AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER BY AND AMONG ISRAEL TECHNOLOGY ACQUISITION CORP.,
AMENDMENT
NO. 2 TO
BY
AND AMONG
IXI
MOBILE, INC.,
AND
ITAC
ACQUISITION SUBSIDIARY CORP.
AMENDMENT
NO. 2 TO
THIS
AMENDMENT
NO. 2 TO
AGREEMENT AND PLAN OF MERGER
(the
“Amendment”), as amended is made and entered into as of December 30, 2006, by
and among Israel Technology Acquisition Corp., a Delaware corporation
(“Parent”), ITAC Acquisition Subsidiary Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (“Merger Sub”), and IXI Mobile, Inc., a
Delaware corporation (“Company”).
RECITALS
A. The
Parties entered into an Agreement and Plan of Merger dated February 28, 2006
(the “Merger Agreement”).
B. The
Parties have previously amended the Merger Agreement on December 8,
2006.
B. The
Parties wish to further amend the Merger Agreement in the manner specified
below.
NOW,
THEREFORE,
in
consideration of the covenants, promises and representations set forth herein,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
ARTICLE
I
AMENDMENT
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1.1
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In
Section 2.14 of the Merger Agreement, the date “December 31, 2007” shall
be replaced with “the date that is 12 months following the Closing Date.”
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1.2
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Section
6.1 of the Merger Agreement shall be deleted in its entirety and
replaced
with the following new Section 6.1:
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“Section
6.1. Proxy Statement; Special Meeting.
(a) As
soon
as is reasonably practicable after receipt by Parent from the Company of all
financial and other information relating to the Company as Parent may reasonably
request for its preparation, Parent shall prepare and file with the SEC under
the Exchange Act, and with all other applicable regulatory bodies, proxy
materials (the "Proxy Statement") for the purpose of soliciting proxies from
holders of Parent Common Stock to vote in favor of (i) the adoption of this
Agreement and the approval of the Merger (“Parent Stockholder Approval”), (ii)
the change of the name of Parent to a name mutually acceptable to Parent and
the
Company (the “Name Change Amendment”), (iii) an increase in the number of
authorized shares of Parent Common Stock to 55,000,000 (the “Capitalization
Amendment”), (iv) an amendment to remove sections A through E, inclusive of
Article VI from Parent’s Certificate of Incorporation from and after the Closing
and to redesignate Article VII as Article VI and Article VIII as Article VII,
respectively, (v) the approval and adoption of the issuance of options to
purchase shares of Company Common Stock to Xxxxxx Xxxxx and Xxxx Xxxxxx pursuant
to each of the Employment Agreements, and (vi) the election as directors of
Parent those persons listed in Schedule 6.1 and two more persons as chosen
pursuant to Section 6.2 at a meeting of holders of Parent Common Stock to be
called and held for such purpose (the “Special Meeting”). The Company shall
furnish to Parent all information concerning the Company as Parent may
reasonably request in connection with the preparation of the Proxy Statement.
The Company and its counsel shall be given an opportunity to review and comment
on the Proxy Statement prior to its filing with the SEC. Parent, with the
assistance of the Company, shall promptly respond to any SEC comments on
the Proxy Statement and shall otherwise use best efforts to cause
the Proxy Statement to be approved for issuance by the SEC as promptly as
practicable. Parent shall also take any and all such actions to satisfy
the requirements of the Securities Act and the Exchange Act. Prior to the
Closing Date, Parent shall use its reasonable best efforts to cause the shares
of Parent Common Stock to be issued pursuant to the Merger to be registered
or
qualified under all applicable Blue Sky Laws of each of the states and
territories of the United States in which it is believed, based on information
furnished by the Company, holders of the Company Common Stock reside and to
take
any other such actions which may be necessary to enable the Parent Common Stock
to be issued pursuant to the Merger in each such jurisdiction.
(b) As
soon
as practicable following its approval by the SEC, Parent shall distribute the
Proxy Statement to the holders of Parent Common Stock and, pursuant thereto,
shall call the Special Meeting in accordance with the DGCL and, subject to
the
other provisions of this Agreement, solicit proxies from such holders to vote
in
favor of the adoption of this Agreement and the approval of the Merger and
the
other matters presented to the stockholders of Parent for approval or adoption
at the Special Meeting.
