Exhibit 4.9
AGREEMENT
This Agreement made and entered into as of the 12th day of September, 1996 by
and among RADVISION LTD., an Israeli company of 0 Xxxxxxxxxxx Xxxxxx, Xxx Xxxx
00000, Xxxxxx ("Company") of the first part and Intel Corporation, a Delaware
corporation, with its principal office at 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx
Xxxxx, Xxxxxxxxxx 00000 XXX (hereinafter: "Purchaser") of the second part
W I T N E S S E T H :
WHEREAS the Company is and will be engaged in the business of
developing, manufacturing and marketing of products for video conferencing ; and
WHEREAS the Company desires to issue and sell, and Purchaser desires to
purchase ordinary shares, par value One New Israeli Shekel (NIS 1.00), of the
Company (the "Purchaser Shares"),
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the Company and the Purchaser hereby
agree as follows:
SECTION 1
ISSUANCE AND PURCHASE OF SHARES
1.1. Purchaser undertakes to invest in the Company the aggregate amount
of Nine Hundred Ninety-Nine Thousand Nine Hundred Ninety-Nine US Dollars (US$
999,999) (hereinafter, the "Investment"), payable in two installments as
described in Section 2 below. The Investment will be deposited in US dollars to
the Company's account no. 377906 at Bank Hapoalim B.M., Hadar Xxxxx Xxxxxx
(610).
1.2. In consideration for, and subject to, the execution of the
Investment as per Section 1.1 above, the Company shall issue to Purchaser the
Purchaser Shares. The Purchaser Shares, when issued, will have been validly
issued, fully paid and non-assessable, and will be free of any liens or
encumbrances.
1.3. The Investment is part of the Company's Second Round of Financing
in the total amount of up to $2,000,000 at a Share price of US $333. The
existing shareholders of the Company have waived their preemptive right to
participate in the Intel Investment of up to $1,000,000. Some of the
shareholders of the Company have already consented to participate in the balance
of up to $1,000,000 investment. Assuming that the existing shareholders of the
Company exercise their above rights and the total investment in the Company in
this Round of Financing is $2,000,000, then the ownership of the Company on a
fully diluted basis will be as set forth in Exhibit "1." Exhibit "1" will be
amended after the First Closing to reflect the actual investment and ownership
of the Company following this Second Round of Investment and assuming the Second
Closing takes place. To remove any doubt, the percentage of Intel's holding in
the Company, irrespective of any Second Round investment by the existing
shareholders (if at all) shall
not be less than 2.93% and 5.69% following the First Closing and the Second
Closing, respectively.
SECTION 2
CLOSING DATES
2. The purchase of the Purchaser Shares shall take place as follows:
2.1. On a date to be separately agreed upon, Purchaser will invest a
sum of $ U.S. 500,000 (the "First Closing"), against which the Company shall
issue to the Purchaser 1502 Purchaser Shares.
2.2. The balance of $ US 499,999 (the "Balance") will be invested not
later than fourteen (14) days following Company's first shipment to a customer
of its product H.323/H.324 Gateway. (the "Second Closing"). At the Second
Closing, the Company will issue to the Purchaser against the Balance 1,501
Purchaser Shares.
2.3. Upon the occurrence of any of the following events: (i) a
resolution of the Board of Directors of the Company to offer shares of the
Company to the public ("IPO") in a US securities market, or (ii) an execution of
an investment agreement with a third party for the purchase of more than 49% of
the Company's equity, Purchaser will be entitled, at its sole option, to advance
the investment of the Balance and (consequently) advance the Second Closing
date. The Company shall notify the Purchaser within 30 days of the occurrence of
any of the above events. Purchaser will then have a 30 day period as of the date
of notice in which to advance the investment of the Balance and to execute the
Second Closing, regardless of the stage of development of RADVision's
H.323/H.324 Gateway at that time.
2.4. The First Closing and the Second Closing shall be, collectively,
referred to below as the "Closing".
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3. The Company hereby represents and warrants to Purchaser the facts hereinafter
set forth in this Section 3.
3.1 Corporate Power
As of the date hereof and as of the Closing, the Company has and will
have all requisite corporate power to enter into and to perform this Agreement.
3.2. Subsidiaries
The Company has a wholly owned U.S. subsidiary, RADVision Inc.
operating in New Jersey. The Company has no other subsidiaries and does not
otherwise own, of record or beneficially, any capital stock or equity interest
in any other corporation, association or business entity.
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3.3. Organization & Standing
The Company is a corporation duly organized and existing under the laws
of the State of Israel and is in good standing under such laws. The Company has
requisite corporate power to own and operate its properties and assets, and to
carry on its business as presently conducted. The Memorandum of Association (the
"Memorandum") and Articles of Association as amended to date (the "Articles") of
the Company are attached hereto as Exhibit "3.3a". The English translation of
the said documents is attached hereto as Exhibit "3.3b." In any event of
contradiction, the language of Exhibit "3.3a" shall prevail.
3.4. Capitalization
The Company's authorized capital is sixty thousand (60,000) Ordinary
Shares of NIS 1 each (the "Shares"). The Company's issued capital stock,
immediately prior to the First Closing date, shall consist of forty five
thousand one hundred and eighty five (45,185) Shares, all of which are duly
authorized, validly issued and free of any liens or encumbrances. Out of the
issued Share capital, all Shares are fully paid, except for 2,376 Shares that
are partially paid. All the Shares are non-assessable, and to the best of the
Company's knowledge and belief, are beneficially owned by their holders of
record. Except as disclosed in the Schedule of Exceptions, Exhibit "3.4," there
are no preemptive, conversion or other rights, options, or agreements granted or
issued by, or binding upon, the Company or the Shareholders which entitle any
person, firm or corporation to purchase or acquire any shares of the Company's
capital stock, except as set forth in this Agreement and its Exhibits. The
Company intends to defer 867 Shares. Intel hereby consents to such resolution as
a shareholder. No additional consent to said resolution will be required by
Intel.
3.5. Authorization
All corporate actions on the part of the Company and its directors and
shareholders, required for the authorization, execution, delivery and
performance by the Company of this Agreement and the consummation of the
transactions contemplated herein have been (or will be) executed upon signature
of this Agreement. This Agreement is (and will be) a valid and binding
obligation of the Company, enforceable in accordance with its terms. The
execution, delivery and performance by the Company of this Agreement, and
compliance therewith, and the consummation of the transactions contemplated by
this Agreement will not result in any violation of, nor will conflict with, or
result in a breach of any of the terms of, or constitute a default under, any
document to which the Company is (or will be) a party or by which it is (or will
be) bound, or result in the creation of any mortgage, pledge, lien or
encumbrance or charge upon any of the properties or assets of the Company. No
third party's consent is required for the Company to become a party to this
Agreement. Immediately after the First Closing date, the Company will inform all
governmental authorities that require to be reported of changes in equity,
(including, but not limited to the Israel Investment Center and the Office of
the Chief Scientist) of the execution of this Agreement. Notwithstanding the
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above, the Company will obtain, prior to the First Closing, the consent of the
Chief Scientist to Purchaser's investment.
