Execution Copy REGISTRATION RIGHTS AGREEMENT
Execution
Copy
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)is
made
as of the 4 day of August 2003, by and among Scopus Network Technologies
Ltd.,
an Israeli company (the “Company”)and
the
individuals and entities identified in Schedule
1 attached
hereto (collectively, the “Shareholders”),
WITNESSETH:
WHEREAS,
certain of the Shareholders are the holders of issued and outstanding Series
A
Preferred Shares of the Company, nominal value NIS 0.50 (the “Preferred
A Shares”);and
WHEREAS,
certain of the Shareholders are the holders of issued and outstanding Series
B
Preferred Shares of the Company, nominal value NIS 0.50 (the “Preferred
B Shares”which
together with the Preferred A shares are referred to herein as the “Preferred
Shares”);and
WHEREAS,
certain of the Shareholders are the holders of issued and outstanding Ordinary
Shares of the Company, nominal value NIS 0.50 each (the “Ordinary
Shares”);and
WHEREAS,
the Shareholders and the Company desire to set forth certain matters regarding
the ownership of the shares of the Company;
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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Definitions.
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As
used
in this Agreement, the following terms have the following meanings:
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1.1.
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“Commission”
or “SEC”
means the U.S. Securities and Exchange Commission, or any other
federal
agency at the time administering the Securities Act and the Exchange
Act.
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1.2.
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“Exchange
Act”
means the Securities Exchange Act of 1934, as amended, or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the
time.
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1.3.
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“Existing
Shareholders”
means Koor Corporate Venture Capital L.P. and Koor Holdings Ltd.
(collectively, “Koor”)
and Sadot Research and Development
Fund Ltd. (“Sadot”)and
their Permitted Transferees, as defined in the Articles of Association
of
the Company.
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1.4.
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“Form
S-3”
means Form S-3 or Form F-3 under the Securities Act, as in effect
on the
date hereof or any registration form under the Securities Act subsequently
adopted by SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company
with the
SEC.
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1.5.
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“Holder”
means any holder of outstanding Registrable Securities or shares
convertible into Registrable Securities, who acquired such Registrable
Securities or shares convertible into Registrable Securities in
a
transaction or series of transactions not involving any registered
public
offering.
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1.6.
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“Initiating
Holders”
means Holders holding more than a majority of the Registrable Securities,
assuming
for purposes of such determination the conversion of all shares
convertible into Registrable
Securities.
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1.7.
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“IPO”means
an
initial
underwritten public offering by the Company of its
securities.
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1.8.
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“Ordinary
Shares”means
Ordinary Shares of the Company, par value NIS 0.50 each.
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1.9.
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“Preferred
A
Shares”
means Series A Preferred Convertible Shares of the Company, par
value
NIS 0.50 each.
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1.10.
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“Preferred
B
Shares”
means Series B Preferred Convertible Shares of the Company,
par value NIS 0.50 each.
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1.11.
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“Preferred
Shares”means
the Preferred
A Shares and the Preferred B
Shares.
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1.12.
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“Register,”
“registered”
and “registration”
refer to a registration effected by filing a registration
statement in compliance with the Securities Act and the declaration
or
ordering by the Commission of effectiveness of such registration
statement, or the equivalent
actions under the laws of another
jurisdiction.
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1.13.
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“Registrable
Securities” means all of the following to the extent the same have not
been sold to the public: (i) any and all Ordinary Shares of the
Company
issuable upon conversion of the Preferred Shares including without
limitation any shares that the holders of the Preferred Shares
(the
“Preferred Holders”) may hereafter purchase pursuant to
their preemptive rights, rights of first refusal or otherwise and
all
Ordinary Shares issued on conversion or exercise of other securities
purchased or granted to the Preferred Holders by virtue of the
Preferred
Shares; and (ii) any and all Ordinary Shares held by the Existing
Shareholders on the date of January 15, 2001; and (iii) shares
issued in
respect of shares referred to in (i) or (ii) above in any reorganization;
and (iv) shares issued in respect of the shares referred to in
(i), (ii)
or (iii) as a result of a share split, share dividend, recapitalization
or
combination. Notwithstanding the foregoing, Registrable Securities
shall
not include Registrable Securities (i) sold by a person in a transaction
in which his rights under this Agreement are not properly assigned;
or
(ii) the registration rights associated with such securities have
been
terminated pursuant to this
Agreement.
