EXHIBIT 10.16
M-WISE INC.
INVESTORS' RIGHTS AGREEMENT
January 11, 2001
TABLE OF CONTENTS
Page
1. Registration Rights 1
1.1 Definitions 2
1.2 Request for Registration 3
1.3 Company Registration 4
1.4 Form S-3 Registration 5
1.5 Obligations of the Company 6
1.6 Furnish Information 7
1.7 Expenses of Registration 7
1.8 Underwriting Requirements 8
1.9 Delay of Registration 9
1.10 Indemnification 9
1.11 Reports Under Securities Exchange Act of 1934 11
1.12 Foreign Registration 11
1.13 Limitations on Subsequent Registration Rights 12
1.14 "Market Stand-Off" Agreement 12
1.15 Termination of Registration Rights 13
2. Covenants of the Company 13
2.1 Delivery of Financial Statements 13
2.2 Inspection 14
2.3 Right of First Refusal 14
2.4 Key Person Life Insurance 15
2.5 Proprietary Information and Inventions Agreements 16
2.6 Publication 16
2.7 Termination of Covenants 16
3. Miscellaneous 16
3.1 Successors and Assigns 16
3.2 Amendments and Waivers 16
3.3 Notices 16
3.4 Effect of Change in Company's Capital Structure. 17
3.5 Attorney Fees. 17
3.6 Severability 17
3.7 Governing Law 17
3.8 Counterparts 17
3.9 Titles and Subtitles 17
3.10 Aggregation of Stock 17
3.11 Specific Enforcement 17
3.12 Entire Agreement; Superseding Effect 17
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (the "Agreement") is
made as of the 11th day of January, 2001, by and among m-Wise,
Inc., a Delaware corporation (the "Company") and the investors
listed on Exhibit A hereto (or any subsidiary thereof, any entity
into which any such investor shall merge or any subsidiary of
such entity), each of which is herein referred to as an
"Investor."
RECITALS
WHEREAS, certain of the Investors possess registration
rights, information rights and rights of first refusal pursuant
to a Subscription Agreement dated as of April 12, 2000, as
amended, among the Company and such Investors (the "Subscription
Agreement") and as set forth in the Company's Certificate of
Designation, Preferences and Rights of the Series A Preferred A
Stock, par value $0.01 per share (the "Series A Preferred
Stock"), of the Company;
WHEREAS, pursuant to a waiver and termination agreement
dated as of the date hereof (the "Waiver"), such Investors have
agreed, among other things, to terminate their rights under the
Subscription Agreement and as set forth in the Certificate of
Designation, Preferences and Rights of the Series A Preferred
Stock, and to accept the rights created pursuant hereto in lieu
thereof;
WHEREAS, the Company and certain other Investors have
entered into a purchase agreement (the "Purchase Agreement") of
even date herewith pursuant to which the Company desires to sell
to such Investors and such Investors desire to purchase from the
Company shares of Series B Preferred Stock, par value $0.01 per
share (the "Series B Preferred Stock" and, together with the
Series A Preferred Stock, the "Preferred Stock"), of the Company
and warrants to purchase shares of Series B Preferred Stock;
WHEREAS, a condition to those Investors' obligations
under the Purchase Agreement is that the Company and the
Investors enter into this Agreement in order to provide the
Investors with (i) certain rights to register shares of the
Company's Common Stock or issuable upon conversion of the
Preferred Stock held by the Investors, (ii) certain rights to
receive or inspect information pertaining to the Company, and
(iii) a right of first offer with respect to certain issuances by
the Company of its securities; and
WHEREAS, the Company desires to induce certain of the
Investors to purchase shares of Series B Preferred Stock and
warrants for shares of Series B Preferred Stock pursuant to the
Purchase Agreement by agreeing to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual
promises, representations, warranties, covenants and conditions
set forth in this Agreement and in the Purchase Agreement, the
parties hereto agree as follows:
1. Registration Rights
. The Company and the Investors covenant and agree as
follows:
1.1 Definitions
. For purposes of this Section 1:
(a) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any successor form under the
Securities Act;
(b) The term "Holder" means any Series A Holder or Series B
Holder;
(c) The term "Qualified IPO" means a firm commitment
underwritten public offering by the Company of shares of its
Common Stock pursuant to a registration statement filed in the
United States under the Securities Act or a public offering
effected on the London Stock Exchange, the Frankfurt Stock
Exchange or the Paris Stock Exchange under applicable securities
laws, with a pre-money valuation in excess of $60,000,000 and
which results in aggregate cash proceeds to the Company of an
amount equal to or greater than $20,000,000, net of underwriting
discounts and commissions.
