EXHIBIT 99.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of October 31,
2004, by and among Commtouch Software Ltd., a corporation organized under the
laws of the State of Israel, with headquarters located at 0X Xxxxxxx Xxxxxx,
Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxx 00000, Xxxxxx (the "Company"), and the
undersigned buyers (each, a "Buyer", and collectively, the "Buyers").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and among the
parties hereto of even date herewith (the "Securities Purchase Agreement"), the
Company has agreed, upon the terms and subject to the conditions set forth in
the Securities Purchase Agreement, to issue and sell to each Buyer the Company's
Preferred Shares, NIS 0.05 nominal value per share (the "Preferred Shares"),
which are convertible into Ordinary Shares on a one for one basis.
B. The Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 Act"), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the Buyers
hereby agree as follows:
1. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings:
a. "Business Day" means any day other than Saturday, Sunday or any
other day on which commercial banks in The City of New York are authorized or
required by law to remain closed.
b. "Investor" means a Buyer or any transferee or assignee thereof to
whom a Buyer assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement in accordance with Section 9 and any
transferee or assignee thereof to whom a transferee or assignee assigns its
rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 9.
c. "Person" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
d. "register," "registered," and "registration" refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and pursuant to
Rule 415 and the declaration or ordering of effectiveness of such Registration
Statement(s) by the SEC.
e. "Registrable Securities" means (i) the Ordinary Shares issued or
issuable upon conversion of the Preferred Shares issued pursuant to the
Securities Purchase Agreement, and (ii) any share capital of the Company issued
or issuable with respect to the Ordinary Shares issued upon conversion of the
Preferred Shares as a result of any share split, share dividend,
recapitalization, exchange or similar event or otherwise.
f. "Registration Statement" means a registration statement or
registration statements of the Company filed under the 1933 Act covering the
Registrable Securities.
g. "Rule 415" means Rule 415 under the 1933 Act or any successor
rule providing for offering securities on a continuous or delayed basis.
h. "SEC" means the United States Securities and Exchange Commission.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Securities Purchase Agreement.
2. Registration.
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a. Demand Registration. Within 60 days of the Closing under the
Securities Purchase Agreement, the Company shall prepare and make best efforts
to file with the SEC the Registration Statement on Form F-3 covering the resale
of all of the Registrable Securities (the "Filing Deadline"). In the event that
Form F-3 is unavailable for such a registration, the Company shall use such
other form as is available for such a registration, subject to the provisions of
Section 2(c). The Registration Statement prepared pursuant hereto shall register
for resale the number of Ordinary Shares equal to the number of outstanding
Registrable Securities. The Company shall use its best efforts to have the
Registration Statement declared effective by the SEC as soon as practicable, but
in no event later than the date which is 120 days after the Closing (the
"Effectiveness Deadline").
b. Legal Counsel. Subject to Section 5 hereof, the Buyers holding at
least a majority of the Registrable Securities shall have the right to select
one legal counsel to review and oversee any registration pursuant to this
Section 2 ("Legal Counsel"), which shall be Xxxxx Xxxxx & Co. or such other
counsel as thereafter designated by the holders of at least a majority of the
Registrable Securities. The Company and Legal Counsel shall reasonably cooperate
with each other in performing the Company's obligations under this Agreement.
c. Ineligibility for Form F-3. In the event that Form F-3 is not
available for the registration of the resale of Registrable Securities
hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the holders of
at least a majority of the Registrable Securities and (ii) undertake to register
the Registrable Securities on Form F-3 as soon as such form is available,
provided that the Company shall maintain the effectiveness of the Registration
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Statement then in effect until such time as a Registration Statement on Form F-3
covering the Registrable Securities has been declared effective by the SEC.
d. Sufficient Number of Shares Registered. In the event the number
of shares available under a Registration Statement filed pursuant to Section
2(a) is insufficient to cover all of the Registrable Securities required to be
covered by such Registration Statement, the Company shall amend the applicable
Registration Statement, or file a new Registration Statement (on the short form
available therefor, if applicable), or both, so as to cover at least the total
number of Registrable Securities as of the trading day immediately preceding the
date of the filing of such amendment or new Registration Statement. The Company
shall use its best efforts to cause such amendment and/or new Registration
Statement to become effective as soon as practicable following the filing
thereof.
