Exhibit 4.7
AGREEMENT
THIS AGREEMENT made and entered into as of the 26th day of April, 1995,
by and among RADVISION LTD., an Israeli company of 0 Xxxxxxxxxxx Xxxxxx, Xxx
Xxxx 00000, Xxxxxx (the "Company") and (1) Lerosh Investments Ltd., (2) Gevahim
Investments House Limited Ltd., (3) Xx. Xxxx Xxxxxxxxx, (4) Permal Emerging
Growth V Ltd., (5) Maritime - Julex Investment Ltd., (6) Xx. Xxxxxx Xxxxxx and
(7) Xx. Xxx Xxx, all of them of 00 Xxxxx Xx'xx Xxxxxx, Xxx Xxxx, Xxxxxx (all
seven of them together jointly and severally the "Purchaser") and Xxxxxx Xxxxxxx
and Xxxxx Xxxxxxx of 0 Xxxxxxxxxxx Xxxxxx, Xxx Xxxx 00000, Xxxxxx (jointly and
severally, the "Present Shareholders").
W I T N E S S E T H :
WHEREAS, the Company is and will be engaged in the business of
developing, manufacturing and marketing of products for video conferencing (the
"Field"); and
WHEREAS, the Company desires to issue and sell, and the Purchaser
desires to purchase ordinary shares, par value One New Israeli Shekel (NIS
1.00), of the Company ("Ordinary Shares"),
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the Company and the Purchaser hereby
agree as follows:
SECTION 1
ISSUANCE AND PURCHASE OF SHARES
1.1 The Purchaser undertakes to invest in the Company the
amount of Four Hundred Ninety-Nine Thousand Nine Hundred Fifty US
Dollars (US$ 499,950) (hereinafter, the "Investment Amount") on the
Closing Date as defined in Section 2 hereinbelow. All amounts will be
deposited in US dollars or their equivalent in NIS to the Company's
account no. 377906 at Bank Hapoalim B.M., Hadar Xxxxx Xxxxxx (610).
1.2 In consideration for and subject to the execution of the
investment, the Company shall issue on the Closing Date two thousand
four hundred seventy-five (2,475) ordinary shares (hereinafter, the
"Shares") to the Purchaser. The Company shall not be obligated to issue
any shares whatsoever before the full Investment Amount is received by
it. The Shares, when issued, will have been validly issued, fully paid
and non-assessable, and will be free of any liens or encumbrances.
The above shares will be issued as follows:
Lerosh Investments Ltd. 495 shares
Gevahim Investments House Limited Ltd. 100 shares
Xxxx Xxxxxxxxx 246 shares
Permal Emerging Growth V Ltd. 965 shares
Maritime - Julex Investment Ltd. 495 shares
Xxxxxx Xxxxxx 25 shares
Xxx Xxx 149 shares
1.3 The Investment Amount is part of a total amount of
approximately US $4,930,000 (hereinafter, the "Total Investment")
intended to be raised by the Company from the Purchaser as well as from
other investors (hereinafter, the "Other Purchasers") as set forth in
Exhibit 1 attached hereto. In consideration for the Total Investment,
the Company will issue 24,453 Ordinary Shares, par value 1.- NIS each.
After all said shares have been issued, the ownership of the Company
will be as set forth in Exhibit 1.
SECTION 2
CLOSING DATE
The purchase of the Shares by the Purchaser shall take place
on April 27, 1995 (the "Closing"). The date of the Closing is referred
to as the "Closing Date" in this Agreement.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company and the Present Shareholders hereby represent and
warrant to the Purchaser the facts hereinafter set forth in this
Section 3.
3.1 CORPORATE POWER. As of the date hereof and as of the
Closing, the Company has and will have all requisite corporate power to
enter into and to perform this Agreement.
3.2 SUBSIDIARIES. The Company has a wholly owned U.S.
subsidiary, RADVISION Inc. in New Jersey. The Company has no other
subsidiaries and does not otherwise own, of record or beneficially, any
capital stock or equity interest in any other corporation, association
or business entity.
3.3 ORGANIZATION AND STANDING. The Company is a corporation
duly organized and existing under the laws of the State of Israel and
is in good standing under such laws. The Company has requisite
corporate power to own and operate its properties and assets, and to
carry on its business as presently conducted. The Memorandum of
Association and Articles of Association and all amendments to date of
the Company are attached hereto as EXHIBITS "3.3A" AND "3.3B."
3.4 CAPITALIZATION. The Company's authorized capital is sixty
thousand (60,000) Ordinary Shares. The Company's issued capital stock
immediately prior to the Closing date shall consist of twenty thousand
seven hundred thirty-two (20,732) Ordinary Shares, all of which are
duly authorized, validly issued and free of any liens or encumbrances.
Out of the issued share capital, thirteen thousand eight hundred sixty
(13,860) shares are fully paid and six thousand eight hundred
seventy-two (6,872) shares are partially paid. All shares are
non-assessable, and to the best of the Company's knowledge and belief,
are beneficially owned by their holders of record. There are no
preemptive, conversion or other rights, options, or agreements granted
or issued by, or binding upon, the Company or the shareholders which
entitle any person, firm or corporation to purchase or acquire any
shares of the Company's capital stock, except as set forth in this
Agreement and in particular, in Sections 3.21, 3.22 and 3.23.
2
3.5 AUTHORIZATION. All corporate actions on the part of the
Company and its directors and shareholders, required for the
authorization, execution, delivery and performance by the Company of
this Agreement and the consummation of the transactions contemplated
herein have been, or will be executed, upon signature of this
Agreement. This Agreement is and will be valid and binding obligations
of the Company, enforceable in accordance with its terms. The
execution, delivery and performance by the Company of this Agreement,
and compliance therewith, and the consummation of the transactions
contemplated by this Agreement will not result in any violation of and
will not conflict with, or result in a breach of any of the terms of,
or constitute a default under, any document to which the Company is or
will be a party or by which it is or will be bound, or result in the
creation of any mortgage, pledge, lien or encumbrance or charge upon
any of the properties or assets of the Company. To the best of the
Company's knowledge, no third party's consent is required for the
Company to become a party to this Agreement. Immediately after the
Closing Date, the Company will inform all governmental authorities that
require to be reported of changes in equity, including, but not limited
to the Israel Investment Center and the Office of the Chief Scientist
of the execution of this Agreement.
