EXHIBIT 4.4
EXCHANGE RIGHT AGREEMENT
This EXCHANGE RIGHT AGREEMENT (this "Agreement") is dated as of May 8,
2003, by and between LanOptics Ltd., an Israeli company (the "Company"),
E.Z.Chip Technologies Ltd., an Israeli company ("EZchip"), and the investors
listed on Exhibit A attached hereto (each an "Investor" and together the
"Investors").
WHEREAS The Investors are holders of preferred shares of EZchip which is
controlled by the Company and the Company is holding preferred shares and
ordinary shares of EZchip; and
WHEREAS The Company wishes to grant to each of the Investors the right to
exchange its preferred shares in EZchip for Shares to be issued and sold by the
Company, and the Investors wish to be granted such exchange right, all as
further set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereby agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) "CLOSING" shall have the meaning assigned to such term in
Section 3.4 hereof.
(b) "COMMISSION" shall mean the U.S. Securities and Exchange
Commission.
(c) "EFFECTIVE DATE" shall mean the date the Registration
Statement of the Company covering the Shares being subscribed for
hereby is declared effective by the Commission.
(d) "EXCHANGE ACT" shall mean the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
(e) "EXCHANGE NOTICE" shall mean a written notice sent by a Major
Shareholder to the Company and EZchip in which such Major Shareholder
gives irrevocable notice of its desire to exchange all of its shares
in EZchip for Shares.
(f) "EXCHANGE RATIO" shall have the meaning assigned to such term
in Exhibit 1.1(f) attached hereto.
(g) "EXCHANGE RIGHT" shall have the meaning assigned to such term
in Section 2.1.
(h) "GOLDMAN SHAREHOLDERS" shall mean the Xxxxxxx Sachs Group,
Inc., GS EZC Employee Holdings, L.L.C., GS PEP Tech EZC Holdings,
L.L.C., GS PEP 1999 Direct EZC Holdings, L.L.C. and any Permitted
Transferee (as defined in EZchip's Third Amended and Restated Articles
of Association) of any of the foregoing holding shares of EZchip.
(i) "JK&B SHAREHOLDERS" shall mean JK&B Xxxxxx XX LLC, JK&B
Capital III, Civil Law Partnership and any Permitted Transferee (as
defined in EZchip's Third Amended and Restated Articles of
Association) of any of the foregoing holding shares of EZchip.
(j) "MAJOR SHAREHOLDER" shall mean each of the following
shareholder groups: the Goldman Shareholders, JK&B Shareholders, Nokia
Shareholders or Star Shareholders.
(k) "NOKIA SHAREHOLDERS" shall mean Nokia Venture Partners II,
LP, NVP II Affiliates Fund, LP, and any Permitted Transferee (as
defined in EZchip's Third Amended and Restated Articles of
Association) of any of the foregoing holding shares of EZchip.
(l) "PARTICIPATING INVESTOR" shall have the meaning assigned to
such term in Section 3.1.
(m) "PURCHASE AGREEMENT" shall mean the Series C Share Purchase
Agreement dated March 3, 2003, among the Company, EZchip and the Major
Shareholders.
(n) "REGISTRABLE SECURITIES" shall have the meaning assigned to
such term in Section 4.1(a).
(o) "REGISTRATION STATEMENT" shall have the meaning assigned to
such term in Section 4.1(a).
(p) "SECURITIES ACT" shall mean the U.S. Securities Act of 1933,
as amended, and the rules and regulations of the Commission
promulgated thereunder.
(q) "SHARES" or "ORDINARY SHARES" shall mean the Ordinary Shares
of the Company NIS0.02 par value per share that may be purchased
hereunder.
(r) "STAR SHAREHOLDERS" shall mean SVE Star Ventures Enterprises
No. VII, a German Civil Law Partnership (with limitation of
liability); SVM Star Ventures Managementgesellschaft mbH, Nr. 3 & Co.
Beteiligungs KG Nr. 3; SVM Star Ventures Managementgesellschaft mbH,
Nr. 3; SVE Star Ventures Enterprises GmbH & Co. No. VIIa KG; and Star
Seed Enterprise, a German Civil Law Partnership (with limitation of
liability) and any Permitted Transferee (as defined in EZchip's Third
Amended and Restated Articles of Association) of any of the foregoing
holding shares of EZchip.
(s) "TRADING DAY" shall mean (a) any day on which the Ordinary
Shares are traded on the Nasdaq National Market, or (b) if the
Ordinary Shares are not then listed or quoted for trading on the
Nasdaq National Market, then any day on which trading occurs on the
New York Stock Exchange (or any successor thereto).
ARTICLE II EXCHANGE RIGHT OF THE MAJOR SHAREHOLDERS
SECTION 2.1 EXCHANGE RIGHT. Each of the Major Shareholders is hereby
granted the right, subject to the terms and conditions of this Agreement,
to exchange all (but not less than all) of its shares in EZchip for Shares
of the Company (the "EXCHANGE RIGHT").
SECTION 2.2 EXCHANGE RIGHT TERM. The Exchange Right is exercisable by
the Major Shareholders until the earlier of the (i) initial public offering
of EZchip's securities ("IPO"); or (ii) sale of all or substantially all of
EZchip's assets or securities ("SALE").
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SECTION 2.3 METHOD OF EXCHANGE RIGHT EXERCISE. The Exchange Right may
be exercised by any Major Shareholder by the delivery to the Company and
EZchip, during the Exchange Right term specified in Section 2.2, of an
Exchange Notice in the form of Exhibit 2.3. Within 5 business days from
receipt by the Company and EZchip of any Exchange Notice from any Major
Shareholder(s) (each, an "Initiating Shareholder"), the Company shall send
a written notice to the other Major Shareholders, specifying the identity
of the Initiating Shareholder(s). Each such Major Shareholder shall have 10
days to respond to such notice given by the Company (such 15 days period
commencing from the receipt of the Exchange Notice, the "Response Period").