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1.14.
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“Securities
Act”
means the Securities Act of 1933, as amended, or any similar federal
statute, and the rules and regulations of the Commission thereunder,
or a government or any agency or political subdivision
thereof.
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2.
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Incidental
Registration.
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2.1.
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If
the Company at any time or from time to time proposes to register
any of
its securities, including
at
the IPO, other than in a demand registration under Section 3 of
this
Agreement, it shall give notice to the Holders of such intention.
Upon the
written request of any Holder given within twenty (20) days after
receipt
of any such notice, the Company shall include in such registration
all
of
the shares indicated in such request, so as to permit the disposition
of
the shares so registered.
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2.2.
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Notwithstanding
any other provision of this Section 2, if the managing underwriter
advises
the Company in writing that marketing factors require a limitation
of the
number of shares to be underwritten, then there shall be excluded
from
such registration and underwriting to the extent necessary to satisfy
such
limitation, shares held by the Holders, pro
rata to
the respective total number of shares held by each of the Holders;
provided
however, that
the Preferred Holders shall
have
preference over all other shareholders of the Company (including
the
Existing Shareholders) to register and to sell up to 80% (eighty
percent)
of the shares to be registered within such
registration.
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2.3.
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The
Holders shall be entitled to participate in an unlimited number
of
registrations under this Section 2.
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3.
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Demand
Registration.
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3.1.
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At
any time beginning six (6) months following the IPO, the Initiating
Holders may request in writing that all or part of their Registrable
Securities shall be registered for trading on any securities exchange
on
which the Company’s shares are otherwise traded, if at all. Within twenty
(20) days after receipt of any such request, the Company shall
give
written notice of such request to the other Holders and shall include
in
such registration all Registrable Securities held by all such Holders
who
wish to participate in such demand registration and provide the
Company
with written requests for inclusion therein within fifteen (15)
days after
the receipt of the Company’s notice. Thereupon, the Company shall effect
the registration of all Registrable Securities as to which it has
received
requests for registration for trading on the securities exchange
specified
in the request for registration. Notwithstanding any other provision
of
this Section 3, if the managing underwriter advises the Company
in writing
that marketing factors require a limitation of the number of shares
to be
underwritten, then there shall be excluded from such registration
and
underwriting to the extent necessary to satisfy such limitation,
first, shares other than Registrable Securities and other than
shares to be issued by the Company, on a pro rata basis, second,
shares which the Company may wish to register for its own
account,
and third, to the extent necessary, Registrable Securities
(pro rata to the number of such shares sought to be included by
each Holder in the offering), provided, however, that
the Preferred Holders shall have preference over all other shareholders
of
the Company (including the Existing Shareholders) to register and
to sell
up to 80% (eighty percent) of the shares to be registered within
such
registration and further provided that in any event all Registrable
Securities shall be included in such registration prior to any
other
shares of the Company.
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3.2.
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The
Company shall not be required to effect more than two (2) registrations
at
the request of the Initiating Holders under this Section
3.
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3.3.
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In
the event that an exclusion of Registrable Securities is required,
the
majority of the Initiating Holders shall be entitled to elect that
all
Registrable Securities will be withdrawn from the registration,
by written
notice to the Company and the underwriter, in which case such registration
shall
not
be counted under Section 3.2.
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4.
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Form
S-3.