e. Effect of Failure to File and Obtain and Maintain Effectiveness
of Registration Statement. If (i) a Registration Statement covering all of the
Registrable Securities required to be covered thereby and required to be filed
by the Company pursuant to this Agreement is (A) not filed with the SEC on or
before the respective Filing Deadline or (B) not declared effective by the SEC
on or before the respective Effectiveness Deadline or (ii) on any day after such
Registration Statement has been declared effective by the SEC sales of all of
the Registrable Securities required to be included on such Registration
Statement cannot be made (other than during an Allowable Grace Period (as
defined in Section 3(n)) pursuant to such Registration Statement (including,
without limitation, because of a failure to keep such Registration Statement
effective, to disclose such information as is necessary for sales to be made
pursuant to such Registration Statement or to register a sufficient number of
Ordinary Shares) then, as sole and exclusive relief for the damages to any
holder by reason of any such delay in or reduction of its ability to sell the
underlying Ordinary Shares, the Company shall pay to each holder of Registrable
Securities relating to such Registration Statement an amount in unregistered
Preferred Shares as liquidated damages and not as a penalty, equal to 5% (five
percent) per calendar month or a proportionate amount for a partial month of the
aggregate purchase price paid by the Investor for the Preferred Shares, payable
in Preferred Shares based on a per share price of $0.50. The payments to which a
holder shall be entitled pursuant to this Section 2(e) are referred to herein as
"Registration Delay Payments." Registration Delay Payments shall be paid on the
earlier of (I) the last day of the calendar month during which such Registration
Delay Payments are incurred and (II) the third Business Day after the event or
failure giving rise to the Registration Delay Payments is cured. The maximum
Registration Delay Payments payable hereunder shall be 1,000,000 Preferred
Shares to be issued by the Company for no additional consideration pro rata
among the Investors based on the number of Registrable Securities held by each
Investor. In the event the Company fails to make Registration Delay Payments in
a timely manner, such Registration Delay Payments shall bear interest at the
rate of 1.5% per month (prorated for partial months) until paid in full. The
Company undertakes to include the Preferred Shares on behalf of Registration
Delay Payments in the first available registration statement filing that the
Company undertakes subsequent to the occurrence of a registration delay
hereunder.
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3. Related Obligations.
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At such time as the Company is obligated to file a Registration Statement
with the SEC pursuant to Section 2(a), 2(c) or 2(d), the Company will use
commercially reasonable efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and,
pursuant thereto, the parties shall have the following obligations:
a. The Company shall submit to the SEC, within ten (10) Business
Days after the Company learns that no review of a particular Registration
Statement will be made by the staff of the SEC or that the staff has no further
comments on a particular Registration Statement, as the case may be, a request
for acceleration of effectiveness of such Registration Statement to a time and
date not later than 48 hours after the submission of such request. The Company
shall take all reasonable measures to keep each Registration Statement effective
pursuant to Rule 415 at all times until the earlier of (i) the date as of which
the Investors may sell all of the Registrable Securities covered by such
Registration Statement without restriction pursuant to Rule 144(k) (or any
successor thereto) promulgated under the 1933 Act or (ii) the date on which the
Investors shall have sold all of the Registrable Securities covered by such
Registration Statement (the "Registration Period"). The Company shall ensure
that each Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein (in the case of
prospectuses, in the light of the circumstances in which they were made) not
misleading.
b. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep such Registration Statement
effective at all times during the Registration Period, and, during such period,
comply with the provisions of the 1933 Act with respect to the disposition of
all Registrable Securities of the Company covered by such Registration Statement
until such time as all of such Registrable Securities shall have been disposed
of in accordance with the intended methods of disposition by the seller or
sellers thereof as set forth in such Registration Statement. In the case of
amendments and supplements to a Registration Statement which are required to be
filed pursuant to this Agreement (including pursuant to this Section 3(b)) by
reason of the Company filing a report on Form 6-K, Form 20-F or any analogous
report under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the Company shall have incorporated such report by reference into such
Registration Statement, if applicable, or shall file such amendments or
supplements with the SEC on the same day on which the 1934 Act report is filed
which created the requirement for the Company to amend or supplement such
Registration Statement.
c. The Company shall permit Legal Counsel to review and comment upon
(i) a Registration Statement prior to its filing with the SEC and (ii) all
amendments and supplements to all Registration Statements (except for Annual
Reports on Form 20-F, and Reports on Form 6-K and any similar or successor
reports) within a reasonable number of days prior to their filing with the SEC.
