EXHIBIT 2.06
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "AGREEMENT") is entered into as of April 28,
2004, by and among (i) BluePhoenix Solutions Ltd. (former name: Crystal Systems
Solutions Ltd.), a public company organized under the laws of the State of
Israel and registered under No. 00-000000-0, of 0 Xxxxxx Xx., Xxxxxxxx ("BPHX"),
and Israel Infinity Venture Capital Fund (Israel) L.P. Israel Infinity Venture
Capital Fund (Delaware) L.P. Israel Infinity Venture Capital Fund (Cayman I)
L.P. Israel Infinity Venture Capital Fund (Cayman II) L.P. , jointly and not
severally, (collectively, "INFINITY").
WITNESSETH
WHEREAS, upon the conditions set forth in this Agreement, BPHX wishes to
issue to Infinity ordinary shares of BPHX to be issued on a future date and in
number calculated in accordance with the terms hereof, as consideration for
Infinity's shares in Intercomp Ltd., all as set forth in this Agreement; and
WHEREAS, BPHX wishes to grant Infinity and Infinity wishes to receive from
BPHX a "put option" to cause BPHX to purchase its shares in Intercomp Ltd. (the
"COMPANY" OR INTERCOMP) in exchange for the BPHX Shares (as defined below),
pursuant to the terms and conditions set forth herein; and
WHEREAS, Infinity whishes to grant BPHX and BPHX wishes to receive a "call
option" to cause Infinity to sell its shares in the Company to BPHX in exchange
for BPHX Shares, pursuant to the terms and conditions set forth herein.
NOW THEREFORE, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. THE PUT OPTION. BPHX hereby grants Infinity a put option exercisable at
Infinity's sole discretion at any time during the Exercise Period (as
defined below) to cause BPHX to purchase the Intercomp shares held by
Infinity as more full described in Exhibit 1 (collectively, the "INTERCOMP
SHARES") which constitute Infinity's entire holdings in the Company
(including warrants, convertible loans and any other securities or
instruments convertible into shares of the Company) as of the date hereof
(the "PUT OPTION"), on the terms and conditions more fully set forth
herein. In consideration for the Intercomp Shares, BPHX shall issue to
Infinity 100,000 Ordinary Shares, nominal value NIS 0.01 each, of BPHX (the
"BPHX SHARES"). For the avoidance of doubt it is hereby clarified that the
Intercomp Shares are the sole consideration to which BPHX shall be entitled
for the issuance to Infinity of the BPHX Shares and the Additional Shares.
The Put Option may be exercisable only in whole, at any time during a
period of one hundred and eighty (180) days commencing on April 1st, 2006,
all upon the terms and conditions more fully set forth below (the "EXERCISE
PERIOD").
2. EXERCISE OF THE PUT OPTION. The Put Option is exercisable by delivery of a
written notice of exercise to BPHX, substantially in the form attached
hereto as EXHIBIT 2 (the "NOTICE OF EXERCISE"). The Notice of Exercise
shall be delivered to BPHX by no later than 8:00 p.m. (Israel time) on the
last day of the Exercise Period.
3. CLOSING. The issuance of the BPHX Shares and the purchase of Intercomp
Shares following the exercise of the Put Option, following the fulfillment
of the conditions set forth in Section 2 herein, shall take place at a
closing (the "CLOSING") to be held at the offices of BPHX, at 10:00 a.m.
local time at 8 Maskit Street, Herzliya, on the latter of (i) the date
which is ten (10) business days following the date of receipt of the Notice
of Exercise by BPHX or (ii) July 17, 2006 or such other date, time and
place as BPHX and Infinity may mutually agree.