(d) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities
Act of 1933, as amended (the "Securities Act"), and the
declaration or ordering of effectiveness of such registration
statement or document;
(e) The term "Registrable Securities" means (i) the shares of
Common Stock issuable or issued upon conversion of the Preferred
Stock (including the Preferred Stock issued upon exercise of the
Warrants) and (ii) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange
for or in replacement of, the securities listed in (i); provided,
however, that the foregoing definition shall exclude in all cases
any Registrable Securities sold by a person in a transaction in
which his, her or its rights under this Agreement are not
assigned. Notwithstanding the foregoing, Common Stock or other
securities shall only be treated as Registrable Securities if and
so long as they have not been (A) sold to or through a broker or
dealer or underwriter in a public distribution or a public
securities transaction, or (B) sold in a transaction exempt from
the registration and prospectus delivery requirements of the
Securities Act under Section 4(l) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if
any, are removed upon the consummation of such sale;
(f) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of
Common Stock outstanding which are Registrable Securities, and
the number of shares of Common Stock which are Registrable
Securities and which are issuable pursuant to then exercisable or
convertible securities;
(g) The term "SEC" means the Securities and Exchange Commission;
(h) The term "Series A Holder" means any person owning
Registrable Securities that are shares of Common Stock issuable
or issued upon conversion of the Series A Preferred Stock
(including the Series A Preferred Stock issued upon exercise of
the warrant for 56,180 shares of Series A Preferred Stock) and
any other shares of Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in
replacement of, such securities, or any assignee thereof
(i) The term "Series B Holder" means any person owning
Registrable Securities that are shares of Common Stock issuable
or issued upon conversion of the Series B Preferred Stock
(including the Series B Preferred Stock issued upon exercise of
the warrants for shares of Series B Preferred Stock purchased
pursuant to the Purchase Agreement) and any other shares of
Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such securities, or
any assignee thereof; and
(j) The term "Warrants" means (i) the warrant dated April 26,
2000 for 56,180 shares of Series A Preferred Stock or (ii) the
warrants for shares of the Company's Series B Preferred Stock
purchased by certain of the Investors pursuant to the Purchase
Agreement;
1.2 Request for Registration
.
(a) If the Company shall receive at any time after six (6)
months after the effective date of the first registration
statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale
of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan approved by the Board of
Directors of the Company or an SEC Rule 145 transaction approved
by the Board of Directors of the Company), a written request from
(x) e-street international ag or any affiliate thereof
("e-street") or D.E.P. Technology Holdings Ltd or any affiliate
thereof ("DEP") or (y) the Holders of at least 50% of the Series
A Preferred Stock (or any other Registrable Securities issued or
issuable in respect of such shares or in exchange therefor) then
outstanding that the Company file a registration statement under
the Securities Act covering the registration of a number of the
Registrable Securities then outstanding with an anticipated
aggregate gross offering price of at least $4,000,000, then the
Company shall, within ten (10) days of the receipt thereof, give
written notice of such request to all Holders and shall, subject
to the limitations of subsection 1.2(b), file a registration
statement covering such Registrable Securities within 60 days of
the receipt of such request and use its best efforts to effect as
soon as practicable the registration under the Securities Act of
all Registrable Securities which the Holders request to be
registered within fifteen (15) days of the mailing of such notice
by the Company in accordance with Section 3.3.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made
pursuant to this Section 1.2 and the Company shall include such
information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by a majority
in interest of the Initiating Holders and shall be reasonably
acceptable to the Company. In such event, the right of any
Holder to include his Registrable Securities in such registration
shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting (unless otherwise mutually agreed
by a majority in interest of the Initiating Holders and such
Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.5(e))
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to
be underwritten, then the Initiating Holders shall so advise all
Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting
shall be allocated (x) if the Initiating Holders are e-street or
DEP, first, among the Initiating Holders, second, among the
Series B Holders, and third, among the Series A Holders, and (y)
if the Initiating Holders are any other Holders, pro rata among
the Holders, and in each case, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the
Company owned by each such Holder; provided, however, that the
number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities, if
any, are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the Chief Executive Officer
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 and its stockholders for such
registration statement to be filed and it is therefore essential
to defer the filing of such registration statement, the Company
shall have the right to defer such filing for a period of not
more than 90 days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this
right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to
this Section 1.2:
(i) Subject to the forfeiture provision in Section 1.7(a), after
the Company has effected (x) one (1) registration initiated by e-
street, (y) one (1) registration initiated by DEP and (z) one (1)
registration initiated by the Series A Holders, and each such
registration has been declared or ordered effective;
(ii) During the one hundred eighty (180) days after the effective
date of a registration subject to Section 1.3; or
(iii) If the Initiating Holders propose to dispose of shares
of Registrable Securities that may be immediately registered on
Form S-3 pursuant to a request made pursuant to Section 1.4
below.