3.6. Outstanding Debt
Except as set forth in Exhibit "3.4," the Company has no outstanding
indebtedness for borrowed money and is not a guarantor of any debt or obligation
of another. There exists no default by the Company under the provisions of any
agreement or other instrument evidencing or relating to any indebtedness or
obligation.
3.7. Absence of Undisclosed Liabilities
Except as set forth in Exhibit "3.4," Company has no material liability
of any nature, direct or indirect, absolute or contingent, not adequately
reserved against, excluding any liabilities related to damage which may have
been caused by its products or are related to sales of said products (unless the
Company knows or should have known of such damages or liabilities). The Company
has paid, or has made adequate provisions for the payment of, all taxes,
interest, penalties, assessments or deficiencies owing by it to any taxing
authority.
3.8. Absence of Certain Changes
Since December 31, 1995, the business of the Company has at all times
been conducted in the ordinary course and there has not since been any event or
condition of any character which has materially adversely affected the Company's
business, prospects or plans.
3.9. Contracts and Contractual Arrangements
The Company is a party to several material agreements, all of which are
described in Exhibit "3.4." Each such agreement is in full force and effect and,
to the Company's knowledge, no party thereto is in breach thereof. The Company
is of the opinion that it receives services from affiliated companies for fair
consideration as described in Exhibit "3.4." The Company is not obligated to
receive services from said affiliated companies.
3.10. Indebtedness of (or to) Shareholders & Conflict of Interest
Except as set forth in Exhibit "3.4," none of the Company's
shareholders, directors, officers or employees or any of their affiliates or
families is indebted to the Company and the Company has no debt to any of them
except for accrued wages for the current period.
Except as set forth in Exhibit "3.4," and to the best of the Company's
knowledge, none of the Company's directors, officers, employees or consultants,
or their affiliates or families, directly or indirectly, own any material
interest in any entity which is a competitor of the Company.
3.11. Litigation & Insolvency Proceedings
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There are no pending (unless filed but not yet served on the Company)
or threatened actions, suits, proceedings or any investigations (unless unknown
to the Company) by, against or affecting the Company, involving the possibility
of any judgment or liability which would adversely affect its business.
3.12. Insurance
The Company maintains insurance through RAD-BYNET insurance policies,
adequately covering the perils normally insured against by companies similarly
situated. All policies of insurance maintained by the Company are attached
hereto as Exhibit "3.12." At the time of signature of this Agreement, all such
policies are in full force and effect.
3.13. Title to Properties, Liens and Encumbrances
Except as set forth in Exhibit "3.4," the Company owns, or holds under
lease, all real and personal property used by it in its business. All property
owned by the Company (all of which is listed on Exhibit "3.13" hereto) is so
owned free and clear of all mortgages, pledges, liens or charges.
3.14. Leases
Exhibit "3.14" hereto contains a correct and complete list and
description (including the amount of rents) of all leases under which the
Company leases property, real or personal.
3.15. Business of the Company
The Company has no knowledge of (i) the existence of any pending or
planned patent, or any statute, rule, law, regulation, standard or codes which
would materially adversely affect the condition, financial or otherwise, or the
business operations, of the Company; or (ii) the existence of any other factor
which would materially adversely affect the financial condition, or the
operations, of the Company.
3.16. Compliance with Other Instruments
The Company is not in violation of the terms of its Memorandum or
Articles or of the terms of any judgment, decree, order, statute, rule or
regulation to which it is subject.
RADVision applied for and was granted all licenses and permits
materially needed for the conduct of its business. RADVision does not have a
business license. To the best of RADVision's knowledge, any lack of a permit or
license, to the extent such lack exists, including a business license, is not
detrimental to its ordinary course of business.
All material reports, resolutions and other documents required to be
delivered by RADVision to, and filed with the Registrar of Companies, have been
delivered and filed,
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except for the 1995 annual report which will be filed no later .than 30 days as
of the First Closing.
3.17. Employees
All the key employees of the Company are listed on Exhibit "3.17"
hereto. To the best of the Company's knowledge, no such employee is in violation
of any material term of any employment contract, patent disclosure agreement,
non-competition agreement, or any other contract or agreement or any restrictive
covenant or any other obligation to a former employer relating to the right of
any such employee to be employed by the Company. To date, all payments due to
the Company's employees have been paid regularly. In addition, the Company made
all allowances required by law to cover the amounts due to its employees and/or
officers in connection with their employment and/or termination of employment,
as reflected in the attached Exhibit "3.20a."
3.18. Disclosure
This Agreement and the Exhibits delivered to Purchaser do not contain
any material untrue statement and do not omit to state a material fact necessary
in order to make the statements contained herein not misleading in the light of
the circumstances under which they were made, and such documents represent full
disclosure by the Company of the material facts with respect to the business,
prospect and plans of the Company.
3.19 Products & Ownership
A description of the products is enclosed as Exhibit "3.19". As set
forth in Exhibit "B", the Company possesses, or is proceeding with due diligence
to obtain, all patents, patent rights, trademarks, trademark names, trade name
rights and copyrights the Company believes are necessary to conduct its business
as now being conducted and as planned to be conducted (without conflict with, or
infringement upon, any valid rights of others), the lack of which could affect
the operations or condition, financial or otherwise, of the Company. The Company
has no knowledge of any infringement by the Company or claimed infringement
upon, or any conflict with, the patent rights, trademarks, trademark rights,
trade names, trade name rights, copyrights, intellectual property rights or
other rights of any person, form or corporation.
3.20. Financial Statements
The audited financial statements of the Company as of December 31, 1995
are attached hereto as Exhibit "3.20a" and adequately reflect the financial
situation of the Company. The unaudited financial statements of the Company as
of March 31, 1996 are attached hereto as Exhibit "3.20b". As of December 31,
1995 to date, the Company did not enter into any material transaction or
undertake any material commitment which was not in the normal course of
business, and there was no material change for the worse in the Company's
position, liabilities and assets.
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3.21. In the event of any contradiction between this Agreement and the
Inception Agreement, attached hereto as Exhibit "3.21", or between this
Agreement and Exhibit "3.3", this Agreement shall always prevail.
