EXHIBIT 10.12
THIRD AMENDMENT
THIS THIRD AMENDMENT (the "Amendment") is made and entered into as of
the 27th day of October, 2003, by and between CA-GATEWAY OFFICE LIMITED
PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Landlord"), and BACKWEB
TECHNOLOGIES INC., A DELAWARE CORPORATION ("Tenant").
RECITALS
A. Landlord (as successor by conversion to EOP-Gateway Office, L.L.C., a
Delaware limited liability company, as successor in interest to Xxxxxxx
Properties, L.P., a California limited partnership) and Tenant are
parties to that certain office lease dated December 23, 1998 (the
"Original Lease"), which Original Lease has been previously amended by
that certain 1st Amendment to Lease - Expansion dated as of May 12,
2000 (the "First Amendment") and by that certain 2nd Amendment to Lease
- Expansion dated as of November 7, 2000 (the "Second Amendment", and
together with the Original Lease and the First Amendment, collectively,
the "Lease"). Pursuant to the Lease, Landlord has leased to Tenant
space currently containing approximately 34,366 rentable square feet
(the "Original Premises") described as Suite No. 300 on the third floor
and Suite Nos. 500, 510 and 550 on the fifth floor, all of the building
commonly known as Gateway Office IIB located at 0000 Xxxxxxx Xxxxx, Xxx
Xxxx, Xxxxxxxxxx (the "Building").
B. Tenant desires to surrender a portion of the Premises to Landlord
containing approximately 16,797 rentable square feet described as Suite
No. 300 on the third floor of the Building as shown on EXHIBIT A-1
hereto (the "Reduction Space") and that the Lease be appropriately
amended, and Landlord is willing to accept such surrender on the
following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. REDUCTION.
A. Tenant has vacated the Reduction Space in accordance with the
terms of the Lease on or prior to April 30, 2003, which is the
date immediately preceding the Reduction Effective Date
(defined in I.B. below). Landlord hereby acknowledges and
agrees that Tenant surrendered the Reduction Space in the
condition required by the terms and conditions of the Lease.
B. Effective as of May 1, 2003 (the "Reduction Effective Date"),
the Premises is decreased from 34,366 rentable square feet on
the third and fifth floor to 17,569 rentable square feet on
the fifth floor by the elimination of the Reduction Space. As
of the Reduction Effective Date, the Reduction Space shall be
deemed surrendered by Tenant to Landlord, the Lease shall be
deemed terminated with respect to the Reduction Space, and the
"Premises", as defined in the Lease, shall be deemed to mean
the Original Premises, less the Reduction Space; provided,
however, if Tenant's representations herein shall
be materially false or misleading, Landlord shall have the
right to declare this Amendment null and void and to reinstate
the Lease with respect to the Reduction Space in addition to,
and not in lieu of, any other rights or remedies available to
Landlord.
C. Intentionally Omitted.
D. Notwithstanding anything in this Amendment to the contrary,
Tenant shall remain liable for all of its obligations as
Tenant under the Lease with respect to the Reduction Space, as
hereby amended, arising prior to the Reduction Effective Date.
II. BASE RENT. Subject to the express terms hereof, upon full execution and
delivery of this Amendment, and retroactively effective as of October
1, 2002, the schedule of Base Rent contained in the Lease is deleted,
and the following is substituted therefor:
ANNUAL RATE
MONTHS OF TERM OR PER SQUARE MONTHLY
PERIOD FOOT BASE RENT
--------------------- ---------------- ------------
10/1/2002 - 4/30/2003 $18.00 $ 51,549.00*
5/1/2003 - 9/30/2004 $18.00 $26,353.50**
10/1/2004 - 1/31/2007 Determined as
(Undetermined Rent provided in this
Period) Section II below
*Based upon 34,366 rentable square feet, subject to abatement as described
below.
**Based upon 17,569 rentable square feet.
Notwithstanding anything in the Lease to the contrary, Tenant shall be
entitled to an abatement of (i) Base Rent in the amount of $25,195.50
per month for the calendar months of October 2002 through and including
April, 2003, and (ii) Tenant's Proportionate Share of Operating
Expenses in the amount of (a) $15,979,00 per month for the calendar
months of October 2002 through and including December, 2002 and (b)
$15,630.31 per month for the calendar months of January 2003 through
and including April, 2003. Such amount is equal to the Base Rent due on
the Reduction Space at the rates stated in this Amendment for the Base
Rent Abatement Period (as defined in the following sentence) and
Tenant's Proportionate Share of Operating Expenses with respect to the
Reduction Space for the Rent Abatement Period. The period of October 1,
2002 through and including April 30, 2003 shall be sometimes be
referred to herein as the "Rent Abatement Period". The total amount of
Base Rent abated during the Rent Abatement Period shall equal
$176,368.50 and the total amount of Tenant's Proportionate Share of
Operating Expenses abated during the Rent Abatement Period shall equal
$110,458.24 (collectively, the "Abated Rent"). During the Rent
Abatement Period, only Base Rent and Tenant's Proportionate Share of
Operating Expenses in the amounts stated above shall be abated, and all
Additional Rent and other costs and charges specified in the Lease
(including, without limitation, late fees and reconciliation of
Operating Expenses) shall remain as due and payable pursuant to the
provisions of the Lease, as hereby amended. Tenant has paid to Landlord
Base Rent for October, 2002 through and including April, 2003 in a
total amount equal to $543,760.88. Tenant
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has paid to Landlord Tenant's Proportionate Share of Operating Expenses
for each for October, 2002 through and including April, 2003 in a total
amount equal to $163,438.36. Subject to the terms of this Amendment
(including Tenant's right to receive Abated Rent as provided above),
Tenant's total obligation for the payment of Base Rent for the period
commencing October, 2002 through and including April, 2003 is equal to
$184,474.50 and Tenant's total obligation for the payment of Tenant's
Proportionate Share of Operating Expenses for the period commencing
October, 2002 through and including April, 2003 is equal to
$115,501.36. Accordingly, Tenant's payments equal to $359,286.38 with
respect to Base Rent and payments equal to $47,937.00 with respect to
Tenant's Proportionate Share of Operating Expenses, for a total amount
equal to $407,223.38 (the "Excess Payment"), are in excess of the
amounts due for Base Rent and Tenant's Proportionate Share of Operating
Expenses under the Lease, as amended hereby (subject to the terms of
this paragraph).
The parties agree that, subject to the terms hereof, so long as this
Amendment is in full force and effect, Landlord shall apply 50% of the
Excess Payment (i.e., $203,611.69) towards Tenant's obligation to pay
to Landlord the next due and future installment(s) of Base Rent and
Tenant's Proportionate Share of Operating Expenses in accordance with
the terms of the Lease and this Amendment and 50% of the Excess Payment
(i.e., $203,611.69) towards Tenant's obligation to pay to Landlord the
Initial Reduction Fee (as defined in Section III.A below).
All Base Rent and other sums due from Tenant shall be payable by Tenant
in accordance with the terms of the Lease, as amended hereby.
The Base Rent rate per rentable square foot of the Premises during the
period commencing October 1, 2004 through and including January 31,
2007 (the "Undetermined Rent Period") shall equal Landlord's Quoted
Rate at the Airport (hereinafter defined) rate per rentable square foot
for the Premises. Landlord shall advise Tenant of the applicable Base
Rent rate for the Premises for the Undetermined Rent Period on or
before September 1, 2004. Notwithstanding the foregoing and anything to
the contrary contained in the Lease or this Amendment, IN NO EVENT
SHALL THE BASE RENT FOR AND IN EFFECT DURING THE UNDETERMINED RENT
PERIOD BE: (I) LESS THAN $2.75 PER RENTABLE SQUARE FOOT OF THE PREMISES
PER MONTH ON A NNN BASIS, OR (II) MORE THAN THE LESSER OF (A) $3.25 PER
RENTABLE SQUARE FOOT OF THE PREMISES PER MONTH ON A NNN BASIS, AND (B)
LANDLORD'S QUOTED RATE AT THE AIRPORT PLUS $1.75 PER RENTABLE SQUARE
FOOT OF THE PREMISES PER MONTH ON A NNN BASIS. For purposes hereof "NNN
basis" shall mean Base Rent as calculated in a manner that excludes any
Operating Expense component.
For purposes of this Amendment, "Landlord's Quoted Rate at the Airport"
shall mean the NNN rate quoted by Landlord or any affiliate of Landlord
for similar space within the San Xxxx Airport Area (as defined herein)
per rentable square foot on or about or otherwise covering the
Undetermined Rent Period. The "San Xxxx Airport Area" shall mean the
following projects so long as they are owned by Landlord or an
affiliate of Landlord: (i) The Concourse, which currently includes the
buildings located at 000 Xxxxxxx Xxxxxxx, 000 Xxxxxxx Xxxxxxx, 1731
Technology Drive, 1735 Technology Drive, 1741 Technology Drive, 0000
Xxxxxxxxxx Xxxxx; (ii) Gateway
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Office Project, which currently includes the buildings located at 0000
Xxxxxxx Xxxxx, 0000 Xxxxxxx Xxxxx, 0000 Xxxxxxx Xxxxx, 0000 Xxxxxxx
Xxxxx, and 0000 Xxxxxxx Xxxxx; (iii) Metro Plaza, which currently
includes the 3 office buildings located at 00 Xxxxx Xxxxx, 000 Xxxxx
Xxxxx, and 000 Xxxxx Xxxxx; (iv) 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxx, and
(v) Skyport (Phase I), which currently includes the buildings located
at 1700 Technology Drive, 0000 Xxxxxxxxxx Xxxxx and 0000 Xxxxxxxxxx
Xxxxx.
III. ADDITIONAL CONSIDERATION. As additional consideration for this
Amendment, Tenant agrees to pay Landlord the following:
A. INITIAL REDUCTION FEE. Simultaneously with the Tenant's
execution of this Amendment, Tenant shall pay to Landlord, by
cashier's or certified check or by wire transfer of
immediately available funds to an account designated by
Landlord, the sum of $2,300,000.00 (the "Initial Reduction
Fee").
Notwithstanding anything to the contrary contained in the
Lease, Landlord and Tenant hereby acknowledge and agree that
Landlord currently is holding the cash sum of $1,203,971.00 as
a portion of the security deposit (the "Cash Security
Deposit") required pursuant to the terms of Section 19 of the
Original Lease. Landlord and Tenant acknowledge and agree that
upon the full and proper execution of this Amendment by
Landlord and Tenant (i) Landlord shall retain the Cash
Security Deposit in its entirety and apply such amount toward
Tenant's obligation to pay to Landlord the Initial Reduction
Fee; (ii) Landlord shall retain the Excess Payment in its
entirety and apply such amount toward Tenant's obligation to
pay to Landlord Base Rent and Tenant's Proportionate Share of
Operating Expenses and the Initial Reduction Fee in accordance
with Section II if this Amendment; and (iii) Tenant shall be
deemed to have assigned, quitclaimed and surrendered to
Landlord, its successors and assigns, all of Tenant's right,
title and interest in and to the Cash Security Deposit and the
Excess Payment and further shall release any and all claims to
the Cash Security Deposit and the Excess Payment.
B. ADDITIONAL REDUCTION FEE. Concurrently with Tenant's execution
and delivery to Landlord of this Amendment, Tenant shall
execute and deliver to Landlord an original promissory note,
in the form attached hereto as EXHIBIT E (the "Additional
Reduction Fee Promissory Note"), the amount of which
Promissory Note shall be an additional reduction fee (the
"Additional Reduction Fee).