(c) Parent
shall comply with all applicable provisions of and rules under the Exchange
Act
and all applicable provisions of the DGCL in the preparation, filing and
distribution of the Proxy Statement, the solicitation of proxies thereunder,
and
the calling and holding of the Special Meeting. Without limiting the foregoing,
the Company shall ensure that the Proxy Statement does not, as of the date
on
which it is distributed to the holders of Parent Common Stock, and as of the
date of the Special Meeting, contain any untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements made,
in
light of the circumstances under which they were made, not misleading (provided
that Parent shall not be responsible for the accuracy or completeness of any
information relating to the Company or any other information furnished by the
Company for inclusion in the Proxy Statement). The Company represents and
warrants that the information relating to the Company supplied by the Company
for inclusion in the Proxy Statement will not as of date of its distribution
to
the holders of Parent Common Stock (or any amendment or supplement thereto)
or
at the time of the Special Meeting contain any statement which, at such time
and
in light of the circumstances under which it is made, is false or misleading
with respect to any material fact, or omits to state any material fact required
to be stated therein or necessary in order to make the statement therein not
false or misleading.
(d) Parent,
acting through its board of directors, shall include in the Proxy Statement
the
recommendation of its board of directors that the holders of Parent Common
Stock
vote in favor of the adoption of this Agreement and the approval of the Merger,
and shall otherwise use reasonable best efforts to obtain the Parent Stockholder
Approval.”
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1.3
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The
following new Section 6.22 is hereby
inserted:
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“Section
6.22. Registration Rights.
(a) Within
forty-five (45) calendar days after the Effective Time, the Parent shall file
with the SEC a registration statement on Form S-3 (the “Initial Registration
Statement”) (or such other form that it is eligible to use), including, without
limiting the generality of the foregoing, any financial statements that are
required to be filed prior to the effectiveness of the Initial Registration
Statement, in order to register the Initial Registrable Securities (as defined
below) for resale and distribution under the Securities Act. The Parent will
register all of the Parent Common Stock to be issued pursuant to the Merger,
other than (i) the Additional Shares and (ii) those shares of Parent Common
Stock issued to the stockholders listed in Schedule A to the Registration Rights
Agreement (the “Initial Registrable Securities”).
(b) Within
forty-five (45) calendar days after each Additional Shares Issuance Date, the
Parent shall either (i) file with the SEC a registration statement on Form
S-3
(the “Additional Registration Statements” and together with the Initial
Registration Statement, the “Registration Statements”) (or such other form that
it is eligible to use), including, without limiting the generality of the
foregoing, any financial statements that are required to be filed prior to
the
effectiveness of each Additional Registration Statement or (ii) file with the
SEC a post-effective amendment to the Initial Registration Statement, in each
case in order to register the Additional Registrable Securities (as defined
below) for resale and distribution under the Securities Act. The Parent will
register all of the Additional Shares, other than those Additional Shares issued
to the stockholders listed in Schedule A to the Registration Rights Agreement
(the “Additional Registrable Securities” and together with the Initial
Registrable Securities, the “Registrable Securities”).
(c) When
declared effective by the SEC, each Registration Statement will comply with
Rule
415 under the Securities Act. On the effective date of any Registration
Statement, such Registration Statement will comply and on the date of the final
prospectus used in connection therewith (each, a “Prospectus”) will comply, in
all material respects with the applicable provisions of the Securities Act
and
the applicable rules and regulations of the SEC thereunder; on the effective
date of any Registration Statement, such Registration Statement will not and
on
the date of the related Prospectus, such Prospectus will not, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading; and when filed
with the SEC, the documents incorporated by reference in any Registration
Statement and related Prospectus, taken as a whole, will comply in all material
respects with the applicable provisions of the Exchange Act and the applicable
rules and regulations of the SEC thereunder. There will be no material document
of a character required to be described in any Registration Statement or the
related Prospectus or to be filed as an exhibit to such Registration Statement
that will not be described or filed as required.
(d) Parent
will include in each Registration Statement (i) the information required under
the Securities Act to be so included concerning the selling holders of the
applicable Registrable Securities (“Selling Holders”), as provided by such
Selling Holders to the Parent in writing, including any changes in such
information that may be provided by the Selling Holders in writing to the Parent
from time to time, and (ii) a section entitled “Plan of Distribution,” which, at
a minimum, states that the Selling Holders may transfer the shares of Parent
Common Stock in various circumstances.