3.1 TRANSACTIONS AT CLOSING. At the Closing, the following transactions
shall occur, which transactions shall be deemed to take place
simultaneously and no transaction shall be deemed to have been
completed or any document delivered until all such transactions have
been completed and all required documents delivered:
3.1.1 BPHX shall deliver to Infinity the following documents:
(a) True and correct copies of resolutions of BPHX's Board of Directors
issuing and allotting the BPHX Shares and Additional Shares to Infinity and
approving all other transactions set forth herein substantially in the form
attached hereto as EXHIBIT 3.1.1(A);
(b) duly issued and validly executed share certificates covering the BPHX
Shares and Additional Shares, issued in the name of the respective Infinity
entity in the form customary in BPHX bearing a restrictive legend providing
substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE
BEEN ACQUIRED BY THE HOLDER FOR ITS OWN ACCOUNT, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION OF SUCH SHARES. THE
SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS AND UNTIL SUCH
SHARE ARE REGISTERED UNDER THE ACT OR EXCEPT PURSUANT TO RULE 144 OR
ANOTHER EXEMPTION UNDER THE ACT. IN ANY EVENT AND REGARDLESS OF ANY
EXEMPTION OR REGISTRATION OF THE SHARES, THE SHARES MAY NOT BE SOLD OR
TRANSFERRED PRIOR TO APRIL 1ST, 2006.;
(c) a certificate duly executed by BPHX, signed by BPHX's authorized
officer on behalf of BPHX, dated as of the date of the Closing, in the form
attached hereto as EXHIBIT 3.1.1(D).
3.1.2 Infinity shall deliver to BPHX the following:
(a) A validly executed share transfer deed concerning the transfer of
Intercomp Shares to BPHX, together with the original, executed
share certificates issued by Intercomp in respect of the
Intercomp Shares or a standard affidavit if such share
certificates are unavailable;
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(b) A certificate duly executed by Infinity, signed by Infinity's
authorized officer on behalf of Infinity, dated as of the date of
the Closing, in the form attached hereto as EXHIBIT 3.1.2(B);
(c) Copies of all applicable consents and waivers required of
Infinity by applicable law or regulation in connection with the
transactions contemplated hereby, including without limitation,
any approval required by applicable tax laws or regulation
required prior to the issuance of the BPHX Shares.
3.2 Both Parties shall use their best efforts to obtain a resolution of
the Board of Directors of Intercomp and resolution and waiver of the
shareholders and security holders of Intercomp substantially in the
forms attached hereto as EXHIBITS 3.2(A) AND (B), RESPECTIVELY. In the
event that such resolution of the Board of Directors of Intercomp are
not obtained or such resolution and waivers of the shareholders of
Intercomp are not signed by all shareholders and security holders of
Intercomp who's consent or waiver are required within 45days of the
date hereof or any other term agreed upon by the parties hereto, then
either party shall have the right at its sole discretion to terminate
this Agreement effective immediately upon the expiration of such
period and the Agreement shall be considered null and void.
4. INCREASE OF THE NUMBER OF BPHX SHARES.
4.1 Notwithstanding the provisions of Section 1 of this Agreement, the
number of the BPHX Shares issuable to Infinity in the event of
exercise of either of the Call Option or the Put Option (the Put
Option and the Call Option shall be jointly called, the "OPTION"),
shall be increased by an additional number of BPHX's Ordinary Shares,
nominal value NIS 0.01 each, ("ADDITIONAL SHARES"), according to a
calculation based on the aggregate licensing fees paid to Intercomp
for the Company's products ("INTERCOMP TOOLS") during a 3 year period
commencing on April 1, 2003 (the "SALES TURNOVER"), as more fully set
forth below:
4.1.1 For the first $3,000,000 of Sales Turnover the number of the
Additional Shares shall be equal to the amount obtained by
multiplying (A) the amount of the Sales Turnover divided by
1,000,000 by (B) 10,000. By way of illumination, if the Sales
Turnover equals $500,000, then Infinity shall receive 5,000
Additional Shares and if the Sales Turnover is $100, then
Infinity shall receive 1 Additional Share.