If until the end of the Response Period the Company and EZchip shall
receive an Exchange Notice which, together with all Exchange Notices
previously received during such Response Period (including from the
Initiating Shareholders), constitutes the receipt of Exchange Notices from
at least three (3) Major Shareholders, the Major Shareholder who has not
delivered an Exchange Notice shall automatically be deemed to have
delivered an Exchange Notice and irrevocably agreed to immediately exercise
its Exchange Right according to the terms of Article III. If the Company
and EZchip have received sufficient Exchange Notices to trigger the
compulsory exchange of all Major Shareholders' shares in EZchip for
Ordinary Shares, in accordance with the preceding sentence, the Company
shall also so specify in the written notice. No Major Shareholder shall be
entitled to exercise the Exchange Right, unless the Company and EZchip
shall receive an Exchange Notice which, together with all Exchange Notices
previously received during the applicable Response Period, including from
the Initiating Shareholders, constitutes the receipt of Exchange Notices
from at least two (2) Major Shareholders. If the Company shall have
received such Exchange Notices from at least two (2) Major shareholders,
such Major Shareholders shall be entitled to immediately exercise their
Exchange Right according to the terms of Article III. In such event, the
Company shall also make the Exchange Right available to other preferred
shareholders of EZchip (excluding EZchip employees, other than as set forth
in section 2.5) by offering them to exchange their shares in EZchip in the
same terms set forth in this Agreement. If, on the other hand, at the end
of the Response Period the Company shall not receive an Exchange Notice
from any Major Shareholder(s) other than from one Initiating Shareholder,
then the Exchange Right shall not be triggered, without first again
complying with the procedure described in this Section 2.3 above.
If at any given time during the Exchange Right Term, two (2) out of the four (4)
Major Shareholders (the "Remaining Major Shareholders") have not exercised their
Exchange Right according to this Section 2.3, then, any Exchange Notice given by
a Remaining Major Shareholder that has not previously exercised its Exchange
Right shall constitute the receipt of Exchange Notices from all the Remaining
Major Shareholders and they shall automatically be deemed to have delivered
Exchange Notices and irrevocably agreed to immediately exercise their Exchange
Rights according to the terms of Article III.
SECTION 2.4 Each Major Shareholder agrees and undertakes that if it
gives an Exchange Notice (or is deemed to have given an Exchange Notice
according to Section 2.3 above) within a period in which the Maximum
Additional Closing Amount (as such term is defined in Section 2.3 of the
Purchase Agreement) has not yet been invested, then such Major Shareholder
shall immediately be deemed to exercise its exchange right with respect to
any EZchip Series C Preferred Shares that it may subsequently acquire (if
such Major Shareholder shall subsequently exercise its right according to
Section 2.3 of the Purchase Agreement and when such additional Preferred
Shares are acquired) in any Additional Closing pursuant to Section 2.3 of
the Purchase Agreement. In such event the Exchange Right procedure set
forth in Article III below shall apply with respect to any additional
EZchip Series C Preferred Shares purchased in any Additional Closing
pursuant to Section 2.3 to the Purchase Agreement, immediately upon
consummation of such Additional Closing.
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SECTION 2.5 By executing this Agreement, all the Investors and the
Company hereby waive all of their rights of first offer, first refusal or
any other similar right they may have, with respect to the transfer of the
EZchip Shares contemplated hereunder.
Notwithstanding anything to the contrary in EZchip's Third Amended and Restated
Articles of Association and in the Purchase Agreement or any exhibit thereto, it
is agreed by all Parties hereto that unless otherwise agreed by all Investors
and the Company, (i) an Investor's right to exchange shares of EZchip with
Shares of the Company shall only be made according to the terms of this
Agreement, (ii) an Investor shall not sell or otherwise transfer any of its
shares to the Company other than pursuant to the terms of this Agreement, and
(iii) the Company shall not exchange any of its shares with any employee of
EZchip holding securities in EZchip unless it has previously exchanged the
Shares with all the Major Shareholders according to the terms of this Agreement.
SECTION 2.6 The consummation of the Exchange Right, and the Purchase
of Shares by the Major Shareholders (or by at least two of the Major
Shareholders, as applicable) , shall take place as soon as possible after
the Exchange Notice, and in accordance with the procedure set forth in
Article III below.
ARTICLE III PURCHASE AND SALE OF SHARES; REPRESENTATIONS OF COMPANY
SECTION 3.1 PURCHASE AND SALE OF SHARES. Subject to the terms and
conditions of this Agreement, each Investor that exercises (or is deemed to
exercise) the Exchange Right (the "PARTICIPATING INVESTOR") agrees,
severally and not jointly, to purchase at the Closing (as defined below),
and the Company agrees to issue and sell to each Participating Investor at
the Closing, that number of ordinary shares of the Company, NIS 0.02 par
value per share (the "ORDINARY SHARES"), obtained by multiplying all of
such Investor's shares in EZchip by the Exchange Ratio, and rounded to the
nearest whole number (the Exchange Right may not be exercised for
fractional shares).
SECTION 3.2 CONSIDERATION. In consideration for the Shares, each
Participating Investor agrees, severally and not jointly, to transfer to
the Company all of its Series A Preferred Shares (if any), Series B
Preferred Shares (if any), Series C Preferred Shares (if any), Ordinary
Shares (if any) and any other class of shares of EZchip, NIS 0.01 nominal
value per share (collectively, the "EZCHIP SHARES").