3.22. On January 1, 1995, a trust in favor of employees of the Company
and certain employees of the RAD-Bynet group was created. Said Trust Agreement
is attached hereto as Exhibit "3.22a". The Company has decided, in addition, to
adopt a key employee share incentive plan (the "Options Plan") attached hereto
as Exhibit "3.22b". The total number of shares and options reserved to date for
the employees under all plans are 5,362. In the event of any contradiction
between this Agreement and any of the Exhibits "3.3", "3.22a" or "3.22b", then
the Trust Agreement and Option Plan shall always prevail.
3.23. As of the date of this Agreement, the directors of the Company
are: Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxx, Xxxxxx Xxxx, Xxxxx Xxx Xxxxxx and
Xxxxxx Xxxxx.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
4 Purchaser represents and warrants to the Company as follows:
4.1. Legal Power
As of the date hereof and as of the Closing, Purchaser has and will
have all requisite power to enter into and to perform this Agreement.
4.2. Experience.
The Purchaser has sufficient expertise to evaluate the suitability of
its investment in the Company to its needs.
4.3. Investment
The Purchaser is acquiring the Purchaser Shares for investment for its
own account.
4.4. Access to Data
The Purchaser hereby represents that it has had sufficient opportunity
to discuss management and financial affairs of the Company with its management
and key employees and has had the opportunity to review the business plan and
the Company's facilities.
The Purchaser has not been denied any information that has been
requested, and based on the said information has made a diligent examination of
the aspects of the Company's business. The Purchaser has heretofore received the
information that the Purchaser has deemed necessary and appropriate to enable
the Purchaser to evaluate the financial risk inherent in making an investment in
the shares of the Company and the
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Purchaser has received satisfactory information concerning the business and
financial condition of the Company in response to all inquiries in respect
thereof. The Purchaser is aware that the Company has been in the development
stage since its inception in October 1992, and that due to the short operating
history of the Company there can be no assurance that the Company will attain
profitability. Nothing contained in this Section 4.3 shall derogate from the
liability of the Company with respect to the representations and warranties made
in Section 3 above.
4.5. Waiver
Purchaser shall have no claims against the Company with respect to any
cause of action which accrued prior to the signing of this Agreement, except for
claims which may be based on the breach of the representations and warranties or
other provisions of this Agreement.
4.6. Authorization
All corporate or partnership action on the part of Purchaser, its
respective directors, partners and/or shareholders necessary for the
authorization, execution, delivery, payment and performance by Purchaser of this
Agreement and the consummation of the transactions contemplated herein, has been
taken.
4.7. Purchaser has sufficient financial resources to enable it to
fulfill its obligations under this Agreement and commits to make the Investment
as set forth in Sections 1 and 2 above.
SECTION 5
CONDITIONS OF PURCHASER TO CLOSING
5. The obligations of Purchaser at the First Closing date are subject to the
fulfillment of each of the following conditions:
5.1. Representations and Warranties Correct
The representations and warranties made by the Company in Section 3
hereof shall be true and correct when made, and shall be true and correct in all
material respects on the First Closing date with the same force and effect as if
they had been made immediately prior to the First date and as of such time
except for such changes which result from the obligations of the parties to this
Agreement.
5.2. Performance
All covenants, agreements and conditions contained in this Agreement to
be performed (or complied with) by the Company on (or prior to) the applicable
Closing date shall have been performed (or complied with) in all respects.
5.3. Legal Investment
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At the time of each Closing date, the purchase and issuance of the
Purchaser Shares shall be legally permitted by all laws and regulations to which
Purchaser and the Company are subject.
5.4. Proceedings and Documents
All corporate and other proceedings in connection with the transactions
contemplated hereby and all documents and instruments incident to such
transactions shall have been completed to the satisfaction (as to substance and
form) of Purchaser.
5.5. Retention of Key Employees
All the persons listed in Exhibit "3.17" shall either continue to be
employed by the Company as of the First Closing date or to the Company's
knowledge, if an employee has left or intends to leave the Company, Company has
notified Purchaser of same.
5.6. Opinion of Company's Counsel
The Purchaser shall have received from Xxxxxx Xxxx, corporate counsel
to the Company, a satisfactory opinion in the form attached as Exhibit "5.6."
SECTION 6
CONDITIONS OF COMPANY TO CLOSING
6. The obligations of the Company at the First Closing date, are subject to the
fulfillment of each of the following conditions:
6.1. Representation
The representations and warranties made by Purchaser in Section 4
hereof shall be true and correct when made and shall be true and correct on
Closing with the same force and effect as if they had been made immediately
prior to the Closing and as of such time.
6.2. Purchaser has fulfilled any and all of its obligations set forth
in Section 2.
SECTION 6A
BOARD OF DIRECTORS (THE "BOARD")
6A.1 The Board consists of six (6) directors, whose present identity is
as set forth in Section 3.23 hereinabove. Three of the directors are appointed
by Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx and RAD Data Communications Ltd., the fourth is
Xxxx Xxxx in his capacity as Managing Director of the Company, while the fifth
and the sixth are appointed by The Trust Company of Maritime Bank of Israel
("Maritime") and Clal Venture Capital LP ("Clal"), respectively. Xxxxx Network
(Israel) Ltd. ("Xxxxx") and Finovelec, have the right to designate one observer
each to the Board. Upon reasonable notice, Xxxxx is permitted to change the
status of its observer to that of director, in which event the number of
directors will be increased to eight (8), with Madge's observer
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becoming the seventh director and Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx being
entitled to appoint the eighth director.
6A.2 Following the First Closing, provided the observer signs a
commitment in the form attached hereto as Exhibit 6A.2, Purchaser shall be
entitled to appoint a non-voting observer to the Company's Board of Directors.
Such observer, once he signs the above commitment, shall be entitled to receive
all notices and materials provided to directors and to attend and participate in
all meetings of the Board of Directors.
SECTION 7
COVENANTS OF THE COMPANY
7. For as long as the Purchaser's equity interest in the Company will amount to
at least five (5%) percent of the outstanding capital securities therein and
Purchaser has the right to appoint an observer under Section 6A hereinabove,
except where stated otherwise in this Section 7 and in Section 8, or until the
IPO (whichever is the earlier occurrence), regardless of Purchaser's percentage
of ownership at that time and without derogating from any rights or obligations
conferred upon shareholders, or obligations conferred upon corporations, under
applicable law, the Company hereby covenants and agrees as follows.
7.1. Additional Information
The Company will permit Purchaser's representative to visit (upon a
mutually convenient time) and inspect any of the properties of the Company,
including its books of account, and to discuss its affairs, finances and
accounts with the Company's officers and its auditors.
7.1.1. As soon as available after approval by the Board, the Company
will provide Purchaser with a summary of the budget, including projected yearly
profit and loss accounts and balance sheet, as contained in its operating plan
as well as information about material changes in the budget, all as approved by
the Board.