The Company shall furnish to Legal Counsel, without charge, (i) upon Legal
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Counsel's request, copies of any correspondence from the SEC or the staff of the
SEC to the Company or its representatives relating to any Registration
Statement, and (ii) upon the effectiveness of any Registration Statement, one
copy of the prospectus included in such Registration Statement and all
amendments and supplements thereto. The Company shall reasonably cooperate with
Legal Counsel in performing the Company's obligations pursuant to this Section
3.
d. The Company shall furnish to each Investor whose Registrable
Securities are included in any Registration Statement, without charge, upon the
effectiveness of any Registration Statement, one copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto and
such other documents, including copies of any preliminary or final prospectus,
as such Investor may reasonably request from time to time in order to facilitate
the disposition of the Registrable Securities owned by such Investor.
e. The Company shall use its best efforts to (i) register and
qualify, unless an exemption from registration and qualification applies, the
sale to the Investors of the Preferred Shares under such other securities or
"blue sky" laws of all applicable jurisdictions in the United States. To the
extent that the Investors are interested in reselling Registrable Securities in
the United States, the Investors shall (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by the
Investors of the Registrable Securities covered by a Registration Statement
under such other securities or "blue sky" laws of all applicable jurisdictions
in the United States, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for resale in such jurisdictions.
f. The Company shall notify Legal Counsel and each Investor in
writing of the happening of any event, as promptly as practicable after becoming
aware of such event, as a result of which the prospectus included in a
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (provided that in no event shall such
notice contain any material, nonpublic information), and, subject to Section
3(r), promptly prepare a supplement or amendment to such Registration Statement
to correct such untrue statement or omission, and deliver a copy of such
supplement or amendment to Legal Counsel and each Investor. The Company shall
also promptly notify Legal Counsel and each Investor in writing (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be delivered to Legal
Counsel and each Investor by facsimile on the same day of such effectiveness and
by overnight mail), (ii) of any request by the SEC for amendments or supplements
to a Registration Statement or related prospectus or related information, and
(iii) of the Company's reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate.
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g. The Company shall use commercially reasonable efforts to prevent
the issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify Legal Counsel and each Investor who
holds Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
h. Each party shall hold in confidence and not make any disclosure
of information concerning the other party provided by the other party unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. Each party agrees that it shall, upon learning that disclosure of
such information concerning another party is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
written notice to such other party and allow such other party, at its expense,
to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.
i. The Company shall use commercially reasonable efforts either to
(i) cause all of the Registrable Securities covered by a Registration Statement
to be listed on each securities exchange on which securities of the same class
or series issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange, or
(ii) secure designation and quotation of all of the Registrable Securities
covered by a Registration Statement on the Nasdaq National Market if securities
of the same class or series issued by the Company are then listed on the Nasdaq
National Market if the listing of such Registrable Securities is then permitted
under the rules of the Nasdaq National Market, or (iii) if the preceding clauses
(i) and (ii) are inapplicable, to secure the inclusion for quotation on The
Nasdaq SmallCap Market or Over The Counter quotation system for such Registrable
Securities and, without limiting the generality of the foregoing, to use its
commercially reasonable efforts to arrange for at least one market maker to
register with the National Association of Securities Dealers, Inc. ("NASD") as
such with respect to such Registrable Securities. The Company shall pay all fees
and expenses in connection with satisfying its obligation under this Section
3(i) to the extent permitted by the rules of the exchange or market involved.
j. The Company shall cooperate with the Investors who hold
Registrable Securities being offered and, to the extent applicable, facilitate
the timely preparation and delivery of certificates representing the Registrable
Securities to be offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
Investors may reasonably request and registered in such names as the Investors
may request.
k. The Company shall use its best efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with or approved
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by such other governmental agencies or authorities as may be necessary to
consummate the disposition of such Registrable Securities.
l. The Company shall make generally available to its security
holders as soon as practical, but not later than as required under applicable
securities laws, an earnings statement (in form complying with, and in the
manner provided by, the provisions of Rule 158 under the 0000 Xxx) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date of a Registration Statement.
m. The Company shall otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC in connection with any
registration hereunder.