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If
the
Company becomes eligible to use Form S-3, the Company shall use its best
efforts
to continue to qualify at all times for registration on such form. If and
when
the Company becomes entitled to use Form S-3, Holders who wish to register
shares having a reasonable anticipated aggregate selling price of at least
$750,000, shall have the right to request and have effected an unlimited
number
of registrations on such form. Such requests shall be in writing and shall
state
the number of shares of Registrable Securities to be disposed of and the
intended method of disposition of such shares by such Holder or Holders.
The
Company shall give notice to the other Holders of the receipt of a request
for
registration pursuant to this Section 4 and shall provide a reasonable
opportunity for such Holders to participate in the registration.
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4.2.
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Subject
to the foregoing, the Company will effect the registration of all
Registrable Securities on Form S-3 to the extent requested by the
Holder
or Holders thereof for purposes of disposition. If the Company
shall
furnish Holders requesting a registration pursuant to this Section
4 a
certificate signed by the Company’s Chief Executive Officer and Chairman
of the Board stating that in the good faith judgment of the Board
of
Directors of the Company, it would be seriously detrimental to
the Company
and its shareholders for such registration to be effected at such
time,
the Company shall have the right to defer such filing for a period
of not
more than sixty (60) days after receipt of the request of the requesting
Holders, provided that such a right to delay a request shall be
exercised
by the Company not more than once in any twelve (12) month
period.
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4.3.
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Notwithstanding
any other provision of this Section 4, if the managing underwriter
advises
the Company in writing that marketing factors require a limitation
of the
number of shares to be underwritten, then there shall be excluded
from
such registration and underwriting to the extent necessary to satisfy
such
limitation, first, shares other than Registrable Securities and
other than shares to be issued by the Company, on a pro rata
basis, second, shares which the Company may wish to register
for its own account, and third, to the extent necessary,
Registrable Securities (pro rata to the number of such shares
sought to be included by each Holder in the offering),
provided, however, that the Preferred Holders shall
have preference over all other shareholders of the Company (including
the
Existing Shareholders) to register and to sell up to 80% (eighty
percent)
of the shares to be registered within such registration and further
provided that that in any event all Registrable Securities shall
be
included in such registration prior to any other shares of the
Company.
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4.4.
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The
Holders shall be entitled to participate in an unlimited
number of registrations under this Section
4.
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5.
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Designation
of Underwriter.
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5.1.
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In
the case of any registration effected pursuant to Sections 3 and
4, (i)
the majority of the Holders participating therein shall have the
right to
designate the managing underwriter(s) in any underwritten offering,
who
shall be a prominent and reputable underwriter, with the approval
of the
Company, which may not be unreasonably withheld, and (ii) the Company
and
all Holders participating in such underwritten registration shall
enter
into an underwriting agreement in customary form with the underwriter
or
underwriters selected for such
underwriting.
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5.2.
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In
the case of any registration initiated by the Company, the Company
shall
have the right to designate the managing underwriter(s) in any
underwritten offering, and any Holders participating in such underwritten
registration shall enter into an underwriting agreement in customary
form
with the underwriter or underwriters selected for such
underwriting.
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6.
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Registration
Expenses.
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In
the
event of a registration described in Sections 2, 3, and 4, all reasonable
expenses of registration and offering of the Holders participating in the
offering including, but not limited to, printing expenses, filing and
qualifications costs, fees and disbursements of counsel for the Holders,
and
independent public accountants, fees and expenses (including counsel fees
incurred in connection with complying with state securities or “blue sky” laws,
fees of the NASDAQ and fees of transfer
agents
and registrars), shall be borne by the Company, except that the Holders shall
bear their pro rata underwriting commissions and fees and discounts attributable
to their Registrable Securities being registered.
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7.
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Indemnification.
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In
the
event any shares are included in a registration statement in accordance
herewith:
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7.1.