4.1.2 If the Sales Turnover shall exceed $3,000,000 but be less or
equal to $15,000,000, then the number of the Additional Shares
shall be equal to 30,000 plus the amount obtained by multiplying
(A) the amount of the Sales Turnover less 3,000,000 divided by
1,000,000 by (B) 20,000. By way of illumination, if the Sales
Turnover is $10,000,000, then Infinity shall receive 170,000
Additional Shares (i.e. 30,000 Additional Shares for the first
$3,000,000 in Sales Turnover and 140,000 Additional Shares for
the remaining $7,000,000 in Sales Turnover).
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4.1.3 If the Sales Turnover shall exceed $15,000,000, then the number
of the Additional Shares shall be equal to 270,000 plus the
amount obtained by multiplying (A) the amount of the Sales
Turnover less 15,000,000 divided by 1,000,000 by (B) 10,000. By
way of illumination, if the Sales Turnover is $20,000,000, then
Infinity shall receive 320,000 Additional Shares (i.e. 270,000
Additional Shares for the first $15,000,000 in Sales Turnover and
an 50,000 Additional Shares for the remaining $5,000,000 in Sales
Turnover).
4.2 In the event that a license to use Intercomp Tools is sold together
with license to use Crysware for Discovery (CWD), AppBuilder or other
similar software of BPHX and its affiliates sold to new customers, and
the relevant agreement or documentation do not identify the amount
payable as license fees for Intercomp Tools separately from the amount
payable for the other products, then, 25% of the total amount payable
by client under such agreement shall be considered payable for
Intercomp Tools.
4.3 For the avoidance of doubt, it is hereby clarified that the Sales
Turnover of Intercomp (i) shall include all license fees payable for
use in Intercomp Tools, whether such fess obtained directly by
Intercomp or through BPHX; and (ii) shall exclude any fees payable to
broker or finder's fee or any other commission or similar fee, payable
directly or indirectly, on account of any transaction with respect to
Intercomp's sales.
4.4 In the event that (i) BPHX sells all or substantially all of its
holdings In Intercomp; or (ii) Intercomp sells its technology to a
third party, BPHX shall guarantee that the purchaser of its holdings
or of Intercomp's technology, as applicable, shall undertake in
writing to be bound by the obligations and corresponding rights of
this Agreement including, without limitation, the rights specified in
this Section 4 and Section 5 of this Agreement.
4A. REPRESENTATIONS AND WARRANTIES OF INFINITY. Infinity (including all
Infinity's entities jointly and not severally) does hereby, represent and
warrant to BPHX that as of the date hereof and again as of the Closing and
the consummation of the transactions contemplated herein, the following
representations and warranties are and shall be true and accurate in all
material respects:
4A.1 The execution and delivery of this Agreement and the performance of
the transactions contemplated herein have been duly and validly
authorized by Infinity and this Agreement is a valid and binding
obligation of Infinity enforceable in accordance with its terms.
Infinity has the right, power and authority to enter into this
Agreement and to perform the transactions contemplated herein, all
subject to the required approvals, waivers and consents as specified
in this Agreement.
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4A.2 Infinity is an "accredited investor" as defined in Rule 501(a) under
the United States Securities Act of 1933.
4A.3 Infinity fully acknowledges that the BPHX Shares and the Additional
Shares have not been registered under the United States Securities Act
of 1933, as amended, any applicable state securities laws or any
Israeli legal equivalent (collectively, the "SECURITIES LAWS") and the
Securities may not be offered or sold until registered by BPHX in
accordance with the terms hereof except in accordance with an
exemption from the registration or other requirements of the
applicable Securities Laws.
4A.4 Infinity has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an
investment in BPHX. It has the financial ability to bear the economic
risk of the transactions described herein, has adequate means of
providing for its current needs and contingencies, has no need for
liquidity in such investment and could afford a complete loss of such
investment. Infinity is not relying on any representations and
warranties of BPHX regarding future price of BPHX's shares or BPHX's
business and technology.