IV. TENANT'S PROPORTIONATE SHARE; OPERATING EXPENSES RECONCILIATION.
A. PROPORTIONATE SHARE. For the period commencing on the
Reduction Effective Date and ending on January 31, 2007 (the
"Termination Date"), Tenant's Proportionate Share is decreased
from 45.51% to 23.26%. Notwithstanding anything in this
Amendment to the contrary, Tenant shall remain liable for all
year-end adjustments with respect to Tenant's Proportionate
Share of Operating Expenses applicable to the Reduction Space
for that portion of the calendar year preceding the Reduction
Effective Date. Such adjustments
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shall be paid at the time, in the manner and otherwise in
accordance with the terms of the Lease, unless otherwise
specified herein.
B. OPERATING EXPENSES RECONCILIATION. Retroactively effective as
of October 1, 2002, the 4th and 5th sentences of Paragraph 7.C
of the Original Lease is hereby deleted in its entirety and
shall be replaced by the following: "If this Lease has been
terminated or the Term hereof has expired prior to the date of
such statement, then the Operating Expense Adjustment, if any,
shall be paid by Tenant to Landlord within twenty (20) days
after the date of delivery of the statement.". The parties
hereto acknowledge and agree that in further consideration for
Landlord's willingness to enter into this Amendment, Tenant
shall waive its right to any refunds during the Term based
upon any Operating Expense Adjustment.
V. REPRESENTATIONS. Each party represents to the other that it has full
power and authority to execute this Amendment. Tenant represents that
it has not made any assignment, sublease, transfer, conveyance of the
Lease or any interest therein or in the Reduction Space other than
those explicitly recited herein and further represents that there is
not and will not hereafter be any claim, demand, obligation, liability,
action or cause of action by any other party respecting, relating to or
arising out of the Reduction Space and relating to or arising during
Tenant's leasehold interest in the Reduction Space, and Tenant agrees
to indemnify and hold harmless Landlord and the Landlord Related
Parties (as defined in the "Miscellaneous" Section below) from all
liabilities, expenses, claims, demands, judgments, damages or costs
arising from any of the same, including without limitation, attorneys'
fees. Tenant acknowledges that Landlord will be relying on this
Amendment in entering into leases for the Reduction Space with other
parties.
VI. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective
as of the date of this Amendment (unless different effective dates are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
A. DELETED PROVISIONS. The following provisions shall be deleted
in their entirety and are null and void and of no further
force or effect: Exhibit C to the Original Lease (Tenant
Improvements); the second sentence of the first full paragraph
of Paragraph 8 of the First Amendment (Tenant Improvements);
Exhibit 1 to the First Amendment (Tenant Improvements); and
the second sentence of Paragraph 8 of the Second Amendment
(Tenant Improvements).
B. LANDLORD'S NOTICE ADDRESS. Landlord's Notice Address defined
in the Basic Lease Information of the Original Lease is hereby
deleted in its entirety and the following shall be substituted
therefor:
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Landlord: With a copy to:
CA-Gateway Office Limited Partnership Equity Office Properties Trust
c/o Equity Office Properties Trust Two North Riverside Plaza
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Property Manager Attention: Regional Counsel - San Xxxx
Region"
C. LANDLORD'S REMITTANCE ADDRESS. Landlord's Remittance Address
defined the Basic Lease Information of the Original Lease is
hereby deleted in its entirety and the following shall be
substituted therefor: "CA-Gateway Office Limited Partnership,
P.O. Box 45587, Dept. 13472, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000-0000".
Rent and all other sums that Tenant is required to pay
Landlord are payable to the order of EQUITY OFFICE PROPERTIES.
D. UTILITY DEREGULATION. Notwithstanding anything to the contrary
contained in the Lease, as amended hereby, if and to the
extent permitted by applicable law, Landlord shall be entitled
to receive a fee for the service provided by Landlord in
connection with the selection of utility companies and the
negotiation and administration of contracts for electricity,
provided that such fee shall not exceed 50% of any savings
obtained by Landlord.
E. RELOCATION. Landlord, at Tenant's expense, at any time during
the Term, may relocate Tenant from the Premises to the space
as of the date hereof known as Suite 300, a depiction thereof
is attached hereto as EXHIBIT A-2 (the "Relocation Space") in
the Building upon 90 days' prior written notice to Tenant. The
Relocation Space consists of approximately 16,797 rentable
square feet. From and after the date of the relocation,
"Premises" shall refer to the Relocation Space and the Base
Rent and Tenant's Proportionate Share shall be adjusted based
on the rentable square footage of the Relocation Space. Tenant
shall execute such documents as may be required by Landlord to
reflect such relocation. The Relocation Space must contain
similar finishes as the Premises, and approximately the same
Rentable Square Footage as the Premises as of the date Tenant
receives Landlord's notice of relocation.
F. LETTER OF CREDIT/SECURITY DEPOSIT. Concurrent with Tenant's
execution and delivery of this Amendment, Tenant shall deliver
to Landlord an amount equal to $200,000.00 (the "Additional
Security Deposit") as an addition to and part of the Security
Deposit held by Landlord pursuant to Section 19 of the
Original Lease. The Security Deposit shall be held by Landlord
without liability for interest (unless required by
Regulations) as security for the performance of Tenant's
obligations. The parties hereto acknowledge and agree that:
(i) Landlord currently holds irrevocable letter of credit
issued by Bank Leumi USA as number S10038498 in an amount
equal to $300,000.00 (the "Existing LC"), and (ii) the Cash
Security Deposit currently held by Landlord shall be applied
to Tenant's obligation to pay to Landlord a portion
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of the Initial Reduction Fee (as defined in Section III of
this Amendment). The parties hereto intend to increase the
remaining amount of the Security Deposit from $300,000.00 by
an amount equal to the Additional Security Deposit to a total
amount of $500,000.00.
The Additional Security Deposit may be in the form of cash or
an irrevocable letter of credit. In the event the Additional
Security Deposit is provided in the form of an irrevocable
letter of credit, Tenant may amend the Existing LC to increase
the amount thereof to a total amount equal to $500,000.00 and
to make other reasonable modifications as required by Landlord
(including, without limitation, amending the Existing LC to
reflect Landlord as the beneficiary thereof) or,
alternatively, Tenant may provide a new letter of credit in a
total amount equal to $500,000.00 (the "New LC"). In the event
that Tenant provides the New LC, such New LC shall: (a) be in
the total amount of $500,000.00; (b) be issued on the form
attached hereto as EXHIBIT D; (c) name Landlord as its
beneficiary; and (d) be drawn on an FDIC insured financial
institution satisfactory to the Landlord. The New LC (and any
renewals or replacements thereof) shall be for a term of not
less than 1 year and shall have a final expiration date no
less than 60 days following the expiration of the Term of the
Lease. The term "Letter of Credit" as used herein shall mean
either the New LC or the amended Existing LC, as the case may
be.
Tenant agrees that it shall from time to time, as necessary,
whether as a result of a draw on the Letter of Credit by
Landlord pursuant to the terms hereof or as a result of the
expiration of the Letter of Credit then in effect, renew or
replace the original and any subsequent Letter of Credit so
that a Letter of Credit, in the amount required hereunder, is
in effect until a date which is at least 60 days after the
Termination Date of the Lease. If Tenant fails to furnish such
renewal or replacement at least 60 days prior to the stated
expiration date of the Letter of Credit then held by Landlord,
Landlord may draw upon such Letter of Credit and hold the
proceeds thereof (and such proceeds need not be segregated) as
a Security Deposit pursuant to the terms of Section 19 of the
Original Lease. Any renewal or replacement of the original or
any subsequent Letter of Credit shall meet the requirements
for the original Letter of Credit as set forth above, except
that such replacement or renewal shall be issued by an FDIC
insured financial institution satisfactory to the Landlord at
the time of the issuance thereof.
If Landlord draws on the Letter of Credit as permitted in the
Lease, as amended hereby, or as permitted in the Letter of
Credit, then, upon demand of Landlord, Tenant shall restore
the amount available under the Letter of Credit to its
original amount of $500,000.00 by providing Landlord with an
amendment to the Letter of Credit evidencing that the amount
available under the Letter of Credit has been restored to its
original amount. In the alternative, Tenant may provide
Landlord with cash, to be held by Landlord in accordance with
the Lease, as amended hereby, equal to the restoration amount
required under the Letter of Credit.
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G. WARRANT. As additional consideration for Landlord's
willingness to reduce the Premises, concurrent with Tenant's
execution and delivery of this Amendment, Tenant shall deliver
to Landlord a warrant agreement in the form attached hereto as
EXHIBIT F (the "Warrant") to purchase 200,000 shares of
ordinary shares (the "Ordinary Shares") in Guarantor (as
defined below) at $ 0.66 per share, which Warrant shall be
exercisable during the time period commencing on the date of
this Amendment through and including the day preceding the
seventh annual anniversary thereof.
H. GUARANTEES. Concurrent with Tenant's execution and delivery of
this Amendment, Tenant shall cause BackWeb Technologies, LTD.,
an Israeli corporation ("Guarantor") to execute and deliver to
Landlord two guarantees, one document in the form attached
hereto as EXHIBIT B (the "Guaranty of Lease") which guarantees
Tenant's performance under the Lease, and one document in the
form attached hereto as EXHIBIT C (the "Guaranty of Note")
which guarantees Tenant's performance as "Maker" under the
Promissory Note.
VII. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically
set forth in this Amendment. This Amendment shall not be
relied upon by any other party, individual, corporation,
partnership or entity as a basis for reducing its lease
obligations with Landlord or for any other purpose.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
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employees, mortgagee(s) and agents, and the respective
principals and members of any such agents harmless from all
claims of any brokers claiming to have represented Tenant in
connection with this Amendment. Landlord hereby represents to
Tenant that Landlord has dealt with no broker in connection
with this Amendment. Landlord agrees to indemnify and hold
Tenant, its members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Amendment. Equity Office Properties
Management Corp. ("EOPMC") is an affiliate of Landlord and
represents only the Landlord in this transaction. Any
assistance rendered by any agent or employee of EOPMC in
connection with this Amendment or any subsequent amendment or
modification to the Lease has been or will be made as an
accommodation to Tenant solely in furtherance of consummating
the transaction on behalf of Landlord, and not as agent for
Tenant.
G. Each signatory of this Amendment represents hereby that he or
she has the authority in his or her representative capacity to
execute and deliver the same on behalf of the party hereto for
which such signatory is acting.
H. Except to the extent required by any applicable Securities and
Exchange Commission requirements, or any applicable Federal or
State securities laws (collectively, the "Securities Laws"),
Tenant agrees that neither Tenant nor its agents or any other
parties acting on behalf of Tenant shall disclose any matters
set forth in this Amendment or disseminate or distribute any
information concerning the terms, details or conditions hereof
to any person, firm or entity without obtaining the express
written consent of Landlord. Tenant is required by Securities
Laws to disclose certain information contained in this
Amendment and, in accordance with such requirement, Tenant (or
such other persons to whom such disclosure request or
requirement applies) shall disclose or otherwise furnish only
the information legally required to be disclosed, as advised
by legal counsel, and such disclosure shall be made only to
the necessary and appropriate governmental entities. Landlord
acknowledges and agrees that if this Amendment is a "material
contract" for purposes of Securities Laws, Tenant shall be
required to file this Amendment with the Securities and
Exchange Commission as part of its regulatory filings as a
material contract.
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of
the day and year first above written.