SECTION 3.3 SHARE CERTIFICATES. Against transfer of the EZchip Shares
by the Participating Investors to the Company, at the Closing the Company
shall issue a Share Certificate to each Participating Investor indicating
the number of Shares purchased by such Participating Investor.
SECTION 3.4 CLOSING. The purchase and sale of the Shares (the
"CLOSING") shall take place at the offices of Naschitz, Xxxxxxx & Co., 0
Xxxxx Xxxxxx, Xxx Xxxx 00000 Israel, within three (3) business days of
attainment of all of the following (the "CLOSING DATE"; it is agreed that
the Closing Date shall not be later than 10 days from the end of the
Response Period):
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(a) the deposit by the Investors in escrow with Naschitz, Xxxxxxx
& Co. of duly executed, but undated, share transfer deeds with respect
to the applicable EZchip Shares, to be held in trust by Naschitz,
Xxxxxxx & Co. and released at the Closing and the deposit by the
Company with Naschitz, Xxxxxxx & Co of Shares certificates
representing the number of Shares purchased by the Participating
Investor(s);
(b) delivery to the Participating Investors of an opinion of
legal counsel to the Company in the form attached hereto as Exhibit
3.4(b);
(c) the expiration of the waiting period pursuant to NASDAQ Rule
4320(e)(15), if applicable; and
Each party shall deliver all documents, instruments and writings
required to be delivered by such party pursuant to this Agreement at
or prior to the Closing Date.
SECTION 3.5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as
disclosed in Exhibit 3.5 to this Agreement, the Company hereby represents
and warrants to the Investors as of the date hereof as follows:
(a) The Company is a company duly incorporated and validly
existing under the laws of Israel. This Agreement constitutes, or
shall constitute when executed and delivered, a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms. Without limiting the generality of the
foregoing, the Company knows of no reasons why it will not be able to
register the Registrable Securities as provided in Article IV.
(b) The Company is authorized to issue the Shares pursuant to
this Agreement, and the same shall be issued free and clear of any and
all liens, encumbrances, security interests and claims of any kind and
nature, and no third party holds any right or interest (beneficial,
voting or otherwise) in the Shares. The Shares when issued and paid
for as provided herein will be fully-paid and non-assessable.
(c) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement
and the fulfillment of the terms of this Agreement have been duly
authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any contract,
indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or
agreement to which the Company is a party or by which it may be bound,
or to which any of the property or assets of the Company is subject,
and will not trigger anti-dilution rights or other rights to acquire
additional equity securities of the Company, nor will such action
result in any violation of the provisions of the articles of
association of the Company or any applicable statute, law, rule,
regulation, ordinance, decision, directive or order.
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(d) For the three (3) years preceding the date hereof, the
Company has timely filed all reports, schedules, forms, statements and
other documents required to be filed by it with the Commission
pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to Section 13(a) or 15(d) of the Exchange Act
(all of the foregoing including filings incorporated by reference
therein being referred to herein as the "COMMISSION DOCUMENTS"). The
Company has not provided to the Investors any information which,
according to applicable law, rule or regulation, should have been
disclosed publicly by the Company but which has not been so disclosed,
other than with respect to the transactions contemplated by this
Agreement. The Form 20-FA for the year ended December 31, 2001, as
amended, complied in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and the said Form 20-F did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The financial statements of the Company
included in the Commission Documents comply as to form in all material
respects with applicable accounting requirements and the published
rules and regulations of the Commission applicable thereto or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with Israeli generally
accepted accounting principles ("GAAP") applied on a consistent basis
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 not include
footnotes or may be condensed or summary statements), and fairly
present in all material respects the financial position of the Company
and its subsidiaries as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments,
not material in amount).
(e) The Company meets the eligibility requirements for the use of
Form F-3 for the registration of securities in a transaction involving
secondary offerings.
(f) The Company has no contract, arrangement or understanding
with any broker, finder or similar agent with respect to the issuance
of the Shares to the Investors and transfer of the EZchip Shares, as
contemplated by this Agreement.
(g) Capitalization.
(i) The authorized share capital of the Company consists of
30,000,000 Ordinary Shares.
(ii) As of the date hereof, the issued and outstanding share
capital of the Company consists of 8,467,285 Ordinary Shares. The
issued and outstanding Ordinary Shares of the Company have been
duly authorized and validly issued, are fully paid and
non-assessable and have not been issued in violation of and are
not otherwise subject to any preemptive or other similar rights.
(iii) The Company has reserved 397,100 Ordinary Shares for
issuance upon the exercise of share options granted or available
for future grant under the Company's employee incentive share
option plans (the "Plans").
With the exception of the foregoing, there are no outstanding subscriptions,
options, warrants, convertible or exchangeable securities or other rights
granted to or by the Company to purchase Ordinary Shares or other securities of
the Company and there are no commitments, plans or arrangements to issue any
Ordinary Shares or any security convertible into or exchangeable for Ordinary
Shares.
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(h) Issuance, Sale and Delivery of the Shares.
(i) The issuance of the Shares is not subject to preemptive
or other similar rights or antidilution rights. Except as set
forth in this Agreement, no further approval or authority of the
shareholders or the Board of Directors of the Company will be
required for the issuance and sale of the Shares to be sold by
the Company as contemplated in this Agreement. Except as set
forth in this Agreement, the Company is not required to obtain
any consent, approval, license, permit or authorization of, or
make any declaration, filing or registration with, any third
party or any governmental or regulatory authority in connection
with (a) the execution and delivery of this Agreement and for the
issuance and sale of the Shares to be sold by the Company as
contemplated in this Agreement, and (b) the consummation of the
transactions contemplated hereby.