4A.5 The Intercomp Shares are owned by Infinity as the registered and
beneficial owner thereof with good and valid title thereto, free and
clear of all liens, charges, mortgages, attachments, pledges, security
interests, claims, defects of title, restrictions and any other rights
of third parties except for certain rights of first refusal under the
Company's Articles of Association and/or Shareholders Agreement.
4B REPRESENTATIONS AND WARRANTIES OF BPHX. BPHX does hereby represent and
warrant to Infinity that as of the date hereof and again as of the
consummation of the transactions contemplated herein, the following
representations and warranties are and shall be true and accurate in all
material respects:
4B.1 AUTHORITY. The execution and delivery of this Agreement and the
performance of the transactions contemplated herein have been duly and
validly authorized by BPHX and this Agreement is a valid and binding
obligation of BPHX enforceable in accordance with its terms and BPHX
has the right, power and authority to enter into this Agreement and to
perform the transactions contemplated herein, all subject to the
required approvals, waivers and consents as specified in this
Agreement.
4B.2 BPHX SHARES. The BPHX Shares and Additional Shares, when and if issued
and sold in accordance with this Agreement, will be duly authorized,
validly issued, fully paid, non-assessable, and free of any preemptive
rights, and will have the rights and restrictions set forth in BPHX's
Articles of Association as shall be in force on the date of the
issuance and as legally amended thereafter and will be free and clear
of any mortgages, liens, pledges, charges, security interests, third
party rights or other claims or encumbrances of any kind whatsoever,
except for restrictions on sale arising under applicable securities
regulation and as provided in this Agreement, and shall be duly
registered in the name of the holder thereof in BPHX's shareholders
register.
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4B.3 INTERCOMP. BPHX has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks
of entering into this Agreement, exercising the Call Option and
acquiring the Intercomp Shares. BPHX is not relying on any
representations and warranties of Infinity regarding the Company or
its business, technology or legal status and BPHX has the ability to
bear the economic risk of the transactions described herein.
5. SALES REPORTS. On or before each of June 30, 2004, December 31, 2004,
December 31, 2005 and July 1, 2006 Intercomp shall deliver to Infinity and
BPHX, an interim report (each an "INTERIM REPORT") specifying in reasonable
detail the eligible revenues generated by it from Intercomp Tools and
calculation of the relevant portion of the Sales Turnover for the period
commencing on the previous April 1 or January 1 and ending on December 31
or March 31 of such year, as applicable. A final report specifying in
reasonable detail the eligible revenues generated by Intercomp from
Intercomp Tools and calculation of the Sales Turnover for the period
commencing on April 1, 2003 and Concluding on March 31, 2006 ("FINAL
REPORT") shall be delivered by Intercomp to Infinity and BPHX on or before
July 1, 2006. Infinity shall have the right to select an independent
certified public accountant reasonably agreeable to BPHX to inspect no more
frequently than annually the records of the Company on reasonable notice
and during regular business hours to verify the reports required hereunder.
The entire cost of such inspection shall be borne by Infinity PROVIDED,
HOWEVER, that if the Interim Report of Final Report is determined by the
Parties or competent tribunal to underreport the Sales Turnover by twelve
and a half percent (12.5%) or more, then the cost of such audit shall be
borne by BPHX.
6. ADJUSTMENTS. The number of BPHX Shares and Additional Shares issuable upon
exercise of the Option (or any shares or other securities receivable or
issuable upon exercise of this Option in accordance with the terms herein)
are subject to adjustment upon occurrence of the following events and upon
the occurrence hereof the Exhibit 2 and Exhibit 10 shall be adjusted
MUTATIS MUTANDIS:
6.1 ADJUSTMENT FOR SHARE SPLITS, SHARE SUBDIVISIONS OR COMBINATIONS OF
SHARES. The number of BPHX Shares and Additional Shares issuable upon
exercise of the Option (or any shares or other securities at the time
issuable upon exercise of the Option) shall be proportionally
increased to reflect any share split or subdivision of the BPHX's
Ordinary Shares. The number of BPHX Shares and Additional Shares
issuable upon exercise of the Option (or any shares or other
securities at the time issuable upon exercise of the Option) shall be
proportionally decreased to reflect any combination of BPHX's Ordinary
Shares.