(e) Notwithstanding
anything to the contrary herein, the Registration Statement shall cover only
the
applicable Registrable Securities as required pursuant to Section 6.22(a) or
6.22(b) above, as the case may be. In no event at any time before the Initial
Registration Statement becomes effective with respect to the Initial Registrable
Securities shall the Parent publicly announce or file any other registration
statement, other than (i) registration statements on Form S-8 or (ii)
registration statements filed pursuant to the Registration Rights Agreement,
in
each case without the prior written consent of a majority in interest of the
Selling Holders.
(f) Within
five business days of the effectiveness date of each Registration Statement,
the
Parent shall use its commercially reasonable efforts to cause its counsel to
issue an appropriate opinion or opinions to the transfer agent substantially
to
the effect that the Registrable Securities which are subject to such
Registration Statement are subject to an effective registration statement and
can be reissued free of restrictive legend upon notice of a sale by a Selling
Holder and confirmation by such Selling Holder that it has complied with the
prospectus delivery requirements of the Securities Act, provided that the Parent
has not advised the transfer agent orally or in writing that the opinion has
been withdrawn.
Section
6.23 Registration Procedures.
The
Parent will, as expeditiously as possible:
(a) after
the
effective date of each Registration Statement, use its best efforts to prepare
and file with the SEC such amendments and supplements to the Registration
Statement and the related Prospectus as may be necessary to keep such
Registration Statement current, effective and free from any material
misstatement or omission to state a material fact for a period not exceeding,
with respect to each Selling Holder’s Registrable Securities, the earlier of (i)
the second anniversary of the effective date of such Registration Statement,
(ii) the date on which the Selling Holders may sell all Registrable Securities
subject to such Registration Statement then held by the Selling Holders without
restriction by the volume limitations of Rule 144(e) of the Securities Act,
or
(iii) such time as all Registrable Securities which are subject to such
Registration Statement have been sold by the Selling Holders;
(b) promptly
notify Selling Holders (by telecopier and by e-mail addresses provided by
Selling Holders) on or before the first business day thereafter that the Parent
receives notice that any Registration Statement has been declared
effective;
(c) comply
with the provisions of the Securities Act with respect to the disposition of
all
of the Registrable Securities covered by any Registration Statement in
accordance with the Selling Holders’ intended method of disposition set forth in
such Registration Statement for such period;
(d) make
available to the Selling Holders, at the Parent’s expense, such number of copies
of any Registration Statement, any related Prospectus and any related
preliminary prospectus as such persons reasonably may request in order to
facilitate the public sale or their disposition of the Registrable Securities
or
make them electronically available;
(e) use
its
commercially reasonable best efforts to register or qualify the Registrable
Securities under the securities or “blue sky” laws of such jurisdictions as the
Selling Holders shall request in writing, provided, however, that the Parent
shall not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such
jurisdiction;
(f) list
the
Registrable Securities with any securities exchange on which the Parent Common
Stock is then listed;
(g) notify
the Selling Holders as soon as possible but, in any event, within one business
day of the Parent’s becoming aware of the happening of any event as a result of
which any Prospectus contained in an effective Registration Statement 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 light of the circumstances under which they were
made;
(h) notify
the Selling Holders within one business day of the Parent’s becoming aware of
any order of the SEC, state authority or other governmental authority suspending
the effectiveness of any Registration Statement; and
Section
6.24. Expenses. All expenses incurred by the Parent in complying with Sections
6.22 and 6.23, including, without limitation, all registration and filing fees,
printing expenses (if required), fees and disbursements of counsel and
independent public accountants for the Parent, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or “blue sky” laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, and fees of transfer agents and registrars,
are
called “Registration Expenses.” All underwriting discounts and selling
commissions applicable to any sale of Registrable Securities are called “Selling
Expenses.” The Parent will pay all Registration Expenses in connection with each
Registration Statement. Selling Expenses in connection with each Registration
Statement shall be borne by the Selling Holders and may be apportioned among
the
Selling Holders in proportion to the number of shares sold by each Selling
Holder relative to the number of shares sold under such Registration
Statement.