(ii) Neither the Company nor any of its subsidiaries or
affiliates, nor any Person acting on its or their behalf, (x) has
engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection
with the offer or sale of the Shares, (y) has, directly or
indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under any circumstances that
would require registration of the Shares under the Securities Act
or (z) has issued any Ordinary Shares or other securities or
instruments convertible into, exchangeable for or otherwise
entitling the holder thereof to acquire Ordinary Shares which
would be integrated with the sale of the Shares to such Purchaser
for purposes of the Securities Act or of any applicable
stockholder approval provisions, including, without limitation,
under the rules and regulations of The Nasdaq Stock Market, nor
will the Company or any of its subsidiaries or affiliates take
any action or steps that would require registration of any of the
Shares under the Securities Act or cause the offering of the
Shares to be integrated with other offerings. Assuming the
accuracy of the representations and warranties of the Investors
in Section 3.2 hereof, the offer and sale of the Shares by the
Company to the Investors pursuant to this Agreement will be
exempt from the registration requirements of the Securities Act.
(i) NO MATERIAL CHANGE. Since December 31, 2002,
(i) there has not been any change, event or development
having, or that could be reasonably expected to have,
individually or in the aggregate, a material adverse effect on
the condition, financial or otherwise, or the earnings, assets or
business affairs of the Company and its subsidiaries taken as a
whole;
(ii) other than the transactions contemplated by this
Agreement, there have been no transactions entered into by the
Company other than those in the ordinary course of business which
are material with respect to the Company;
(iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its share
capital; and
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(iv) the Company has no new material contingent obligations.
(j) TRANSFER TAXES. The Company shall be liable for, and shall
pay when due, any transfer, documentary, registration, stamp, value
added or other similar taxes (other than income taxes) payable by
reason of the transactions contemplated by this Agreement or
attributable to the initial sale to the Investors of the Shares.
(k) MISCELLANEOUS
(i) There is no litigation, judgment, or statute prohibiting
the sale of the Shares to the Participating Investors as such
sale is contemplated pursuant to the terms of the Agreement;
(ii) The Company's Ordinary Shares are listed on the Nasdaq
SmallCap Market and TA Stock Exchange and the Company has not
received a cease trading or de-listing order or a de-listing
warning from the Nasdaq SmallCap Market or the TA Stock Exchange
with respect to its securities; and
(iii) The Company shall cause the issuance of the Shares to
the Investors pursuant to the terms of the Agreement.
SECTION 3.6 The Company shall update the representations set forth in
Section 3.5 above after receiving an Exchange Notice from at least two
Major Investors and prior to the Closing date. In addition, the Company
shall notify the Major Investors, within 10 days from the publication of
its annual financial statements, of any change in any of the
representations set forth in Section 3.5 above which materially and
adversely affects the business, condition (financial or otherwise), or
results of operations of the Company.
ARTICLE IV REGISTRATION AND ACCREDITED INVESTOR RIGHTS AND OBLIGATIONS
SECTION 4.1 REGISTRATION STATEMENT.
(a) FILING AND EFFECTIVENESS. The Company will file as soon as
commercially practicable after each Closing, and in any event no later
than five (5) business days after each Closing Date, a Form F-3 (or if
not eligible at such time to file Form F-3, a Form F-1) registration
statement with the Commission (the "REGISTRATION STATEMENT"), for
non-underwritten resale into the open market or in privately
negotiated transactions of the Shares (the "REGISTRABLE SECURITIES")
by the Participating Investors or by the limited or general partners
of the Participating Investors to whom the shares have been
distributed. Once filed, the Company shall use best efforts to cause
such Registration Statement registering the Registrable Securities to
be declared effective within ninety (90) days from the Closing Date.
The Company will notify the Participating Investors and its transfer
agent of the effectiveness of the Registration Statement within three
(3) Trading Days of such event.
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(b) LIQUIDATED DAMAGES FOR FAILURE TO REGISTER. In the event that
the Registration Statement is not declared effective by the Commission
within one hundred and twenty (120) days from the Closing Date (the
"REGISTRATION DEFAULT"), then the Company will pay to the
Participating Investors, pro rata among themselves, as liquidated
damages and not as a penalty, during any period in which the
Registration Default is occurring, US$86,513 per calendar week, or a
pro rata amount for a portion thereof until the Registration Default
no longer exists ("LIQUIDATED DAMAGES"). Such payment of the
Liquidated Damages shall be made to the Participating Investors upon
five (5) Trading Days' irrevocable notice to the Participating
Investors, in cash, on the last day of each week during which the
Registration Default occurred or was continuing, without demand
therefor by the Investors; PROVIDED, HOWEVER, that the payment of the
Liquidated Damages shall not relieve the Company from its obligations
to register the Shares pursuant to this Section. Notwithstanding the
foregoing, if the Company furnishes to the Participating Investors a
certificate signed by the President of the Company describing in
reasonable detail any circumstances outside of the control of the
Company which have delayed or may delay the filing of the Registration
Statement (which circumstances shall not include delay on the part of
the SEC in responding to submissions filed by the Company if such
delay could reasonably have been anticipated), the time period
referred to in the first sentence of this subsection (b) shall be
extended by the number of days during which such circumstances
prevail.