7.1.2. With reasonable promptness, the Company agrees to provide to
Purchaser such information and data with respect to the Company, as Purchaser
may from time to time reasonably request.
The foregoing provisions shall not limit any right which Purchaser may
have to inspect and copy the books and records of the Company or to inspect its
properties or discuss its affairs, finances and accounts.
7.2. Use of Proceeds
The Company will use the proceeds of the issuance and sale of the
Purchaser Shares mainly to fund its activities and its business, and subject to
any resolutions made by the Board, from time to time.
7.3. Board Approval
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Without derogating from the provisions of the Articles, or any law or
practice limiting the authority of the management of the Company, the approval
of the Board shall be required for the following: (i) designation of all
authorized signatories; (ii) approval of the Company's (or its subsidiaries')
budget and applicable operating plan ; (iii) selection of legal counsel of the
Company; (iv) terms of employment of the Managing Director of the Company; and
(v) any and all other matters with regard to which the Board resolves that its
prior approval shall be required.
7.4. Resolutions of the Board regarding the following subject matters
shall require the consent of five out of six directors. In the event that the
Board will consist of 8 directors as per Section 6A.1 hereinabove, then the
following subject matters will require the consent of 6 out of 8 directors,
including consent of two directors out of the following: "Clal" Director,
"Maritime" Director, "Xxxxx" Director:
7.4.1. a merger of the Company with any other entity;
7.4.2. acquisition or disposition, including mortgage, of other
corporations, real estate, and any material assets out of the ordinary course of
the Company's business;
7.4.3. replacement of the Company's Managing Director;
7.4.4. replacement of the auditors of the Company;
7.4.5. approval of the distribution of dividends by the Company;
7.4.6. loans by the Company or any of its subsidiaries to their
directors or officers, or to their relatives or other affiliates, with the
exception of employees receiving shares under the trust as set forth in
subsection 3.22 hereinabove;
7.4.7. transactions in excess of $20,000 (not included in the approved
applicable operating plan) between the Company or its affiliates and their
directors, officers and employees or their relatives or other affiliates, with
the exception of employees receiving shares under the trust as set forth in
subsection 3.22 hereinabove;
7.4.8. all material transactions or obligations not contemplated in the
budget by the Company or its subsidiaries; and
7.4.9. resolution to enter a new business field unrelated to the
present field.
Notwithstanding anything to the contrary contained herein, in the event
that a director is not allowed under a specific section of this Agreement or
under the provisions of Israeli law, to participate in a Board meeting and/or
discussion, the majority required will be (1) 4 out of 5, or (2) 5 out of 7,
including only one of the following: the Clal Director, the Maritime Director,
or the Xxxxx Director.
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SECTION 8
ISSUANCE OF RIGHTS
8. Until such time as Purchaser shall cease to hold at least two (2%) percent of
the outstanding share capital of the Company or until the IPO (whichever the
earlier occurrence), and without derogating from any rights conferred upon
shareholders, or obligations conferred upon corporations, under any applicable
law, the Company and Shareholders hereby covenant and agree as follows:
8.1. Pre-emptive Rights. If the Company should at any time or from time
to time propose to issue and sell New Securities, as defined in subsection 8.1.1
below, a pro rata portion of such New Securities shall first be offered (as
hereinafter provided) to the shareholders of the Company (each of whom shall
hereinafter be referred to as "Offeree"), for the purposes of this Section 8.1,
the pro rata portion of each Offeree shall mean a fraction of the New Securities
to be issued, of which the aggregate number of shares which are held by the
Offeree on the date of the Company's written notification referred to in
subsection 8.1.2 below (the "Notice Date") shall be the numerator and the
aggregate number of shares held by all the Offerees shall be the denominator.
The aforesaid rights of Purchaser shall be subject to the following provisions:
8.1.1. "New Securities" shall mean any capital stock of the Company,
whether or not now authorized, and rights, options or warrants to purchase
capital stock, and securities of any type whatsoever that are, or may become,
convertible into capital stock; provided that the term "New Securities" shall
not include (i) securities purchased under this Agreement; (ii) securities
offered to the public; (iii) securities issued pursuant to the acquisition of
another corporation by the Company by merger, purchase of substantially all the
assets of another corporation or any other reorganization whereby the Company
owns not less than fifty-one percent (51%) of the voting power of such
corporation; (iv) securities issued to employees, consultants or directors of
the Company pursuant to any stock option plan or stock purchase or stock bonus
arrangement approved by the Board; or (v) securities issued pursuant to payment
of any dividend or distribution with respect to the Company's issued and
outstanding capital stock.
8.1.2. In the event the Company proposes to undertake an issuance of
New Securities, it shall give each Offeree written notice of its intention,
describing the type of New Securities and the price and the terms upon which the
Company proposes to issue the same, and offering its pro rata portion thereof to
such Offerees at such price and on such terms. Each Offeree shall have
twenty-one (21) days from the date of such notice to accept such offer, in whole
or in part, by written notice to the Company, that has to be received by the
Company during the above mentioned 21 days period. All New Securities as to
which such offers have not been accepted, in whole or in part, by one or more of
the Offerees (of which fact the Company shall give immediate written notice to
all other Offerees), shall be re-offered to each of the Offerees who have
accepted in full the original offer, and each such Offeree shall have the right,
within ten (10) days of the date of such written notice, to purchase the
respective pro rata portions of such new Securities, the same to be computed as
aforesaid but without regard to the shares held by any Offeree which had not
accepted the original offer in full.
8.1.3. In the event any Offeree fails to accept such offers, the
Company shall have the right to sell within six (6) months or enter into an
agreement to sell such New
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Securities as to which such offers were not accepted, provided, however, that no
such sale be effected at a price or upon terms more favorable to the purchasers
thereof than those specified in the Company's notice pursuant to Section 8.1.2.
8.1.4. Each of Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx and RAD Data
Communications Ltd. shall have a right to allocate any unused portion of the New
Securities offered to him to the other.
8.1.5. Purchaser shall have the right to allocate any unused portion of
the New Securities offered to Purchaser, to its parent or to any of its
subsidiaries which at least 51% of its stock is owned by Purchaser, or to a
company under common control ("Control" being at least 51% of ownership or the
right to appoint the majority of the directors) affiliated with Purchaser,
provided that such recipient of Shares will join in this Agreement as if it had
become a party to it as of the receipt of the Shares, and provided further that
the total number of Purchaser entities does not exceed three (3) at any time.
8.1.6. Notwithstanding anything to the contrary contained herein, Xxxx
Xxxx and his wholly-owned companies, so long as he is the Managing Director of
the Company, will be entitled to be an Offeree under this Section 8.1.
