AGREEMENT
Exhibit 4.12
AGREEMENT
THIS AGREEMENT (the “Agreement”) is made as of the _____day of November, 2011 (the “Effective Date”), by and between B.O.S Better Online Solutions Ltd. (the “Company”) and [Lender] (the “Lender”).
W I T N E S S E T H:
WHEREAS, in July 2009, the Company and the Lender entered into a Loan Agreement in respect of a principal loan amount of $[ ] (the " Loan Agreement", and the “Convertible Loan");
WHEREAS, pursuant to the terms thereof, the Convertible Loan is convertible at the election of the Lender, at anytime prior to its maturity date;
WHEREAS, the Company wishes to have the Lender convert its Convertible Loan into the Company's Shares prior to the maturity date, and in order to induce Lender to do so has proposed certain amendments to the terms of the Convertible Loan and an extension to the Lender's warrant, as more fully described below;
WHEREAS, the Lender agreed to convert its Convertible Loan on the terms on conditions described below; and
WHEREAS, the Company intends to submit the proposed amendment to the terms of the Convertible Loan to shareholders' approval, such approval being a condition precedent to the Company's performance of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Lender hereby agrees as follows:
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1.
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Loan Conversion
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1.1. By execution of this Agreement, Lender serves notice to the Company, pursuant to Section 2.4 of the Loan Agreement, of the conversion (the "Conversion"), as of Closing, of $[ ] of Convertible Loan (the "Converted Loan", comprised of $[ ] of principal amount and $[ ] of accrued interest), into the Company's ordinary shares, nominal value NIS 20.00 each (each, a “Share” and collectively, the “Shares”).
1.2. The Conversion shall take place at the Closing (as defined below), and shall be made at a reduced conversion price of $1.50 per Share, yielding an issuance to the Lender, at Closing, of [ ] Shares (the “Converted Shares”).
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2.
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Extension of Warrants
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2.1. Subject to and conditioned upon the Conversion, the exercise period of the Lender's outstanding warrant to purchase [ ] Shares issued on [ ] 2009 (the "Warrant") shall be extended by two years, until July [ ] , 2014. A form of amendment to the Warrant is attached as Schedule 2.1 hereto.
2.2. The Warrant's exercise price shall remain the same, $2.75 per Share (subject to adjustment in the event of share splits or consolidations, issuance of bonus shares, and similar recapitalization events).
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3.
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Closing
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3.1. Closing shall occur on December 21, 2011, subject to the prior approval by the Company’s Shareholders of the amendments to the Convertible Loan and the extension of the Warrant contemplated above; and provided that out of the approximately $3 million of principal and interest of convertible loans due in 2012, approximately $2.5 million (including the loan of the Lender) shall be converted into Shares at Closing. A table reflecting the total loans conversion to occur at Closing is attached as Schedule 3.1 hereto.
3.2. At the Closing, the Conversion of the Converted Loan shall be effected automatically, the Converted Loan shall be deemed fully paid and the Converted Shares dully issued. Promptly following the Closing, the Company shall provide the Lender with a share certificate in respect of the Converted Shares.
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4.
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Miscellaneous
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4.1 Amendments. This Agreement may be modified, supplemented or amended only by a written instrument executed by the Company and the Lender solely with respect to the Lenders rights and obligations.
4.2 Notices. Any notice that is required or provided to be given under this Agreement shall be deemed to have been sufficiently given and received for all purposes, (i) when delivered in writing by hand, upon delivery; (ii) if sent via facsimile or email, upon transmission and electronic confirmation of receipt (and if transmitted and received on a non-business day, on the first Business Day following transmission and electronic confirmation of receipt), (iii) three (3) Business Days (and ten (10) Business Days for international mail) after being set by certified or registered mail, postage and charges prepaid, return receipt requested, or (iv) three (3) Business Days after being sent by internationally overnight delivery providing receipt of delivery, to the following addresses:
if to the Company, B.O.S Better Online Solutions Ltd., 00 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx, 00000 Xxxxxx Attn: Xx. Xxxx Xxxxx, CFO, facsimile: (000) 0 000-0000, with a copy to Amit, Xxxxxx Xxxxxxx & Co., Xxxxxx Xxxxx, 00 Xxxxxxx Xxxxx Xx., Xxx-Xxxx 00000 Xxxxxx attn: Xxxxxx Xxxxxxxx, Adv. Fax: (000) 0 000-0000; or at any other address designated by the Company to the Lender in writing;
if to the Lender, c/o _____________
4.3 Delays or Omissions; Waiver. Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to any party 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 breach or default, or an acquiescence thereto, or of a 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 hereto of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.
4.4 Other Remedies. Any and all remedies herein expressly conferred upon a party shall be deemed cumulative with, and not exclusive of, any other remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
4.5 Entire Agreement. This Agreement and the exhibits and schedules hereto, constitute the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto and thereto.
4.6 Headings. All section headings herein are inserted for convenience only and shall not modify or affect the construction or interpretation of any provision of this Agreement.
4.7 Severability. Should any one or more of the provisions of this Agreement (including its exhibits and schedules) or of any agreement entered into pursuant to this Agreement be determined to be illegal or unenforceable, all other provisions of this Agreement and of each other agreement entered into pursuant to this Agreement, shall be given effect separately from the provision or provisions determined to be illegal or unenforceable and shall not be affected thereby. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision, which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.
4.8 Assignment. This Agreement may not be assigned in whole or in part by the Lender without the prior written consent of the Company.
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4.9 Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the internal laws of the State of Israel, without regard to conflict of laws provisions. Any dispute arising under or in relation to this Agreement shall be adjudicated in the competent court of Tel Aviv-Jaffa district only, and each of the parties hereby submits irrevocably to the exclusive jurisdiction of such court.
4.10 Counterparts. This Agreement may be executed concurrently 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.
4.11 Further Actions. At any time and from time to time, each party agrees, without further consideration, to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF the parties have signed this Agreement in one or more counterparts as of the date first appearing above.
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B.O.S Better Online Solutions Ltd.
By:___________________________
Name:_________________________
Title:__________________________
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[ ]
By:____________________________
Name:__________________________
Title:___________________________
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AMENDMENT TO
ORDINARY SHARES PURCHASE WARRANT
NO. [ ]
THIS AMENDMENT TO ORDINARY SHARES PURCHASE WARRANT (the “Amendment”) is made as of November ____, 2011 by and among B.O.S Better Online Solutions Ltd. (the “Company”) and [ ] (the “Holder”).
Recitals
WHEREAS, the Company has granted to the Holder a warrant to purchase up to [ ] shares of the Company, nominal value NIS 20.00 each (the "Ordinary Shares") pursuant to an Ordinary Shares Purchase Warrant No. [ ], dated [ ], 2009 (the "Warrant"); and
WHEREAS, the parties wish to amend the Warrant as specified below;
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereby agree as follows:
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1.
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Capitalized terms used herein, which are not defined in this Amendment, shall have the meaning assigned to them in the Warrant.
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2.
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The parties agree that the Expiration Date of the Warrant shall be extended by two years, until [ ], 2014.
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3.
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Except as otherwise amended hereby, all terms and provisions of the Original Warrant shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above, which may be executed and delivered by facsimile in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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B.O.S Better Online Solutions Ltd.
By: ______________
Name: ___________
Title: __________
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[ ]
By: ______________
Name: ___________
Title: __________
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