LANDLORD:
CA-GATEWAY OFFICE LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP
By: EOM GP, L.L.C., a Delaware limited liability
company, its general partner
By: Equity Office Management, L.L.C., a
Delaware limited liability company, its non-
member manager
By: /s/ XXXX X. XXXXXXXX
---------------------
Name: Xxxx X. Xxxxxxxx
Title: Regional Senior Vice President
TENANT:
BACKWEB TECHNOLOGIES INC., A DELAWARE
CORPORATION
By: /s/ XXXXXXX X. XXXXXX
--------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
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EXHIBIT A-1
OUTLINE AND LOCATION OF REDUCTION SPACE
[schematic]
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EXHIBIT A-2
OUTLINE AND LOCATION OF RELOCATION SPACE
[schematic]
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EXHIBIT B
FORM OF GUARANTY
GUARANTY OF LEASE
CA-GATEWAY OFFICE LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP
("Landlord") has leased certain real property to BACKWEB TECHNOLOGIES INC., A
DELAWARE CORPORATION, as tenant ("Tenant"), pursuant to that certain office
lease by and between Landlord and Tenant and dated December 23, 1998 (the
"Original Lease"), which Original Lease has been previously amended by that
certain 1st Amendment to Lease - Expansion dated as of May 12, 2000, and by that
certain 2nd Amendment to Lease - Expansion dated as of November 7, 2000, and is
further amended by that certain Third Amendment dated October 27, 2003 (the
"Third Amendment", and together with the 1st Amendment to Lease - Expansion and
the 2nd Amendment to Lease - Expansion, collectively, the "Lease"). FOR VALUE
RECEIVED and in consideration for and as an inducement to Landlord to enter into
the Third Amendment, which Third Amendment modifies the Premises and the Base
Rent (as each is defined in the Lease), the undersigned, BACKWEB TECHNOLOGIES
LTD, AN ISRAELI CORPORATION ("Guarantor") does hereby unconditionally and
irrevocably guarantee to Landlord the punctual payment of all Rent (as such term
is defined in the Lease) payable by Tenant under the Lease throughout the term
of the Lease and any and all renewals and extensions thereof in accordance with
and subject to the provisions of the Lease, and the full performance and
observance of all other terms, covenants, conditions and agreements therein
provided to be performed and observed by Tenant under the terms of the Lease,
for which the undersigned shall be jointly and severally liable with Tenant. If
any default on the part of Tenant shall occur under the Lease, the undersigned
does hereby covenant and agree to pay to Landlord upon-demand in each and every
instance such sum or sums of money and to perform each and every covenant,
condition and agreement under the Lease as Tenant is and shall become liable for
or obligated to pay or perform under the Lease, together with the costs
reasonably incurred by Landlord in connection therewith, including, without
limitation, reasonable attorneys' fees. Such payments of Rent and other sums
shall be made monthly or at such other intervals as the same shall or may become
payable under the Lease, including any accelerations thereof, all without
requiring any notice from Landlord (other than any notice required by the Lease)
of such non-payment or non performance, all of which the undersigned hereby
expressly waives.
The maintenance of any action or proceeding by Landlord to recover any
sum or sums that may be or become due under the Lease and to secure the
performance of any of the other terms, covenants and conditions of the Lease
shall not preclude Landlord from thereafter instituting and maintaining
subsequent actions or proceedings for any subsequent default or defaults of
Tenant under the Lease. The undersigned does hereby consent that without
affecting the liability of the undersigned under this Guaranty and without
notice to the undersigned, time may be given by Landlord to Tenant for payment
of Rent and such other sums and performance of said other terms, covenants and
conditions, or any of them, and such time extended and indulgence granted, from
time to time, or Tenant may be dispossessed or Landlord may avail itself of or
exercise any or all of the rights and remedies against Tenant provided by law or
by the Lease, and may proceed either against Tenant alone or jointly against
Tenant and the undersigned or against the undersigned alone without first
prosecuting or exhausting any remedy or claim against Tenant. The undersigned
does
-13-
hereby further consent to any subsequent change, modification or amendment of
the Lease in any of its terms, covenants or conditions, or in the Rent payable
thereunder, or in the premises demised thereby, or in the term thereof, and to
any assignment or assignments of the Lease, and to any subletting or sublettings
of the premises demised by the Lease, and to any renewals or extensions thereof,
all of which may be made without notice to or consent of the undersigned and
without in any manner releasing or relieving the undersigned from liability
under this Guaranty.
The undersigned does hereby agree that the bankruptcy of Tenant shall
have no effect on the obligations of the undersigned hereunder. The undersigned
does hereby further agree that in respect of any payments made by the
undersigned hereunder, the undersigned shall not have any rights based on
suretyship, subrogation or otherwise to stand in the place of Landlord so as to
compete with Landlord as a creditor of Tenant, unless and until all claims of
Landlord under the Lease shall have been fully paid and satisfied.
The undersigned hereby waives and agrees not to assert: (a) any right
to require Landlord to proceed against Tenant, or any other guarantor or person
or to pursue any other security or remedy before proceeding against the
undersigned; (b) any defense based on the validity or enforceability of the
Lease; (c) any right or defense that may arise by reason of the incapacity, lack
of authority, death or disability of Tenant or any other person; and (d) any
right or defense arising by reason of the absence, impairment, modification,
limitation, destruction or cessation (in bankruptcy, by an election of remedies,
or otherwise) of the liability of Tenant of the subrogation rights of the
undersigned or of the right of the undersigned to proceed against Tenant for
reimbursement. The undersigned waives any right, statutory, or otherwise, for
itself to require or for Tenant to require Landlord to apply rents received
toward the obligations of the undersigned under this Guaranty, or to otherwise
prioritize the receipt of rents as against the obligations of the undersigned
under this Guaranty. The undersigned hereby waives and agrees not to assert (x)
any right or defense based on the absence of any or all presentments, demands
(including demands for performance), notices (including notices of any adverse
change in the financial status of Tenant, notices of any other facts which
increase the risk to the undersigned, notices of non-performance and notices of
acceptance of this Guaranty) and protests of each and every kind; (y) the
defense of any statute of limitations in any action under or related to this
Guaranty or the Lease; and (z) any right or defense based on a lack of diligence
or failure or delay by Landlord in enforcing its rights under this Guaranty or
the Lease. The undersigned hereby waives and agrees not to assert or take
advantage of any right to (i) exoneration if Landlord's actions shall impair any
security or collateral of the undersigned; (ii) any security or collateral held
by Landlord; (iii) require Landlord to proceed against or exhaust any security
or collateral before proceeding against the undersigned; and (iv) require
Landlord to pursue any right or remedy for the benefit of the undersigned.
Without limiting the generality of any of the covenants and agreements of the
undersigned set forth in this Guaranty, the undersigned hereby waives any and
all benefits of the provisions of Sections 2809, 2810, 2819, 2822, 2845, 2848,
2849 and 2850 of the California Civil Code and any similar or analogous statutes
of California or any jurisdiction.
Until all the Tenant's obligations under the Lease are fully performed,
the undersigned (a) shall have no right of subrogation or reimbursement against
the Tenant by reason of any payments or acts of performance by the undersigned
under this Guaranty, (b) subordinates any liability or indebtedness of the
Tenant now or hereafter held by the
-14-
undersigned to the obligations of the Tenant under, arising out of or related to
the Lease or Tenant's use of the Premises; and (c) acknowledges that the actions
of Landlord may affect or eliminate any rights of subrogation or reimbursement
of the undersigned as against Tenant without any liability or recourse against
Landlord.
Neither this Guaranty nor any of the provisions hereof can be modified,
waived or terminated, except by a written instrument signed by Landlord. The
provisions of this Guaranty shall apply to, bind and inure to the benefit of the
undersigned and Landlord and their respective heirs, legal representatives,
successors and assigns. As used herein, the term "Tenant" means the Tenant
specifically named in the Lease and also any assignee or subtenant of said Lease
and any successor to the interests of said Tenant, assignee or sublessee of such
Lease or any part thereof, whether by assignment, sublease or otherwise
including, without limitation, any trustee in bankruptcy and any bankruptcy
estate of Tenant, Tenant's assignee or sublessee. The undersigned, if there be
more than one, shall be jointly and severally liable hereunder, and for purposes
of such several liability the word "undersigned" wherever used herein shall be
construed to refer to each of the undersigned parties separately, all in the
same manner and with the same effect as if each of them had signed separate
instruments, and this Guaranty shall not be revoked or impaired as to any of
such parties by the death of another party or by revocation or release of any
obligations hereunder of any other party.
If Landlord should retain counsel and/or institute any suit against
Guarantor to enforce this Guaranty or any covenants or obligations hereunder,
then Guarantor shall pay to Landlord, upon demand, all reasonable attorneys'
fees, costs and expenses, including, without limitation, court costs, filing
fees, recording costs, and all other costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"), in
addition to all other amounts due hereunder. This Guaranty shall be governed by
and construed in accordance with the internal laws of the state where the
premises demised by the Lease are located. For the purpose solely of litigating
any dispute under this Guaranty, the undersigned submits to the jurisdiction of
the courts of the United States of America and said state. The undersigned
hereby waives any right to trial by jury and further waives and agrees not to
assert or take advantage of any defense based on the claim that any arbitration
decision binding upon Landlord or Tenant is not binding on the undersigned.
Any notice or other communication to be given to Landlord or the
undersigned hereunder shall be in writing and sent in accordance with the notice
provisions of the Lease. Notices to Landlord shall be delivered to Landlord's
address set forth in the Lease. Notices to the undersigned shall be addressed as
follows: 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, Attention: Finance
Department. In the event Guarantor's notice address as set forth above changes,
Guarantor agrees to provide written notice to Landlord of such change in
address.
This Guaranty shall be construed and enforced in accordance with the
laws of the State of California. Any legal action or proceeding with respect to
this Guaranty and any action for enforcement of any judgment in respect thereof
may be brought in the courts of California or the United States of America for
the Northern District of California and by execution and delivery of this
guaranty, Guarantor hereby accepts unconditionally the non-exclusive
jurisdiction of the aforementioned courts and their respective appellate courts.
Guarantor hereby irrevocably consents to the service of process out of any of
these
-15-
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by a reputable international courier to Guarantor at the address
provided in Paragraph 1. Guarantor irrevocably waives any objection which it may
now or hereafter have to the laying of venue in any of the courts referred to
above arising out of or in connection any action or proceeding on this Guaranty
brought in any of the courts referred to above and further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding has been brought in an inconvenient forum.
[SIGNATURES ON FOLLOWING PAGE]
-16-
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the date of
the ______ day of _____________, 2003.
GUARANTOR:
BACKWEB TECHNOLOGIES, LTD, AN ISRAELI
CORPORATION
By: ___________________________________
Name: _________________________________
Title:_________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
-00-
XXXXXXXX XXXXXXXXXXXXXXX
XXXXX OF ____________)
COUNTY OF ___________) ss:
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, do hereby certify that ____________________________, personally known
to me to be the __________ President of Equity Office Properties Trust, a
Maryland real estate investment trust, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that as such officer of said entity being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
entity, by subscribing the name of such entity by himself/herself as such
officer, as a free and voluntary act, and as the free and voluntary act and deed
of said entity, for the uses and purposes therein set forth.
GIVEN under my hand and official seal this ___ day of ___________, 20__.
__________________________
Notary Public
My Commission Expires: __________
TENANT ACKNOWLEDGMENTS
INDIVIDUAL
STATE OF ____________)
COUNTY OF ___________) ss:
I, the undersigned, as Notary Public in and for the County and State
aforesaid, do hereby certify that ____________________________, personally known
to me to be the same person whose name is subscribed to the foregoing
instrument, appeared before me this day in person and acknowledged that (s)he
signed the said instrument as a free and voluntary act for the uses and purposes
therein set forth.
GIVEN under my hand and official seal this ___ day of _________, 20__.