8.1.7. Each of Lerosh Investments Ltd., Gevahim Investments House
Limited Ltd., Xx. Xxxx Xxxxxxxxx, Permal Emerging Growth V Ltd., Maritime-Julex
Investment Ltd., Xx. Xxxxxx Xxxxxx and Xx. Xxx Xxx shall have a right to
allocate any unused portion of the New Securities offered to him to the other.
8.2. Registration Rights
If the Company should elect to offer any of its securities to the
public, Purchaser and present shareholders shall have registration rights as set
forth in Exhibit "8.2" attached hereto.
8.3. Restrictions
The Company shall not, without the approval of at least 75% of the
shareholders:
8.3.1. amend or repeal any provision of, or add any provision to, the
Articles;
8.3.2. create any new class or classes of securities of the Company
having any preference or priority as to dividends or assets superior to
any such preference or priority of the Shares, or reclassify any of its
existing securities into such superior securities; or
8.3.3. approve a merger of the Company with any other entity;
SECTION 8A
ADDITIONAL COVENANTS
The Company further agrees and undertakes as follows:
13
8A.1. Basic Financial Information
The Company will furnish to the Purchaser the following reports
certified, when so required herein, by the Company's auditors:
8A.1.1. As soon as practicable after the end of each calendar quarter,
and in any event within forty-five (45) days thereafter, a balance sheet and a
profit and loss account and of cash flow (including opening cash, income,
expenses and closing cash) of the Company as of the end of such quarterly
period, and for the current fiscal year to date, prepared in accordance with
generally accepted accounting principles consistently applied and setting forth
in comparative form the figures for the corresponding periods of the previous
fiscal year, subject to changes resulting from year-end audit adjustments, all
in reasonable detail, signed by the principal financial or accounting officer of
the Company. There shall be appended to such materials a report of the
management as to the business of the Company and its activities during the
quarter.
8A.1.2. Not later than forty-five (45) days after the end of each
quarter, sales figures, backlog and new orders for such quarter.
Without derogating from the first sentence of Section 7, it is further
provided that the Company will not be required to furnish any information under
the provisions of this Section 8A.1 and of Section 8A.2 below, subsequent to the
IPO.
8A.2. Insurance
The Company shall continue to maintain insurance policies similar to
those described in Section 3.12 above.
8A.3. Accounts & Records
The Company will keep true records and books of account in which full,
true and correct entries will be made of all dealings or transactions in
relation to its business and affairs in accordance with generally accepted
accounting principles applied on a consistent basis.
8A.4. Proprietary Information & Non-Competition Agreements
The Company will not employ, or continue to employ, any person who will
have access to confidential information with respect to the Company and its
operations unless such person has executed and delivered the Company's standard
Employment agreement then in force containing proprietary information and
non-competition sections to the satisfaction (as to substance and form) of
Purchaser's counsel.
SECTION 9
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
9. Except as set forth in this Section 9, Purchaser agrees not to sell or
transfer any of its shares and rights in the Company to a third party. This
Section 9 will terminate upon the IPO.
9.1. For the purpose of this Section 9, the Shareholders and the
Purchaser will be regarded as belonging to the following Groups:
14
9.1.1. Zisapel Group - Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Lomsha Ltd.,
Xxxxxxx and Klil Holdings (93) Ltd., the Trust and RAD Data Communications Ltd.
9.1.2. Clal Group - Clal Venture Capital LP, ECI Telecom Ltd.
9.1.3. Finovelec Group - Finovelec, Factory Systems, Houston Venture
Partners Ltd. and Xxxx-Xxxx Patouillaud.
9.1.4. Capital Group - Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxx, W.S.P.
Capital
9.1.5. Maritime Group - Lerosh Investments Ltd., Gevahim Investments
House Limited Ltd., Xx. Xxxx Xxxxxxxxx, Permal Emerging Growth V Ltd.,
Maritime-Julex Investment Ltd., Xx. Xxxxxx Xxxxxx and Xx. Xxx Xxx.
9.1.6. Purchaser Group - Purchaser, its parent, and permitted
transferees as set forth in Section 9.13 hereinbelow, not to exceed a total of
three (3) members.
9.2. Group members are entitled to transfer shares among themselves for
consideration or without consideration without any restrictions.
9.3. Except as set forth in Sections 9.9, 9.10, 9.11, 9.12 and 9.13
hereinbelow, any Shareholder who shall elect to transfer (hereinafter "Seller")
all or part of his shares, not in accordance with subsection 9.2 (hereinafter
"Offered Shares") shall offer them first to the other registered shareholders of
the Company at that time (hereinafter "Offerees") on a pro rata basis based on
their share in the then issued and outstanding share capital of the Company.
9.4. In the event any such Offeree fails to exercise his right to
purchase his Offered Shares within forty-five (45) days from the date the offer
is made, then the Seller shall have the right to offer the Offered Shares to a
third party at the same price and upon the same terms of sale as those offered
to the other shareholders under section 9.3 and provided that said third party
shall undertake all of Seller's obligations under this Agreement. (Such third
party to be called hereunder, the "Transferee"). In the event that the shares
are not sold to said party within six (6) months as of the offer to such said
third party, then Section 9.3 will apply anew.
9.5. The Board shall have the right to not approve the transfer of
shares to a third party in each of the following events:
(i) If the third party is a competitor of the Company;
(ii) If there is a possibility of conflict of interest between the
third party and the Company;
(iii) For any other reason, in which case such approval shall not be
unreasonably withheld.
15
9.6. In the event that Xxxxxx Xxxxxxx and/or Xxxxx Xxxxxxx and/or RAD
sell 25% or more of their shares in the Company to third parties, then Purchaser
will have the right to sell the same portion of Purchaser's shares in the
Company under the same terms and conditions (hereinafter, the "Tag Along
Right"). Purchaser will inform Zisapel in writing by fax and by confirmation by
mail if it intends to exercise its Tag Along Right within ten (10) days after
the date of notice by Zisapel to Purchaser. Failure to respond will be deemed as
a decision not to Tag Along.
9.7. This Section 9 will supersede Section 14 of the Inception
Agreement.
9.8. The terms of the Trust Agreement and the Option Plan (Exhibits
"3.22a" and "3.22b", respectively) will have priority over this Section 9.
9.9. Finovelec, in its discretion, shall be permitted to freely
transfer up to 5% of its shares (at that time) in the Company to up to 6 of
Finovelec executives, as well as up to an additional 5% of its shares (at that
time) in the Company to IDI (if then an affiliate of Finovelec). Such transfer
shall be considered a transfer among the Finovelec Group, provided that each
Transferee, upon receipt of the shares, will join this Agreement and undertake
all of Finovelec's obligations hereunder and will be considered henceforth a
member in the Finovelec Group for the purpose of this Section 9.