1.3 Company Registration
. If (but without any obligation to do so) the Company
proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders)
any of its stock under the Securities Act in connection with the
public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to
participants in a Company stock plan approved by the Board of
Directors of the Company or a transaction covered by Rule 145
under the Securities Act approved by the Board of Directors of
the Company, a registration in which the only stock being
registered is Common Stock issuable upon conversion of debt
securities which are also being registered, or any registration
on any form which does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the
Company shall, at such time, promptly give each Holder and all
other holders of Common Stock of the Company (including shares of
Common Stock issued or issuable upon conversion of shares of any
currently unissued series of preferred stock of the Company) with
registration rights ("Other Shares") written notice of such
registration. Upon the written request of each Holder of
Registrable Securities or holder of Other Shares given within
fifteen (15) days after mailing of such notice by the Company in
accordance with Section 3.3, the Company shall, subject to the
provisions of Section 1.8, use its best efforts to cause to be
registered under the Securities Act all of the Registrable
Securities that each such Holder has requested to be registered.
If a Holder decides not to include any or all of its Registrable
Securities in any registration statement filed by the Company,
such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration
statement or statements as may be filed by the Company with
respect to offerings of its securities, all upon the terms and
conditions set forth herein.
1.4 Form S-3 Registration
. In case the Company shall receive from any Holder or
Holders a written request or requests that the Company effect a
registration on Form S-3, and any related qualification or
compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the anticipated
aggregate gross offering price to the public of which would not
be less than $1,000,000, the Company will:
(a) promptly give written notice of the proposed registration,
and any, related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, use its best efforts to effect such
registration, up to two (2) per year, and all such qualifications
and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of
such Holder's or Holders' Registrable Securities as are specified
in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in
such request as are specified in a written request given within
twenty (20) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or
compliance, pursuant to this Section 1.4: (i) if Form S-3 is not
available for such offering by the Holders; (ii) if the Holders,
together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an
aggregate gross price to the public of less than $1,000,000;
(iii) if the Company shall furnish to the Holders a certificate
signed by the Chief Executive Officer 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 and its
stockholders for such Form S-3 Registration to be effected at
such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for a
period of not more than 90 days after receipt of the request of
the Holder or Holders under this Section 1.4; provided, however,
that the Company shall not utilize this right more than once in
any twelve month period; (iv) if the Company has, within the
twelve (12) month period preceding the date of such request,
already effected two registrations on Form S-3 for the Holders
pursuant to this Section 1.4; or (v) during the one hundred
eighty (180) days after the effective date of a registration
statement subject to Section 1.3.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities as
soon as practicable after receipt of the request or requests of
the Holders. Registrations effected pursuant to this Section 1.4
shall not be counted as demands for registration or registrations
effected pursuant to Section 1.2.
1.5 Obligations of the Company
. Whenever required under this Section 1 to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and,
upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration
statement effective for up to one hundred eighty (180) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement for up to one hundred eighty (180) days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company
shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions in which
the Company is not already qualified to do business or subject to
service of process.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall
also enter into and perform its obligations under such an
agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or over-the-
counter market on which similar securities issued by the Company
are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the
effective date of such registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant
to this Section 1, on the date that such Registrable Securities
are delivered to the underwriters for sale in connection with a
registration pursuant to this Section 1, if such securities are
being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the
registration statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable
Securities and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities.
1.6 Furnish Information
. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that
such Holder shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable
Securities. The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 or Section 1.4
of this Agreement if, as a result of the application of the
preceding sentence, the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be
included in the registration does not equal or exceed the number
of shares or the anticipated aggregate offering price required to
originally trigger the Company's obligation to initiate such
registration as specified in subsection 1.2(a) or section 1.4,
whichever is applicable.