n. Notwithstanding anything to the contrary herein, at any time
after the Registration Statement has been declared effective by the SEC, the
Company may delay the disclosure of material, non-public information concerning
the Company the disclosure of which at the time is not, in the good faith
opinion of the Board of Directors of the Company and its counsel, in the best
interest of the Company and, in the opinion of counsel to the Company, otherwise
required (a "Grace Period"); provided, that the Company shall promptly (i)
notify the Investors in writing of the existence of material, non-public
information giving rise to a Grace Period (provided that in each notice the
Company will not disclose the content of such material, non-public information
to the Investors) and the date on which the Grace Period will begin, and (ii)
notify the Investors in writing of the date on which the Grace Period ends; and,
provided further, that no Grace Period shall exceed five (5) consecutive days
and during any three hundred sixty five (365) day period such Grace Periods
shall not exceed an aggregate of twenty (20) days and the first day of any Grace
Period must be at least two (2) trading days after the last day of any prior
Grace Period (each, an "Allowable Grace Period"). For purposes of determining
the length of a Grace Period above, the Grace Period shall begin on and include
the date the Investors receive the notice referred to in clause (i) and shall
end on and include the later of the date the Investors receive the notice
referred to in clause (ii) and the date referred to in such notice. The
provisions of Section 3(g) hereof shall not be applicable during the period of
any Allowable Grace Period. Upon expiration of the Grace Period, the Company
shall again be bound by the first sentence of Section 3(f) with respect to the
information giving rise thereto unless such material, non-public information is
no longer applicable. Notwithstanding anything to the contrary, the Company
shall cause its transfer agent to deliver unlegended Ordinary Shares to a
transferee of an Investor in accordance with the terms of the Securities
Purchase Agreement in connection with any sale of Registrable Securities with
respect to which an Investor has entered into a contract for sale, and delivered
a copy of the prospectus included as part of the applicable Registration
Statement, prior to the Investor's receipt of the notice of a Grace Period and
for which the Investor has not yet settled.
4. Obligations of the Investors.
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a. At least five (5) Business Days prior to the first anticipated
filing date of a Registration Statement, the Company shall notify each Investor
in writing of the information the Company requires from each such Investor if
such Investor elects to have any of such Investor's Registrable Securities
included in such Registration Statement. It shall be a condition precedent to
the obligations of the Company to complete the registration pursuant to this
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Agreement with respect to the Registrable Securities of a particular Investor
that such Investor shall furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be reasonably
required to effect the effectiveness of the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request.
b. Each Investor, by such Investor's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration
Statement hereunder, unless such Investor has notified the Company in writing of
such Investor's election to exclude all of such Investor's Registrable
Securities from such Registration Statement.
c. Each Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(g) or
the first sentence of 3(f), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to any Registration Statement(s)
covering such Registrable Securities until such Investor's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(g) or the
first sentence of 3(f) or receipt of notice that no supplement or amendment is
required. Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended Ordinary Shares to a transferee of an
Investor in accordance with the terms of the Securities Purchase Agreement in
connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the Investor's receipt of
a notice from the Company of the happening of any event of the kind described in
Section 3(g) or the first sentence of 3(f) and for which the Investor has not
yet settled, provided that the Investor has confirmed in writing to the Company
that it has delivered the prospectus included in the Registration Statement, as
the same may have been supplemented by the Company, to any Person to whom such
Buyer is transferring any of the Registrable Securities.
5. Expenses of Registration.
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All reasonable expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements of
counsel for the Company shall be paid by the Company.
6. Indemnification.
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In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the fullest extent permitted by law, the Company will, and
hereby does, indemnify, hold harmless and defend each Investor, the directors,
officers, members, partners, and employees thereof (each, an "Indemnified
Person"), against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, reasonable attorneys' fees, amounts paid in
settlement or expenses, joint or several (collectively, "Claims") incurred in
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investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the
SEC, whether pending or threatened, whether or not an indemnified party is or
may be a party thereto ("Indemnified Damages"), to which any of them may become
subject insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Registration
Statement or any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under the securities or other
"blue sky" laws of any jurisdiction in which the Preferred Shares are offered,
or the omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not misleading,
(iii) any violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement or (iv) any material
violation of this Agreement (the matters in the foregoing clauses (i) through
(iv) being, collectively, "Violations"). Subject to Section 6(c), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are incurred
and are due and payable, for any legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (i) shall not apply to a Claim by an
Indemnified Person arising out of or based solely upon a Violation which occurs
in reliance upon and in conformity with information furnished to the Company in
writing by such Indemnified Person for such Indemnified Person expressly for use
in connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto, if such prospectus was timely made
available by the Company pursuant to Section 3(d); (ii) with respect to any
preliminary prospectus, shall not inure to the benefit of any such Person from
whom the Person asserting any such Claim purchased the Registrable Securities
that are the subject thereof (or to the benefit of any Person controlling such
Person) if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected in the prospectus, as then amended or
supplemented, if such prospectus was timely made available by the Company
pursuant to Section 3(d), and the Indemnified Person was promptly advised in
writing not to use the incorrect prospectus prior to the use giving rise to a
violation and such Indemnified Person, notwithstanding such advice, used it or
failed to deliver the correct prospectus as required by the 1933 Act and such
correct prospectus was timely made available pursuant to Section 3(d); (iii)
shall not be available to the extent such Claim is based on a failure of the
Investor to deliver or to cause to be delivered the prospectus made available by
the Company, including a corrected prospectus, if such prospectus or corrected
prospectus was timely made available by the Company pursuant to Section 3(d);
and (iv) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld or delayed. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
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behalf of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9.