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To
the extent permitted by law, the Company will indemnify and hold
harmless
each one of the Holders, the partners, officers, directors and
shareholders of each one of the Holders, , any underwriter (as
defined in
the Securities Act) for such Holder and each person, if any, who
controls
such Holder or underwriter within the meaning of the Securities
Act or the
Exchange Act against any losses, expenses, claims, damages, or
liabilities
to which they become subject under the Securities Act, the Exchange
Act or
other United States federal or state laws, insofar as such losses,
expenses, claims, damages, or liabilities (or actions in respect
thereof)
arise out of or are based upon any of the following statements,
omissions
or violations (collectively a “Violation”):(i) any untrue statement of
a material fact contained in such
registration statement, final prospectus or any amendments or supplements
thereto; (ii) the omission or alleged omission to state therein
a material
fact required to be stated therein, or necessary to make the statements
therein not misleading in light of the circumstances under which
they were
made, or (iii) any violation or alleged violation by the Company
of the
Securities Act, the Exchange Act, any Federal or state securities
law or
any rule or regulation promulgated under the Securities Act, the
Exchange
Act or any federal or state securities law, or any rule or regulation
thereunder; and the Company will reimburse each such Holder, partner,
officer, director, shareholder, underwriter or controlling person
for any
legal or other expenses reasonably incurred by them in connection
with
investigating or defending any such loss, claim, damage, liability,
or
action, as such expenses are incurred;
provided, however, that the indemnity agreement
contained in this Section 7.1, shall not apply to amounts paid
in
settlement of any such loss, claim, damage, liability, or action
if such
settlement is effected without the consent of the Company (which
consent
shall not be unreasonably withheld), nor shall the Company be liable
to
each such Holder, partner, officer, director, shareholder, underwriter
or
controlling person in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is
based upon
a Violation which occurs in reliance upon and in conformity with
written
information furnished to the Company expressly for use in connection
with
such registration by any such Holder, partner, officer, director,
shareholder, underwriter or controlling
person.
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7.2.
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To
the extent permitted by law, each selling Holder will indemnify
and hold
harmless the Company, each of its directors, each of its officers
who have
signed the registration statement, each person, if any, who controls
the
Company within the meaning of the Securities Act, any underwriter
(within
the meaning of the Securities Act) for the Company, any person
who
controls such underwriter, and any Holder selling securities in
such
registration statement or any directors or officers or any persons
controlling such parties, against any losses, claims, expenses,
damages
(including any amounts paid in any settlement effected with the
consent of
all of the selling shareholders), or liabilities to which any of
the
forgoing persons become subject under the Securities Act, the Exchange
Act
or other United States federal or state securities law, insofar
as such
losses, expenses, claims, damages, liabilities (or actions in respect
thereto) arise out of or are based upon any Violation (including
any
alleged Violation) in each case to the extent (and only to the
extent)
that such Violation occurs in reliance upon and in conformity with
written
information furnished to the Company by such Holder expressly for
use in
connection with such registration; and each such Holder will reimburse
any
persons intended to be indemnified pursuant to this Section 7.2
for any
legal or other expenses reasonably incurred by such person in connection
with investigating or defending any such loss, claim, damage, liability
or
action; provided, however, that the indemnity agreement
contained in this Section 7.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action
if such
settlement is effected without the consent of the relevant indemnifying
Holder(s), which consent shall not be unreasonably withheld; and
further provided, that in no event shall any indemnity by any Holder
under this Section 7.2 exceed the gross proceeds from the offering
received by such Holder; and provided further, that this
indemnity shall not relieve any underwriter any of its due diligence
obligations.
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7.3.
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Promptly
after receipt by an indemnified party under this Section 7.3 of
notice of
the commencement of any action (including any governmental action),
such
indemnified party will, if a claim in respect thereof is to be
made
against any indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in, and,
to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with
counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together
with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain its one
separate
counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party
by the
counsel retained by the indemnifying party would be inappropriate
due to
actual or potential differing interests between such indemnified
party and
any other party represented by such counsel in such proceeding.