1.7 Expenses of Registration
.
(a) Demand Registration. All expenses (other than underwriting
discounts and commissions, which shall be borne by participating
Holders in proportion to the number of Registrable Securities to
be registered) incurred in connection with registrations, filings
or qualifications pursuant to Section 1.2, including (without
limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel
for the Company, and the reasonable fees and disbursements of one
counsel for the selling Holders selected by them, shall be borne
by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding
begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Initiating Holders
and the Company is in compliance with this Agreement (in which
case all Initiating Holders shall bear all such reasonable
expenses in proportion to the number of shares for which
registration was requested), unless the Initiating Holders agree
to forfeit their right to one demand registration pursuant to
Section 1.2; provided further, however, that if at the time of
such withdrawal, the Initiating Holders have learned of a
material adverse change in the condition, results, business, or
prospects of the Company from that known to the Initiating
Holders at the time of their request and have withdrawn the
request with reasonable promptness following disclosure by the
Company of such material adverse change, then the Holders shall
not be required to pay any of such expenses and shall retain
their rights pursuant to Section 1.2.
(b) Company Registration. All expenses other than underwriting
discounts and commissions incurred in connection with
registrations, filings or qualifications of Registrable
Securities pursuant to Section 1.3 for each Holder, including
(without limitation) all registration, filing, and qualification
fees, printers' and accounting fees, fees and disbursements of
counsel for the Company and the reasonable fees and disbursements
of one counsel for the selling Holder or Holders selected by them
shall be borne by the Company.
(c) Registration on Form S-3. All expenses other than
underwriters' discounts or commissions incurred in connection
with registrations requested pursuant to Section 1.4, including
(without limitation) all registration, filing, qualification,
printers' and accounting fees and the reasonable fees and
disbursements of one counsel for the selling Holder or Holders
selected by them and counsel for the Company, associated with
Registrable Securities, shall be borne by the Company.
1.8 Underwriting Requirements
. In connection with any offering involving an
underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of
the Registrable Securities or Other Shares in such underwriting
unless the holders thereof accept the usual and customary terms
of the underwriting as agreed upon between the Company and the
underwriters selected by the Holders (or by other persons
entitled to select the underwriters) and reasonably agreed to by
the Company, and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the
success of the offering by the Company. If the total amount of
Registrable Securities and Other Shares requested by stockholders
to be included in such offering exceeds the amount of securities
to be sold, other than by the Company, that the underwriters
determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required to include in
the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their
sole discretion will not jeopardize the success of the offering,
the securities so included to be apportioned as follows: (i) the
securities of the Company held by officers and directors of the
Company (including Registrable Shares) and by holders of Other
Shares shall be excluded from such registration and underwriting
to the extent deemed advisable by the managing underwriter, and
(ii) if a further limitation on the number of shares is required
after all securities held by officers and directors of the
Company and all Other Shares have been excluded, the number of
shares that may be included in such registration and underwriting
shall be allocated among all Holders requesting registration in
proportion, as nearly as practicable, to the respective number of
Registrable Securities owned by each such Holder; provided that,
except in the case of the initial public offering of the Company,
when all Registrable Shares may be excluded if the underwriters
make the determination described above and no other stockholder's
securities are included, the number of Registrable Shares
permitted to be included therein shall in any event be at least
33% of the total amount of securities included therein and shall
be allocated among the Holders pro rata based on the number of
Registrable Securities each such Holder has requested to be
included in such offering.
1.9 Delay of Registration
No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise
with respect to the interpretation or implementation of this
Section 1.
1.10 Indemnification
In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, each of its officers, directors
and partners, legal counsel and accountants, any underwriter (as
defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any losses,
claims, damages, or liabilities (joint or several) to which they
may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions
or violations (each, a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii)
any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law; and the Company will
pay to each such Holder, officer, director, partner, legal
counsel, accountant, underwriter or controlling person, as
incurred, any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(a) shall
not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable to any
Holder, officer, director, partner, legal counsel, accountant,
underwriter or controlling person for any such loss, claim,
damage, liability, or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use
in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement,
legal counsel and accountant, each person, if any, who controls
the Company within the meaning of the Securities Act, any
underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages,
or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the
Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereto) 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 written
information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will pay,
as incurred, any legal or other expenses reasonably incurred by
any person indemnified pursuant to this subsection 1.10(b), in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(b) shall
not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be
unreasonably withheld; provided, that in no event shall any
indemnity under this subsection 1.10(b) exceed the net proceeds
from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action
(including any governmental action) or, if sooner, promptly after
such indemnified party has actual knowledge of any claim as to
which indemnity may be sought, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying
party under this Section 1.10, 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 the defense
thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all
other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one
separate counsel, with the reasonable fees and expenses to be
paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party
under this Section 1.10, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise
than under this Section 1.10. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim,
damage or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim,
damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with
the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant
equitable considerations; provided, that in no event shall any
contribution by a Holder under this subsection 1.10(d) exceed the
net proceeds from the offering received by such Holder. The
relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement
or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of
Registrable Securities in a registration statement and the
termination of this Agreement.