9.10. Clal Venture Capital LP is entitled to transfer all of its shares
in the Company to its partners, provided that each Transferee, upon receipt of
the shares, will join this Agreement and undertake all of Purchaser's
obligations hereunder and will be considered henceforth a member in the Clal
Group for the purpose of this Section 9.
9.11. Each of Xxxxx Xxxxx, Xxxxxxx Xxxxxx and Xxxx Xxxxxx is entitled,
once, to transfer his shares to a company directly under the total control of
said person, provided that each Transferee, upon receipt of the shares, will
join this Agreement and undertake all of Purchaser's obligations hereunder and
will be considered henceforth a member in the Capital Group for the purpose of
this Section 9.
9.12. Each of Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx is entitled to transfer
his shares to one or more companies which are directly under the total control
of transferor, provided that each Transferee, upon receipt of the shares, will
join this Agreement and undertake all of transferor's obligations hereunder and
will be considered henceforth a member in the Zisapel Group.
9.13. Purchaser shall be permitted to freely transfer its shares, or
any part thereof, in the Company to its parent or to any of its subsidiaries (in
which at least 51% of its issued and outstanding capital is owned by Purchaser
or to a company under common control ("control" being at least 51% of ownership
or the right to appoint the majority of the directors) affiliated with
Purchaser, provided that such recipient of shares joins this Agreement by
signing the Undertaking in the form attached hereto as Exhibit "9.13" as if it
had become a party to it as of the receipt of shares and provided further that
the total number of Purchaser entities does not exceed three (3) at any time.
16
SECTION 9A
ANTI-DILUTION
9A.1. In the event that at any time prior to the earlier of (i) the
closing of the IPO or (ii) three (3) years from the date of this Agreement, the
Company issues or sells any Shares to third parties upon a private placement
(excluding Company employees) for consideration per share of less than US $333
("Purchaser Share Price"), then prior to said private placement Purchaser shall
be given the option to purchase additional Shares at par value (NIS 1.- per
share), as set forth below.
9A.2. The amount of shares to be issued to Purchaser will be computed
according to the following table:
-------------------------------------------------------- ---------------------------------------------------
SHARE PRICE AT NEXT PRIVATE PLACEMENT CALCULATED AS ADDITIONAL SHARES ISSUED TO THE PURCHASER UNDER
PERCENTAGE OF PURCHASE PRICE THIS AGREEMENT
-------------------------------------------------------- ---------------------------------------------------
100% to 66.67% none
-------------------------------------------------------- ---------------------------------------------------
66.67% to 50% additional 12% of Purchasers' percentage of
ownership
-------------------------------------------------------- ---------------------------------------------------
49.99% to 25% additional 12% of Purchasers' percentage of
ownership
-------------------------------------------------------- ---------------------------------------------------
24.99% or less additional 12% of Purchasers' percentage of
ownership
-------------------------------------------------------- ---------------------------------------------------
The number and price of shares will be adjusted in the event of any
restructuring of the Company's share capital, such as (i) the issue of
additional Shares as a dividend, bonus share or other distribution on
outstanding shares; (ii) a subdivision of outstanding Shares into a greater
number of shares or (iii) a combination of outstanding Shares into a smaller
number of shares.
9A.3. Upon the occurrence of each event giving rise to a right pursuant
to this Section, the Company will, at its expense, promptly compute the number
of Shares that Purchaser is entitled to purchase in accordance with the terms
hereof and furnish to the Purchaser a notice of such right and the number of
Shares Purchaser is entitled to.
9A.4. Any and all of Purchaser's rights under this Section 9A will
terminate within the earliest of: (i) the Closing of the Company's initial
public offering or (ii) three (3) years from the date of this Agreement or (iii)
upon the first private placement contemplated after the Closing set forth in
Section 9A hereinabove.
SECTION 10
MISCELLANEOUS
10.1. Survival
The representations, warranties, covenants and agreements made herein
shall survive (i) any investigation made by the Purchaser and (ii) the First
Closing.
10.2. Successors and Assigns
17
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto; provided, however,
that no party may assign its rights hereunder without the prior written consent
of the other parties hereto.
10.3. Entire Agreement & Amendment
This Agreement (including the Exhibits hereto) and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matters hereof and
thereof and supersede all prior agreements and understandings relating thereto.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by an instrument in writing signed by all the parties hereto.
10.4. Notices
All notices and other communications required or permitted to be given
or sent hereunder shall be in writing and shall be deemed to have been
sufficiently given or delivered for all purposes if mailed by registered
airmail, transmitted by fax, or delivered by hand to the following respective
addresses until otherwise directed by notice as aforesaid:
To Purchaser:
INTEL CORPORATION
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx
00000 XXX
Attention: Mr. Xxxxxx Xxxxxx/Xxxxx Xxxxxxx
cc: Mr. Xxxxx Xxxx
Intel Israel
X.X. Xxx 0000
Xxxxx 00000, Xxxxxx
To the Company:
RADVision Ltd.
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxx 00000, Xxxxxx
Attn: Xx. Xxxx Xxxx
cc: Legal Department
0 Xxxxxxxxxxx Xxxxxx
Xxx-Xxxx 00000, Xxxxxx
18
provided, however, that notice of change of address shall be effective only upon
actual receipt.
All notices if (i) sent by registered mail - shall be deemed to have
been received within seventy-two (72) hours of posting; (ii) delivered by hand -
upon their delivery.
10.5. Delays or Omissions
No delay or omission by any party hereto to exercise any right, power
or remedy upon any breach or default under this Agreement shall impair any such
right, power or remedy of such party nor shall it be construed to be a waiver of
any such breach or default, or in acquiescence therein, or of any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement shall be effective only if made in writing and only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by virtue of law or otherwise afforded to any party, shall be
cumulative and not alternative.
10.6. Waiver of Default
No waiver with respect to any breach or default in the performance of
any obligation under the terms of this Agreement shall be deemed to be a waiver
with respect to any subsequent breach or default, whether of similar or
different nature.
10.7. Rights & Severability
In case any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. The parties
hereto shall be obliged to draw up an arrangement in accordance with the meaning
and the object of the invalid provision.
10.8. Confidential Information
Each party acknowledges that the information received by it and such
information which will be received pursuant hereto shall be confidential and is
intended for each party's use only for the purpose of this Agreement, and
neither party will use or allow the use of such confidential information or
reproduce, disclose or disseminate such information to any other person (other
than the other's employees or agents having a need to know the contents of such
information, and the each party's attorneys), except in connection with the
exercise of rights under this Agreement, unless the other party has made such
information available to the public generally or the other party is required to
disclose such information by a governmental body or by judicial order, but only
to the persons and the extent so required.
10.9. Titles and Subtitles
19
The titles of the sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
10.10. Governing Law
This Agreement shall be governed exclusively by, and construed solely
in accordance with, the laws of the State of Israel.