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6.2 RECLASSIFICATION OR RECAPITALIZATION. If BPHX, by reclassification of
securities, recapitalization or otherwise, shall change any of the
securities as to which purchase rights under the Option exist into the
same or a different number of securities of any other class or
classes, the Option shall thereafter represent the right to acquire
such number and kind of securities as would have been issuable as the
result of such change with respect to the securities that were subject
to the purchase rights under the Option immediately prior to such
reclassification or other change.
6.3. ADJUSTMENT FOR CAPITAL REORGANIZATION, MERGER OR CONSOLIDATION. In
case of any capital reorganization of the share capital of BPHX (other
than a combination, reclassification, exchange or subdivision of
shares otherwise provided for herein), or any merger or consolidation
of BPHX with or into another corporation in which shareholders of BPHX
dispose of their holdings in BPHX, or the sale of all or substantially
all the assets of BPHX then, and in each such case, as a part of such
reorganization, merger, consolidation, sale or transfer, lawful
provision shall be made so that Infinity shall immediately before such
event be entitled to receive upon exercise of the Option, the number
of shares or other securities or property of the successor corporation
resulting from such reorganization, merger, consolidation, sale or
transfer. In such case, if the surviving entity is not a public
Company, all calculations relating to the exercise of the Option shall
be based on the figures relating to such merger, consolidation or
reorganization of BPHX. For the avoidance of doubt, it is hereby
cleared that Infinity shall not have any anti-dilution rights of any
kind.
7. The number of the Intercomp Shares to be transferred to BPHX under the
terms of this agreement are subject to adjustment upon occurrence of the
events specified in this Section 6 and the provisions of this Section shall
apply to them, MUTATIS MUTANDIS.
8. TAXES. Each party shall be solely liable for the full amount of tax
liability incurred by it in both Israel and outside the State of Israel in
connection with any exercise of the Option. BPHX shall be entitled to
withhold any applicable withholding taxes due and required to be withheld
under any applicable law upon the issuance of any BPHX Shares.
9. ALTERNATIVES TO ALLOTMENT OF BPHX SHARES. In the event that Infinity
delivers a Notice of Exercise of the Option to BPHX, BPHX, at its sole
discretion, may elect to pay Infinity the cash consideration (in lieu of
the issuance and delivery of the BPHX Shares) in an amount equal to the
number of the BPHX Shares and Additional Shares multiplied by the average
closing price of BPHX shares at the NASDAQ Exchange during period of 20
business days immediately prior to the date of the delivery of such Notice
of Exercise.
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10. THE CALL OPTION
10.1 Infinity hereby grants BPHX the right (the "CALL OPTION") to purchase
all Intercomp Shares. The Call Option may be exercisable in whole or
in part, at any time prior to April 1, 2006 without limitation, all
upon the terms and conditions more fully set forth below.
10.2 EXERCISE OF THE CALL OPTION. The Call Option is exercisable by
delivery of a written notice of exercise to Infinity, substantially in
the form attached hereto as EXHIBIT 10 (the "NOTICE OF EXERCISE OF THE
CALL OPTION").
10.3 CALL CONSIDERATION. As consideration to be paid by BPHX to Infinity
upon the exercise of the Call Option and the purchase of the Intercomp
Shares, BPHX shall issue and allot to Infinity the BPHX Shares and
Additional Shares calculated as specified above. It is hereby
clarified that the provisions of Section 6 hereof shall apply to the
BPHX Shares and additional Shares issued pursuant to the exercise of
the Call Option.