b. In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees to severally and not
jointly indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a), the Company, each of its directors,
employees and each of its officers and each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (each, an
"Indemnified Party"), against any Claim or Indemnified Damages to which any of
them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, that such
Violation occurs in reliance upon and in conformity with information furnished
to the Company in writing by such Investor expressly for use in connection with
such Registration Statement; and, subject to Section 6(c), such Investor will
reimburse any legal or other expenses reasonably incurred by an Indemnified
Party in connection with investigating or defending any such Claim; provided,
however, that the indemnity agreement contained in this Section 6(b) and the
agreement with respect to contribution contained in Section 7 shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent shall not be
unreasonably withheld or delayed. In no event will the aggregate liability of
any Investor exceed the amount of the net proceeds received by such Investor
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Investors pursuant to
Section 9. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(b) with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Party
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented.
c. Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving a Claim,
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses of not more than one counsel for such
Indemnified Person or Indemnified Party to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and any
other party represented by such counsel in such proceeding. In the case of an
Indemnified Person, legal counsel referred to in the immediately preceding
10
sentence shall be selected by the Investors holding at least a majority in
interest of the Registrable Securities included in the Registration Statement to
which the Claim relates. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or Claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action or Claim.
The indemnifying party shall keep the Indemnified Party or Indemnified Person
reasonably apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto. No indemnifying party shall be
liable for any settlement of any action, claim or proceeding effected without
its prior written consent, provided, however, that the indemnifying party shall
not unreasonably withhold, delay or condition its consent. No indemnifying party
shall, without the prior written consent of the Indemnified Party or Indemnified
Person, consent to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party or Indemnified Person of a
release from all liability in respect to such Claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person with
respect to all third parties, firms or corporations relating to the matter for
which indemnification has been made. The failure to deliver written notice to
the indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action.
d. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are incurred.
e. The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. Contribution.
-------------
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Section
6 to the fullest extent permitted by law; provided, however, that no Person
involved in the sale of Registrable Securities which Person is guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) in connection with such sale shall be entitled to contribution from any
Person involved in such sale of Registrable Securities who was not guilty of
fraudulent misrepresentation.
8. Reports Under the 1934 Act.
---------------------------
With a view to making available to the Investors the benefits of Rule 144
promulgated under the 1933 Act or any other similar rule or regulation of the
11
SEC that may at any time permit the Investors to sell securities of the Company
to the public without registration ("Rule 144"), the Company agrees to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other
documents required of the Company under the 1934 Act so long as the Company
remains subject to such requirements and the filing of such reports and other
documents is required for compliance with the public information provisions of
Rule 144(c); and
c. furnish or make available to each Investor so long as such
Investor owns Registrable Securities, promptly upon request, (i) a copy of the
most recent annual report of the Company and such other reports and documents so
filed by the Company, and (ii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule 144
without registration.
9. Assignment of Registration Rights.
----------------------------------
The rights under this Agreement shall be automatically assignable by the
Investors to any transferee of all or any portion of such Investor's Registrable
Securities if: (i) the Investor agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment; (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or assignee, and
(b) the securities with respect to which such registration rights are being
transferred or assigned; (iii) immediately following such transfer or assignment
the further disposition of such securities by the transferee or assignee is
restricted under the 1933 Act and applicable state securities laws; (iv) at or
before the time the Company receives the written notice contemplated by clause
(ii) of this sentence the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein; and (v) such
transfer shall have been made in accordance with the applicable requirements of
the Securities Purchase Agreement and applicable securities laws.
10. Amendment of Registration Rights.
---------------------------------
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Company and Investors
who then hold at least a majority of the Registrable Securities. Any amendment
or waiver effected in accordance with this Section 10 shall be binding upon each
Investor and the Company. No such amendment shall be effective to the extent
that it applies to less than all of the holders of the Registrable Securities.
No consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.
12
11. Miscellaneous.
--------------
a. A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the record owner of such Registrable Securities.
b. Any notices, consents, waivers or other communications required
or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one Business Day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
Commtouch Software Ltd.
0X Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxx 00000
Xxxxxx
Telephone: (000) 000-0-000-0000
Facsimile: (000) 000-0-000-0000
Attention: Chief Executive Officer
13
Copy to:
Commtouch Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx #000
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx, Esq.
and
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx, Esq.
If to Legal Counsel:
Xxxxx Xxxxx & Co
00 Xxxxxx Xxxxxx
Xxxxxxxxx 00000
Xxxxxx
Telephone: x000 0 000 0000
Fax: x000 0 000 0000
Attention: Xxxxx X. Xxxxxxxxx, Adv.