___________________________
Notary Public
My Commission Expires: __________
-18-
CORPORATION
STATE OF ____________)
COUNTY OF ___________) ss:
On this the ___ day of ____________, 20__, before me a Notary Public
duly authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared __________________________ known to me to be
____________ President of ________________________, one of the parties described
in the foregoing instrument, and acknowledged that as such officer, being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
corporation by subscribing the name of such corporation by himself/herself as
such officer and caused the corporate seal of said corporation to be affixed
thereto, as a free and voluntary act, and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
__________________________
Notary Public
My Commission Expires: __________
PARTNERSHIP
STATE OF ____________)
COUNTY OF ___________) ss:
On this the ___ day of ________________, 20__, before me a Notary
Public duly authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared _____________ known to me to be a general
partner of a partnership known as _______________________________, one of the
parties described in the foregoing instrument, and acknowledged that being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
partnership by subscribing the name of said partnership by himself/herself, as a
free and voluntary act, and as the free and voluntary act of said partnership,
for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
` __________________________
Notary Public
My Commission Expires: __________
-19-
EXHIBIT C
FORM OF GUARANTY
GUARANTY OF NOTE
FOR VALUE RECEIVED and in consideration for and as an inducement to
CA-GATEWAY OFFICE LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Payee")
to enter in to the Third Amendment (as defined below) respecting certain real
property leased to BACKWEB TECHNOLOGIES INC., A DELAWARE CORPORATION, as tenant
("Maker"), which is leased by Maker pursuant to that certain office lease by and
between Payee (as "Landlord") and Maker (as "Tenant") and dated December 23,
1998 (the "Original Lease"), which Original Lease has been previously amended by
that certain 1st Amendment to Lease - Expansion dated as of May 12, 2000, and by
that certain 2nd Amendment to Lease - Expansion dated as of November 7, 2000,
and further amended by that certain Third Amendment dated October 27, 2003 (the
"Third Amendment", and, together with the 1st Amendment to Lease - Expansion and
the 2nd Amendment to Lease - Expansion, collectively, the "Lease"), the
undersigned, BACKWEB TECHNOLOGIES LTD, AN ISRAELI CORPORATION ("Guarantor") does
hereby unconditionally and irrevocably guarantee to Payee the punctual payment
payable by Maker under the that certain Promissory Note of even date herewith
(the "Note"), including, without limitation, the Additional Reduction Fee (as
defined in the Third Amendment and in the Note), throughout the term of the
Lease and the Note, as the case may be, for which the undersigned shall be
jointly and severally liable with Maker. If any default on the part of Maker
shall occur under the Note, the undersigned does hereby covenant and agree to
pay to Payee upon demand in each and every instance such sum or sums of money
and to perform each and every covenant, condition and agreement under the Note
as Maker is and shall become liable for or obligated to pay or perform under the
Note, together with the costs reasonably incurred by Payee in connection
therewith, including, without limitation, reasonable attorneys' fees. Such
payments of the Principal Amount and other sums shall be made monthly or at such
other intervals as the same shall or may become payable under the Note, all
without requiring any notice from Payee (other than any notice required by the
Note, if any) of such non-payment or non performance, all of which the
undersigned hereby expressly waives.
The maintenance of any action or proceeding by Payee to recover any sum
or sums that may be or become due under the Note and to secure the performance
of any of the other terms, covenants and conditions of the Note shall not
preclude Payee from thereafter instituting and maintaining subsequent actions or
proceedings for any subsequent default or defaults of Maker under the Note. The
undersigned does hereby consent that without affecting the liability of the
undersigned under this Guaranty and without notice to the undersigned, time may
be given by Payee to Maker for payment of the Principal Amount and such other
sums and performance of said other terms, covenants and conditions, or any of
them, and such time extended and indulgence granted, from time to time, or Maker
may be dispossessed or Payee may avail itself of or exercise any or all of the
rights and remedies against Maker provided by law or by the Note, and may
proceed either against Maker alone or jointly against Maker and the undersigned
or against the undersigned alone without first prosecuting or exhausting any
remedy or claim against Maker. The undersigned does hereby further consent to
any subsequent change, modification or amendment of the Note in any of its
terms, covenants or conditions, or in the Principal Amount payable thereunder,
or in the
-20-
term thereof, and to any renewals or extensions thereof, all of which may be
made without notice to or consent of the undersigned and without in any manner
releasing or relieving the undersigned from liability under this Guaranty.
The undersigned does hereby agree that the bankruptcy of Maker shall
have no effect on the obligations of the undersigned hereunder. The undersigned
does hereby further agree that in respect of any payments made by the
undersigned hereunder, the undersigned shall not have any rights based on
suretyship, subrogation or otherwise to stand in the place of Payee so as to
compete with Payee as a creditor of Maker, unless and until all claims of Payee
under the Note shall have been fully paid and satisfied.
The undersigned hereby waives and agrees not to assert: (a) any right
to require Payee to proceed against Maker, or any other guarantor or person or
to pursue any other security or remedy before proceeding against the
undersigned; (b) any defense based on the validity or enforceability of the
Note; (c) any right or defense that may arise by reason of the incapacity, lack
of authority, death or disability of Maker or any other person; and (d) any
right or defense arising by reason of the absence, impairment, modification,
limitation, destruction or cessation (in bankruptcy, by an election of remedies,
or otherwise) of the liability of Maker of the subrogation rights of the
undersigned or of the right of the undersigned to proceed against Maker for
reimbursement. The undersigned waives any right, statutory, or otherwise, for
itself to require or for Maker to require Payee to apply rents received toward
the obligations of the undersigned under this Guaranty, or to otherwise
prioritize the receipt of rents as against the obligations of the undersigned
under this Guaranty. The undersigned hereby waives and agrees not to assert (x)
any right or defense based on the absence of any or all presentments, demands
(including demands for performance), notices (including notices of any adverse
change in the financial status of Maker, notices of any other facts which
increase the risk to the undersigned, notices of non-performance and notices of
acceptance of this Guaranty) and protests of each and every kind; (y) the
defense of any statute of limitations in any action under or related to this
Guaranty or the Note; and (z) any right or defense based on a lack of diligence
or failure or delay by Payee in enforcing its rights under this Guaranty or the
Note. The undersigned hereby waives and agrees not to assert or take advantage
of any right to (i) exoneration if Payee's actions shall impair any security or
collateral of the undersigned; (ii) any security or collateral held by Payee;
(iii) require Payee to proceed against or exhaust any security or collateral
before proceeding against the undersigned; and (iv) require Payee to pursue any
right or remedy for the benefit of the undersigned. Without limiting the
generality of any of the covenants and agreements of the undersigned set forth
in this Guaranty, the undersigned hereby waives any and all benefits of the
provisions of Sections 2809, 2810, 2819, 2822, 2845, 2848, 2849 and 2850 of the
California Civil Code and any similar or analogous statutes of California or any
jurisdiction.
Until all the Maker's obligations under the Lease are fully performed,
the undersigned (a) shall have no right of subrogation or reimbursement against
the Maker by reason of any payments or acts of performance by the undersigned
under this Guaranty, (b) subordinates any liability or indebtedness of the Maker
now or hereafter held by the undersigned to the obligations of the Maker under,
arising out of or related to the Note; and (c) acknowledges that the actions of
Payee may affect or eliminate any rights of subrogation or reimbursement of the
undersigned as against Maker without any liability or recourse against Payee.
-21-
Neither this Guaranty nor any of the provisions hereof can be modified,
waived or terminated, except by a written instrument signed by Payee. The
provisions of this Guaranty shall apply to, bind and inure to the benefit of the
undersigned and Payee and their respective heirs, legal representatives,
successors and assigns. As used herein, the term "Maker" means the Maker
specifically named in the Note and also any assignee or transferee of said Note
and any successor to the interests of said Maker, assignee or transferee of such
Note or any part thereof, whether by assignment or otherwise including, without
limitation, any trustee in bankruptcy and any bankruptcy estate of Maker,
Maker's assignee or transferee. The undersigned, if there be more than one,
shall be jointly and severally liable hereunder, and for purposes of such
several liability the word "undersigned" wherever used herein shall be construed
to refer to each of the undersigned parties separately, all in the same manner
and with the same effect as if each of them had signed separate instruments, and
this Guaranty shall not be revoked or impaired as to any of such parties by the
death of another party or by revocation or release of any obligations hereunder
of any other party.
If Payee should retain counsel and/or institute any suit against
Guarantor to enforce this Guaranty or any covenants or obligations hereunder,
then Guarantor shall pay to Payee, upon demand, all reasonable attorneys' fees,
costs and expenses, including, without limitation, court costs, filing fees,
recording costs, and all other costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"), in
addition to all other amounts due hereunder. This Guaranty shall be governed by
and construed in accordance with the internal laws of the state of California.
For the purpose solely of litigating any dispute under this Guaranty, the
undersigned submits to the jurisdiction of the courts of the United States of
America and of said state. The undersigned hereby waives any right to trial by
jury and further waives and agrees not to assert or take advantage of any
defense based on the claim that any arbitration decision binding upon Payee or
Maker is not binding on the undersigned.
Any notice or other communication to be given to Payee or the
undersigned hereunder shall be in writing and sent in accordance with the notice
provisions of the Note. Notices to Payee shall be delivered to Payee's address
set forth in the Note. Notices to the undersigned shall be addressed as follows:
0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, Attention: Finance
Department. In the event Guarantor's notice address as set forth above changes,
Guarantor agrees to provide written notice to Payee of such change in address.
This Guaranty shall be construed and enforced in accordance with the
laws of the State of California. Any legal action or proceeding with respect to
this Guaranty and any action for enforcement of any judgment in respect thereof
may be brought in the courts of California or the United States of America for
the Northern District of California and by execution and delivery of this
Guaranty, Guarantor hereby accepts unconditionally the non-exclusive
jurisdiction of the aforementioned courts and their respective appellate courts.
Guarantor hereby irrevocably consents to the service of process out of any of
these aforementioned courts in any such action or proceeding by the mailing of
copies thereof by a reputable international courier to Guarantor at the address
provided herein. Guarantor irrevocably waives any objection which it may now or
hereafter have to the laying of venue in any of the courts referred to above
arising out of or in connection any action or
-22-
proceeding on this Guaranty brought in any of the courts referred to above and
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the date of the Note.
GUARANTOR:
BACKWEB TECHNOLOGIES, LTD, AN ISRAELI
CORPORATION
By: __________________________________
Name: ________________________________
Title: ________________________________
-00-
XXXXXXXX XXXXXXXXXXXXXXX
XXXXX OF ____________)
COUNTY OF ___________) ss:
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, do hereby certify that ____________________________, personally known
to me to be the __________ President of Equity Office Properties Trust, a
Maryland real estate investment trust, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that as such officer of said entity being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
entity, by subscribing the name of such entity by himself/herself as such
officer, as a free and voluntary act, and as the free and voluntary act and deed
of said entity, for the uses and purposes therein set forth.
GIVEN under my hand and official seal this ___ day of _________, 20__.
__________________________
Notary Public
My Commission Expires: __________
TENANT ACKNOWLEDGMENTS
INDIVIDUAL
STATE OF ____________)
COUNTY OF ___________) ss:
I, the undersigned, as Notary Public in and for the County and State
aforesaid, do hereby certify that ____________________________, personally known
to me to be the same person whose name is subscribed to the foregoing
instrument, appeared before me this day in person and acknowledged that (s)he
signed the said instrument as a free and voluntary act for the uses and purposes
therein set forth.
GIVEN under my hand and official seal this ___ day of __________, 20__.