10.4 CALL OPTION CLOSING. The purchase of Intercomp Shares and issue of the
BPHX Shares following the exercise of the Call Option shall take place
at a closing (the "CALL OPTION CLOSING") to be held at the offices of
BPHX, at 10:00 a.m. local time at 8 Maskit Street, Herzliya, on the
date which is fourteen (14) business days following the fulfillment of
the conditions set forth in Section 9.1 herein, or such other date,
time and place as BPHX and Infinity may mutually agree. At the Call
Option Closing, the transactions specified in Section 3 above shall
occur, which transactions shall be deemed to take place simultaneously
and no transaction shall be deemed to have been completed or any
document delivered until all such transactions have been completed and
all required documents delivered. Notwithstanding the foregoing, At
the Call Option Closing BPHX shall issue to Infinity 100,000 of BPHX
Shares and the issuance of the Additional Shares shall be in portions,
each portion shall be issued within 10 days following the delivery of
each Report by BPHX pursuant to section 5 above.
10.5 LOCK UP PERIOD. Until April 1st, 2006 (the "Lock Up Period"), Infinity
shall not sell, assign, transfer or mortgage any of BPHX Shares or the
Additional Shares issued to it hereunder (whether pursuant to the
exercise of the Call Option or the Put Option), or the beneficial
interest in any such shares, in any way PROVIDED, HOWEVER, that
Infinity may elect to distribute the BPHX Shares and Additional Shares
to its Partners (as defined herein) provided that such Partners shall
be bound by the terms of this Agreement and shall assume, in writing
(in form and substance reasonably satisfactory to BPHX), the rights
and obligations of Infinity under this Agreement and that Infinity
guarantees the full compliant by such assignee with the terms of this
Agreement, and further provided that all Infinity obligations
hereunder that, in accordance with the terms of this Agreement are to
be fulfilled hereunder prior to the Closing or the Call Option
Closing, as applicable, have been so fulfilled. If, at the time of the
transfer of any of the BPHX Shares, the BPHX Shares shall not be
registered pursuant to an effective registration statement under the
Securities Act and other applicable laws, BPHX may require, as a
condition of allowing such transfer, that Infinity and transferee
execute and deliver to the Company an investment intent letter in form
and substance reasonably acceptable to BPHX and Infinity or other
instrument required by applicable law, which, inter alia, contains
representations similar to Infinity's representations in Section 4A
above. For the purposes of this Agreement, the term Partners shall
mean any of the limited partners of any of the Infinity entities or
the general partner of such entities.
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10.6 TERMINATION OF CALL OPTION. The Call Option shall expire IPSO FACTO
upon the occurrence of any of the following events: (i) the insolvency
of BPHX; (ii) the commission of any act of bankruptcy by BPHX (iii)
the execution by BPHX of a general assignment for the benefit of
creditors; (iv) the appointment of a receiver or trustee to take
possession of a substantial portion of the property or assets of BPHX;
(v) BPHX has entered into any insolvency, liquidation, receivership,
arrangement with creditors or similar proceedings, or an attachment
order was issued on all or a substantial part of the BPHX's assets and
was not dismissed after a period of 60 days, (vi) BPHX's shares are no
longer registered for trading on the Nasdaq National Market; or (vii)
BPHX breaches any of its material obligations under this Agreement and
does not cure such breach within 14 (fourteen) days from the
Infinity's written notice to BPHX of such breach. It is hereby
clarified that the occurrence of any of the events specified under
subsections (i)-(vi) of this Subsection 9.6 shall not be considered a
breach or violation on the part of BPHX or any of its related parties
or affiliates and shall not entitle Infinity to any payment, remedy or
compensation of any kind.
10A. REGISTRATION RIGHTS. Following the end of the Lock Up Period, upon
Infinity's first request in writing the Company shall, at the Company's
expense, (i) within eight (8) months of such written request; or (ii)
within ninety (90) days following such written request, provided that BPHX
has filed its annual report to the NASDAQ on form 20-F during such 90 day
period, whichever is earlier, exercise its best efforts to effect the
registration under the Securities Laws of all the BPHX Shares and
Additional Shares held by Infinity. Notwithstanding the foregoing, if
within such 90 day or 8 month period, as applicable, BPHX provides Infinity
with an opinion of U.S. counsel reasonably acceptable to Infinity providing
that the BPHX Shares and the Additional Shares issued to Infinity in
accordance with the terms hereof are freely tradeable under the Securities
Laws without a lock-up period or volume restrictions, then BPHX shall be
relieved from its obligation to register the BPHX Shares and the Additional
Shares.