1.11 Reports Under Securities Exchange Act of 1934
. With a view to making available to the Holders the
benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective date of the first
registration statement filed by the Company for the offering of
its securities to the general public so long as the Company
remains subject to the periodic reporting requirements under
Sections 13 or 15(d) of the Exchange Act;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale
of their Registrable Securities, such action to be taken as soon
as practicable after the end of the fiscal year in which the
first registration statement filed by the Company for the
offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and
the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90) days
after the effective date of the first registration statement
filed by the Company), the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after
it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder
of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such
form.
1.12 Foreign Registration
. If the Company effectuates a Qualified IPO outside
of the United States, it will take such actions and file such
documents as may be necessary to afford the same level of
liquidity to the Holders of Registrable Securities as would be
afforded under this Agreement if the Company were to have
effectuated a Qualified IPO within the United States.
1.13 Limitations on Subsequent Registration Rights
. From and after the date of this Agreement, the
Company shall not, without the prior written consent of a
majority of the Series B Holders, enter into any agreement with
any holder or prospective holder of any securities of the Company
which would allow such holder or prospective holder (a) to
include such securities in any registration filed under
Section 1.2 or 1.3 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the
Registrable Securities of the Series B Holders which is included,
(b) to make a demand registration which could result in such
registration statement being declared effective prior to the
earlier of either of the dates set forth in subsection 1.2(a) or
within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 1.2, or (c) to request
a registration on Form S-3.
1.14 "Market Stand-Off" Agreement
. Each Holder hereby agrees that, during the period of
duration (up to, but not exceeding, 180 days) specified by the
Company and an underwriter of Common Stock or other securities of
the Company, following the effective date of a registration
statement of the Company filed under the Securities Act, it shall
not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option
to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the
Company held by it at any time during such period except Common
Stock included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers Common Stock
(or other securities) to be sold on its behalf to the public in
an underwritten offering; and
(b) all officers and directors of the Company, all one-percent
(1%) securityholders, and all other persons with registration
rights (whether or not pursuant to this Agreement) enter into and
remain bound by similar agreements.
In order to enforce the foregoing covenant, the Company
may impose stop transfer instructions with respect to the
Registrable Securities of each Holder (and the shares or
securities of every other person subject to the foregoing
restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in
the form provided by the underwriter containing terms which are
essentially consistent with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations
described in this Section 1.15 shall not apply to a registration
relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms which may be promulgated in the future, or a
registration relating solely to an SEC Rule 145 transaction on
Form S-4 or similar forms which may be promulgated in the future.
Furthermore, notwithstanding the foregoing, the Market
Stand-Off provisions contained in this Section 1.14 shall not
apply to shares of Common Stock purchased by a Holder in or after
the Company's initial public offering.
1.15 Termination of Registration Rights
. No Holder shall be entitled to exercise any right
provided for in this Section 1 after such time as Rule 144 or
another similar exemption under the Securities Act is available
for the sale of all of such Holder's shares during a ninety (90)
day period without registration.
2. Covenants of the Company
.