3.6 OUTSTANDING DEBT. Except as set forth in the Schedule of
Exceptions attached hereto as EXHIBIT "A" ("Schedule of Exceptions"),
the Company has no outstanding indebtedness for borrowed money and is
not a guarantor of any debt or obligation of another. There exists no
default by the Company under the provisions of any agreement or other
instrument evidencing or relating to any indebtedness or obligation.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in
the Schedule of Exceptions, the Company has no material liability of
any nature, direct or indirect, absolute or contingent, not adequately
reserved against, excluding any liabilities related to damage which may
have been caused by its products or are related to sales of said
products (unless the Company knows or should have known of such damages
or liabilities). The Company has paid, or has made adequate provisions
for the payment of, all taxes, interest, penalties, assessments or
deficiencies owing by it to any taxing authority.
3.8 ABSENCE OF CERTAIN CHANGES. Since December 31, 1994, the
business of the Company has at all times been conducted in the ordinary
course. There has not been any event or condition of any character
which has materially adversely affected the Company's business,
prospects or plans.
3.9 CONTRACTS AND CONTRACTUAL ARRANGEMENTS. The Company is a
party to several material agreements, all of which are described in the
Schedule of Exceptions attached hereto. Each of such agreements is in
full force and effect and, to the Company's knowledge, no party thereto
is in breach thereof. The Company is of the opinion that it receives
services from affiliated companies for fair consideration as described
in the Schedule of Exceptions attached hereto. The Company is not
obligated to receive services from said affiliated companies.
3.10 INDEBTEDNESS OF OR TO SHAREHOLDERS, ETC.; CONFLICTS OF
INTEREST.
3
(a) Except as set forth in the Schedule of Exceptions, none
of the Company's shareholders, directors, officers or employees or any
of their affiliates or families is indebted to the Company and the
Company has no debt to any of them except for accrued wages for the
current period.
(b) Except as set forth in the Schedule of Exceptions, to the
best of the Company's knowledge, none of the Company's directors,
officers, employees or consultants, or their affiliates or families,
directly or indirectly, own any material interest in any entity which
is a competitor of the Company.
3.11 LITIGATION; INSOLVENCY PROCEEDINGS. To the best of the
Company's knowledge and belief, there are no pending or threatened
actions, suits, proceedings or any investigations against or affecting
the Company involving the possibility of any judgment or liability
which would adversely affect its business.
3.12 INSURANCE. The Company maintains insurance through
RAD-Bynet insurance policies, adequately covering the perils normally
insured against by companies similarly situated. All policies of
insurance maintained by the Company are attached hereto as EXHIBIT
"3.12." To the best of the Company's knowledge, all such policies are
in full force and effect.
3.13 TITLE TO PROPERTIES; LIENS AND ENCUMBRANCES. Except as
set forth in the Schedule of Exceptions, the Company owns, or holds
under lease, all real and personal property used by it in its business.
All property owned by the Company (all of which is listed on EXHIBIT
"3.13" hereto) is so owned free and clear of all mortgages, pledges,
liens or charges.
3.14 LEASES. EXHIBIT "3.14" hereto contains a correct and
complete list and description (including the amount of rents) of all
leases under which the Company leases property, real or personal.
3.15 BUSINESS OF THE COMPANY. The Company has no knowledge of
(i) the existence of any pending or planned patent, or any statute,
rule, law, regulation, standard or codes which would materially
adversely affect the condition, financial or otherwise, or the business
operations, of the Company; or (ii) the existence of any other factor
which would materially adversely affect the financial condition, or the
operations, of the Company.
3.16 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation of the terms of its Memorandum or Articles of Incorporation,
and it is not in violation of the terms of any judgment, decree, order,
statute, rule or regulation to which it is subject.
3.17 EMPLOYEES. All the key employees of the Company are
listed on EXHIBIT "3.17" hereto. To the best of the Company's
knowledge, no such employee is in violation of any material term of any
employment contract, patent disclosure agreement, non-competition
agreement, or any other contract or agreement or any restrictive
covenant or any other obligation to a former employer relating to the
right of any such employee to be employed by the Company. To date, all
payments due to the Company's employees have
4
been paid regularly. In addition, the Company made all allowances
required by law to cover the amounts due to its employees and/or
officers in connection with their employment and/or termination of
employment, as reflected in Exhibit "3.20a."
3.18 DISCLOSURE. This Agreement and the Schedule of Exceptions
delivered to the Purchaser do not contain any material untrue statement
and do not omit to state a material fact necessary in order to make the
statements contained herein not misleading in the light of the
circumstances under which they were made, and such documents represent
full disclosure by the Company of the material facts with respect to
the business, prospect and plans of the Company. The Company confirms
that to the date of this Agreement, the Business Plan dated August,
1994, which was provided to the Purchaser, does not contain any
materially untrue information as far as same relates to the Company
itself. The other information contained therein may have changed since
August, 1994.
3.19 PRODUCTS AND OWNERSHIP. A description of the products is
enclosed as EXHIBIT 3.19. To the best of the knowledge and belief of
the Company and as set forth in the Schedule of Exceptions, the Company
possesses, or is proceeding with due diligence to obtain, all patents,
patent rights, trademarks, trademark names, trade name rights and
copyrights the Company believes are necessary to conduct its business
as now being conducted and as planned to be conducted (without conflict
with, or infringement upon, any valid rights of others), the lack of
which could affect the operations or condition, financial or otherwise,
of the Company. The Company has no knowledge of any infringement by the
Company or claimed infringement upon, or any conflict with, the patent
rights, trademarks, trademark rights, trade names, trade name rights,
copyrights, intellectual property rights or other rights of any person,
form or corporation.
3.20 FINANCIAL STATEMENTS. The audited financial statements of
the Company as of December 31, 1994 are attached hereto as EXHIBIT
"3.20A" and adequately reflect the financial situation of the Company.
The unaudited financial statements of the Company as of February 28,
1995 are attached hereto as Exhibit "3.20b." As of December 31, 1994 to
date, the Company did not enter into any material transaction or
undertake any material commitment which was not in the normal course of
business, and there was no material change for the worse in the
Company's position, liabilities and assets.
3.21 The agreements with the other purchasers will resemble
the Agreement with Purchaser.
3.22 In the event of any contradiction between this Agreement
and the Inception Agreement, attached hereto as EXHIBIT "3.22," the
current Memorandum of Association and the Current Articles of
Association, this Agreement shall prevail.
3.23 On January 1, 1995, a trust in favor of employees of the
Company and certain employees of the RAD-Bynet group was created. Said
Trust Agreement is attached hereto as EXHIBIT "3.23."
3.24 As of the date of this Agreement, the directors of the
Company are: Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxx Xxxx.
5
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Each of the Purchaser represents and warrants to the Company
as follows:
4.1 LEGAL POWER. As of the date hereof and as of the Closing,
the Purchaser has and will have all requisite power to enter into and
to perform this Agreement.