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers attached hereto, with copies to such Buyer's representatives as set forth
on the Schedule of Buyers, or to such other address and/or facsimile number
and/or to the attention of such other Person as the recipient party has
specified by written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
The Company hereby irrevocably appoints Xxxx Xxxxx, Esq., at Commtouch Inc,
0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, Telephone:
(000) 000-0000, Facsimile: (000) 000-0000, as its agent for the receipt of
service of process in connection with any action pursuant to any Transaction
Document in the United States. The Company agrees that any document may be
14
effectively served on it in connection with any action, suit or proceeding in
the United States by service on its agents.
Any document shall be deemed to have been duly served if marked for the
attention of the agent at its address (as set out above) or such other address
in the United States as may be notified to the party wishing to serve the
document and delivered in accordance with the notice provisions set forth in
this Section 11(b).
If the Company's agent at any time ceases for any reason to act as such,
the Company shall appoint a replacement agent having an address for service in
the United States and shall notify each Buyer in writing of the name and address
of the replacement agent. Failing such appointment and notification, each Buyer
shall be entitled by notice to the Company to appoint a replacement agent to act
on the Company's behalf. The provisions of this Section 11(b) applying to
service on an agent apply equally to service on a replacement agent.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
d. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by the internal laws of
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting The City of New
York, Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
e. This Agreement, the other Transaction Documents (as defined in
the Securities Purchase Agreement) and the instruments referenced herein and
therein constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions, promises,
15
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, the other Transaction Documents and the instruments
referenced herein and therein supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof and thereof.
f. Subject to the requirements of Section 9, this Agreement shall
inure to the benefit of and be binding upon the permitted successors and assigns
of each of the parties hereto.
g. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in identical counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as any other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
j. All consents and other determinations required to be made by the
Investors pursuant to this Agreement shall be made, unless otherwise specified
in this Agreement, by Investors holding at least a majority of the Registrable
Securities.
k. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
l. This Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
m. The parties hereto agree that pursuant to the Securities Purchase
Agreement, Additional Buyers (as such term is defined therein) may become a
party to the Securities Purchase Agreement as set forth therein. Each Additional
Buyer shall deliver to the Company a duly signed signature page in the form
attached hereto as Exhibit A (the "RRA Additional Buyer Signature Page") no
later than 1:00 PM (Pacific Time) of November 5, 2004. By delivering the duly
signed RRA Additional Buyer Signature Page, the Additional Buyer shall have
acknowledged, agreed, and confirmed that it shall have joined this Agreement as
an Additional Buyer, and shall be deemed, pursuant to this Section 9 m., to be a
Buyer for all purposes hereunder, and the Schedule of Buyers attached hereto
shall be revised accordingly.
16
* * * * * *
IN WITNESS WHEREOF, each Buyer and the Company have caused this
Registration Rights Agreement to be duly executed as of the date first written
above.
COMPANY: BUYERS:
COMMTOUCH SOFTWARE LTD. XDL CAPITAL CORP.
By: /s/ XXXXXX XXXXXX By: /s/ XXXXX XXXXXX
------------------------------- --------------------------------
Name: XXXXXX XXXXXX Name: XXXXX XXXXXX
Title: Chief Executive Officer Title: A.S.O.
Date: November 4, 2004 Date: November 1, 2004
CLARENVILLE LTD.
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Name: XXXXXX XXXXXXXXX
Title: Director
Date: November 1, 2004
DIRAD INVESTMENTS LTD.
By: /s/ DORON
--------------------------------
Name: DORON
Title: Director
Date: November 1, 2004
NIR TARLOVSKY
By: /s/ NIR TARLOVSKY
--------------------------------
Name: NIR TARLOVSKY
Title:
Date: November 1, 2004
OZF LTD.