Section
6.25. Indemnification and Contribution.
(a) In
the
event of a registration of any Registrable Securities under the Securities
Act
pursuant to Section 6.22, the Parent will, to the extent permitted by law,
indemnify and hold harmless each Selling Holder, each officer of any Selling
Holder, each director of any Selling Holder, each underwriter of such
Registrable Securities thereunder and each other person, if any, who controls
any Selling Holder or underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
any Selling Holder, or such underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any preliminary prospectus or Prospectus
contained therein, any Parent-Represented Free-Use Writing Prospectus or any
amendment or supplement thereof, or arise out of or are based upon 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, and will subject to the provisions
of Section 6.25(c), reimburse each such Selling Holder, each such underwriter
and each such 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; provided, however, that the Parent shall
not
be liable to any Selling Holder to the extent that any such damages arise out
of
or are based upon an untrue statement or alleged untrue statement or omission
or
alleged omission in any Registration Statement, any preliminary prospectus
or
Prospectus, any Parent-Represented Free-Use Writing Prospectus or any amendment
or supplement thereof made in reliance upon and in conformity with written
information furnished to the Parent by or on behalf of such Selling Holder
demanding such indemnification expressly for use in any Registration Statement
or the related Prospectus. For the purposes of this Agreement, the term
“Parent-Represented Free-Use Writing Prospectus” means any “issuer free writing
prospectus”, as defined in SEC Rule 433 under the Securities Act, relating to
securities of Parent in the form filed or required to be filed with the SEC
or,
if not required to be filed, in the form retained in the Parent’s records
pursuant to Rule 433(g) under the Securities Act.
(b) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to Section 6.22, each Selling Holder, severally and
not
jointly, will, to the extent permitted by law, indemnify and hold harmless
the
Parent, and each person, if any, who controls the Parent within the meaning
of
the Securities Act, each officer of the Parent who signs any Registration
Statement, each director of the Parent, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against
all
losses, claims, damages or liabilities, joint or several, to which the Parent
or
such officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, any preliminary prospectus or Prospectus, any
Parent-Represented Free-Use Writing Prospectus or any amendment or supplement
thereof, or arise out of or are based upon 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, and will reimburse the Parent and each
such officer, director, underwriter and 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, provided, however,
that each Selling Holder will be liable hereunder in any such case if and only
to the extent that any such loss, claim, damage or liability arises out of
or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
pertaining to such Selling Holder, as such, furnished in writing to the Parent
by such Selling Holder specifically for use in such Registration Statement,
any
preliminary prospectus or Prospectus, any Parent-Represented Free-Use Writing
Prospectus or any amendment or supplement thereof.
(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to such indemnified party other
than under this Section 6.25 and shall only relieve it from any liability which
it may have to such indemnified party under this Section 6.25 to the extent
the
indemnifying party is materially prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 6.25
for
any reasonable legal expenses subsequently incurred by such indemnified party
in
connection with the defense thereof other than reasonable costs of investigation
and of liaison with counsel so selected, provided, however, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified parties, as a group, shall have
the
right to select one separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as
incurred.
(d) To
provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any party otherwise entitled
to
indemnification hereunder makes a claim for indemnification pursuant to this
Section 6.22 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification
may
not be enforced in such case, notwithstanding the fact that this Section 6.25
provides for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of any party hereto for which
indemnification is provided under this Section 6.25, then, and in each such
case, such parties will contribute to the aggregate losses, claims, damages,
liabilities, or expenses to which they may be subject (after contribution from
others) in such proportion as is appropriate to reflect the relative fault
of
the each of indemnifying party and the indemnified party in connection with
the
statements, omissions, or other actions that resulted in such loss, claim,
damage, liability, or expense, as well as to reflect 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 allegedly untrue statement of a material fact, or the
omission or alleged omission of 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; provided, however, that, in any such case, (x)
no
Selling Holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered and sold by such
Selling Holder pursuant to such Registration Statement, and (y) no Person guilty
of fraudulent misrepresentation (within the meaning of section 11(f) of the
Securities Act) will be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation; and provided further that in no
event shall a Selling Holders’ liability pursuant to this Section 6.25(d), when
combined with the amounts paid or payable by such Selling Holder pursuant to
Section 6.25(b), exceed the proceeds from the offering (net of any Selling
Expenses) received by such Selling Holder.”
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1.4
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Section
7.1(b) of the Merger Agreement is hereby deleted in its
entirety.
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1.5
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Section
7.3(k) of the Merger Agreement is hereby deleted in its
entirety.
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1.6
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In
Section 9.1 of the Merger Agreement, the date “December 31, 2006” shall be
replaced in both occurrences with “July 19,
2007.”
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1.7
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Except
as specifically modified by this Amendment, the Merger Agreement
shall
continue in full force and
effect.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the date first
written above.
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By:
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/s/
Xxxxxx Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
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Title:
Chairman
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IXI
MOBILE, INC.
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By:
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/s/
Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
Chairman
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ITAC
ACQUISITION SUBSIDIARY CORP.
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By:
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/s/
Xxxxxx Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
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Title:
Chairman
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