option Agreement.
6. Section 5 of the Option Agreement will be revised as follows:
(a) The definition of "W" shall be replaced by the following: "W =
The Portion of the Put Option exercised in accordance with the
provisions of Section 3 above;"
(b) The last paragraph of Section 5 will be deleted.
7. The following language shall be added at the beginning of Section 8A
of the Option Agreement: "The following provisions shall apply before
the end of the last of the Put Option Exercise Periods".
8. Section 9 of the Option Agreement will be revised as follows:
8.1 Subsection 9.1.2 of the Option Agreement shall be deleted.
8.2 Without derogating from the above, in the event of an Accelerated
Exercise pursuant to Section 9 of the Option Agreement, the Fund
shall be entitled to receive the Cash Consideration upon the
exercise of the Put Option. For the avoidance of doubt, the
occurrence of the event described in the now deleted Section
9.1.2 of the Option Agreement shall not entitle the Fund to any
acceleration of its rights under the Option Agreement to receive
cash consideration, Deferred Consideration or Crystal Securities,
as applicable.
9. Additional Provisions
The provisions set forth below will be added to the Option Agreement
as Section 11A:
11A. Warrants
1. With respect to each Portion of the Put Option exercised by the
Fund:
1.1 In the event that the Fund consents to the receipt of
Crystal Securities upon exercise of a Portion (i.e. as part
of the Put Consideration), then, in addition to the
applicable portion of Crystal Securities, Crystal shall
issue to the Fund freely assignable (except to a competitor
of Crystal or its subsidiaries) warrants to purchase 133,000
(One Hundred and Thirty Three Thousand) Ordinary Shares of
Crystal, nominal value NIS 0.01.
Crystal's Ordinary Shares to be issued, pursuant to the
terms and conditions more fully set forth herein, following
the exercise of the Warrants, if any, issued pursuant to
this Sub-section 1.1 may be sold on NASDAQ at any time
following a period of 7 trading days commencing on the date
of exercise of the Warrants, provided that there are no
restrictions on such sale pursuant to applicable securities
laws. Crystal shall not be obligated to issue a registration
statement for the Ordinary Shares underlying the Warrants.
However, upon receipt of a 4 trading day prior written
notice from the Fund, Crystal shall be obligated to include
the Ordinary Shares underlying the Warrants issued pursuant
to this Subsection 1.1, if any, in the registration
statement to be prepared for the Crystal Securities pursuant
and subject to the provisions of the Option Agreement;
1.2 In the event that the Fund elects to receive the Cash
Consideration, then, in addition to such Cash Consideration,
Crystal shall issue to the Fund freely assignable (except to
a competitor of Crystal or its subsidiaries) warrants to
purchase 70,000 (Seventy Thousand) Ordinary Shares of
Crystal nominal value NIS 0.01.
Crystal's Ordinary Shares to be issued following the
exercise of the Warrants pursuant this Subsection 1.2 may be
sold on the NASDAQ at any time following a period of 7
trading days commencing on the date of exercise of the
Warrants, provided that there are no restrictions on such
sale pursuant to applicable securities laws. Crystal shall
not be obligated to issue a registration statement for the
Ordinary Shares underlying the Warrants.
(in each case, the warrants issued to the Fund pursuant to
this Section shall be referred to as the "Warrants").
The number of shares underlying the Warrants and the Warrant
Exercise Price (as defined below) shall be adjusted for any
share splits, issuance of bonus shares, combinations of
shares and distribution of dividends.
2. Exercise of Warrants.
2.1 The exercise price of each Ordinary Share of Crystal
underlying the Warrants will be US $4.00 (four dollars) (the
"Warrant Exercise Price").
2.2 Subject to the provisions hereof, the Warrants may be
exercised in whole or in part, at any time or from time to
time during the period (the "Warrant Exercise Period")
commencing on:
(i) with respect to each Warrant issued pursuant to Section
11.A.1.1. above, the first date on which Crystal
Securities were issued with respect to the respective
Portion exercised;
(ii) with respect to the each Warrant issued pursuant to
Section 11A.1.2 above, the date on which the portion of
the Cash Consideration payable for the respective
Portion exercised was delivered to the Fund, and
(iii) with respect to the each Warrant issued following the
election of the Deferred Cash Consideration, the first
date on which such election was made with respect to
the respective Portion exercised; and terminating, in
each of (i)-(iii) above, on June 30, 2007.
2.3 The Warrants shall be exercised by delivery to Crystal of
the following, by no later than 8:00 p.m. (Israel time) on
the last day of the Warrant Exercise Period:
(i) a written notice of exercise (the "Warrant Exercise
Notice") in the form attached hereto as Exhibit
11A.2.3; and
(ii) payment to Crystal, bank account no. [ ], of the
Exercise Price for the number of Ordinary Shares
specified in the Warrant Exercise Notice, as evidenced
by a copy of the letter of wire instructions delivered
by the Fund to it bank.
2.4 The Exercise Price for the number of Crystal's Ordinary
Shares specified in the Warrant Exercise Notice shall be
payable in immediately available funds. The Fund shall pay
the Exercise Price for the Crystal Ordinary Shares in U.S.
dollars or, at the Fund's discretion, the NIS equivalent
thereof, based on the Representative Rate of Exchange of the
U.S. dollar published by the Bank of Israel known as of the
time of payment.
10. Miscellaneous
10.1 All capitalized terms that are not otherwise defined in this
Amendment shall have the respective meanings attributed to
them in the Option Agreement.
10.2 All other provisions of the Option Agreement which were not
revised by this Amendment shall remain in full force.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their duly authorized representatives as of the date first written
above.
Crystal Systems Solutions Ltd.
By: /s/ Iris Yahal
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Name: Iris Yahal
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Title: CFO
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The Israel Mezzanine Fund, L.P.
By: First Israel Mezzanine Investors Ltd.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CEO
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The Israel Mezzanine Fund (In Israel), Limited Partnership
By: First Israel Mezzanine Investors Ltd.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CEO
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The Jordan (Bermuda) Investment Company Ltd.
By: First Israel Mezzanine Investors Ltd.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CEO
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