__________________________
Notary Public
My Commission Expires: __________
CORPORATION
STATE OF ____________)
COUNTY OF ___________) ss:
On this the ___ day of ____________, 20__, before me a Notary Public
duly authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared __________________________ known to me to be
____________ President of ________________________, one of the parties described
in the foregoing instrument, and acknowledged that as such officer, being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
corporation by subscribing the name of such corporation by himself/herself as
such officer and caused the corporate seal of said corporation to be affixed
thereto, as a free and voluntary act, and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
__________________________
Notary Public
My Commission Expires: __________
-24-
PARTNERSHIP
STATE OF ____________)
COUNTY OF ___________) ss:
On this the ___ day of ________________, 20__, before me a Notary
Public duly authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared _____________ known to me to be a general
partner of a partnership known as _______________________________, one of the
parties described in the foregoing instrument, and acknowledged that being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
partnership by subscribing the name of said partnership by himself/herself, as a
free and voluntary act, and as the free and voluntary act of said partnership,
for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
__________________________
Notary Public
My Commission Expires: __________
-25-
EXHIBIT D
FORM OF LETTER OF CREDIT
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. _________________________
Issuance Date:_______________
Expiration Date:_____________
Applicant:___________________
Beneficiary
_____________________________
_____________________________
_____________________________
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the amount of FIVE
HUNDRED THOUSAND AND NO/100 U.S. Dollars ($500,000.00) available for payment at
sight by your draft drawn on us when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by an authorized
signatory or agent reading: "This draw in the amount of
______________________ U.S. Dollars ($____________) under your
Irrevocable Standby Letter of Credit No. ____________________
represents funds due and owing to us pursuant to the terms of that
certain lease by and between ______________________, as landlord, and
_____________, as tenant, and/or any amendment to the lease or any
other agreement between such parties related to the lease."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least 60 days prior to such expiration date or applicable anniversary
thereof, we notify you in writing, by certified mail return receipt requested or
by recognized overnight courier service, that we elect not to so renew this
Irrevocable Standby Letter of Credit. A copy of any such notice shall also be
sent, in the same manner, to: Equity Office Properties Trust, 0 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Treasury Department. In
addition to the foregoing, we understand and agree that you shall be entitled to
draw upon this Irrevocable Standby Letter of Credit in accordance with 1 and 2
above in the event that we elect not to renew this Irrevocable Standby Letter of
Credit and, in addition, you provide us with a dated statement purportedly
signed by an authorized signatory or agent of Beneficiary stating that the
-26-
Applicant has failed to provide you with an acceptable substitute irrevocable
standby letter of credit in accordance with the terms of the above referenced
lease. We further acknowledge and agree that: (a) upon receipt of the
documentation required herein, we will honor your draws against this Irrevocable
Standby Letter of Credit without inquiry into the accuracy of Beneficiary's
signed statement and regardless of whether Applicant disputes the content of
such statement; (b) this Irrevocable Standby Letter of Credit shall permit
partial draws and, in the event you elect to draw upon less than the full stated
amount hereof, the stated amount of this Irrevocable Standby Letter of Credit
shall be automatically reduced by the amount of such partial draw; and (c) you
shall be entitled to transfer your interest in this Irrevocable Standby Letter
of Credit from time to time and more than one time without our approval and
without charge. In the event of a transfer, we reserve the right to require
reasonable evidence of such transfer as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 revision) ICC Publication No.
500.
We hereby engage with you to honor drafts and documents drawn under and
in compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby
Letter of Credit must be addressed to our office located at __________________
to the attention of______________________.
Very truly yours,
____________________________
____________________________
[name]
____________________________
[title}
-27-
EXHIBIT E
FORM OF ADDITIONAL REDUCTION FEE PROMISSORY NOTE
PROMISSORY NOTE
SAN JOSE, CALIFORNIA
NOT TO EXCEED $1,000,000.00 OCTOBER ___, 2003
FOR VALUE RECEIVED, the undersigned, BACKWEB TECHNOLOGIES INC., A
DELAWARE CORPORATION ("Maker"), unconditionally promises to pay to CA-GATEWAY
OFFICE LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("Payee", which term
shall mean the holder, from time to time, of this Note), a principal sum
determined in accordance with the terms hereof but not to exceed ONE MILLION
DOLLARS ($1,000,000.00). Maker shall pay the then current outstanding principal
amount (as determined in accordance with Section 10 of this Note) to Payee on or
before any date due as provided herein (each a "Maturity Date"). Each such
payment shall be made by good and lawful check or money order payable to EQUITY
OFFICE PROPERTIES, and shall be delivered on or before the close of business to
CA-GATEWAY OFFICE LIMITED PARTNERSHIP, X.X. Xxx 00000, Xxxx. 00000, Xxx
Xxxxxxxxx, XX 00000-0000, or such other party or place as Payee may designate by
written notice to Maker. None of the sums due hereunder shall be subject to any
claim or offset of any kind or nature whatsoever. The principal owing under this
Note that is not paid when due shall bear interest ("Default Interest") at the
lesser of 18% per annum or the highest rate permitted by law. All Default
Interest shall be computed on the basis of a 360-day year composed of twelve
30-day months. Payee may transfer this Note, in part or in whole to any party
designated by Payee by written notice to Maker.
1. PERMISSIBLE PREPAYMENTS. The principal amount of this Note may at any
time and from time to time be prepaid in whole or in part, together
with interest accrued thereon to the date of such prepayment, without
premium or penalty, at the place of payment designated above. Partial
prepayments shall not delay any Maturity Date.
2. DEFAULT. At the option of Payee, the then-current outstanding but
unpaid principal amount balance of this Note (as determined in
accordance with Section 10 of this Note), including all accrued but
unpaid interest and accrued but unpaid Default Interest, shall become
immediately due and payable, without notice or demand, upon the
occurrence at any time of any of the following:
a. failure to pay any amounts due pursuant to the terms hereof
when due; or
b. failure to pay the outstanding balance due hereunder, together
with accrued but unpaid interest and accrued but unpaid
Default Interest, if any, thereon, upon any Maturity Date,
whether by acceleration or otherwise; or
c. Maker shall become insolvent, or shall make a transfer in
fraud of creditors, or shall commit an act of bankruptcy or
shall make an assignment for the benefit of creditors, or
Maker shall admit in writing its inability to pay its debts as
they become due; or
-28-
d. Maker shall file a petition under any section or chapter of
the United States Bankruptcy Code, as amended, pertaining to
bankruptcy, or under any similar law or statute of the United
States or any State thereof, or Maker shall be adjudged
bankrupt or insolvent in proceedings filed against Maker; or a
petition or answer proposing the adjudication of Maker as a
debtor or its reorganization under any present or future
federal or state bankruptcy or similar law shall be filed in
any court and such petition or answer shall not be discharged
or denied within 60 days after the filing thereof; or
e. a receiver or trustee shall be appointed for all or
substantially all of the assets of Maker in any proceeding
brought by or against Maker and shall not be discharged within
60 days after such appointment; or
f. failure to pay when due any payment of Rent or other amounts
due under certain office lease dated December 23, 1998 (the
"Original Lease") by and between Maker and Payee, which
Original Lease has been previously amended by that certain 1st
Amendment to Lease - Expansion dated as of May 12, 2000 (the
"First Amendment") and by that certain 2nd Amendment to Lease
- Expansion dated as of November 7, 2000 (the "Second
Amendment"), and by that certain Third Amendment of even date
herewith (the "Third Amendment", and together with the
Original Lease, the First Amendment and the Second Amendment,
collectively, the "Lease") for approximately 17,569 rentable
square feet in the building commonly known as Gateway Office
IIB located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx; or
g. Intentionally omitted.
The remedies of Payee as provided herein, or at law or in equity, shall
be cumulative and concurrent, and may be pursued singly, successively,
or together at the sole discretion of Payee, and may be exercised as
often as occasion therefor shall occur. The failure at any time to
exercise any right or remedy shall not constitute a waiver of the right
to exercise the right or remedy at any other time.
3. ENFORCEMENT COSTS. If this Note is placed in the hands of an attorney
for collection or is collected through any legal proceeding, or if
Payee incurs any costs or expenses in enforcing its rights hereunder,
the Maker promises to pay expenses, court costs and reasonable
attorneys' fees, incurred in connection with such matter, and in
addition to all such costs and expenses, interest thereon from the date
of such demand until paid at the Default Interest rate.
4. WAIVER. Presentment, demand, protest, notices of protest, dishonor and
non-payment of this Note and all notices of every kind are hereby
waived by Maker. To the extent permitted by applicable law, the defense
of the statute of limitations is hereby waived by Maker. The Maker
agrees that the time of payment of principal or interest on this Note
may be extended, without in any way altering, releasing, affecting or
limiting the liability of Maker hereunder. Maker acknowledges that the
provisions of California Civil Code Section 2924(i) are not applicable
to this Note and expressly waives any rights thereunder.
-29-
5. NOTICES. Any notice desired to be given to any other party hereunder
shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or
same day commercial courier service at the party's respective notice
address(es) below. Each notice shall be deemed to have been received or
given on the earlier to occur of (i) actual delivery or the date on
which delivery is refused, if delivered by hand delivery, (ii) three
(3) days after notice is deposited in the U.S. mail, if delivered via
certified mail, or (iii) one (1) business day after deposit with a
commercial courier service. Either party may, at any time, change its
notice address (other than to a P.O. Box) by giving the other party at
least 10 days advance written notice of the new address in the manner
described in this Section.
Payee's address for notices is:
CA-GATEWAY OFFICE LIMITED PARTNERSHIP
c/o Equity Office Properties
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Building Manager
With a copy to:
Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - San Xxxx Region
Maker's address for notices is:
Backweb Technologies Inc.
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Finance Department
6. GUARANTY. As security for the payment of the monies owing under this
Note, Maker has delivered or has caused to be delivered to Payee a
Guaranty (the "Guaranty") entered into by Guarantor (as defined in
Section 10.a below) for the benefit of Payee, which Guaranty secures
Maker's performance hereunder.
7. TRIAL BY JURY WAIVER. TO THE EXTENT PERMITTED BY LAW, EACH OF MAKER AND
PAYEE HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE DEALINGS OF MAKER AND PAYEE WITH RESPECT TO THIS NOTE
OR THE TRANSACTIONS RELATED
-30-
HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, EACH OF MAKER AND PAYEE HEREBY AGREES THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED
BY A COURT TRIAL WITHOUT A JURY AND THAT EITHER PARTY MAY FILE AN
ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL
AS WRITTEN EVIDENCE OF THE CONSENT OF MAKER TO THE WAIVER OF ITS RIGHT
TO TRIAL BY JURY.
8. MISCELLANEOUS.
a. No single or partial exercise of any power hereunder or under
the Lease or any other agreement pertaining to the principal
and interest due hereunder and/or any Base Rent or Additional
Rent or Cash Consideration due under the Lease shall preclude
other or further exercise thereof or the exercise of any other
power or right. No delay or omission on the part of the Payee
in exercising any right hereunder shall operate as a waiver of
such right or of any other right under this Note. All remedies
of Payee shall be cumulative and concurrent, and may be
pursued singularly, successively or concurrent, at the option
of Payee.
b. Time is of the essence with respect to the performance of the
obligations of Maker under this Note.
c. The undersigned, if there be more than one, shall be jointly
and severally liable hereunder, and for purposes of such
several liability the word "undersigned" or "Maker" wherever
used herein shall be construed to refer to each of the
undersigned parties separately, all in the same manner and
with the same effect as if each of them had signed separate
instruments, and this Note shall not be revoked or impaired as
to any of such parties by the death of another party or by
revocation or release of any obligations hereunder of any
other party. The term "Maker" shall also include the heirs,
successors and assigns of the original named Maker hereunder.
d. This Note shall be governed by and construed in accordance
with the internal laws of the state where this Note was
executed and delivered. For the purpose solely of litigating
any dispute under this Note, the Maker submits to the
jurisdiction of the courts of said state. The parties
acknowledge and agree this Note was executed and delivered in
the State of California.
e. Any provision of this Note which is unenforceable, invalid or
contrary to law, or the inclusion of which would affect the
validity, legality or enforcement of this Note, shall be of no
effect, and in such case, all the remaining terms and
provisions of this Note shall subsist and be fully effective
according to the terms of this Note the same as though any
such unenforceable, invalid or contrary provision had never
been included herein.
f. All payments received on account of the indebtedness evidenced
by this Note
-31-
shall be applied to principal, interest, Default Interest and
any costs and expenses owing to Payee as a result of this
Note, in whatever order, combination and amounts as Payee, in
its sole and absolute discretion, decides.
g. This Note, and the terms and provisions hereof, shall be
binding upon the Maker and each Maker's heirs, executors,
personal representatives, successors, administrators, and
assigns, and shall inure to the benefit of any holder hereof.