The
failure to notify an indemnifying party in writing within a reasonable
time of the commencement of any such action, if materially prejudicial
to
its ability to defend such action, shall relieve such indemnifying
party
of any liability to the indemnifying party under this Section 7,
but the
omission to so deliver written notice to the indemnifying party
will not
relieve it of any liability that it may have to any indemnified
party
otherwise than under this Section
7.
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7.4.
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If
the indemnification provided for in this Section 7 is held by a
court of
competent jurisdiction to be unavailable to an indemnified party
with
respect to any loss, liability, claim, damage or expense referred
to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the reasonable
amount
paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the
one hand
and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability,
claim,
damage or expense, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified
party
shall be determined by reference to, among other things, whether
the
untrue or alleged untrue statement of a material fact or the omission
to
state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties’ relative intent,
knowledge, access to information, and opportunity to correct or
prevent
such statement or omission.
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7.5.
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Notwithstanding
the foregoing, to the extent that the provisions relating to
indemnification and contribution contained in the underwriting
agreement
entered into in connection with the underwritten public offering
are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
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7.6.
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The
obligations of the Company and the Holders under this Section 7
shall
survive the completion of any offering of Registrable Shares in
a
registration statement under this
Agreement.
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8.
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Obligations
of the Company.
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Whenever
required under this Agreement to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as possible:
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8.1.1.
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prepare
and file with the SEC a registration statement with respect to
such
Registrable Securities and shall use its best efforts to cause
such
registration statement to become effective, and, upon the request
of the
holders of a majority of the Registrable Securities registered
thereunder,
keep such registration statement effective for a period of up to
nine (9)
months or, if sooner, until the distribution contemplated in the
registration statement has been
completed.
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8.1.2.
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prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of
the
Securities Act with respect to the disposition of all Registrable
Securities covered by such registration
statement.
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8.1.3.
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furnish
to the Holders, such numbers of copies of a prospectus, including
a
preliminary prospectus, in conformity with the requirements of
the
Securities Act, and such other documents as they may reasonably
request in
order to facilitate the disposition of Registrable Securities owned
by
them.
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8.1.4.
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use
all reasonable efforts to register and qualify the securities covered
by
such registration statement under such other securities or Blue
Sky laws
of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith
or
as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions.
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8.1.5.
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in
the event of any underwritten public offering, enter into and perform
its
obligations under an underwriting agreement, in usual and customary
form,
with the managing underwriter of such offering. Each Holder, participating
in such underwriting shall also enter into and perform its obligations
under such an agreement.
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8.1.6.
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notify
each Holder covered by such registration statement at any time
when a
prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which
the
prospectus included in such registration statement, as then in
effect,
includes an untrue statement of a material fact or omits to state
a
material fact required to be stated therein or necessary to make
the
statements therein not misleading in the light of the circumstances
then
existing.
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8.1.7.
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cause
all Registrable Securities registered pursuant thereunder to be
listed on
each securities exchange on which similar securities issued by
the Company
are then listed.
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8.1.8.
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provide
a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable
Securities,
in each case not later than the effective date of such
registration.
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8.1.9.
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furnish,
at the request of any Holder requesting registration of Registrable
Securities pursuant to this Agreement, on the date that such Registrable
Securities are delivered to the underwriters for sale in connection
with a
registration pursuant to this Agreement, if such securities are
being sold
through underwriters, or, if such securities are not being sold
through
underwriters, on the date that the registration statement with
respect to
such securities becomes effective, (i) an opinion, dated such date,
of the
counsel representing the Company for the purposes of such registration,
in
form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the Holder and to the
underwriters, if any, and (ii) a letter dated such date, from the
independent certified public accountant of the Company, in form
and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering,
addressed
to the Holder and to the underwriters, if
any.
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9.
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Rule
144 Reporting.
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With
a
view to making available to the Holders the benefits of SEC Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that
may at
any time permit a Holder to sell securities of the Company to the public
without
registration or pursuant to a registration on Form S-3 (for purposes hereof,
collectively, “Rule
144”),the
Company agrees to:
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9.1.