10.11. Purchaser and any Transferee under Section 9 are represented by
Mr. Xxxxx Xxxx. Notice sent to Mr. Xxxxx Xxxx will be deemed as notice sent to
Purchaser and/or any such Transferee. A resolution or request given by Mr. Xxxxx
Xxxx to the Company will be deemed as if given by Purchaser and any such
Transferee. The Company will have no obligation to provide information or notice
whatsoever except to Mr.Xxxxx Xxxx.
10.12. Expenses
The Company will bear the cost of stamp tax due in connection with the
issuance of shares according to this Agreement.
10.13. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
10.14. No later than one hundred twenty (120) days following the First
Closing, the Company will amend its Memorandum and Articles of Association to
reflect this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above-mentioned.
THE COMPANY THE PURCHASER
RADVISION LTD. INTEL CORPORATION
/s/ RADVISION LTD. /s/ INTEL CORPORATION
--------------------------------- ------------------------------
20
LIST OF EXHIBITS
Exhibit 1 - Ownership of the Company
Exhibit 3.3a - Present Articles of Association and Memorandum of Association.
Exhibit 3.3b - English translation of Exhibit 3.3a.
Exhibit 3.4 - Schedule of Exceptions.
Exhibit 3.12 - Insurance Policies.
Exhibit 3.13 - List of Company's Properties.
Exhibit 3.14 - List of Company's Leases.
Exhibit 3.17 - List of Key Employees.
Exhibit 3.19 - Description of Company's Products.
Exhibit 3.20a - Audited Financial Statements.
Exhibit 3.20b - Unaudited Financial Statements.
Exhibit 3.21 - Inception Agreement and amendment thereto.
Exhibit 3.22a - Trust Agreement.
Exhibit 3.22b - RADVision Ltd. Key Employee Share Incentive Plan (1996).
Exhibit 5.6 - Legal Counsel Opinion.
Exhibit 6A.2 - Observer's Form of Commitment.
Exhibit 8.2 - Registration Rights.
Exhibit 9.13 - Transferee Form of Undertaking
1
EXHIBIT 1
September 1996 Investment
Shares pre-money 45185
Preferred shares 867
Effective "old" share 44318
Desired investment 2000000
Desired new shares 6006
Company value (pre) 15000000
Share price 333
Dillution 11.76%
Actual New Shares 4886
Shares post-money 49204
Actual post-money
Shares (+ opt) 51671
Desired total shares
Cost money (+opt.) 52791
Options to employees 2467
Shareholder Number % of New Exact No. of % of
of shares ownership Shares investment of shares ownership
(pre) (pre) amount ($) (post) (actual)
Xxxxxx Xxxxxxx 6,930 15.34% 0 0 6,930 13.41%
Lomsha Ltd. 2,130 5.11% 0 0 2,310 4.47%
Xxxxxxx & Klil 2,130 5.11% 0 0 2,310 4.47%
Xxxxx Xxxxxxx 2,310 5.11% 0 0 2,310 4.47%
Xxxx Xxxx 300 0.66% 0 0 300 0.58%
Plonit Achzakot (Ami) 632 1.40% 0 0 632 1.22%
Nichsei Almonit (Ami) 2,178 4.82% 0 0 2,178 4.22%
Employees Trust 3,762 8.33% 0 0 3,762 7.28%
Xxxxx Networks 4,950 10.95% 831 276,723 5,781 11.19%
Xxxxx Xxxxx 300 0.66% 0 0 300 0.58%
Xxxxxxx Xxxxxx 300 0.66% 0 0 300 0.58%
Xxxx Xxxxxx 300 0.66% 0 0 300 0.58%
W.S.P. Capital 188 0.42% 0 0 188 0.36%
RAD Data Communication 3,317 7.34% 0 0 3,317 6.42%
Finovelec 2,723 6.03% 0 0 2,723 5.27%
Maritime Trust Co. 2,475 5.48% 140 46,620 2,615 5.06%
ECI 2,475 5.48% 304 101,232 2,779 5.38%
Factory Systemes 1,238 2.74% 0 0 1,238 2.40%
Houston Partners 990 2.19% 0 0 990 1.92%
Clal Venture Capital 4,950 10.95% 608 202,464 5,558 10.76%
Xxxxxxx Xxx 198 0.44% 0 0 198 0.38%
Xxxxxxx Xxxxx 49 0.11% 0 0 49 0.09%
Intel* 0 0 3,003 999,999 3,003 5.81%
In two installments
Total shareholders 45,185 100.00% 4,886 1,627,038 50,071 96.90%
participating
as deferred shares Less 867 deferred shares 1.68%
participating Sh.hold 24,453
Plus option plan 4.77%
ama 18.9.96 Total fully diluted 100.00%
lvinv4)
1
EXHIBIT 8.2
REGISTRATION RIGHTS
1. Incidental Registration
If the Company shall elect to offer any of its securities to the
public, it shall give notice to the Purchaser of such intention and shall
include in such offering a portion of all shareholders shares equal to the total
amount of shares registered, multiplied by an amount derived by dividing the
number of Shares held by each shareholder by the total number of shares
outstanding at that time. In the event the public offering involves an
underwriting, the rights of the shareholders hereunder shall be conditional upon
the underwriter's determination as to marketing factors requiring the limitation
of such right, and the underwriter may preclude from the offering any or all
securities which could have otherwise been included in the offering.
2. Demand Registration
At any time commencing one year following the closing of the Company's
initial public offering, and for a period of three (3) years thereafter, each
group of shareholders as defined in section 9.1 shall be entitled to demand one
registration of any or all of its shares held at the time of the initial public
offering for trading on any securities exchange; provided, however, that such
request must cover Shares representing a market value at the time of such
request equal to a minimum of three million Dollars ($3,000,000); and provided
further, however, that such request may not include Shares which within three
months from the date of such request could be sold to the public without
restriction, for example pursuant to the provisions of Rule 144 of the
Securities and Exchange Commission. Within 20 days after receipt, the Company
shall give written notice of such request to the other shareholders and shall
include in such registration all Shares held by them with respect to which the
Company receives written requests for inclusion therein within 15 days after the
receipt of the Company's notice. Thereupon, the Company shall use its best
efforts to effect the registration as soon as possible of all Shares (as to
which it has received requests for registration) for trading on a securities
exchange, where the Shares are then traded, specified in the request for
registration. In the event the registration involves an underwriting, the rights
of the shareholders hereunder shall be conditional upon the underwriter's
determination as to marketing factors requiring the limitation of such right,
and the underwriter may preclude from the offering any or all securities which
could have otherwise been included in the offering. Notwithstanding any other
provision of this clause 2 of Exhibit 8.2, after the Company has effected one
such registrations pursuant to this clause 2, and such registrations have been
declared or ordered effective, in the event that the Company shall furnish to
such shareholder(s) delivering a request for registration a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company it would be seriously detrimental to the
Company or its shareholders for a registration statement to be filed in the near
future, the Company's obligation to use its
1
best efforts to register, qualify or comply under this clause 2 shall be
deferred for a period not to exceed 120 days from the date of receipt of such
request.
