AMENDMENT NO. 1 TO AGREEMENT
EXHIBIT
4.9
Execution
Copy
AMENDMENT
NO. 1 TO AGREEMENT
This
AMENDMENT NO. 1 dated as of April 18, 2005 (this “Amendment”),
to
the Agreement dated as of May 12, 2004 (the “Original
Agreement”),
among
PowerDsine Ltd., a company organized under the laws of the State of Israel
(the
“Company”),
General Atlantic Partners 78, L.P., a Delaware limited partnership
(“GAP
LP”),
General Atlantic Partners (Bermuda), L.P., a Bermuda limited partnership
(“GAP
Bermuda”),
GAP-W
International, L.P., a Bermuda limited partnership (“GAP-W
International”),
GapStar, LLC, a Delaware limited liability company (“GapStar”),
GAP
Coinvestments III, LLC, a Delaware limited liability company (“GAPCO
III”),
GAP
Coinvestments IV, LLC, a Delaware limited liability company (“GAPCO
IV”),
and
GAPCO GmbH & Co. KG, a German limited partnership (“GAPCO
KG”
and,
collectively, with GAP LP, GAP Bermuda, GAP-W International, GapStar, GAPCO
III
and GAPCO IV, the “Purchasers”).
Capitalized
terms used but not defined herein shall have the meaning ascribed to such terms
in the Original Agreement.
WHEREAS,
pursuant to the Original Agreement, the Purchasers agreed to, among other
things, a standstill; and
WHEREAS,
in order to enable certain of the Purchasers to purchase additional Ordinary
Shares, the Company and the Purchasers wish to amend and restated Section 7.1(a)
of the Original Agreement and to amend Section 7.2 of the Original Agreement;
and
WHEREAS,
the Purchasers currently hold 4,782,387 Ordinary Shares of the Company,
representing approximately 24.8% of the Company’s outstanding
shares.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment
to Section 7.1(a).
Section
7.1(a) is amended and restated in its entirety as follows:
“(a)
purchase or otherwise acquire, or offer, seek, propose or agree to acquire,
ownership (including, but not limited to, beneficial ownership as defined in
Rule 13d-3 under the Exchange Act) of any securities of the Company, or any
direct or indirect rights or options to acquire any such securities or any
securities convertible into such securities (assuming the conversion of such
options, rights or securities), which, when added to any other securities owned
by the Purchasers and their Affiliates, represent, in the aggregate, in excess
of 35% of the outstanding voting securities of the Company; provided,
however,
that in
no event shall any Ordinary Shares or Ordinary Share Equivalents that may be
issued to the General Atlantic Designee in his capacity as director be
prohibited by this Section 7.1 or be included for purposes of calculating
whether or not the above threshold has been exceeded;”
2. Amendment
to Section 7.2.
Section
7.2 is hereby designated Section 7.2(a). Following such Section, the following
shall be inserted as Section 7.2 (b):
“(b)
Until May 12, 2009, on all matters submitted to the shareholders of the Company
for vote or approval, the Purchasers hereby agree to vote any voting securities
owned by the Purchasers that represent in excess of 26% of the outstanding
voting power of the Company
in the
same proportion as the votes cast by all other shareholders of the Company
(excluding all votes cast by the Purchasers and their Affiliates).”
3. Board
Approval.
This
Agreement shall be effective upon its approval either at a meeting of the Board
of Directors of the Company (the “Board of Directors”) or by written resolution
in lieu of a meeting of the Board of Directors. The General Atlantic Designee
(as such term is defined in the Original Agreement) shall not participate in
any
actions undertaken, or discussions held, by the Board of Directors relating
to
this Amendment, including any vote or consent with respect thereto.
4. Restrictions
on Purchase.
Each of
the Purchasers hereby covenants and agrees that it shall not purchase or
otherwise acquire, or offer, seek, propose or agree to acquire, ownership
(including, but not limited to, beneficial ownership as defined in Rule 13d-3
under the Exchange Act) any securities of the Company, or any direct or indirect
rights or options to acquire any such securities or any securities convertible
into such securities (assuming the conversion of such options, rights or
securities) until the company has filed a Form 6-K with the Securities and
Exchange Commission pertaining to this Amendment and containing a press release
in form and in substance acceptable to the Purchasers and the Company (the
“Form
6-K”).
5. Obligations
of the Company.
As soon
as practicable after the approval of this Amendment pursuant to Section 2
hereof, the Company shall file the Form 6-K. Upon execution of this Amendment
the Company and the Purchasers shall draft and agree on the contents and form
of
the press release specified in Section 3 hereof.
6.
Original
Agreement.
Except
as provided in this Amendment, the Original Agreement shall remain unamended
and
in full force and effect.
7. Counterparts.
This
Amendment may be executed in any number of counterparts or by facsimile and
by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
8. GOVERNING
LAW; CONSENT TO JURISDICTION.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
The
parties hereto irrevocably submit to the exclusive jurisdiction of any state
or
federal court sitting in the County of New York, in the State of New York over
any suit, action or proceeding arising out of or relating to this Amendment.
To
the fullest extent they may effectively do so under applicable law, the parties
hereto irrevocably waive and agree not to assert, by way of motion, as a defense
or otherwise, any claim that they are not subject to the jurisdiction of any
such court, any objection that they may now or hereafter have to the laying
of
the venue of any such suit, action or proceeding brought in any such court
and
any claim that any such suit, action or proceeding brought in any such court
has
been brought in an inconvenient forum.
9. WAIVER
OF JURY TRIAL.
EACH OF THE PURCHASERS AND THE COMPANY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AMENDMENT OR ANY RIGHTS
OR
OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH
PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED HEREIN.
IN
WITNESS WHEREOF, the undersigned have executed, or have caused to be executed,
this Amendment on the date first written above.
| POWERDSINE LTD. | ||
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| By: |
/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
CEO
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| GENERAL ATLANTIC PARTNERS 78, L.P. | ||
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| By: |
GENERAL
ATLANTIC LLC,
its General Partner
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| By: |
/s/
Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx |
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Title:
Managing Director
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| GENERAL ATLANTIC PARTNERS (BERMUDA), L.P. | ||
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| By: | GAP (BERMUDA) LIMITED, | |
| its General Partner | ||
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| By: |
/s/
Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx |
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| Title: Vice President | ||
| GAP-W INTERNATIONAL, L.P. | ||
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| By: | GAP (BERMUDA) LIMITED, | |
| its General Partner | ||
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| By: |
/s/
Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx |
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| Title: Vice President | ||
| GAPSTAR, LLC | ||
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| By: | GENERAL ATLANTIC LLC, | |
| its General Partner | ||
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| By: |
/s/
Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx |
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| Title: Managing Director | ||
| GAP COINVESTMENTS III, LLC | ||
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| By: |
/s/
Xxxxxxx Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Managing Director
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| GAPCO GMBH & CO. KG | ||
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| By: | GAPCO MANAGEMENT GMBH, | |
| its General Partner | ||
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| By: |
/s/
Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx |
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| Title: Managing Director | ||