2.1 Delivery of Financial Statements
. The Company shall deliver to each Investor:
(a) as soon as practicable, but in any event within sixty (60)
days after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company
and statement of stockholders' equity as of the end of such year,
and a statement of cash flows for such year, such year-end
financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles
("GAAP"), and audited and certified by an independent public
accounting firm of nationally recognized standing selected by the
Company;
(b) as soon as practicable, but in any event within thirty (30)
days after the end of each of the first three (3) quarters of
each fiscal year of the Company, an unaudited profit or loss
statement, a statement of cash flows for such fiscal quarter, a
summary of bookings and backlog and an unaudited balance sheet as
of the end of such fiscal quarter;
(c) as soon as practicable, but in any event within fifteen (15)
days of the end of each month, a monthly management report, in a
form to be determined by the Board; provided that the Company
shall only be required to provide such management report to
Investors owning at least ten percent (10%) of the Company's
issued and outstanding capital stock;
(d) with reasonable promptness, such other information and data
with respect to the Company and its subsidiaries as any Investor
may reasonably request from time to time; and
(e) with respect to the financial statements called for in
subsections (b) and (c) of this Section 2.1, an instrument
executed by the Chief Financial Officer or Chief Executive
Officer of the Company and certifying that such financials were
prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes
that may be required by GAAP) and fairly present the financial
condition of the Company and its results of operation for the
period specified, subject to normal and recurring year-end audit
adjustment, provided that the foregoing shall not restrict the
right of the Company to change its accounting principles
consistent with GAAP, if the Board of Directors including the
members thereof elected by the holders of the Company's Series B
Preferred Stock determines that it is in the best interest of the
Company to do so.
Each Investor hereby agrees to hold in confidence and trust and
not to misuse or disclose any confidential information provided
pursuant to this Section 2.1 unless required by applicable law or
a court order.
2.2 Inspection
. The Company shall, upon reasonable prior notice,
permit each Investor, at such Investor's expense, to visit and
inspect the Company's properties, to examine its books of account
and records and to discuss the Company's affairs, finances and
accounts with its officers, all at such reasonable times as may
be requested by the Investor; provided, however, that the Company
shall not be obligated pursuant to this Section 2.2 to provide
access to any information which it reasonably considers to be a
trade secret or similar confidential information.
2.3 Right of First Refusal
. The Company hereby grants to each of Proton
Marketing Associates LLC, ▇▇▇▇▇▇▇▇.▇▇▇ LLC, Chinese Whispers LLC,
Ogen LLC, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and each Holder who
owns any Series B Preferred Stock or Series A Preferred Stock (or
any shares of Common Stock issued upon conversion of the Series B
Preferred Stock or Series A Preferred Stock) (collectively, the
"Major Investors") the right of first refusal to purchase a pro
rata share of New Securities (as defined below) which the Company
may, from time to time, propose to sell and issue. A Major
Investor's pro rata share, for purposes of this right of first
refusal, is the ratio of the number of shares of Common Stock
owned by such Major Investor immediately prior to the issuance of
New Securities to the total number of shares of Common Stock
outstanding immediately prior to the issuance of New Securities,
assuming in each case full conversion of the Series A Preferred
Stock and Series B Preferred Stock (including those that may be
acquired by exercise of the Warrants) and exercise of all
outstanding rights, options and warrants to acquire Common Stock
of the Company. Each Major Investor shall have a right of over-
allotment such that if any Major Investor fails to exercise its
right hereunder to purchase its pro rata share of New Securities,
the other Major Investors may purchase the non-purchasing Major
Investor's portion on a pro rata basis within ten (10) days from
the date such non-purchasing Major Investor fails to exercise its
right hereunder to purchase its pro rata share of New Securities.
This right of first refusal shall be subject to the
following provisions:
(a) "New Securities" shall mean any capital stock (including
Common Stock and/or Series A Preferred Stock and/or Series B
Preferred Stock) of the Company whether now authorized or not,
and rights, options or warrants to purchase such capital stock,
and securities of any type whatsoever that are, or may become,
convertible into capital stock; provided that the term "New
Securities" does not include (i) securities purchased under the
Purchase Agreement; (ii) securities issued upon conversion of the
Series A Preferred Stock or Series B Preferred Stock or exercise
of the Warrants; (iii) securities issued pursuant to the
acquisition of another business entity or business segment of any
such entity by the Company by merger, purchase of substantially
all the assets or other reorganization whereby the Company will
own not less than fifty-one percent (51%) of the voting power of
such business entity or business segment of any such entity; (iv)
shares of Common Stock issued or issuable to employees,
consultants, officers or directors of the Company pursuant to any
stock option, stock purchase or stock bonus plan, agreement or
arrangement approved by the Board of Directors; (v) securities
issued to vendors or customers or to other persons in similar
commercial situations with the Company if such issuance is
approved by the Board of Directors, including the directors
designated by the Series B Holders; (vi) securities issued to a
strategic investor, if such issuance is approved by the Board of
Directors, including the directors designated by the Series B
Holders; (vii) securities issued in a firm commitment
underwritten public offering pursuant to a registration under the
Securities Act with an aggregate offering price to the public in
excess of $7.5 million; (viii) securities issued in connection
with any stock split, stock dividend or recapitalization of the
Company; and (ix) any right, option or warrant to acquire any
security convertible into the securities excluded from the
definition of New Securities pursuant to subsections (i) through
(viii) above.