(c) EFFECTIVENESS PERIOD. The Company will maintain the
Registration Statement effective under the Securities Act until the
earlier of (i) the date that all of the Shares have been sold pursuant
to such Registration Statement, (ii) the date the Participating
Investors receive an opinion from counsel to the Company, which
counsel shall be reasonably acceptable to the Investors, that the
Shares may be sold under the provisions of Rule 144 without limitation
as to volume, or (iii) the date that all Shares have been otherwise
transferred to persons who may trade such Shares without restriction
under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such Shares not bearing
a restrictive legend, or (iv) twenty-four (24) months from the
Effective Date. Notwithstanding the foregoing, if the Company
furnishes to the Investors a certificate signed by the President of
the Company stating (x) that there shall have occurred any event, or
there shall exist any circumstances, which would require the
disclosure of material non-public information that the Company has a
reasonable justification for keeping confidential, or (y) that there
shall have occurred any event which makes any statement made in the
Registration Statement, the Prospectus forming a part thereof, or any
document incorporated therein by reference untrue or which requires
the making of any changes in such Registration Statement, Prospectus
or incorporated document so that they will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, the Participating Investors shall forthwith
discontinue disposition of the Shares covered by such Registration
Statement until such Investors shall be in receipt of written notice
from the Company to the effect that use of the Registration Statement
or Prospectus may be resumed and shall have been furnished copies of
any amended or supplemented Registration Statement or Prospectus or
incorporated documents, as the case may be. In the event that the
Company shall furnish a certificate as contemplated by the previous
sentence suspending the use of the Registration Statement or
Prospectus, the time period referred to in clause (iv) of the first
sentence of this subsection (c) shall be extended by the number of
days during the period from and including the date of giving such
notice to and including the date when the Participating Investors
shall have received the copies of the amended or supplemented
Registration Statement or Prospectus or incorporated documents, as the
case may be.
(d) ADDITIONAL ACTIONS IN CONNECTION WITH THE REGISTRATION
STATEMENT. In addition to the foregoing, the Company shall:
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(i) promptly furnish to the Participating Investors with
respect to the Shares registered under the Registration Statement
such reasonable number of copies of the Prospectus, including any
supplements to or amendments of the Prospectus, and, upon
request, the Preliminary Prospectus, in order to facilitate the
public sale or other disposition of all or any of the Shares by
the Investors;
(ii) during the period when copies of the Prospectus are
required to be delivered under the Securities Act or the Exchange
Act, will file all documents required to be filed with the
Commission pursuant to Section 13 or 15 of the Exchange Act
within the time periods required by the Exchange Act and the
rules and regulations promulgated thereunder;
(iii) timely file documents required of the Company for
customary state level securities law clearance in all states
requiring such clearance;
(iv) bear all expenses in connection with the procedures in
this Section 4.1 and the registration of the Shares pursuant to
the Registration Statement, but not including any fees and
expenses of any advisers to the Participating Investors or
brokerage fees and commissions incurred by the Participating
Investors;
(v) not allow any shareholders other than the Participating
Investors and any other shareholder of EZchip which have elected
to exchange their EZchip Shares with Shares in accordance with
the terms of this Agreement, to include their shares in the
Registration Statement other than investors in a private
placement contemplated by the Company of shares having a market
value of not more than approximately $20,000,000, whose inclusion
will not delay the filing of the Registration Statement or affect
the full registration of all Participating Investors' Shares; and
(vi) provide the Participating Investors with a copy of the
Registration Statement at least two (2) business days prior to
filing such Registration Statement and allow the Participating
Investors' counsel to comment on and to approve any information
in the Registration Statement relating to such Participating
Investor; provided, however, that the five (5) day deadline and
the 90 day deadlines in Section 3.1(a), and the 120-day deadline
in Section 3.1(b) shall be extended by the number of days past
the second business day that the filing of such Registration
Statement is delayed due to the rights of Participating
Investors' counsel to approve the aforementioned information in
the Registration Statement.
SECTION 4.2 INVESTORS REPRESENTATIONS.
(a) EZCHIP SHARES. Each Investor represents and warrants that the
EZchip Shares indicated next to its name on Exhibit A are fully-paid
and non-assessable and are owned by it, free and clear of any and all
liens, encumbrances, security interests and claims of any kind and
nature, and no third party holds any right or interest (beneficial,
voting or otherwise) in such EZchip Shares.
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(b) AUTHORITY. Each Investor represents and warrants that it has
full power and authority to enter into and consummate the transactions
contemplated by this Agreement, and the consent of no other party or
entity is necessary for the consummation of the transactions
contemplated herein other than as set forth herein.
(c) BROKERS. Each Investor represents and warrants that it has no
contract, arrangement or understanding with any broker, finder or
similar agent with respect to the issuance of the Shares to the
Investors and transfer of the EZchip Shares, as contemplated by this
Agreement.
(d) INVESTOR STATUS DECLARATION. Each Investor represents and
warrants that it is an Accredited Investor within the meaning of Rule
501 of Regulation D promulgated under the Securities Act, and each
Investor represents and warrants that it understands that an
investment in the Shares involves a high degree of risk, including a
risk of total loss of such Investor's investment, that it has such
knowledge and experience as to be capable of evaluating the merits and
risks of its investment in the Shares.