4.2 EXPERIENCE. The Purchaser has sufficient experience and
expertise to evaluate the suitability of its investment in the Company
to its needs and has the capacity to protect its interests with the
purchase of the Shares.
4.3 INVESTMENT. The Purchaser is acquiring the Shares for
investment for its own account.
4.4 ACCESS TO DATA. The Purchaser hereby represents that it
has had the full opportunity to discuss management and financial
affairs of the Company with its management and key employees and has
had the opportunity to review the business plan and the Company's
facilities. The Purchaser has not been denied any information that has
been requested, and based on the said information has made a diligent
examination of the aspects of the Company's business. The Purchaser has
heretofore received all information that the Purchaser has deemed
necessary and appropriate to enable the Purchaser to evaluate the
financial risk inherent in making an investment in the shares of the
Company and the Purchaser has received satisfactory and complete
information concerning the business and financial condition of the
Company in response to all inquiries in respect thereof. The Purchaser
is aware that the Company has been in the development stage since its
inception in October 1992, that no sales of its products have taken
place, and that due to the short operating history of the Company there
can be no assurance that the Company will attain profitability. Nothing
contained in this Section 4.4 shall derogate from the liability of the
Company with respect to the representations and warranties made in
Section 3 above.
4.5 AUTHORIZATION. All corporate or partnership action on the
part of the Purchaser, its respective directors, partners and/or
shareholders necessary for the authorization, execution, delivery,
payment and performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated herein, has been taken.
4.6 Purchaser has sufficient financial resources to enable it
to fulfill its obligations under this Agreement and commits to make its
investment in the Company as set forth in Section 1 hereinabove.
SECTION 5
CONDITIONS OF THE PURCHASER TO CLOSING
The obligations of the Purchaser at the Closing, as referred
to in Section 1 hereof, are subject to the fulfillment of each of the
following conditions:
6
5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by the Company in Section 3 hereof
shall be true and correct when made, and shall be true and correct in
all material respects on Closing with the same force and effect as if
they had been made immediately prior to the Closing and as of such time
except for such changes which result from the obligations of the
parties to this Agreement.
5.2 PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the
Company on or prior to Closing shall have been performed or complied
with in all respects.
5.3 LEGAL INVESTMENT. At the time of the Closing, the purchase
and issuance of the Shares shall be legally permitted by all laws and
regulations to which the Purchaser and the Company are subject.
5.4 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated hereby and
all documents and instruments incident to such transactions shall have
been completed to the satisfaction (as to substance and form) of the
Purchaser.
5.5 PROPRIETARY INFORMATION AND NON-COMPETITION AGREEMENT.
Each of the Company's employees shall have executed and delivered to
the Company an Employment Agreement, substantially in the form attached
hereto as EXHIBIT "5.5A" or EXHIBIT "5.5B," which agreement contains
non-disclosure and non-competition provisions therein.
5.6 RETENTION OF KEY EMPLOYEES. All the persons listed in
EXHIBIT "3.17" shall either be employees of the Company as of the
Closing and to the best of the Company's knowledge, have not informed
them that they intend to leave the Company, or if an employee has left
the Company or intends to leave the Company, the latter has notified
the Purchaser of same.
5.7 OPINION OF COMPANY'S COUNSEL. The Purchaser shall have
received from Xxxxxx Xxxx, corporate counsel to the Company, a
satisfactory opinion in substantially the form attached as EXHIBIT
"5.7."
SECTION 6
CONDITIONS OF COMPANY TO CLOSING
The obligations of the Company at the Closing, as referred to
in Section 1 hereof, are subject to the fulfillment of each of the
following conditions:
6.1 REPRESENTATION. The representations and warranties made by
the Purchaser in Section 4 hereof shall be true and correct when made
and shall be true and correct on Closing with the same force and effect
as if they had been made immediately prior to the Closing and as of
such time.
6.2 Purchaser has fulfilled any and all of its obligations set
forth in Section 1.1.
7
SECTION 6A
BOARD OF DIRECTORS
Subsequent to the Closing, the Board of Directors will consist
of six (6) directors, three of whom will be appointed by Xxxxx Xxxxxxx,
Xxxxxx Xxxxxxx and RAD Data Communications Ltd., the fourth will be
Xxxx Xxxx in his capacity as Managing Director of the Company, and the
fifth and the sixth are entitled to be appointed by The Trust Company
of Maritime Bank of Israel ("Maritime") and Clal Venture Capital LP
("Clal"). Lannet Data Communications Ltd. ("Lannet") and Finovelec,
will have the right to designate one observer each to the Board of
Directors. Upon reasonable notice, Lannet will be permitted to change
the status of its observer to that of director, in which event the
number of directors will be eight (8), Lannet's observer will become
the seventh director and Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx will be
entitled to appoint another director (the eighth).
SECTION 7
COVENANTS OF THE COMPANY
For as long as the Purchaser's equity interest in the Company
will amount to at least five (5%) percent of the outstanding capital
securities therein and Purchaser has the right to appoint a director or
an observer under Section 6A hereinabove, except where stated otherwise
in this Section 7 and in Section 8, and without derogating from any
rights or obligations conferred upon shareholders, or obligations
conferred upon corporations, under applicable law, the Company hereby
covenants and agrees as follows. For the purposes of calculating Clal's
percentage of ownership set forth above, ECI Telecom Ltd.'s ("ECI")
equity interest in the Company at the time will be taken into account
and added to that of Clal for as long as Clal is a shareholder of ECI.
7.1 ADDITIONAL INFORMATION. The Company will permit an
employee of the Purchaser to visit upon a mutually convenient time and
inspect any of the properties of the Company, including its books of
account, and to discuss its affairs, finances and accounts with the
Company's officers and the Auditor.
(a) As soon as available after approval by the Board of
Directors, the Company will provide Purchaser with a summary of the
budget, including projected yearly profit and loss accounts and balance
sheet, as contained in its Operating Plan and as approved by its Board
of Directors, as well as information about material changes in the
budget, all as approved by the Board of Directors.
(b) With reasonable promptness, the Company agrees to provide
to Purchaser such information and data with respect to the Company, as
the Purchaser may from time to time reasonably request.
The foregoing provisions of this Section 7.1 shall not be in
limitation of any rights which the Purchaser may have to inspect and
copy the books and records of the Company or to inspect its properties
or discuss its affairs, finances and accounts, under the laws of the
State of Israel.
8
7.2 USE OF PROCEEDS. The Company will use the proceeds of the
issuance and sale of the Shares mainly to fund its activities and its
business subject to any resolutions made by its Board of Directors from
time to time.