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use
its best efforts to make and keep public information available,
as those
terms are understood and defined in Rule 144, at all times after
the
effective date of the IPO;
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9.2.
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use
its best efforts to file with the SEC in a timely manner all reports
and
other documents required by the Company under the Securities Act
and the
Exchange Act; and
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9.3.
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furnish
to any Holder, so long as the Holder owns any Registrable Securities,
forthwith upon request: (i) a written statement by the Company
that it has
complied with the foregoing subsections 9.1 and 9.2, and with any
other
reporting requirements of the 1934 Act which may apply; (ii) a
copy of the
most recent annual or quarterly report of the Company and such
other
reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder
of any
rule or regulation of the SEC permitting the selling of any such
securities without registration or pursuant to such
form.
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10.
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Assignment
of Registration Rights.
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Any
of
the Holders may assign its rights
to
cause
the Company to register shares pursuant to this Agreement to a transferee
or
transferees of all or any part of its Registrable Securities, and such
transferor shall use its best efforts to furnish the Company within twenty
(20)
days after such transfer with written notice of the name and address of such
transferee and the securities with respect to which such registration rights
are
being assigned, and the transferee’s written agreement to be bound by this
Agreement.
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11.
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Subsequent
Grants of Rights.
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The
Company shall not grant registration rights that are more favorable than
the
registration rights granted herein, to any shareholder of the Company (excluding
the rights granted to the Holders herein), unless such grant of registration
rights was approved in accordance with the provisions of Section 16.2 below
relating to amendment termination or waiver of any term of this
Agreement.
Scopus
-Registration Rights Agreement -August 4, 2003
-
9
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12.
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Lock-Up.
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In
any
registration of the Company’s shares, the Holders agree that any sales of shares
held by them may be subject to a “lock-up” period restricting such sales for up
to six (6) months following the IPO or 3 months for any other registration
and
the Holders will agree to abide by such customary “lock-up” period within the
foregoing time limits as is required by the underwriter in such registration
and
to execute such customary form of “lock-up” agreement as may be requested by the
underwriter, provided
that all
directors and officers of the Company also agree to be abide by such “lock up”.
Any discretionary release from the lock-up shall be allocated to the holders
of
Registrable Securities on a pro-rata basis.
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13.
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Registrations
outside the US.
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The
provisions of this Agreement shall also apply in connection with any
registration, listing or public offering of the Company’s securities outside of
the U.S., mutatis
mutandis.
|
14.
|
Governing
Law and Jurisdiction; Remedies.
|
|
14.1.
|
This
Agreement shall be governed by and interpreted in accordance with
the laws
of the State of Israel, without giving effect to the rules respecting
conflict of law.
|
|
14.2.
|
In
the event of any controversy or claim arising under, out of, or
in
connection with this Agreement, its validity, its interpretation,
its
execution or any breach or claimed breach thereof (a “Claim”),the
Company and the Holders undertake to attempt to amicably resolve
the Claim
internally. In the event such attempt does not succeed within 30
days, as
determined by the Company or any of the Holders, the Company or
any of the
Holders shall be entitled to exercise any available remedy under
law.
|
|
14.3.
|
Any
Claim shall be settled by a single arbitrator, selected by mutual
consent
and, failing such consent, the arbitrator shall be Xxxxx Xxxxx,
Adv., and
if he shall not accept the appointment, Ram Caspi, Adv., and if
he shall
not accept the appointment, Ya’akov Ne’eman, Adv. (the “Arbitrator”).