(e) PURCHASE ENTIRELY FOR OWN ACCOUNT. Each Investor represents
and warrants that it is acquiring the Shares for investment and for
Investor's own account (and if such Investor is acquiring the Shares
in beneficiary - for its beneficiary's own account), not as a nominee
or agent, and not with a view to the resale or distribution (other
than to its general and limited partners) of any part thereof, and
except as aforesaid Investor has no present intention of, or any
arrangement or understanding with any other Persons with respect to,
selling, granting any participation in, or otherwise distributing the
same, PROVIDED that nothing in this section shall constitute an
agreement by Investor to hold or refrain from disposing of the Shares
for any amount of time, except as set forth in Section 4.1, and
PROVIDED FURTHER, that any transfer, sale or other disposition of the
Shares by Investor shall comply in all respects with the requirements
of the Securities Act and similar provisions of state law. Investor
does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation
to such person or to any third person, with respect to any of the
Shares.
(f) RESTRICTED SECURITIES. Each Investor understands that the
Shares have not been, and will not at the time of sale and issuance by
the Company be, registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities
Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of Investor's representations
as expressed herein. Each Investor understands that the Shares are
"restricted securities" under applicable U.S. federal and state
securities laws and regulations, and that pursuant to these laws,
Investors must hold the Shares indefinitely unless the Shares are
registered with the Commission and qualified by necessary state
authorities or an exemption from such registration and qualification
requirements is available. Each Investor further acknowledges that if
an exemption from registration or qualification is available, it may
be conditioned on various requirements including, but not limited to,
the time and manner of sale, the holding period for the Shares, and
requirements relating to the Company which are outside of Investor
control and which the Company is under no obligation, except as set
forth herein, to satisfy.
(g) INFORMATION. Each Investor acknowledges that (i) it has been
furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale
of the Shares which have been requested by the Investor; (ii) it has
not relied upon any representations or other information (whether oral
or written) other than as set forth in the representations and
warranties of the Company contained herein and the Commission
Documents, (iii) it has been afforded the opportunity to ask questions
of, and receive answers from, the Company, all of which questions were
answered to such Investor's satisfaction; (iv) it has sought such
accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its acquisition
of the Shares; (v) it understands that it (and not the Company) shall
be responsible for Investor's own tax liabilities that may arise as a
result of this investment or the transactions contemplated by this
Agreement; (vi) it has reviewed the Company's Annual Report on Form
20-F for the year ended December 31, 2001, and with Reports on Form
6-K filed since December 31, 2001, all as filed with the SEC; and
(vii) it understands that an investment in the Company may be
considered as a high-risk investment, and the Investor nevertheless
has voluntarily agreed to consummate the investment.
11
(h) DISCLOSURES TO THE COMPANY. Each Investor understands that
the Company is relying on the statements contained herein to establish
an exemption from registration under federal and state securities
laws. Such Investor will promptly notify the Company of any changes in
the information set forth in the Registration Statement regarding such
Investor.
SECTION 4.3 INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. In the event of a registration of
any Shares pursuant to this Article IV, the Company will indemnify and
hold harmless the Participating Investors and each officer, director,
employee and agent of each of the foregoing, against any expenses,
losses, claims, damages or liabilities, joint or several, to which
Participating Investors may become subject under the Securities Act,
any state securities law or otherwise, including any of the foregoing
incurred in settlement of any litigation, commenced or threatened,
insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained,
on the Effective Date thereof, in any registration statement under
which such Shares are registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading;
PROVIDED, HOWEVER, that the Company will not be liable in any such
case to a Participating Investor to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, said preliminary
prospectus or said prospectus or said amendment or supplement in
reliance upon and in conformity with written information furnished in
writing to the Company by or on behalf of such Participating Investor
specifically for use in the preparation thereof and, PROVIDED,
FURTHER, that the Company will not be liable in any such case to the
extent that any such expense, loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, said preliminary prospectus or said prospectus has been
corrected in an amendment or supplement thereto and if, having
previously been furnished by or on behalf of the Company with copies
of the registration statement, preliminary prospectus or prospectus as
amended or supplemented the Participating Investors fail to deliver
such amended or supplemented registration statement, preliminary
prospectus or prospectus in connection with the sale of Shares to any
person asserting such expense, loss, claim, damage or liability.
12
(b) INDEMNIFICATION BY THE PARTICIPATING INVESTORS. In the event
of any registration of any Shares under the Securities Act pursuant to
this Article IV, each Participating Investor, severally and not
jointly, will indemnify and hold harmless the Company, each officer of
the Company who signs the registration statement, and each director of
the Company and all other Participating Investors and each of their
officers or directors against any and all such expenses, losses,
claims, damages or liabilities referred to in the first paragraph of
this Section 4.3, if the statement, alleged statement, omission or
alleged omission in respect of which such expense, loss, claim, damage
or liability is asserted was made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf
of such Participating Investor specifically for use in connection with
the preparation of such registration statement, preliminary
prospectus, prospectus, amendment or supplement; PROVIDED, FURTHER,
that such Participating Investor will not be liable in any such case
to the extent that any such expense, loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, said preliminary prospectus or said prospectus has been
corrected in an amendment or supplement thereto and if, having
previously been furnished by or on behalf of the Company with copies
of the registration statement, preliminary prospectus or prospectus as
amended or supplemented the party seeking indemnification fails to
deliver such amended or supplemented registration statement,
preliminary prospectus or prospectus in connection with the sale of
Shares to any person asserting such expense, loss, claim, damage or
liability; and PROVIDED, FURTHER, that in no event shall the liability
of a Participating Investor exceed the amount of net proceeds received
by such Participating Investor from the offering under such
registration statement..
(c) INDEMNIFICATION PROCEDURE. Each party entitled to
indemnification under this Section 4.3 (the "INDEMNIFIED PARTY") shall
give notice to the party required to provide indemnification (the
"INDEMNIFYING PARTY") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting thereon, PROVIDED that the Indemnified
Party may participate in such defense at its own expense, and PROVIDED
FURTHER that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 4.3 except to the extent such failure
resulted in actual detriment to the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as
an Indemnifying Party may reasonably request in writing and as shall
be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
ARTICLE V ADDITIONAL COVENANTS
SECTION 5.1 TRANSFER RESTRICTIONS.