7.3 BOARD APPROVAL. Without derogating from the Company's
Articles of Association, or any law or practice limiting the authority
of the management of the Company, the Company shall ensure that the
approval of the Board of Directors of the Company shall be required for
the following, (i) designation of all authorized signatories; (ii)
approval of the Company's or the subsidiaries' budget and Operating
Plan; (iii) selection of legal counsel of the Company; (iv) terms of
employment of the Managing Director of the Company; and (v) any and all
other matters with regard to which the Board of Directors of the
Company resolves that its prior approval shall be required.
Without derogating from the first sentence of Section 7
hereof, it is further provided that the Purchaser's rights hereunder
shall expire upon a public offering of the Company's shares regardless
of Purchaser's percentage of ownership at that time.
7.4 Resolutions of the Board of the Company regarding the
following subject matters shall require the consent of five out of six
directors. In the event that the Board will consist of 8 directors as
per Section 6.2 hereinabove, then the following subject matters will
require the consent of 6 out of 8 directors, including consent of two
directors out of the following: "Clal" Director, "Maritime" Director,
"Lannet" Director:
(a) A merger of the Company with any other entity;
(b) Acquisition or disposition, including mortgage, of other
corporations, real estate, and any material assets out of the ordinary
course of the Company's business;
(c) Replacement of the Company's Managing Director;
(d) Replacement of the auditors of the Company;
(e) Approval of the distribution of dividends by the Company.
(f) Loans by the Company or any of its subsidiaries to their
directors or officers, or to their relatives or other affiliates, with
the exception of employees receiving shares under the trust as set
forth in subsection 3.23 hereinabove;
(g) Transactions in excess of $20,000 not included in the
approved Operating Plan between the Company or its affiliates and their
directors, officers and employees or their relatives or other
affiliates, with the exception of employees receiving shares under the
trust as set forth in subsection 3.23 hereinabove;
(h) All material transactions or obligations not contemplated
in the budget by the Company or its subsidiaries; and
(i) Resolution to enter a new business field unrelated to the
present field.
9
Notwithstanding anything to the contrary contained herein, in
the event that a director is not allowed under a specific section of
this Agreement to participate in a board meeting and/or discussion, the
majority required will be (1) 4 out of 5, or (2) 5 out of 7, including
only one of the following:
the Clal Director, Maritime Director, or Lannet Director.
7.5 RIGHT OF FIRST REFUSAL FOR IPO. The Company agrees that in
the event that the Board of Directors resolves:
(a) to initially offer shares of the Company on the Israeli
Stock Exchange, then the following will apply:
(1) The Company will inform Clal Issuing Ltd. of said
resolution;
(2) Clal Issuing Ltd. will have an option for twenty
(20) days as of said notice date by the Company to make a proposal to
underwrite the offering (hereinafter, the "Clal Proposal");
(3) The Board of Directors will consider the Clal
Proposal and will, in its sole discretion, resolve whether it is
acceptable or not; and
(4) In the event that the Board resolves not to
accept the Clal Proposal, then the Company will be free to negotiate
and agree with any underwriter whatsoever.
(5) Within five (5) working days after the written
notice of the Company of the best proposal from the underwriter as in
(4) above, Clal will have the option to improve the Clal Proposal to
match the underwriter's proposal. In the event that Clal Issuing Ltd.
either fails to respond or to match the other proposal, Clal's option
under this Section 7.5(a) will terminate and the Board will be free to
proceed as it deems fit.
(b) In the event that the Board of Directors resolves to
initially offer shares of the Company on NASDAQ, with some of the
shares intended for the Israeli public, then the following will apply:
(1) The Company will inform Clal Issuing Ltd. of said
resolution;
(2) The Company will be free to negotiate and agree
with any underwriting house to underwriter the offering, provided that
the Company notifies said underwriter that Clal Issuing Ltd. has a
right of first refusal concerning the offering of the shares of the
Company to the Israeli public.
(c) In the event that the Board of Directors resolves to
engage a placement agent for a private offering in the Israeli market,
and such agent is entitled to a commission in return for his services
(whether by form of money or options), then the following will apply:
(1) The Company will inform Clal Venture Capital LP
of said resolution;
10
(2) Clal Issuing Ltd. will have an option for ten
(10) days as of said notice date by the Company to make a proposal to
head the offering as a placement agent (hereinafter, the "Clal
Proposal");
(3) Within five (5) working days after the written
notice of the Company of a proposal from another placement agent, Clal
and Clal Issuing Ltd. will have the option to improve the Clal Proposal
to match the other proposal. In the event that Clal Issuing Ltd. either
fails to respond or to match the other proposal, Clal's option under
this Section 7.5(c) will terminate and the Board will be free to
proceed as it deems fit;
(4) The Board of Directors will consider the Clal
Proposal as well as the other proposal(s) and will, in its sole
discretion, resolve whether it is acceptable or not; and
(5) In the event the Board accepts Clal Issuing
Ltd.'s proposal and Clal Issuing Ltd. acts as the said placement agent,
then, notwithstanding anything to the contrary contained herein, the
Board, in its sole discretion, by simple majority, will be free
thereafter to resolve that the services of Clal Issuing Ltd. as a
placement agent are not satisfactory, to terminate such services and to
receive such services from any other placement agent without any
further rights or obligations with respect to Clal Issuing Ltd. or the
Purchasers.
(d) It is specifically agreed that:
(1) all discussions concerning the identity of
underwriter or placement agent as well as the terms of the offer under
Section 7.5 will be without the presence of Clal's appointed director;
(2) Clal Venture Capital LP's and Clal Issuing Ltd.'s
rights under Section 7.5 will terminate upon acceptance or rejection by
the Board of Directors of the Clal Proposal;
(3) It is further provided that the rights of Clal
Issuing Ltd., and Clal Venture Capital LP under Section 7.5 shall
expire upon a public offering of the Company's shares regardless of
Purchaser's percentage of ownership at that time.
(4) For the purposes of this Agreement, the address
of Clal Issuing Ltd. is 0 Xxxxxxxx Xxxxxx, Xxx-Xxxx 00000.