Payee has the right to sell, assign, pledge, hypothecate or
negotiate this Note, and all Payee's rights hereunder, to any
person or entity without notice to or consent of any Maker.
h. All amounts due hereunder shall be paid without deduction, set
off or counterclaim, Maker expressly waiving any such rights
to deduction, set off or counterclaim.
i. Each signatory of this Note represents hereby that he or she
has the authority to execute and deliver the same on behalf of
the party hereto for which such signatory is acting.
j. Upon receipt by Maker of written notice from Payee of the
loss, theft, destruction or mutilation of this Note, Maker
will execute and deliver to Payee, in lieu thereof, a
replacement note in identical form to this Note and dated as
of the date of this Note. Upon delivery to Payee of such
replacement note, all references in the Security Documents to
this Note shall be deemed to be references to such replacement
note.
k. ALL AGREEMENTS BETWEEN MAKER AND PAYEE, WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER WRITTEN OR ORAL, ARE HEREBY
EXPRESSLY LIMITED SO THAT IN NO CONTINGENCY OR EVENT
WHATSOEVER, WHETHER BY REASON OF ACCELERATION OF THE MATURITY
OF THIS NOTE OR OTHERWISE, SHALL THE AMOUNT PAID OR AGREED TO
BE PAID TO PAYEE OR THE HOLDER OF THIS NOTE FOR THE USE,
FORBEARANCE OR DETENTION OF THE MONEY LOANED PURSUANT HERETO
OR OTHERWISE, OR FOR THE PAYMENT OR PERFORMANCE OF ANY
COVENANT OR OBLIGATION CONTAINED HEREIN OR IN ANY OTHER
DOCUMENT EXECUTED IN CONNECTION HEREWITH, EXCEED THE MAXIMUM
AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY
CIRCUMSTANCE OR CONTINGENCY WHATSOEVER, FULFILLMENT OF ANY
PROVISION HEREOF OR OF ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH, AT THE TIME PERFORMANCE OF SUCH PROVISION
SHALL BE DUE, SHALL INVOLVE TRANSCENDING THE LIMIT OF VALIDITY
PRESCRIBED BY LAW, THEN, IPSO FACTO, THE OBLIGATION TO BE
FULFILLED SHALL BE REDUCED TO THE LIMIT OF SUCH VALIDITY, AND
IF FROM ANY SUCH CIRCUMSTANCE OR CONTINGENCY PAYEE SHALL EVER
RECEIVE AS INTEREST OR OTHERWISE AN AMOUNT WHICH WOULD EXCEED
THE MAXIMUM RATE OF INTEREST PERMITTED BY APPLICABLE LAW, THE
AMOUNT OF
-32-
SUCH EXCESS SHALL BE APPLIED TO A REDUCTION OF THE
INDEBTEDNESS EVIDENCED BY THIS NOTE, AND NOT TO THE PAYMENT OF
INTEREST, AND IF SUCH EXCESSIVE INTEREST EXCEEDS SUCH
INDEBTEDNESS, THE AMOUNT OF SUCH EXCESSIVE INTEREST SHALL BE
REFUNDED TO MAKER. IF AT ANY TIME THIS NOTE PRESCRIBES A RATE
OF INTEREST IN EXCESS OF THE MAXIMUM RATE PERMITTED BY LAW,
ALL SUMS PAID OR AGREED TO BE PAID TO PAYEE FOR THE USE,
FORBEARANCE OR DETENTION OF THE MONEY LOANED PURSUANT TO THIS
NOTE SHALL BE AMORTIZED, PRORATED, ALLOCATED AND SPREAD
THROUGHOUT THE FULL TERM OF SUCH INDEBTEDNESS UNTIL PAYMENT IN
FULL, SO THAT THE ACTUAL RATE OF INTEREST ON ACCOUNT OF SUCH
INDEBTEDNESS IS UNIFORM THROUGHOUT THE TERM HEREOF. ANY
PREPAYMENT OF THE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN
MADE PURSUANT TO THE FOREGOING PROVISIONS SHALL BE WITHOUT ANY
PREPAYMENT PENALTY OR PREMIUM.
9. MAKER'S REPRESENTATIONS AND WARRANTIES. Maker hereby represents and
warrants to Payee as follows:
a. Maker is duly formed, validly existing and in good standing
under the laws of the State of Delaware.
b. Maker has the power and authority to enter into this Note.
Maker's representatives are duly authorized to execute and
deliver this Note on behalf of Maker and to generally perform
Maker's obligations hereunder. This Note does not violate any
provision of any agreement or judicial order to which Maker is
a party or to which maker is subject.
c. Maker has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Maker's
creditors, (iii) suffered the appointment of a receiver to
take possession of all, or substantially all, of Maker's
assets, (iv) suffered the attachment or other judicial seizure
of all, or substantially all, of Maker's assets, (v) admitted
in writing its inability to pay its debts as they come due, or
(vi) made an offer of settlement, extension or composition to
its creditors generally.
10. DETERMINATION OF PRINCIPAL AMOUNT. The Principal Amount of this Note
shall equal the total Additional Reduction Fee (as defined below).
Maker shall pay to Payee, by cashier's or certified check or by wire
transfer of immediately available funds to an account designated by
Payee an additional reduction fee (the "Additional Reduction Fee) in
the amount and on the dates as hereby provided:
a. Any sums invested from any source whatsoever (either debt or
equity) in Maker and/or BackWeb Technologies Ltd., an Israeli
corporation ("Guarantor"), in the aggregate (the "Investment
Dollars") commencing on October 1, 2002 through and including
June 30, 2005 (the "Investment Period") shall be subject to
the following payment schedule: Within 3 business days
following receipt, Maker shall pay to Payee (i) 5% of any of
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any Investment Dollars equal to or in excess of $1.00 through
and including $2,000,000.00, (ii) 7% of any Investment Dollars
in excess of $2,000,000.00 though and including $5,000,000.00,
and (iii) 10% of any Investment Dollars in excess of
$5,000,000.00. Investment Dollars shall expressly exclude
funds received on the exercise of stock options or as part of
Tenant's or Guarantor's (as the case may be) Employee Stock
Purchase Plan. Further, Investment Dollars shall also exclude
funds received in connection with Tenant's or Guarantor's line
of credit or factoring activities to the extent Payee
reasonably determines that any such amounts constitute debt to
Tenant and/or Guarantor, as the case may be.
b. Additionally, and notwithstanding the foregoing, if at any
time prior to the expiration of the Investment Period, Maker's
and/or Guarantor's revenues (as determined in accordance with
generally accepted accounting principles and in accordance
with the terms of this Note) in any calendar year equal or
exceed $20,000,000.00 in total, Maker shall, on or before the
earlier of (i) February 15th of the following calendar year or
(ii) thirty (30) days following the expiration of the calendar
quarter in which Maker's and/or Guarantor's revenues (as
determined in accordance with generally accepted accounting
principles and in accordance with the terms of this Note)
equal or exceed $20,000,000.00 in total, deliver to Payee as
part of the Additional Reduction Fee an amount equal to
$1,000,000.00 less the amount of any sums paid by Maker to
Payee in connection with any Investment Dollars as such
payment is described the preceding paragraph (the "Cash
Portion of the Additional Reduction Fee"). In no event shall
the total Additional Reduction Fee received by Payee exceed
$1,000,000.00.
c. Maker shall, at the same time that it publicly announces its
financial results following the end of each quarter (but in no
event more than within forty-five (45) days following the end
of each calendar quarter), provide to Payee a written
statement prepared by either of an executive officer of Maker,
Maker's Vice President of Finance or Maker's certified public
accounting firm certifying as true, complete and correct in
all material aspects: (a)(x) Maker and/or Guarantor has
received no Investment Dollars the previous calendar quarter,
or (y) the amount of and other material details regarding the
total amount of any Investment Dollars received by Maker
and/or Guarantor the previous calendar quarter, and (b) the
amount of each of Maker's and Guarantor's revenues for the
previous calendar quarter determined in accordance with
generally accepted accounting principles. Payee shall have the
right to transfer and assign, in whole or in part, all of its
rights in and to it's portion of the Investment Dollars and/or
the Cash Portion of the Additional Reduction Fee by providing
notice to Maker of such transfer at any time (subject to
compliance with applicable law). Unless otherwise indicated in
writing by Payee, payments of the Additional Reduction Fee
shall be delivered by Maker to Payee in accordance with the
terms and conditions contained herein. Payee may give Maker
written notice ("Review Notice") that Payee intends to review
Maker's and/or Guarantor's records with respect to the
foregoing. Within a reasonable time after receipt of the
Review Notice, Maker shall make all pertinent records
available for inspection (at the building
-34-
in which the premises under the Lease is located) that are
reasonably necessary for Payee to conduct its review.
[SIGNATURES ARE ON FOLLOWING PAGE]
-35-
This Note is entered into by Maker upon the date first written above.
MAKER:
BACKWEB TECHNOLOGIES INC., A DELAWARE
CORPORATION
By: ____________________________
Name: ____________________________
Title: ____________________________
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EXHIBIT F
FORM OF WARRANT
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE OR FOREIGN SECURITIES
LAWS, AND NO INTEREST MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE OR FOREIGN SECURITIES LAWS COVERING ANY SUCH
TRANSACTION INVOLVING SAID SECURITIES, (B) THE COMPANY RECEIVES AN OPINION OF
LEGAL COUNSEL FOR THE HOLDER OF THE SECURITIES SATISFACTORY TO THE COMPANY
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, (C) SUCH TRANSACTION
IS IN COMPLIANCE WITH RULE 144 OF THE ACT, OR (D) THE COMPANY OTHERWISE
SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
No. W- ___
Issued: [Date of Amendment] Warrant to Purchase 200,000
Void: [Date of SevenYear Anniversary] Ordinary Shares
BACKWEB TECHNOLOGIES LTD.
WARRANT
THIS IS TO CERTIFY that, for good and valuable consideration received and
subject to these terms and conditions, CA-GATEWAY OFFICE, LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP, or such person to whom this Warrant is transferred
(the "HOLDER"), is entitled to exercise this Warrant to purchase from BackWeb
Technologies Ltd., an Israeli corporation (the "COMPANY"), 200,000 fully paid
and nonassessable Ordinary Shares (the "WARRANT SHARES") at a price per share of
U.S. $ 0.66 (the "EXERCISE PRICE") (such number of shares, type of security and
the Exercise Price being subject to adjustment as provided below).
1. METHOD OF EXERCISE
1.1 CASH EXERCISE RIGHT
This Warrant may be exercised by the Holder, at any time until
[Date of Five-Year Anniversary of Amendment Date] (the "EXERCISE PERIOD"), in
whole or in part, by delivering to the Company at c/o BackWeb Technologies Inc.,
0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 (or such other office or
agency of the Company as it may designate
by notice in writing to the Holder at the address of the Holder appearing on the
books of the Company) (a) this Warrant certificate, (b) a certified or cashier's
check payable to the Company or a wire transfer in the amount of the Exercise
Price multiplied by the number of shares for which this Warrant is being
exercised (the "PURCHASE PRICE"), and (c) the Notice of Cash Exercise attached
as EXHIBIT A duly completed and executed by the Holder.