(a) Each Participating Investor shall not sell or otherwise
dispose of the LanOptics Shares held by it except as follows: (i)
one-third of the LanOptics Shares may be sold or otherwise disposed of
at any time following the Closing Date, (ii) an additional one-third
of the LanOptics Shares may be sold or otherwise disposed of at any
time beginning ninety (90) days after the Closing Date, and (iii) the
remaining one-third of the LanOptics Shares may be sold or otherwise
disposed of at any time beginning one hundred and eighty (180) days
after the Closing Date. Notwithstanding the foregoing, (i) until such
time as the Registration Statement referred to in Section 4.1 is
declared effective, the Participating Investors shall not make any
sales except to affiliated entities or QIBs under Rule 144A, or
pursuant to an exemption from the registration requirements of the
United States federal securities laws, and (ii) the Participating
Investors shall be entitled to sell their shares without volume or
time restriction in connection with a third party's acquisition or
proposed acquisition of the Company, tender offer for, merger or
change of control of, the Company.
13
(b) The Investors agree to the imprinting, so long as is required
by this Section 5.1, of the following legend (the "LEGEND") on any
certificate evidencing Shares:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR, REASONABLY ACCEPTABLE TO
THE COMPANY, TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY.
(c) Certificates evidencing the Shares shall not contain any
legend (including the legend set forth in Section 5.1(b)), (i) while a
registration statement covering the resale of such security is
effective under the Securities Act, or (ii) following any sale of such
Shares pursuant to Rule 144, or (iii) if such Shares are eligible for
sale under Rule 144(k), or (iv) if such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the Staff of the
Commission).
SECTION 5.2 The Company will use best efforts to list the Shares for
trading on the Nasdaq system or any relevant market or system, if
applicable.
ARTICLE VI MISCELLANEOUS
SECTION 6.1 EFFECTIVENESS. This Agreement shall be effective only upon
consummation of the following condition precedents, to the reasonable
satisfactory of the Investors holding majority of the EZchip Shares: (i)
the receipt of approvals from the Office of the Chief Scientist of Israel
and the Israel Investment Center to the transactions contemplated by this
Agreement, (ii) the receipt of approval of the board of directors of EZchip
for the transfer of the EZchip Shares to the Company as contemplated by
this Agreement, and (iii) the receipt of approval of the Board of Directors
of the Company for the transactions contemplated hereunder. The Company and
EZchip, as the case may be, agree to use their reasonable best efforts to
cause the satisfaction of the conditions set forth above.
SECTION 6.2 FEES AND EXPENSES. Each party will pay its own fees and
expenses related to the transactions contemplated by this Agreement.
SECTION 6.3 CONSENT TO JURISDICTION AND GOVERNING LAW. Each of the
Company and Investors (i) hereby irrevocably submit to the exclusive
jurisdiction of the appropriate courts in Tel Aviv, Israel for the purposes
of any suit, action or proceeding arising out of or relating to this
Agreement and (ii) hereby waives, and agrees not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of such court, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Each of the Company and each of the Investors
consent to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing in this
Section shall affect or limit any right to serve process in any other
manner permitted by law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Israel, without giving
effect to the choice of law provisions thereof.
14
SECTION 6.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire understanding of the parties with respect to the matters covered
hereby and, except as specifically set forth herein, neither the Company
nor Investors makes any representations, warranty, covenant or undertaking
with respect to such matters. The parties hereto may not amend this
Agreement or any rights or obligations hereunder without the prior written
consent of the Company, EZchip and all Major Shareholders.
SECTION 6.5 NOTICES. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in
writing and shall be effective (a) upon hand delivery, by telecopy or
facsimile at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is to be received) or (b) on the second business day following the date of
dispatch by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such dispatch, whichever shall first
occur. The addresses for such communications shall be:
If to the Company: LanOptics Ltd.
0 Xxxxxxx Xxxxxx
X.X.Xxx 000
Xxxxxxx 00000, Xxxxxx
Tel. No.: (972)-4-959 6666
Fax No.: (972)-4-959 4166
Attention: CFO
If to the Investors: To the address and fax number indicated on Exhibit A
hereof.
Any party hereto may from time to time change its address for notices by
giving at least ten (10) days written notice of such changed address to the
other party hereto.
SECTION 6.6 WAIVERS. No provision of this Agreement may be waived
other than by a written instrument signed by the party against whom
enforcement of any such waiver is sought. No waiver by either party of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any other provisions, condition or requirement hereof, nor shall
any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right accruing to it thereafter.
15
SECTION 6.7 HEADINGS. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of
this Agreement for any other purpose and shall not be deemed to limit or
affect any of the provisions hereof.
SECTION 6.8 SUCCESSORS AND ASSIGNS. Investors may not assign this
Agreement to any person (except for assignment to Permitted Transferees or
to any third party acquiring all applicable Major Shareholder's
shareholdings, or at least 50% of such holdings) without the prior consent
of the Company, which consent will not be unreasonably withheld. This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns.
SECTION 6.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the
same instrument.
SECTION 6.10 SEVERABILITY. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a
provision of this Agreement, and this Agreement shall be reformed and
construed as if such invalid or illegal or unenforceable provision, or part
of such provision, had never been contained herein, so that such provisions
would be valid, legal and enforceable to the maximum extent possible.