SECTION 8
For as long as the Purchaser's equity interest in the Company
amounts to at least two (2%) percent of the outstanding share capital
of the Company therein, and without derogating from any rights
conferred upon shareholders, or obligations conferred upon corporations
under applicable law, the Company hereby covenants and agrees as
follows:
8.1 PRE-EMPTIVE RIGHTS. If the Company should at any time or
from time to time propose to issue and sell New Securities, as defined
in subsection 8.1(a), a pro rata
11
portion of such New Securities shall first be offered (as hereinafter
provided) to the shareholders of the Company (each of whom shall
hereinafter be referred to as "offeree"). For purposes of this Section
8.1, the pro rata portion of each Offeree shall mean a fraction of the
New Securities to be issued, of which the aggregate number of shares
which are held by the Offeree on the date of the Company's written
notification referred to in subsection 8.1(b) below (the "Notice Date")
shall be the numerator and the aggregate number of shares held by all
the Offerees shall be the denominator. The aforesaid rights of the
Offerees shall be subject to the following provisions:
(a) "New Securities" shall mean any capital stock of
the Company, whether or not now authorized, and rights, options or
warrants to purchase capital stock, and securities of any type
whatsoever that are, or may become, convertible into capital stock;
provided that the term "New Securities" shall not include (i)
securities purchased under this Agreement; (ii) securities offered to
the public; (iii) securities issued pursuant to the acquisition of
another corporation by the Company by merger, purchase of substantially
all the assets of another corporation or any other reorganization
whereby the Company owns not less than fifty-one percent (51%) of the
voting power of such corporation; (iv) securities issued to employees,
consultants or directors of the Company pursuant to any stock option
plan or stock purchase or stock bonus arrangement approved by the Board
of Directors of the Company; or (v) securities issued pursuant to
payment of any dividend or distribution with respect to the Company's
issued and outstanding capital stock.
(b) In the event the Company proposes to undertake an
issuance of New Securities, it shall give each Offeree written notice
of its intention, describing the type of New Securities and the price
and the terms upon which the Company proposes to issue the same, and
offering its pro rata portion thereof to such Offerees at such price
and on such terms. Each Offeree shall have twenty-one (21) days from
the date of such notice to accept such offer, in whole or in part, by
written notice to the Company, that has to be received by the Company
during the above mentioned 21 days period. All New Securities as to
which such offers have not been accepted in whole or in part by one or
more of the Offerees (of which fact the Company shall give immediate
written notice to all other Offerees), shall be re-offered to each of
the Offerees who have accepted in full the original offer, and each
such Offeree shall have the right, within ten (10) days of the date of
such written notice, to purchase the respective pro rata portions of
such new Securities, the same to be computed as aforesaid but without
regard to the shares held by any Offeree which had not accepted the
original offer in full.
(c) In the event any Offeree fails to accept such
offers, the Company shall have the right to sell within six (6) months
or enter into an agreement, to sell such New Securities as to which
such offers were not accepted, provided, however, that no such sale be
effected at a price or upon terms more favorable to the purchasers
thereof than those specified in the Company's notice pursuant to
Section 8.1(b).
(d) Each of Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx and RAD
Data Communications Ltd. shall have a right to allocate any unused
portion of the New Securities offered to him to the other.
12
(e) The Purchaser shall have the right to allocate
any unused portion of the New Securities offered to him to its owners
or to a company affiliated to Purchaser, provided that such recipient
of shares will join in this Agreement as if it had become a party to it
as of the receipt of shares.
(f) Notwithstanding anything to the contrary
contained herein, Xxxx Xxxx, so long as he is the Managing Director of
the Company, will be entitled to be an Offeree under this Section 8.1.
(g) Each of Lerosh Investments Ltd., Gevahim
Investments House Limited Ltd., Xx. Xxxx Xxxxxxxxx, Permal Emerging
Growth V Ltd., Maritime-Julex Investment Ltd., Xx. Xxxxxx Xxxxxx and
Xx. Xxx Xxx shall have a right to allocate any unused portion of the
New Securities offered to him to the other.
8.2 REGISTRATION RIGHTS. If the Company should elect to offer
any of its securities to the public, the Purchaser and the Present
Shareholders shall have registration rights as set forth in Exhibit
"8.2" attached hereto.
8.3 RESTRICTIONS. Unless otherwise required by applicable law
or under this Agreement, the Company shall not without the approval of
at least 75% of the shareholders:
(a) amend or repeal any provision of, or add any
provision to, the Company's Articles of Association;
(b) create any new class or classes of securities of
the Company having any preference or priority as to dividends or assets
superior to any such preference or priority of the Ordinary Shares, or
reclassify any of its existing securities into such superior
securities; or
(c) approve a merger of the Company with any other
entity;
Without derogating from the first sentence of Section
8, it is further provided that each shareholder's rights under Section
8 (except for 8.2) shall expire upon the initial public offering of the
Company's shares, regardless of that shareholder's percentage of
ownership at that time.
SECTION 8A
The Company agrees and undertakes as follows:
8A.1 BASIC FINANCIAL INFORMATION. The Company will furnish to
the Purchaser the following reports certified, when so required herein,
by the Company's auditors:
(a) As soon as practicable after the end of each
calendar quarter, and in any event within forty-five (45) days
thereafter, a balance sheet and a profit and loss account and of cash
flow (including opening cash, income, expenses and closing cash) of
13
the Company as of the end of such quarterly period, and for the current
fiscal year to date, prepared in accordance with generally accepted
accounting principles consistently applied and setting forth in
comparative form the figures for the corresponding periods of the
previous fiscal year, subject to changes resulting from year-end audit
adjustments, all in reasonable detail, signed by the principal
financial or accounting officer of the Company. There shall be appended
to such materials a report of the management as to the business of the
Company and its activities during the quarter.
(b) Not later than forty-five (45) days after the end
of each quarter, sales figures, backlog and new orders for such
quarter.
Without derogating from the first sentence of Section
7, it is further provided that the Company will not be required to
furnish any information under the provisions of this Section 8A.1 and
of Section 8A.2 below subsequent to the initial public offering.
8A.2 INSURANCE. The Company shall continue to maintain
insurance policies similar to those described in Section 3.12 above.
8A.3 ACCOUNTS AND RECORDS. The Company will keep true records
and books of account in which full, true and correct entries will be
made of all dealings or transactions in relation to its business and
affairs in accordance with generally accepted accounting principles
applied on a consistent basis.
8A.4 PROPRIETARY INFORMATION AND NON-COMPETITION AGREEMENTS.
The Company will not employ, or continue to employ, any person who will
have access to confidential information with respect to the Company and
its operations unless such person has executed and delivered the
Company's standard Employment agreement then in force containing
proprietary information and non-competition sections to the
satisfaction (as to substance and form) of the Company's counsel.
SECTION 9
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
Except as set forth in this Section 9, the Present
Shareholders and the Purchaser agree not to sell or transfer any of
their shares and rights in the Company to a third party. This Section 9
will terminate upon the initial offering of the Company's shares to the
public.
9.1 For the purpose of this Section 9, the shareholders, the
Purchaser and the Other Purchasers will be regarded as the following
Groups:
(a) Zisapel Group - Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, the
Trust and RAD Data Communications Ltd.