1.2 NET ISSUANCE RIGHT
Notwithstanding the payment provisions set forth above, the
Holder may elect to convert this Warrant into Warrant Shares by surrendering
this Warrant at the office of the Company at the address set forth in Section
1.1 and delivering to the Company the Notice of Net Issuance Exercise attached
as EXHIBIT B duly completed and executed by the Holder, in which case the
Company shall issue to the Holder the number of Warrant Shares of the Company
equal to the result obtained by (a) subtracting B from A, (b) multiplying the
difference by C, and (c) dividing the product by A as set forth in the following
equation:
X = (A - B) x C where:
-----------
A
X = the number of Warrant Shares issuable upon
net issuance exercise pursuant to the
provisions of this Section 1.2.
A = the Daily Price (as defined below) of one
Warrant Share on the date on which the
Holder delivers written notice to the
Company pursuant to this Section 1.2.
B = the Exercise Price for one Warrant Share
under this Warrant.
C = the number of Warrant Shares as to which
this Warrant is being exercised, as if the
Warrant was exercised pursuant to the
provisions of Section 1.1.
If the foregoing calculation results in a negative number, then no
Warrant Shares shall be issued upon net issuance exercise pursuant to this
Section 1.2.
"DAILY PRICE" of a Warrant Share shall mean:
(a) If the Company's Ordinary Shares are listed and traded on the
New York Stock Exchange, Inc. ("NYSE"), the closing price on such day as
reported on the NYSE Composite Transactions Tape;
(b) If the Company's Ordinary Shares are not listed and traded on
the NYSE, the closing price on such day as reported by the principal national
securities exchange on which the Ordinary Shares are listed and traded;
(c) If the Company's Ordinary Shares are not listed and traded on
any such securities exchange, the last reported sale price on such day on the
National Market of the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ");
(d) If the Company's Ordinary Shares are not traded on the NASDAQ
National
-2-
Market, but are traded in the over-the-counter market, the average of the
closing bid and asked prices reported on such day; and
(e) If none of the above is applicable, the Daily Price shall be
the fair market value of the Ordinary Shares as determined in good faith by the
Company's Board of Directors.
2. DELIVERY OF STOCK CERTIFICATES; NO FRACTIONAL SHARES
2.1 Within 10 days after the payment of the Purchase Price
following the exercise of this Warrant (in whole or in part) or after notice of
net issuance exercise and compliance with Section 1.2, the Company at its
expense shall issue in the name of and deliver to the Holder (a) a certificate
or certificates for the number of fully paid and nonassessable Warrant Shares to
which the Holder shall be entitled upon such exercise, and (b) a new Warrant of
like tenor to purchase up to that number of Warrant Shares, if any, as to which
this Warrant has not been exercised if this Warrant has not expired. The Holder
shall for all purposes be deemed to have become the holder of record of such
Warrant Shares on the close of business on the date this Warrant was exercised
(the date the Holder has fully complied with the requirements of Section 1.1 or
1.2), irrespective of the date of delivery of the certificate or certificates
representing the Warrant Shares; provided that, if the date such exercise is
made is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of record of such Warrant
Shares at the close of business on the next succeeding date on which the stock
transfer books are open.
2.2 No fractional shares shall be issued upon the exercise of this
Warrant. In lieu of fractional shares, the Company shall pay the Holder a sum in
cash equal to the Daily Price of the fractional share on the date of exercise.
3. COVENANTS AS TO WARRANT SHARES
The Company covenants that at all times during the Exercise Period
there shall be reserved for issuance and delivery upon exercise of this Warrant
such number of Warrant Shares as is necessary for exercise in full of this
Warrant and, from time to time, it will take all steps necessary to provide
sufficient reserves of Warrant Shares.
The Company hereby represents and warrants to the Holder that: (a) the
Company has all requisite power and authority to enter into and perform its
obligations under this Warrant; (b) as of the date hereof, the capitalization of
the Company is not materially different from its most recent publicly available
filings, specifically its Form 10-Q for the period ended March 31, 2003, and its
Form 10-K for the period ended December 31, 2002; (c) the execution and delivery
by the Company of the Warrant and the performance of all obligations of the
Company hereunder have been duly authorized by all necessary board and
stockholder actions; and (d) all Warrant Shares which may be issued upon the
exercise of the purchase right represented by this Warrant shall, upon issuance,
be duly authorized, validly issued, fully paid and nonassessable, and free of
any liens and encumbrances except for restrictions on transfer provided for
herein or under applicable federal and state securities laws.
4. ADJUSTMENTS UPON CERTAIN EVENTS
-3-
4.1 EFFECT OF REORGANIZATION
Upon a merger, consolidation, acquisition of all or substantially all
of the property or stock, liquidation or other reorganization of the Company
(collectively, a "REORGANIZATION") during the Exercise Period, as a result of
which the shareholders of the Company receive cash, stock or other property in
exchange for their Warrant Shares, lawful provision shall be made so that the
Holder shall thereafter be entitled to receive, upon exercise of this Warrant,
the number of shares of securities of the successor corporation resulting from
such Reorganization (and cash and other property), to which a holder of the
Warrant Shares issuable upon exercise of this Warrant would have been entitled
in such Reorganization if this Warrant had been exercised immediately prior to
such Reorganization. In any such case, appropriate adjustment (as determined in
good faith by the Company's Board of Directors) shall be made in the application
of the provisions of this Warrant with respect to the rights and interest of the
Holder after the Reorganization to the end that the provisions of this Warrant
(including adjustments of the Exercise Price and the number and type of
securities purchasable pursuant to the terms of this Warrant) shall be
applicable after that event, as near as reasonably may be, in relation to any
shares deliverable after that event upon the exercise of this Warrant. Nothing
in this Section 4.1 shall be deemed to extend the Exercise Period set forth in
Section 1.1.
4.2 ADJUSTMENTS FOR STOCK SPLITS, DIVIDENDS
If the Company shall subdivide the number of outstanding shares of the
same class as the Warrant Shares into a greater number of shares, or issue a
dividend of Warrant Shares on Warrant Shares, then the Exercise Price in effect
before such dividend or subdivision shall be proportionately reduced and the
number of Warrant Shares at that time issuable pursuant to the exercise of this
Warrant shall be proportionately increased; and, conversely, if the Company
shall contract the number of outstanding shares of the same class as the Warrant
Shares by combining such shares into a smaller number of shares, then the
Exercise Price in effect before such combination shall be proportionately
increased and the number of Warrant Shares at that time issuable pursuant to the
exercise or conversion of this Warrant shall be proportionately decreased. Each
adjustment in the number of Warrant Shares issuable shall be to the nearest
whole share.
4.3 CERTIFICATE AS TO ADJUSTMENTS
In the case of any adjustment in the Exercise Price or number and type
of securities issuable upon exercise of this Warrant, the Company will promptly
give written notice to the Holder in the form of a certificate, certified and
confirmed by an officer of the Company, setting forth the adjustment in
reasonable detail.
4.4 NOTICE OF CERTAIN EVENTS
The Company has been informed by the Holder that Equity Office
Properties Trust, a Maryland real estate investment trust ("EOPT") and an
affiliate of the initial Holder, intends to qualify as a "real estate investment
trust" for purposes of the Internal Revenue Code of 1986, as amended, and that
maintaining such status is of material concern to EOPT and the initial Holder.
Accordingly, the Company represents and warrants to Holder that as of the
-4-
date hereof, the Warrant Shares deliverable on the exercise of this Warrant do
not constitute ten percent (10%) or more of either (i) the total voting power or
(ii) the total value of the current outstanding securities of the Company. The
Company shall notify Holder in writing at least twenty (20) days in advance of
any redemption, repurchase, or other actions taken by the Company or any other
person, including but not limited to any additional issuances or adjustments
made pursuant to any provisions of this Warrant, in each case which would cause
the Warrant Shares deliverable on the exercise of this Warrant to constitute ten
percent (10%) or more of either (i) the total voting power or (ii) the total
value of the outstanding securities of the Company. For purposes of this Section
4.4, the term "securities" shall have the meaning used for such term in the
Investment Company Act of 1940, as amended, and the term "value" shall mean,
with respect to securities for which market quotations are readily available,
the market value of such securities and, with respect to any other securities,
the fair value of such securities.
5. SECURITIES LAWS RESTRICTIONS; LEGEND ON WARRANT SHARES
5.1 This Warrant and the securities issuable upon exercise have
not been registered under the Securities Act of 1933, as amended (the "Act"), or
applicable state or foreign securities laws, and, except as provided in Section
5.3 below, no interest may be sold, distributed, assigned, offered, pledged or
otherwise transferred to any entity unless (a) there is an effective
registration statement under such Act and applicable state and foreign
securities laws covering any such transaction involving said securities, (b) the
Company receives an opinion of legal counsel for the holder of the securities
satisfactory to the Company stating that such transaction is exempt from
registration, (c) such transaction is in compliance with Rule 144 of the Act, or
(d) the Company otherwise satisfies itself that such transaction is exempt from
registration.
5.2 A legend setting forth or referring to the above restrictions
shall be placed on this Warrant, any replacement and any certificate
representing the Warrant Shares, and a stop transfer order shall be placed on
the books of the Company and with any transfer agent until such securities may
be legally sold or otherwise transferred.
5.3 Notwithstanding any other provision of this Warrant, the
Holder may transfer all or part of this Warrant and the Warrant Shares issuable
upon exercise of this Warrant without the prior written consent of the Company:
(i) in the case of a Holder who is a partnership or limited liability company,
to a partner (including a limited partner) of such partnership or a member of
such limited liability company; (ii) to any parent or majority-owned subsidiary
of any Holder or parent of any Holder or any successor of any Holder or any
parent of any Holder; (iii) to (x) any taxable REIT subsidiary of EOPT, or (y)
Equity Office Properties Management Corp., a Delaware corporation, or any one of
its subsidiaries; (iv) to the Amended and Restated Equity Office Properties
Management Corp. Trust dated as of September 30, 2002, of which Equity Office
Properties Management Corp. is the sole beneficiary; or (v) to any "affiliate"
of a Holder (as defined in Rule 1b-2 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")).
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6. EXCHANGE OF WARRANT; LOST OR DAMAGED WARRANT CERTIFICATE
This Warrant is exchangeable upon its surrender by the Holder at the
office of the Company. Upon receipt by the Company of satisfactory evidence of
the loss, theft, destruction or damage of this Warrant and either (in the case
of loss, theft or destruction) reasonable indemnification or (in the case of
damage) the surrender of this Warrant for cancellation, the Company will execute
and deliver to the Holder, without charge, a new Warrant of like denomination.
7. NOTICES OF RECORD DATE, ETC.
In the event of
(a) any taking by the Company of a record of the holders of
Warrant Shares for the purpose of determining the holders who are entitled to
receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right;
(b) any reorganization of the Company, any reclassification or
recapitalization of the capital structure of the Company, or any transfer of all
or substantially all the assets of the Company to, or consolidation or merger
of, the Company with or into any person;
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
(d) any proposed issue or grant by the Company to the holders of
Warrant Shares of any shares of any class or any other securities, or any right
or warrant to subscribe for, purchase or otherwise acquire any units of any
class or any other securities; or
(e) any other event as to which the Company is required to give
notice to any holders of Warrant Shares,then and in each such event the Company
will mail to the Holder a notice specifying (i) the date on which any such
record is to be taken, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as to which the holders of record of Warrant Shares or securities
into which the Warrant Shares are convertible shall be entitled to exchange
their shares for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, (iii) the amount and character
of any stock or other securities, or rights or warrants, proposed to be issued
or granted, the date of such proposed issue or grant and the persons or class of
persons to whom such proposed issue or grant is to be offered or made, and (iv)
in reasonable detail, the facts, including the proposed date, concerning any
other such event. Such notice shall be delivered to the Holder at least 30
business days prior to the date specified in the notice.