SECTION 6.11 FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of the Investors or the Company, each of the
Company and the Investors shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of
this Agreement.
SECTION 6.12 "BLUE SKY" LAWS. In connection with the issuance of the
Shares pursuant to this Agreement and any intended disposition of the
Shares by the Participating Investors pursuant to the Registration
Statement referred to in Article IV hereof, the Company will use its
reasonable best efforts to register or qualify all Shares under such state,
local or foreign securities or "blue sky" laws of such jurisdictions as the
Participating Investors shall reasonably request, and do any and all other
acts and things that may be reasonably necessary to enable the sale of the
Shares to the Participating Investors or to consummate the disposition by
the Participating Investors of Shares pursuant to the Registration
Statement; PROVIDED, HOWEVER, that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in respect of doing business in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction.
SECTION 6.13 It is acknowledged that the Investors or any of them,
have entered into that certain Series C Share Purchase Agreement dated
March 3, 2003 (the "Purchase Agreement"), based on their ability to
exchange their shares in EZchip for Shares of the Company.
16
(a) The Company has taken and will take, all necessary actions in
order to fulfill all its obligations under this Agreement and
consummate the Exchange Right in the manner, procedure and the time
table set forth in this Agreement. In the event that the Company shall
fail to consummate the Exchange Right after such right was triggered
in the manner and procedure set forth in this Agreement,
notwithstanding any other remedy applicable to the Participating
Investor, the Company shall pay to each Participating Investor, as an
agreed liquidated damages, one and half times (x1.5) the amount
actually invested by such Participating Investor in EZchip in
consideration for the Series C Preferred Shares (as contemplated by
the Purchase Agreement) (the "LIQUIDATED DAMAGES").
(b) The Parties acknowledge and agree that the amount of the
Liquidated Damages is reasonable under the circumstances of the
Purchase Agreement and this Agreement.
(c) In the event that the Company shall not be able to consummate
the Exchange Right according to the manner, procedure, time table and
the terms of this Agreement, it shall immediately furnish to the
Participating Investors a certificate signed by the President or the
Chairman of the board of directors of the Company, describing in
reasonable detail any circumstances which have delayed or may delay
the consummation of the Exchange Right by the Company, but shall
continue to make best efforts to consummate the Exchange Right in
accordance with the terms of this Agreement.
(d) The Company shall not be obliged to pay the Liquidated
Damages to the Participating Investors according to section 6.13(a)
above, if it shall not be able to consummate the Exchange Right as a
result of any circumstances which (i) are not under the control of the
Company, and (ii) are not the fault of the Company or any party
related to the Company, and (iii) make the consummation of the
Exchange Right impossible or cause such delay. It is agreed that the
term "impossible" under this Section 6.13(d) does not include any
difficulty, expense or loss.
[remainder of page intentionally left blank]
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officer as of the date first above
written.
E.Z.CHIP TECHNOLOGIES LTD. LANOPTICS LTD.
By: ___________________________ By: ______________________________
Name: ___________________________ Name: ______________________________
Title: ___________________________ Title: ______________________________
JK&B XXXXXX XX LLC
By: JK&B Capital, L.L.C.
Its: Manager
By: _____________________
Xxxxxxxxx Xxxxxx, its Member
JK&B CAPITAL III, CIVIL LAW PARTNERSHIP
By: JK&B Capital, L.L.C.
Its: Managing Partner
By: ______________________
Xxxxxxxxx Xxxxxx, its Member
18
SVE STAR VENTURES ENTERPRISES NO. VII,
A GERMAN CIVIL LAW PARTNERSHIP
(WITH LIMITATION OF LIABILITY) ("SVE VII")
By: SVM Star Ventures Managementgesellschaft
mbH Nr. 3
Its: Managing Partner
By: ______________________________
Name: Xxxx Xxxxx
Its: Managing Director
SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH,
NR. 3 & CO. BETEILIGUNGS KG NR. 3 ("SVE VIII")
By: SVM Star Ventures Managementgesellschaft
mbH Nr. 3
Its: Managing Partner
By: ______________________________
Name: Xxxx Xxxxx
Its: Managing Director
STAR SEED ENTERPRISE, A GERMAN CIVIL LAW
PARTNERSHIP (WITH LIMITATION OF LIABILITY)
("STAR SEED")
By: Star Seed Managementgesellschaft mbH
Its: Managing Partner
By: ______________________________
Name: Xxxx Xxxxx
Its: Managing Director
SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH,
NR. 3
By: ______________________________________
Its: ______________________________________
By: ______________________________
Name: Xxxx Xxxxx
Its: Managing Director
SVE STAR VENTURES ENTERPRISES GMBH & CO. NO.
VIIA KG
By: ______________________________________
Its: ______________________________________
19
THE XXXXXXX SACHS GROUP, INC.
By: _____________________
Name:
Title:
GS EZC EMPLOYEE HOLDINGS, L.L.C.
By: GS Employee Funds 2000 GP, L.L.C.
Its: Managing Member
By: ______________________
Name:
Title:
GS PEP TECH EZC HOLDINGS, L.L.C.
By: GSAM Gen-Par, L.L.C.
Its: Managing Member
By: ______________________
Name:
Title:
GS PEP 1999 DIRECT EZC HOLDINGS, L.L.C.
By: GSAM Gen-Par, L.L.C.
Its: Managing Member
By: ______________________
Name:
Title:
NOKIA VENTURE PARTNERS II, LP
By: _____________________________
Name: _____________________________
Title: _____________________________
NVP II AFFILIATES FUND, LP
By: ______________________________
Name: ______________________________
Title: ______________________________
20