(b) Clal Group - Clal Venture Capital LP, ECI Telecom
Ltd.
(c) Finovelec Group - Finovelec, Factory Systemes,
Houston Venture Partners Ltd.
14
(d) Capital Group - Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxx
Xxxxxx, W.S.P. Capital
(e) Maritime Group - Lerosh Investments Ltd., Gevahim
Investments House Limited Ltd., Xx. Xxxx Xxxxxxxxx,
Permal Emerging Growth V Ltd., Maritime-Julex
Investment Ltd., Xx. Xxxxxx Xxxxxx and Xx. Xxx Xxx.
9.2 Group Members are entitled to transfer shares among
themselves for consideration or without consideration without any
restrictions.
9.3 Except as set forth in sections 9.9, 9.10 and 9.11
hereinbelow, any shareholder who shall elect to transfer (hereinafter
"Seller") all or part of his shares, not in accordance with subsection
9.2 (hereinafter "Offered Shares") shall offer them first to the other
registered shareholders of the Company at that time (hereinafter
"Offerees") on a pro rata basis based on their share in the share
capital of the Company.
9.4 In the event any such Offeree fails to exercise his right
to purchase his Offered Shares within forty-five (45) days from the
date the offer is made, then the Seller shall have the right to offer
the Offered Shares to a third party at the same price and upon the same
terms of sale as those offered to the other shareholders under section
9.3 and provided that said third party shall undertake all of Seller's
obligations under this Agreement. (Such third party to be called
hereunder, the "Transferee"). In the event that the shares are not sold
to said party within six (6) months as of the offer to such said third
party, then Section 9.3 will apply anew.
9.5 The Board of Directors shall have the right to not approve
the transfer of shares to a third party in each of the following
events:
(i) If the third party is a competitor of the Company;
(ii) If there is a possibility of conflict of interest
between the third party and the Company;
(iii) For any other reason, in which case such approval
shall not be unreasonably withheld.
9.6 In the event that Xxxxxx Xxxxxxx and/or Xxxxx Xxxxxxx
and/or RAD will sell more than a total of 25% of their shares in the
Company the to third parties, then Purchaser will have the right to
sell the same portion of Purchaser's shares in the Company under the
same terms and conditions (hereinafter, the "Tag Along Right").
Purchaser will inform Zisapel in writing by fax and by confirmation by
mail if it intends to exercise its Tag Along Right within ten (10) days
after the date of notice by Zisapel to Purchaser. Failure to respond
will be deemed as a decision not to Tag Along.
9.7 This Section 9 will supersede Section 14 of the Inception
Agreement.
9.8 The terms of the Trust Agreement, EXHIBIT 3.23, will have
priority over this Section 9.
15
9.9 Finovelec, in its discretion, shall be permitted to freely
transfer up to 5% of its shares (at that time) in the Company to up to
6 of Finovelec executives, as well as up to an additional 5% of its
shares (at that time) in the Company to IDI (if then an affiliate of
Finovelec). Such transfer shall be considered a transfer among the
Finovelec Group, provided that each Transferee, upon receipt of the
shares, will join this Agreement and undertake all of Finovelec's
obligations hereunder and will be considered henceforth a member in the
Finovelec Group for the purpose of this Section 9.
9.10 Clal Venture Capital LP is entitled to transfer all of
its shares in the Company to its partners, provided that each
Transferee, upon receipt of the shares, will join this Agreement and
undertake all of Purchaser's obligations hereunder and will be
considered henceforth a member in the Clal Group for the purpose of
this Section 9.
9.11 Each of Xxxxx Xxxxx, Xxxxxxx Xxxxxx and Xxxx Xxxxxx is
entitled, once, to transfer his shares to a company directly under the
total control of said person, provided that each Transferee, upon
receipt of the shares, will join this Agreement and undertake all of
Purchaser's obligations hereunder and will be considered henceforth a
member in the Capital Group for the purpose of this Section 9.
SECTION 9A
ANTI-DILUTION
(a) In the event that any time prior to the earlier of the
Closing of the Company's initial public offering or three (3) years
from the date of this Agreement, the Company issues or sells any
Ordinary Shares to third parties upon a private placement (excluding
Company employees) for consideration per share of less than US $135 (an
"Offering"), then prior to said private placement the Purchaser shall
be given the option to purchase Ordinary Shares of the Company at par
value (NIS 1.- per share), in an amount computed as set forth below.
(b) The amount of shares to be issued to Purchaser will be
computed according to the following table:
---------------------------------------------------------------------------------------------------
SHARE PRICE AT NEXT PRIVATE PLACEMENT ADDITIONAL SHARES ISSUED TO ALL PURCHASERS (DISTRIBUTED
ON A PRO-RATA BASIS)
---------------------------------------------------------------------------------------------------
* $134.99 to $101.01 7,489 *
---------------------------------------------------------------------------------------------------
* $101.00 to $50.51 17,959 *
---------------------------------------------------------------------------------------------------
* Less than $50.5 33,642 *
---------------------------------------------------------------------------------------------------
* The number and price of shares will be adjusted in the event
of any restructuring of the Company's share capital.
(c) Upon the occurrence of each event giving rise to a
right pursuant to this Section, the Company will, at its expense,
promptly compute the number of Ordinary Shares that each Purchaser is
entitled to purchase in accordance with the terms hereof, and
16
furnish to the Purchaser, a notice of such right and the number of
shares Purchaser is entitled to.
(d) Any and all of Purchaser's rights under this Section
9A will terminate within the earliest of: (i) the Closing of the
Company's initial public offering or (ii) three (3) years from the date
of this Agreement or (iii) upon the first private placement
contemplated after the Closing set forth in Section 9A hereinabove.
SECTION 10
MISCELLANEOUS
10.1 ARBITRATION. All disputes arising under this Agreement or
in connection with the transactions hereunder shall be resolved between
the parties in good faith; however, if these efforts fail, the dispute
shall be resolved by arbitration by a sole arbitrator within sixty (60)
days. The arbitrator shall be chosen by agreement of the parties
hereto. If they fail to so agree within twenty (20) days after a party
shall have requested such arbitration, the arbitrator shall be
appointed by the Chairman of the Israeli Bar who shall also determine
the place of the arbitration proceedings based on the convenience of
the parties involved; provided, however, that the arbitrator chosen
shall be from the jurisdiction chosen by the above-mentioned Chairman.
The arbitrator shall not be bound by any judicial rules of evidence or
procedure. The arbitral award shall be final and binding upon the
parties, and judgment upon the award may be entered in any court having
jurisdiction, or application may be made to such court for a judicial
acceptance of the award or for an order of enforcement, as the case may
be. The provisions of this Section 10.1 shall apply to all disputes
arising in connection with this Agreement. Each party shall bear its
own expenses, subject to the arbitration judgment on the issue of
expenses.