The Arbitrator shall confirm that he is not related to a party
to the
Claim. The arbitration shall take place in Tel Aviv, Israel, in
the Hebrew
language. The Arbitrator shall be exempt from the civil procedure
rules
and the rules of evidence, but shall be bound by substantive law
and by
the duty of citing grounds for his ruling, and he shall have to
hand down
his decision with respect to the dispute within ninety (90) days
of the
date on which the dispute was submitted to him. The Arbitrator
shall
be
authorized to issue injunctions and interim orders. The execution
of this
Agreement by the parties shall
be
deemed the execution of an arbitration agreement as required by
the
Israeli Arbitration Law, 5728-1968.
|
|
14.4.
|
In
the event that none of the aforesaid persons shall accept the appointment
as Arbitrator, the competent courts in Tel Aviv shall have sole
and
exclusive jurisdiction over any dispute between the parties, as
set forth
above.
|
|
14.5.
|
In
case any one or more of the covenants and/or agreements set forth
in this
Agreement shall have been breached by any party hereto, the other
parties
may proceed to protect and enforce their rights either by suit
in equity,
including an action for specific performance, injunctive relief
and other
forms of equitable relief (without posting any bond and without
proving
that damages would be inadequate) of any such covenant or agreement
contained in this Agreement. All remedies hereunder shall be cumulative
and the election of any one remedy shall not preclude any other
remedy.
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15.
|
Notices.
Any notice, declaration or other communication required or authorized
to
be given by any party under this Agreement to any other party shall
be in
writing and shall be personally delivered, sent by facsimile transmission
(with telephone confirmation) or dispatched by courier addressed
to the
other party at the address stated below or such other address as
shall be
specified by the parties hereto by notice in accordance with the
provisions of this Section. Any notice shall operate and be deemed
to have
been served, if personally delivered or sent by fax on the next
following
business day, and if by courier, on the fifth following business
day:
|
|
15.1.
|
The
Company’s address for the purposes of this Section 15 shall be the address
set forth in the preamble hereto, with a copy
to:
|
Zysman,
Aharoni, Xxxxx & Co. Advocates
00X
Xxxxxxxx Xx., Xxx Xxxx
00000,
Xxxxxx
Fax:
x000-0-0000000
Attn:
Shy
Baranov, Adv.
|
15.2.
|
The
Holders’ addresses for the purposes of this Section 11 shall be the
addresses set
forth in Schedule 1 hereto, with a copy
to:
|
Danziger,
Klagsbald, Xxxxx & Co.
00
Xxxxxxx Xxxxxx
Xxxxx
Xxx
00000, Israel
Fax:
972+0-000-0000
Attn:
Xxxxx Xxxxxxxxx, Adv.
|
16.
|
Miscellaneous.
|
|
16.1.
|
This
Agreement constitutes the entire agreement between the parties
with regard
to the subject matter hereof and supersedes any previous agreement
among
the parties with respect to such subject matter, including without
limitation, Exhibit 12 to that certain Shareholders Agreement,
dated January 15, 2001.
|
|
16.2.
|
Any
term of this Agreement may be amended, terminated or waived only
with the
consent of the holders of a majority of 75% (seventy five percent)
of the
Preferred Shares (for purposes of this sub-clause 16.2, and only
for
purposes
hereof, the term “Preferred Shares” shall also include the holdings of
Koor and Sadot (and their Permitted Transferees), so that Koor
and Sadot
shall be considered as part of the holders of Preferred Shares),
and the
Company and evidenced by a document in writing specifically referring
to
this Agreement.
|
|
16.3.
|
The
failure or delay of either party hereto at any time or times to
require
performance
of
any provisions hereof shall in no manner affect this right at a
later
time. No waiver by any party hereto of a breach of any term contained
in
this Agreement, in any one or more instance, shall be deemed or
construed
as a further or continuing waiver of any such breach or a waiver
of a
breach of any other form.