11. MISCELLANEOUS.
11.1 FURTHER ASSURANCES. Each of the parties hereto shall perform such
further acts and execute such further documents as may reasonably be
necessary to carry out and give full effect to the provisions of this
Agreement and the intentions of the parties as reflected thereby.
11.2 GOVERNING LAW; JURISDICTION. This Agreement shall be exclusively
governed by and construed according to the laws of the State of
Israel, without regard to the conflict of laws provisions thereof. Any
dispute arising under or in relation to this Agreement shall be
resolved exclusively in the competent court in Tel Aviv-Jaffa
district, and each of the parties hereby submits irrevocably to the
jurisdiction of such court.
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11.3 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise expressly
limited herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors, and
administrators of the parties hereto. None of the rights, privileges,
or obligations set forth in, arising under, or created by this
Agreement may be assigned or transferred without the prior consent in
writing of each party to this Agreement. Notwithstanding the
foregoing, Infinity may assign all of its rights and obligations
hereunder to the Partners if prior to such assignment it has
transferred the Intercomp Shares to such Partners who has undertaken
in writing to abide by provisions of this Agreement, provided that
infinity guarantee the full compliant by such assignee with the terms
of this Agreement. Without derogating from the provisions relating
transfer of Intercomp shares set forth in the articles of association
of Intercomp or other agreement, Infinity undertakes to procure that
any transferee of Intercomp Shares, shall undertake in writing to
abide by the provisions of this Agreement and BPHX shall have the same
rights towards such assignee as it has towards Infinity under this
Agreement.
11.4 ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement and the
Exhibits hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matters
hereof and thereof. Any term of this Agreement may be amended and the
observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only
with the written consent of all of the parties to this Agreement.
11.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder to be given to a party to this Agreement shall be
in writing and shall be telecopied or mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed to such party's address as set forth below or at
such other address as the party shall have furnished to each other
party in writing in accordance with this provision:
if to BPHX: BPHX Solutions Ltd.
0 Xxxxxx Xx.
Xxxxxxxx 00000
Xxxxxx
Attention: Iris Yahal
Facsimile: (00)-000 0000
if to Infinity: x/x Xxxxxx Infinity Venture Capital Partners Ltd,
3 Azrieli Center,
Xxxxxxxx Xxxxx,
00xx Xxxxx
Xxx Xxxx 00000
Facsimile: 00-0000000
Attention: Xxx Xxxxxx Xxxxxxx, Adv.
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or such other address with respect to a party as such party shall
notify each other party in writing as above provided. Any notice sent
in accordance with this Section 9.5 shall be effective (i) if mailed,
seven (7) business days after mailing, (ii) if sent by messenger, upon
delivery, and (iii) if sent via telecopier, upon transmission and
electronic confirmation of receipt or (if transmitted and received on
a non-business day) on the first business day following transmission
and electronic confirmation of receipt (provided, however, that any
notice of change of address shall only be valid upon receipt).
11.6 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to any party upon any breach or default
under this Agreement, shall be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit,
consent, or approval of any kind or character on the part of any party
of any breach or default under this Agreement, or any waiver on the
part of any party of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent
specifically set forth in such writing.
11.7 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable law, then
such provision shall be excluded from this Agreement and the remainder
of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms;
provided, however, that in such event this Agreement shall be
interpreted so as to give effect, to the greatest extent consistent
with and permitted by applicable law, to the meaning and intention of
the excluded provision as determined by such court of competent
jurisdiction.
11.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same
instrument.