By: /s/ TIS PRAGER
--------------------------------
Name: TIS PRAGER
Title:
Date: November 1, 2004
AVIV RAIZ
By: /s/ AVIV RAIZ
--------------------------------
Name: AVIV RAIZ
Title:
Date: November 1, 2004
17
XXXXXX XXXXX
By: /s/ XXXXXX XXXXX
--------------------------------
Name: XXXXXX XXXXX
Title:
Date: November 1, 2004
AGORA INVESTMENTS, LLC
By: /s/ XXXX XXXXXXXXX
--------------------------------
Name: XXXX XXXXXXXXX
Title: Investor
Date: November 1, 2004
XXXXXXXX XXXXXX
By: /s/ XXXXXXXX XXXXXX
--------------------------------
Name: XXXXXXXX XXXXXX
Title:
Date: November 1, 2004
XXXX XXXXX
By: /s/ XXXX XXXXX
--------------------------------
Name: XXXX XXXXX
Title:
Date: November 1, 2004
CHEN BARDICHEV
By: /s/ CHEN BARDICHEV
--------------------------------
Name: CHEN BARDICHEV
Title:
Date: November 1, 2004
XXXXX BARDICHEV
By: /s/ XXXXX BARDICHEV
--------------------------------
Name: XXXXX BARDICHEV
Title:
Date: November 1, 2004
XXXXXX XXXXX
By: /s/ XXXXXX XXXXX
--------------------------------
Name: XXXXXX XXXXX
Title:
Date: November 1, 2004
XXX XXXXXX
By: /s/ XXX XXXXXX
--------------------------------
Name: XXX XXXXXX
Title:
Date: November 1, 2004
XXXXX XXXXXXXX
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: XXXXX XXXXXXXX
Title:
Date: November 1, 0000
XXXXX X. XXXXXXX
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: XXXXX X. XXXXXXX
Title:
Date: November 1, 2004
APOLLO NOMINEES INC.
By: /s/ XXXXXXXX X. XXXXX
--------------------------------
Name: XXXXXXXX X. XXXXX
Title: Director
Date: November 1, 2004
DELTA CAPITAL INVESTMENTS LTD.
By: /s/ XXXXX TEACHER
--------------------------------
Name: XXXXX TEACHER
Title:
Date: November 1, 2004
ASAF MOAR
By: /s/ ASAF MOAR
--------------------------------
Name: ASAF MOAR
Title:
Date: November 1, 2004
NEY 1, L.P.
By: /s/ XXXXXXX XXXX YORAN
--------------------------------
Name: XXXXXXX XXXX YORAN
Title:
Date: November 1, 2004
XXXXXX XXXXXXXX
By: /s/ XXXXXX XXXXXXXX
--------------------------------
Name: XXXXXX XXXXXXXX
Title:
Date: November 1, 2004
SCHEDULE OF BUYERS
Buyer's Address Buyer's Representative's Address
Buyer and Facsimile Number and Facsimile Number
----- -------------------- --------------------
XDL Capital Corp 30 St. Clair Avenue West, Ste. 000, Xxxxx Xxxxx & Xx,
Xxxxxxx, X0X 0X0 00 Xxxxxx Xxxxxx
Attn: Xxxxx Xxxxxx, ASO & Xxxxxx Xxxxxx Jerusalem 91000
Residence: Canada Attn: Xxxxx X. Xxxxxxxxx, Adv.
Clarenville Ltd. Xxxx Xxxxx 00, XX-0000
Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
Attn: Xxxxxx Xxxxxxxxx
Attn: Mr. Elikos Xxxx
Xxxxx Investments Ltd. 28 Bezalel St.
Ramat Gan
Attn: Offer Xxxxxxx
Xxx Xxxxxxxxx XX Xxx 000
Xxxxx Xxxx, Xxxxxx
Residence: Israel
OZF Ltd. Tropic Isle Building Tis Prager
Wickhams Cay, P.O. Box 964 Prager Dreifuss Attorneys at law
Road Town, Tortola, British Virgin Islands Xxxxxxxxxxxxxxxxx 0
Attn: Tis Xxxxxx XX-0000 Xxxxxx, XXXXXXXXXXX
Residence: BVI
Aviv Raiz 0 Xxxxx Xx.
Xxxxx Xxxxxxxx , Xxxxxx
Residence: Israel
Buyer's Address Buyer's Representative's Address
Buyer and Facsimile Number and Facsimile Number
----- -------------------- --------------------
Xxxxxx Xxxxx 00 Xxxxxxxxx Xx.
Xxxxx Xxxxxxxx , Xxxxxx
Residence: Israel
Xxxx Xxxxx 16 Xxxxxx Xxxxx St.
Ramat Hasharon, Israel
Residence: Xxxxxx
Xxxx Bardichev Ein Vered,
00000
Xxxxxx
Residence: Israel
Xxxxx Bardichev Ein Vered,
00000
Xxxxxx
Residence: Israel
Agora Investments, LLC 00000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Residence: U.S.
Xxxxxx Xxxxx Marcus Xx. 0
Xxxxxxxxx, 00000 Xxxxxx
Residence: Israel
Xxx Xxxxxx 0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Residence: U.S.
Xxxxx Xxxxxxxx 00 Xxxxxxxxxx Xx.