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16.4.
|
The
rights and duties of each Holder as set forth herein may be freely
assigned, in whole or in part, by such shareholder subject only
to any
limitations applying to the transfer of shares by such shareholder,
as set
forth herein or in the Articles of Association of the
Company.
|
|
16.5.
|
If
any provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable under applicable law, then such
provision
shall be excluded from this Agreement and the remainder of this
Agreement
shall be interpreted as if such provision were so excluded and
shall be
enforceable in accordance with its terms; provided, however,
that in such event this Agreement shall be interpreted so as to
give
effect, to the greatest extent consistent with and permitted by
applicable
law, to the meaning and intention of the excluded provision as
determined
by such court of competent
jurisdiction.
|
|
16.6.
|
For
purposes of computing any minimum shareholding required for any
purposes
under this Agreement, each Preferred Holder and its Permitted Transferees
(as such term is defined in the Articles of Association of the
Company)
shall be entitled to aggregate their holdings in order to be considered
one shareholder.
|
|
16.7.
|
Each
of the parties shall take such actions, including the execution
and
delivery of further instruments and voting its shares in the Company,
as
may be necessary to give full effect to the provisions hereof and
to the
intent of the parties hereto.
|
[Remainder
of page intentionally left blank]
Schedule
1
|
Investor
|
Address
|
|
Koor
Holdings
|
14
Hamelacha Street, Rosh Ha’Ayin 00000, Xxxxxx
|
|
Koor
Corporate Venture Capital
L.P.
|
14
Hamelacha Street, Rosh Ha’Ayin 00000, Xxxxxx
|
|
Sadot
Research and Development
Fund
Ltd
|
Xxxxx
Aviv Tower, 0 Xxxxxxxxxx Xx. Xxxxx Xxx
00000,
Israel
|
|
Xxxxx
Xxxxxx
|
10
Ha’amal Street, Rosh Ha’Ayin, Israel
|
|
Formula
Venture II L.P.
|
11
Galgalei Ha’Plada St., Hertzliya, 46733
|
|
Formula
Ventures Xxxxxx XX L.P.
|
11
Galgalei Ha’Plada St., Hertzliya, 46733
|
|
Formula
Ventures II (A.I.) L.P.
|
00
Xxxxxxxx Xx’Xxxxx Xx., Xxxxxxxxx, 00000
|
|
Shrem,
Fudim, Xxxxxx Trust Co. Ltd
|
00
Xxxxxxx Xx., Xxx Xxxx 00000
|
|
Xxxxx
Xxxxx
|
00
Xxxxxx Xx., Xxx Xxxx 00000
|
|
Catalyst
Investments L.P.
|
3
Xxxxxx Xxxxx St., Tel Aviv 64731
|
|
Vertex
Xxxxxx XX (A) Fund L.P.
|
11
Hashikma St., Savyon 56530
|
|
Vertex
Xxxxxx XX (CI) Fund L.P.
|
11
Hashikma St., Savyon 56530
|
|
Vertex
Xxxxxx XX (B) Fund L.P.
|
00
Xxxxxxxx Xx., Xxxxxx 00000
|
|
Vertex
Xxxxxx XX Discount fund L.P.
|
00
Xxxxxxxx Xx., Xxxxxx 00000
|
|
Vertex
Xxxxxx XX (C.I.) Executive Fund
L.P.
|
00
Xxxxxxxx Xx., Xxxxxx 00000
|
|
Pitango
Venture Capital Fund III
(Israeli
Sub) LP
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Pitango
Venture Capital Fund III
(Israeli
Sub) Non-Q LP
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Pitango
Venture Capital Fund III
(Israeli
Investors) LP
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Pitango
Principals Fund III (Israel)
LP
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Pitango
Venture Capital Fund III
Trusts
2000 Ltd.
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Pitango
XX Xxxxxx Fund III (Israel)
LP
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Genesis
Partners II L.D.C.
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Genesis
Partners II (Israel) L.P.
|
00
XxXxxxxxx Xx. Xxxx. X, Xxxxxxxx 00000
|
|
Xxxxx
Xxxxxxx
|
00
Xxxx Xxxxxxxxxx Xx., Xxx Xxxx
|
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