10.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive (i) any investigation made by the
Purchaser and (ii) the Closing.
10.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto; provided, however, that no party
may assign its rights hereunder without the prior written consent of
the other parties hereto.
10.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement (including
the Schedules and Exhibits hereto) and the other documents delivered
pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matters hereof
and thereof and supersede all prior agreements and understandings
relating thereto. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated except by an instrument in
writing signed by all the parties hereto.
10.5 NOTICES. All notices and other communications required or
permitted to be given or sent hereunder shall be in writing and shall
be deemed to have been sufficiently
17
given or delivered for all purposes if mailed by registered airmail,
transmitted by telex or telecopier, or delivered by hand to the
following respective addresses until otherwise directed by notice as
aforesaid:
To the Purchaser:
The Trust Company of Maritime Bank of Israel
00 Xxxxx Xx'xx Xxxxxx
Xxx Xxxx, Xxxxxx
Attention: Xx. Xxxx Xxx-Xxxxx
To the Company:
RADVISION Ltd.
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxx 00000, Xxxxxx
Attention: Xx. Xxxx Xxxx
provided, however, that notice of change of address shall be
effective only upon actual receipt.
All notices sent by registered mail shall be deemed to have
been received within seventy-two (72) hours of posting. If delivered by
hand, upon their delivery.
10.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy upon any breach or default under this Agreement
shall impair any such right, power or remedy of such holder nor shall
it be construed to be a waiver of any such breach or default, or in
acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of any holder of any breach or default
under this Agreement, or any waiver on the part of any holder of any
holder of any provisions or conditions of this Agreement shall be
effective only if made in writing and only to the extent specifically
set forth in such writing. All remedies, either under this Agreement or
by virtue of law or otherwise afforded to any holder, shall be
cumulative and not alternative.
10.7 WAIVER OF DEFAULT. No waiver with respect to any breach
or default in the performance of any obligation under the terms of this
Agreement shall be deemed to be a waiver with respect to any subsequent
breach or default, whether of similar or different nature.
10.8 RIGHTS; SEVERABILITY. In case any provision of the
Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. The parties hereto shall
18
be obliged to draw up an arrangement in accordance with the meaning and
the object of the invalid provision.
10.9 CONFIDENTIAL INFORMATION. The Purchaser acknowledges that
the information received by it and such information which will be
received pursuant hereto shall be confidential and is intended for the
Purchaser's use only for the purpose of this Agreement, and the
Purchaser will not use or allow the use of such confidential
information or reproduce, disclose or disseminate such information to
any other person (other than the Purchaser's employees or agents having
a need to know the contents of such information, and the Purchaser's
attorneys), except in connection with the exercise of rights under this
Agreement, unless the Company has made such information available to
the public generally or the Purchaser is required to disclose such
information by a governmental body or by judicial order, but only to
the persons and the extent so required.
10.10 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and
are not to be considered in construing this Agreement.
10.11 GOVERNING LAW. This Agreement shall be governed
exclusively by, and construed solely in accordance with, the laws of
the State of Israel.
10.12 Purchaser and any Transferee under Section 9 are
represented by the Managing Director of Maritime, presently Xx. Xxxx
Xxx-Xxxxx. Notice sent to the Managing Director of Maritime will be
deemed as notice sent to Purchaser and/or any such Transferee. A
resolution or request given by the Managing Director of Maritime to the
Company will be deemed as if given by Purchaser and any such
Transferee. The Company will have no obligation to provide information
or notice whatsoever except to the Managing Director of Maritime.
10.13 Purchaser agrees that the Company will issue to Xx.
Xxxxxxx Xxxxx forty-nine (49) shares against payment of their nominal
value.
10.14 Following the Closing, the Company will amend its
Memorandum and Articles of Association to reflect this Agreement. The
Present shareholders and the Purchasers agree to such amendments.
10.15 The Company will bear the cost of stamp tax due in
connection with the issuance of shares according to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in three (3) original copies, one to the Company, one to the
Purchaser and one of the Present Shareholders, as of the date first
above-mentioned.
THE COMPANY THE PURCHASER
RADVISION LTD. Lerosh Investments Ltd.
By: /s/ XXXX XXXX By: /s/ LEROSH INVESTMENTS LTD.
------------------------------ -------------------------------
Xxxx Xxxx, Managing Director
19
Gevahim Investments House Limited Ltd.
By: /s/ GEVAHIM INVESTMENTS HOUSE LIMITED LTD.
---------------------------------------------
/s/ YOAV CHLOUCHE
-------------------------------------------------
Xxxx Xxxxxxxxx
Permal Emerging Growth V Ltd.
By: /s/ PERMAL EMERGING GROWTH V LTD.
---------------------------------------------
Maritime - Julex Investment Ltd.
By: /s/ MARITIME-JULEX INVESTMENT LTD.
---------------------------------------------
/s/ XXXXXX XXXXXX
-------------------------------------------------
Xxxxxx Xxxxxx
/s/ XXX XXX
-------------------------------------------------
Xxx Xxx
THE PRESENT SHAREHOLDERS:
/s/ XXXXX XXXXXXX
-------------------------------------------------
Xxxxx Xxxxxxx
/s/ XXXXXX XXXXXXX
-------------------------------------------------
Xxxxxx Xxxxxxx
20
EXHIBIT 1
No. of Shares Shares Total No.
Name of prior to Invested Issued After Ownership
Shareholder Investment Amount at Closing Closing after Closing
--------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 6,930 6,930 15.34%
Xxxxx Xxxxxxx 6,930 6,930 15.34%
Xxxxxx Xxxxxxx 5,940 5,940 13.15%
and Xxxxx
Xxxxxxx
(as trustees)
Xxxx Xxxx 932 932 2.06%
RAD Data 710,030 3,515 7.78%
Communications
Ltd.
Xxxxx Xxxxx 60,600 300 0.66%
Xxxxxxx Xxxxxx 60,600 300 0.66%
Xxxx Xxxxxx 60,600 300 0.66%
W.S.P. Capital 37,976 188 0.42%
Investments Ltd.
Lannet Data 999,900 4,950 10.95%
Communications Ltd.
Lerosh Investments Ltd. 99,990 495 1.10%
Gevahim Investments 20,200 100 0.22%
House Limited Ltd.
Xxxx Xxxxxxxxx 49,692 246 0.54%
Permal Emerging Growth 194,930 965 2.14%
V Ltd.
Maritime - Julex 99,990 495 1.10%
Investment Ltd.