Xxxxxx, Xxxxxx 00000
Residence: Israel
Buyer's Address Buyer's Representative's Address
Buyer and Facsimile Number and Facsimile Number
----- -------------------- --------------------
Xxxxx Xxxxxxx 000 X. Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Residence: U.S.
Apollo Nominees Inc. Suite 100
One Financial Place,
Lower Xxxxxxxxx Rock,
St.Xxxxxxx, Barbados
Residence: Barbados
Delta Capital Investments Ltd. Delta Capital Investments Ltd.
00-00 Xxxxxxx Xxx
Xxxxxx
XX0X0XX
Xxxxxx Xxxxxxx
Residence: U.K.
Asaf Moar 00x Xxxxxxxxxx Xx.
Xxx Xxxxxxxx , Xxxxxx
Residence: Xxxxxx
Xxx 1, L.P. c/o Xxxx Xxxxx
000 Xxxxx Xxxxx Xx.
Xxxxxxx, XX 00000
With copy to:
Chain Bridge Advisors
Attn: Xxxxxxx Xxxx
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Residence: New York
Buyer's Address Buyer's Representative's Address
Buyer and Facsimile Number and Facsimile Number
----- -------------------- --------------------
Xxxxxx Xxxxxxxx c/o Orex Computed Radiography
0000 Xxxxxxxxxxxx Xxx. (#200)
Xxxxxxxxxx, XX 00000
Residence: U.S.
Xxxxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Residence: United States
Cranshire Capital L.P. c/o Downsview Capital, Inc.
The General Partner
000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Residence: Illinois
Smithfield Fiduciary LLC c/o Highbridge Capital Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx
Xxxx X. Chill
Residence: Cayman Islands
Omicron Master Trust c/o Omicron Capital
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Residence: Bermuda
Iroquois Capital LP c/o Vertical Ventures, LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Residence: New York
Xxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Buyer's Address Buyer's Representative's Address
Buyer and Facsimile Number and Facsimile Number
----- -------------------- --------------------
Xxxx Xxxxxxx Amirim 00 Xxx Xxxx , Xxxxxx
Residence: Israel
Xxxxx Xxxxxxxxx Xxxxxxxxx 00
Xxxxxxx , Xxxxxx
Residence: Israel
Itzik Babayov 0 Xxxxxx xx.
Xxx Xxxxxxxx 00000 , Xxxxxx
Residence: Israel
Shem Basum, Ltd. Xxxx Xxxxxx 8
Kfar Saba , Israel
Xxxx Xxxxxx
Xxxx Xxxxxx 0 Xxxxxxx Xx., #00
Xxx Xxxx, Xxxxxx 00000
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
CRANSHIRE CAPITAL L.P.
By: /s/ XXXXXXXX XXXXX
--------------------------------
Name: XXXXXXXX XXXXX
Title: President,
Downsview Capital
The General Partner
Date: November 3, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
SMITHFIELD FIDUCIARY LLC
By: /s/ XXXX X. CHILL
--------------------------------
Name: XXXX X. CHILL
Title: Authorized Signatory
Date: November 3, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
OMICRON MASTER TRUST
By: /s/ XXXXX XXXXXXXXX
--------------------------------
Name: XXXXX XXXXXXXXX
Title: Managing Partner
Date: November 3, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
IROQUOIS CAPITAL LP
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Name: XXXXXX XXXXXXXXX
Title: Partner
Date: November 3, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
XXXXX XXXXXXXX
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: XXXXX XXXXXXXX
Title:
Date: November 3, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
XXXX XXXXXXX
By: /s/ XXXX XXXXXXX
--------------------------------
Name: XXXX XXXXXXX
Title:
Date: November 2, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
XXXXX XXXXXXXXX
By: /s/ XXXXX XXXXXXXXX
--------------------------------
Name: XXXXX XXXXXXXXX
Title:
Date: November 2, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
ITZIK BABAYOV
By: /s/ ITZIK BABAYOV
--------------------------------
Name: ITZIK BABAYOV
Title:
Date: November 2, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
SHEM BASUM, LTD.
By: /s/ XXXX XXXXXX
--------------------------------
Name: XXXX XXXXXX
Title: Chairman
Date: November 2, 2004
EXHIBIT A
IN WITNESS WHEREOF, the undersigned hereby acknowledges, agrees, and confirms
that by its signature below, it hereby joins the Agreement as an Additional
Buyer, and shall be deemed, pursuant to Section 11(m). of the Agreement, to be a
Buyer for all purposes thereunder as of the date set forth below.
XXXX XXXXXX
By: /s/ XXXX XXXXXX
--------------------------------
Name: XXXX XXXXXX
Title:
Date: November 3, 2004