During such notice period, Holder may exercise this Warrant in
accordance with its terms, and may make such exercise contingent upon the
happening of such event and/or the existence of a minimum value of the Warrant
Shares receivable upon exercise as provided on Holder's exercise notice;
provided that such minimum value shall be no greater than the per share price
set forth in the Company notice.
-6-
8. INVESTMENT INTENT
The Holder is an accredited investor as defined in Rule 501(a) of
Regulation D promulgated under the Act.
The Holder is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire this Warrant and the Warrant
Shares. The Holder is acquiring this Warrant and the Warrant Shares issuable
upon exercise thereof for its own account, to hold for investment, and not with
a view to or for sale in connection with any distribution thereof in violation
of the Act, and, upon any exercise of this Warrant, the Holder shall confirm the
same in writing, by executing the form attached as EXHIBIT C hereto. Except as
permitted in Section 5.3, the Holder shall not make any sale, transfer or other
disposition of this Warrant or any Warrant Shares issuable upon exercise thereof
in violation of the Act or the General Rules and Regulations promulgated
thereunder by the Securities and Exchange Commission (the "SEC") or in violation
of any applicable state or foreign securities law.
The Holder has been advised that this Warrant, and the Warrant Shares
issuable upon exercise thereof, have not been registered under the Act or state
or foreign securities laws in reliance upon an exemption from registration, and
that reliance by the Company on such exemptions is predicated in part on
Holder's representations set forth herein.
The Holder has been informed that under the Act, this Warrant and the
Warrant Shares issuable upon conversion thereof must be held indefinitely unless
subsequently registered under the Act or unless an exemption from such
registration (such as Rule 144) is available with respect to any proposed
transfer or disposition by the Holder. The Holder further agrees that the
Company may refuse to permit the Holder to sell, transfer or dispose of this
Warrant, and the Warrant Shares issuable upon conversion thereof (except as
permitted under Rule 144) unless there is in effect a registration statement
under the Act and any applicable state or foreign securities laws covering such
transfer, or unless the Holder furnishes an opinion of counsel reasonably
satisfactory to counsel for the Company, to the effect that such registration is
not required; provided, however, such opinion will not be required in connection
with a transfer in compliance with Rule 144 or to a subsidiary or an affiliate
of the Holder pursuant to Section 5.3.
With a view to making available to the Holder the benefits of Rule 144
and any other rule or regulations of the SEC that may at any time permit Holder
to sell securities of the Company to the public without registration, the
Company agrees to use commercially reasonable efforts to:
(a) file with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the
Exchange Act; and
(b) furnish to Holder, so long as the Holder
owns the Warrant or any Warrant Shares issuable upon conversion thereof,
forthwith upon request (i) a
-7-
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (ii) such other information
as may be reasonably requested to avail Holder of any rule or regulation of the
SEC that permits the selling of any such securities without registration or
pursuant to such form.
9. MISCELLANEOUS
9.1 HOLDER AS OWNER
The Company may deem and treat the holder of record of this Warrant as
the absolute owner for all purposes regardless of any notice to the contrary.
9.2 NO SHAREHOLDER RIGHTS
This Warrant shall not entitle the Holder to any voting rights or any
other rights as a shareholder of the Company or to any other rights except the
rights stated herein; and no dividend or interest shall be payable or shall
accrue in respect of this Warrant or the Warrant Shares, until this Warrant is
exercised.
9.3 NOTICES
Unless otherwise provided, any notice under this Warrant shall be given
in writing and shall be deemed effectively given (a) upon personal delivery to
the party to be notified, (b) upon confirmation of receipt by fax by the party
to be notified, (c) two business days after deposit with a reputable overnight
courier, prepaid for overnight delivery and addressed as set forth in (d), or
(d) five days after deposit with the United States Post Office or any foreign
postal service, postage prepaid, registered or certified with return receipt
requested and addressed to the party to be notified at the address indicated
below, or at such other address as such party may designate by 10 days' advance
written notice to the other party given in the foregoing manner.
If to the Holder:
CA-Gateway Office Limited Partnership
c/o Equity Office Properties Trust
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Phone: (000) 000-0000
With a copy to:
Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Chief Legal Counsel
Facsimile: (000) 000-0000
Phone: (000) 000-0000
-8-
If to the Company:
BackWeb Technologies Ltd.
c/o BackWeb Technologies Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
Phone: (000) 000-0000
9.4 AMENDMENTS AND WAIVERS
Any term of this Warrant may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the Holder. Any amendment or waiver effected in accordance with this Section 9.4
shall be binding on each future Holder and the Company.
9.5 GOVERNING LAW
This Warrant shall be governed by and construed under the laws of the
state of California without regard to principles of conflict of laws.
9.6 SUCCESSORS AND ASSIGNS; TRANSFER
The terms and conditions of this Warrant shall inure to the benefit of
and be binding on the respective successors and assigns of the parties. This
Warrant may not be transferred or assigned without the consent of the Company,
except, subject to applicable U.S., state, and foreign securities laws, to a
subsidiary or an affiliate of the Holder pursuant to Section 5.3.
[Signature page follows.]
-9-
IN WITNESS WHEREOF, the parties have executed this Warrant as of the date first
written above.
BACKWEB TECHNOLOGIES LTD.
By:____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
CA-GATEWAY OFFICE LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP
By: EOM GP, L.L.C., a Delaware limited liability company, its general partner
By: Equity Office Management, L.L.C., a Delaware limited liability
company, its non-member manager
By:__________________________________________
Name:________________________________________
Title:_______________________________________
-10-
EXHIBIT A
EXHIBIT A
NOTICE OF CASH EXERCISE
To : BackWeb Technologies Ltd.
The undersigned hereby irrevocably elects to purchase ___________
Ordinary Shares of BackWeb Technologies Ltd. (the "COMPANY") issuable upon the
exercise of the attached Warrant and requests that certificates for such shares
be issued in the name of and delivered to the address of the undersigned stated
below and, if said number of shares shall not be all the shares that may be
purchased pursuant to the attached Warrant, that a new Warrant evidencing the
right to purchase the balance of such shares be registered in the name of, and
delivered to, the undersigned at the address stated below. The undersigned
agrees with and represents to the Company that said shares are acquired for the
account of the undersigned for investment and not with a view to, or for sale in
connection with, any distribution or public offering within the meaning of the
Securities Act of 1933, as amended.
Payment enclosed in the amount of $___________.
Dated: ________________
Name of Holder of Warrant:_______________________________________
(Please print)
Address:__________________________________________________________
Signature: _______________________________________________________
1
EXHIBIT B
NOTICE OF NET ISSUANCE EXERCISE
To: BackWeb Technologies Ltd.
The undersigned hereby irrevocably elects to convert the attached
Warrant into such number of shares of Ordinary Shares of BackWeb Technologies
Ltd. (the "COMPANY") as is determined pursuant to Section 1.2 of the attached
Warrant. The undersigned requests that certificates of such net issuance shares
be delivered to the address of the undersigned stated below. The undersigned
agrees with and represents to the Company that said shares are acquired for the
account of the undersigned for investment and not with a view to, or for sale in
connection with, any distribution or public offering within the meaning of the
Securities Act of 1933, as amended.
Dated: ________________
Name of Holder of Warrant:___________________________________________
(Please print)
Address: __________________________________________________________
Signature: __________________________________________________________
1
Exhibit C
INVESTMENT REPRESENTATIONS
THIS AGREEMENT MUST BE COMPLETED, SIGNED AND RETURNED TO BACKWEB
TECHNOLOGIES LTD. ALONG WITH THE NOTICE OF EXERCISE OR NOTICE OF NET ISSUANCE
EXERCISE, AS THE CASE MAY BE BEFORE THE STOCK ISSUABLE UPON EXERCISE OF THE
WARRANT DATED [Date of Amendment] WILL BE ISSUED.
______________, 20__
BackWeb Technologies Ltd.
0 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxx, Xxxxxx
Attn: Chief Executive Officer
Ladies and Gentlemen:
The undersigned, ____________ ("Purchaser"), intends to
acquire up to _______ shares of the Ordinary Shares (the "Ordinary Shares") of
BackWeb Technologies Ltd. (the "Company") from the Company pursuant to the
exercise of that certain Warrant held by Purchaser. The Stock will be issued to
Purchaser in a transaction not involving a public offering and pursuant to an
exemption from registration under the Securities Act of 1933, as amended (the
"1933 Act") and applicable state securities laws. In connection with such
purchase and in order to comply with the exemptions from registration relied
upon by the Company, Purchaser represents, warrants and agrees as follows:
Purchaser is an accredited investor as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act.
Purchaser is acquiring the Ordinary Shares for its own
account, to hold for investment, and not with a view to or for sale in
connection with any distribution of the Ordinary Shares in violation of the 1933
Act. Purchaser shall not make any sale, transfer or other disposition of the
Ordinary Shares in violation of the 1933 Act or the General Rules and
Regulations promulgated thereunder by the Securities and Exchange Commission
(the "SEC") or in violation of any applicable state securities law.
1
Purchaser has been advised that the Ordinary Shares have not
been registered under the 1933 Act or state securities laws on the ground that
this transaction is exempt from registration, and that reliance by the Company
on such exemptions is predicated in part on Purchaser's representations set
forth in this letter.
Purchaser has been informed that under the 1933 Act, the
Ordinary Shares must be held indefinitely unless it is subsequently registered
under the 1933 Act or unless an exemption from such registration (such as Rule
144) is available with respect to any proposed transfer or disposition by
Purchaser of the Ordinary Shares. Purchaser further agrees that the Company may
refuse to permit Purchaser to sell, transfer or dispose of the Ordinary Shares
(except as permitted under Rule 144) unless there is in effect a registration
statement under the 1933 Act and any applicable state securities laws covering
such transfer, or unless Purchaser furnishes an opinion of counsel reasonably
satisfactory to counsel for the Company, to the effect that such registration is
not required; provided, however, such opinion will not be required in connection
with a transfer in compliance with Rule 144 or to a subsidiary of the Purchaser.
Purchaser also understands and agrees that there will be
placed on the certificate(s) for the Ordinary Stock, or any substitutions
therefor, a legend stating in substance:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE OR
FOREIGN SECURITIES LAWS, AND NO INTEREST MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE OR FOREIGN SECURITIES
LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (B) THE COMPANY
RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THE SECURITIES
SATISFACTORY TO THE COMPANY STATING THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION, (C) SUCH TRANSACTION IS IN COMPLIANCE WITH RULE 144 OF THE ACT, OR
(D) THE COMPANY OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION.
Purchaser has carefully read this letter and has discussed its
requirements and other applicable limitations upon Purchaser's resale of the
Ordinary Shares with Purchaser's counsel.
Very truly yours,
________________________________________
2
By: _____________________________________
Title: __________________________________
3
ASSIGNMENT
For value received the undersigned sells, assigns and transfers to the
transferee named below, and the transferee agrees to be bound by all the terms
and conditions of, the attached Warrant, together with all right, title and
interest, and the undersigned does irrevocably constitute and appoint the
transfer agent of BackWeb Technologies Ltd. (the "COMPANY") as the undersigned's
attorney, to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
Dated: ________________
Name of Holder of Warrant:______________________________________________
(Please print)
Address: _____________________________________________________________
Signature:_____________________________________________________________
Signature of Transferor: ______________________________________________
Name of transferee: ____________________________________________________
(please print)
Address of transferee:__________________________________________________
Signature of Transferee: _______________________________________________