Xxxxxx Xxxxxx 5,050 25 0.06%
Xxx Xxx 30,098 149 0.33%
Clal Venture Capital 999,900 4,950 10.95%
LP
ECI Telecom Ltd. 499,950 2,475 5.48%
Xxxxxxx Xxxxx 49 0.11%
Finovelec 550,046 2,723 6.03%
Factory Systemes 250,076 1,238 2.74%
Houston Venture 199,980 990 2.19%
Partners Ltd.
20,732 4,929,608 45,185 100.00%
2
EXHIBIT 5.7
To: Purchaser
(as defined in the attached Agreement
dated April 26, 1995)
OPINION
I, the undersigned, as counsel to RADVision Ltd., hereby give my opinion, to the
best of my knowledge at this time as follows:
1. ORGANIZATION AND STANDING. RADVision Ltd. ("RADVision") is
a company duly organized and existing under the laws of the State of Israel
and is in good standing under such laws. RADVision has the requisite
corporate power to own and operate its properties and assets and to carry on
its business as presently conducted.
2. CAPITALIZATION. The RADVision `s authorized capital is
sixty thousand (60,000) Ordinary Shares. The RADVision's issued capital stock
immediately prior to the Closing date shall consist of twenty thousand seven
hundred thirty--two (20,732) Ordinary Shares, all of which are duly
authorized, validly issued and free of any liens or encumbrances. Out of the
issued share capital, thirteen thousand eight hundred sixty (13,860) shares
are fully paid and six thousand eight hundred seventy--two (6,872) shares are
partially paid. All shares are non-assessable, and to the best of RADVision'
s knowledge and belief, are beneficially owned by their holders of record.
There are no preemptive, conversion or other rights, options, or agreements
granted or issued by, or binding upon, RADVision or the shareholders which
entitle any person, firm or corporation to purchase or acquire any shares of
RADVision' s capital stock, except as set forth in this Agreement.
The rights, restrictions, privileges and preferences with
respect to RADVision's shares, as set forth in its Memorandum of Association
and Articles of Association, are valid and enforceable. To the best of my
knowledge, there are no outstanding rights, options, warrants, conversion
rights or agreements for the purchase or acquisition from RADVision of any
shares of its capital stock, except as stated in its Memorandum and Articles
of Association.
3. COMPLIANCE WITH LAW AND OTHER INSTRUMENTS. The execution,
delivery and performance of the Agreement dated April 26, 1995 between
RADVision and the Purchaser (the "Agreement") will not result in any
violation of, or be in conflict with or constitute a default under, any
applicable law, regulation or order, RADVision's Memorandum of Association or
Articles of Association. To the best of my knowledge, the execution, delivery
and performance of the Agreement and consummation of the transactions
contemplated thereby, will not result in any violation of, or be in conflict
with or constitute a default under, any term of any mortgage, indenture,
contract, agreement, instrument, judgment, decree or order applicable to
RADVision, or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of RADVision
pursuant to any such term.
4. LITIGATION. To the best of my knowledge, there are neither
any actions, proceedings nor investigations pending or threatened against
RADVision or its assets or properties.
5. EMPLOYMENT AGREEMENTS. The agreements between RADVision
and its employees (except for Xxxxx Xxxxx) as referred to in Sections 5.5 and
5.6 of the Agreement have been duly executed and delivered by, and constitute
valid and binding obligations of, all such employees, enforceable by
RADVision in accordance with their terms.
6. STATEMENTS AND FACTS. Nothing has come to my attention
that would lead me to believe that the Agreement contains any untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein not misleading.
/s/ XXXXXX XXXX
-----------------------------
Xxxxxx Xxxx
Advocate
Dated: April 26, 1995
(opinion/6)
EXHIBIT 8.2
REGISTRATION RIGHTS
1. INCIDENTAL REGISTRATION. If the Company shall elect to offer any of
its securities to the public, it shall give notice to the Purchaser of such
intention and shall include in such offering a portion of all shareholders
shares equal to the total amount of shares registered, multiplied by an amount
derived by dividing the number of Shares held by each shareholder by the total
number of shares outstanding at that time. In the event the public offering
involves an underwriting, the rights of the shareholders hereunder shall be
conditional upon the underwriter's determination as to marketing factors
requiring the limitation of such right, and the underwriter may preclude from
the offering any or all securities which could have otherwise been included in
the offering.
2. DEMAND REGISTRATION. At any time commencing one year following the
closing of the Company's initial public offering, and for a period of three (3)
years thereafter, each group of shareholders as defined in section 9.1 and/or
Lannet Data Communications Ltd. shall be entitled to demand one registration of
any or all of its shares held at the time of the initial public offering for
trading on any securities exchange; PROVIDED, however, that such request must
cover Shares representing a market value at the time of such request equal to a
minimum of three million Dollars ($3,000,000); and PROVIDED FURTHER, however,
that such request may not include Shares which within three months from the date
of such request could be sold to the public without restriction, for example
pursuant to the provisions of Rule 144 of the Securities and Exchange
Commission. Within 20 days after receipt, the Company shall give written notice
of such request to the other shareholders and shall include in such registration
all Shares held by them with respect to which the Company receives written
requests for inclusion therein within 15 days after the receipt of the Company's
notice. Thereupon, the Company shall use its best efforts to effect the
registration as soon as possible of all Shares (as to which it has received
requests for registration) for trading on a securities exchange, where the
Shares are then traded, specified in the request for registration. In the event
the registration involves an underwriting, the rights of the shareholders
hereunder shall be conditional upon the underwriter's determination as to
marketing factors requiring the limitation of such right, and the underwriter
may preclude from the offering any or all securities which could have otherwise
been included in the offering. Notwithstanding any other provision of this
clause 2 of Exhibit 8.2, after the Company has effected one such registrations
pursuant to this clause 2, and such registrations have been declared or ordered
effective, in the event that the Company shall furnish to such shareholder(s)
delivering a request for registration a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company it would be seriously detrimental to the Company or its shareholders
for a registration statement to be filed in the near future, the Company's
obligation to use its best efforts to register, qualify or comply under this
clause 2 shall be deferred for a period not to exceed 120 days from the date of
receipt of such request.
3. EXPENSES. All expenses incurred in connection with a registration
under Section 2 shall be borne by the selling shareholders participating in such
registration on a pro rata basis; PROVIDED, however, that the Company shall pay
any expenses associated with such registration which the Company would have
incurred in the ordinary course of business. All expenses incurred in connection
with a registration under Section 1 shall be borne by the
Company; PROVIDED, however, that each of the shareholders participating in such
registration shall pay its pro rata portion of the fees, discounts or
commissions payable to any underwriter.
2