11.9 SECTION HEADINGS; PREAMBLE. All article and section headings are
inserted for convenience only and shall not modify or affect the
construction or interpretation of any provision of this Agreement. The
preamble to this Agreement is incorporated herein and forms an
integral part of this Agreement.
11.10 PRESS RELEASE. None of the parties hereto shall issue a press release
regarding this Agreement without the prior written consent of the
other Party. However, Infinity acknowledges that BPHX is a public
reporting company with associated disclosure obligations, and agrees
to publications of this kind with respect to this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
____________________________ ________________________
BPHX SOFTWARE SOLUTIONS LTD. ISRAEL INFINITY VENTURE CAPITAL FUND
(ISRAEL), L.P.
ISRAEL INFINITY VENTURE CAPITAL FUND
BY: ________________ (DELAWARE), L.P.
ISRAEL INFINITY VENTURE CAPITAL FUND
(CAYMAN I), L.P.
DATE:_______________ ISRAEL INFINITY VENTURE CAPITAL FUND
(CAYMAN II), L.P.
(by the General Partner of their
General Partner - Israel Infinity
Venture Capital Partners Ltd.)
By: ___________________
Date: ____________________
________________________________
INTERCOMP LTD. (FOR THE PURPOSES
OF SECTION 5 ONLY)
By: ___________________
Date: ____________________
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Exhibit 1
SERIES A PREFERRED SHARES PAR SERIES B PREFERRED SHARES PAR VALUE
INFINITY ENTITY VALUE NIS 0.01 NIS 0.01*
Israel Infinity Venture Capital Fund
(Israel), L.P. 1,870 2,792
Israel Infinity Venture Capital Fund
(Delaware), L.P. 3,136 4,683
Israel Infinity Venture Capital Fund
(Cayman I), L.P. 347 517
Israel Infinity Venture Capital Fund
(Cayman II), L.P. 718 1,071
* Includes Series B Preferred Shares issued pursuant to that certain Conversion
Agreement, dated as of even date herewith
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EXHIBIT 2
NOTICE OF EXERCISE OF THE OPTION
TO: BLUEPHOENIX SOLUTIONS LTD.
The undersigned hereby elects to exercise the Option with respect to the
Ordinary Shares of BluePhoenix Solutions Ltd. (the "SHARES") pursuant to the
terms of the Option Agreement, dated ________, 2003, by and between BluePhoenix
Solutions Ltd. and the undersigned, in exchange of _______ Preferred _______
Shares and __ Ordinary Shares of Intercomp Ltd.
______________________
Date)
Israel Infinity Venture Capital Fund (Israel) L.P.
Israel Infinity Venture Capital Fund (Cayman I) L.P.
Israel Infinity Venture Capital Fund (Cayman II) L.P.
Israel Infinity Venture Capital Fund (Delaware) L.P.
(by the General Partner of their General Partner, Israel Infinity
Venture Capital Partners Ltd.)
By: ____________________________
Title: ___________________________
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EXHIBIT 10
NOTICE OF EXERCISE OF THE CALL OPTION
TO: ISRAEL INFINITY VENTURE CAPITAL FUND (ISRAEL) L.P.
ISRAEL INFINITY VENTURE CAPITAL FUND (CAYMAN I) L.P.
ISRAEL INFINITY VENTURE CAPITAL FUND (CAYMAN II) L.P.
ISRAEL INFINITY VENTURE CAPITAL FUND (DELAWARE) L.P.
The undersigned hereby elects to exercise the Call Option with respect to
_______ Preferred _______ Shares and __ Ordinary Shares of Intercomp Ltd. being
held by you (the "SHARES") pursuant to the terms of the Option Agreement, dated
________, 2003, by and between you and the undersigned, in exchange of _______
shares of BPHX Solutions Ltd. ("BPHX").
The Additional Shares of BPHX (if any), shall be calculated and transferred to
you in accordance with the terms of the Option Agreement.
______________________
Date)
BluePhoenix Solutions Ltd.
By: ____________________________
Title: ___________________________
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