3. Expenses
All expenses incurred in connection with a registration under Section 2
shall be borne by the selling shareholders participating in such registration on
a pro rata basis; provided, however, that the Company shall pay any expenses
associated with such registration which the Company would have incurred in the
ordinary course of business. All expenses incurred in connection with a
registration under Section 1 shall be borne by the Company; provided, however,
that each of the shareholders participating in such registration shall pay its
pro rata portion of the fees, discounts or commissions payable to any
underwriter.
2
AMENDMENT TO INVESTMENT IN RADVISION LTD.
BY INTEL CORPORATION
This AMENDMENT is entered into as of November 12, 1997, by and between
RADVision Ltd. ("Company"), Intel Corporation ("Purchaser").
RECITALS
A. The Company and the Purchaser are parties to an agreement: "Investment
in RADVision by Intel Corporation" dated September 12, 1996.
B. The Company and the Purchaser, pursuant to the September 12, 1996
"Investment In RADVision by Intel Corporation" Pre-emptive Rights
clause have subsequently maintained Intel's pro-rata portion of newly
offered shares (representing 123 shares of Preferred Stock).
C. The Company and the Purchaser desire to amend the "Investment In
RADVision by Intel Corporation in connection with the Company's
proposed re-prioritization and financing.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the Company and the Purchasers hereby agree as follows:
1. SECTION 1 OF THE INVESTMENT AGREEMENT IS HEREBY DELETED, AND REPLACED IN
FULL AS FOLLOWS:
"SECTION 1
ISSUANCE AND PURCHASE OF SHARES
1.1 Purchaser undertakes to invest in the Company the, AGGREGATE amount of
Nine Hundred Ninety-Nine Thousand Nine Hundred Ninety-Nine US Dollars
(US $999,999) (hereinafter, the "Investment"), payable in three
instalments as described in Section 2 below. The Investments will be
deposited in US Dollars to the Company's account no. 377906 at Bank
Hapoalim B.M., Hadar Xxxxx Xxxxxx (610).
1.2 In Consideration for, and subject to, the execution of the Investment
as per section 1.1 above, the Company shall issue to the Purchaser the
Purchaser Shares. The Purchaser Shares, when issued, will have been
validly issued, fully paid and non-assessable, and will be free of any
liens or encumbrances.
1.3 The Investment is part of the Company's Second Round of Financing in
the total amount of up to $2,000,000 at a Share price of US $333. The
existing shareholders of the Company have waived their preemptive right
to participate in the Intel Investment of up to $1,000,000. Some of the
shareholders of the Company have already consented to participate in
the balance of up to $1,000,000 investment. Assuming that the existing
shareholders of the Company exercise their above rights and the total
investment in the Company in this Round of Financing is $2,000,000,
then the
1
ownership of the Company on a fully diluted basis will be as set forth
in EXHIBIT 1. Exhibit 1 will be amended after the Third Closing to
reflect the actual investment and ownership of the Company following
this Second Round of investment and assuming the Third Closing takes
place. To remove any doubt, the percentage of Intel's holding in the
Company, irrespective of any Second Round investment by the existing
shareholders (if at all) shall not be less than 2.93% and 5.69%
following the First Closing and the Third Closing, respectively."
2. SECTION 2 OF THE INVESTMENT AGREEMENT IS DELETED, AND IS REPLACED IN FULL AS
FOLLOWS:
"SECTION 2
CLOSING DATES
The purchase of the Purchaser Shares shall take place as follows:
2.1 On September 12, 1996, Purchaser invested a sum of $ U.S. 500,000 (the
"FIRST CLOSING") against which the Company issued to the Purchaser 1502
Purchaser Shares.
2.2 The second payment of $ US 250,000 (the "SECOND CLOSING") will be
invested not later than fourteen (14) days following Intel's receipt of
the Company's shipment to Purchaser of the H.323/H.320 Gateway
Prototype, PROVIDED, the H.323/H.320 Gateway Prototype meets the
minimum required product specifications as described in EXHIBIT A to
this Amendment, and is accepted by Purchaser as such. At the Second
Closing, and against which, the Company will issue to the Purchaser 751
Purchaser Shares.
2.3 The balance of $ US 249,999 (the "BALANCE") will be invested not later
than fourteen (14) days following Intel's receipt of written notice of
the Company's first-shipment of either the H.323/H.320 Gateway to
Purchaser and Purchaser's conditioned acceptance thereof, OR delivery
of the H.323/H.324 Gateway to a customer, PROVIDED, the H.323/H.320
Gateway is not delivered or accepted by Purchaser (the "THIRD
CLOSING"). At the Third Closing, the Company will issue to the
Purchaser, against the Balance, the remaining 750 Purchaser Shares.
2.4 Upon the occurrence of any of the following events: (i) a resolution of
the Board of Directors of the Company to offer shares of the Company to
the public ("IPO") in a US securities market, or (ii) an execution of
an investment agreement with a third party for the purchase of more
than 49% of the Company's equity, Purchaser Will be entitled, at its
sole option, to advance the investment of the Balance and
(consequently) advance the Second Closing and Third Closing date. The
Company shall notify the Purchaser within 30 days of the occurrence of
any of the above events. Purchaser will then have a 30 day period as of
the date of notice in which to advance the investment of the Balance
and to execute the Second Closing and Third Closing, regardless of the
stage of development of the H.323/H.324 Gateway or H.323/H.320 Gateway
at that time.
2
2.5 The First Closing, Second Closing and the Third Closing shall be,
collectively, referred to below as the "CLOSING.""
3. EXCEPT AS EXPRESSLY AMENDED HEREIN, THE "INVESTMENT IN RADVISION BY INTEL
CORPORATION" AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
4. THIS AMENDMENT MAY BE EXECUTED IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED
AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
IN WITNESS WHEREOF, the Company and the Purchaser have executed this Amendment
as of the date first above written.
RADVISION LTD.
By: /s/ XXXX XXXX
-----------------------------------
Printed Name: Xxxx Xxxx
-------------------------
Title: Managing Director
--------------------------------
INTEL CORPORATION
By: /s/ INTEL CORPORATION
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
SIGNATURE PAGE OF AMENDMENT TO "INVESTMENT
IN RADIVISON LTD. BY INTEL COPORATION"