(b) In the event the Company proposes to undertake an issuance
of New Securities, it shall give each Major Investor written
notice of its intention, describing the type of New Securities,
and their price and the general terms upon which the Company
proposes to issue the same. Each Major Investor shall have
twenty (20) days after any such notice is effective to agree to
purchase such Major Investor's pro rata share of such New
Securities for the price and upon the terms specified in the
notice by giving written notice to the Company and stating
therein the quantity of New Securities to be purchased.
(c) In the event the Major Investors fail to exercise fully the
right of first refusal within said twenty (20)-day period and
after the expiration of the ten day period for the exercise of
the over-allotment provisions of this Section 2.3, the Company
shall have sixty (60) days thereafter to sell or enter into an
agreement (pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within sixty (60) days from
the date of said agreement) to sell the New Securities respecting
which the Major Investors' right of first refusal option set
forth in this Section 2.3 was not exercised, at a price and upon
terms no more favorable to the purchasers thereof than specified
in the Company's notice to the Major Investors pursuant to
Section 2.3(b). In the event the Company has not sold within
said 60-day period or entered into an agreement to sell the New
Securities within said 60-day period (or sold and issued New
Securities in accordance with the foregoing within sixty (60)
days from the date of said agreement), the Company shall not
thereafter issue or sell any New Securities, without first again
offering such securities to the Major Investors in the manner
provided in Section 2.3(b) above.
(d) The right of first refusal set forth in this Section 2.3 may
not be assigned or transferred, except that (i) such right is
assignable by each Major Investor to any wholly owned subsidiary
or parent of, or to any corporation or entity that is, within the
meaning of the Securities Act, controlling, controlled by or
under common control with, any such Major Investor, and (ii) such
right is assignable between and among any of the Major Investors.
2.4 Key Person Life Insurance
. Within thirty (30) days of the date hereof, the
Company will obtain from financially sound and reputable insurers
term life insurance on the life of Shay ▇▇▇ ▇▇▇▇▇▇ in the amount
of $1,000,000 and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in the amount of $1,000,000.
The Company will cause to be maintained the term life insurance
required by this Section 2.4, except as otherwise decided in
accordance with policies adopted by the Company's Board of
Directors. Such policies shall name the Company as loss payee
and shall not be cancelable by the Company without prior approval
of the Board of Directors, including the directors designated by
each of e-street and DEP.
2.5 Proprietary Information and Inventions Agreements
. The Company will cause each of its current or future
officers, directors, employees, consultants and advisors and
those of any subsidiary with access to confidential information
to enter into a proprietary information and inventions agreement
substantially in the form approved by the Board of Directors.
2.6 Publication
. Upon request of e-street or DEP, the Company will
include in any advertisement, news release, statement made in any
professional or trade publication or other public disclosure, as
e-street or DEP may request, the statement that it is a member of
the Sintek Capital group and/or the DEP group, as the case may
be, and/or the Sintek Capital group logo or DEP group logo, as
the case may be; provided, however, that the final form of any
such publication shall be approved in advance by e-street and
DEP; and provided, further, that the Company may omit such
statement(s) and/or logo(s) if there is a reasonable basis
therefor and if it has provided reasonable notice to e-street and
DEP of such omission prior to the issuance of any advertisement,
news release, statement made in any professional or trade
publication or other public disclosure.
2.7 Termination of Covenants
. The covenant set forth in this Section 2 shall
terminate as to each Investor and be of no further force or
effect immediately prior to the consummation of a Qualified IPO.
3. Miscellaneous
.
3.1 Successors and Assigns
. Except as otherwise provided in this Agreement, the
terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and permitted
assigns of the parties (including transferees of any of the
Series A Preferred Stock, Series B Preferred Stock or Warrants or
any Series B Preferred Stock or Common Stock issued upon
conversion or exercise thereof). Nothing in this Agreement,
express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in
this Agreement. The rights hereunder may be assigned by any
Series B Holder to another Series B Holder or an investor in such
Series B Investor, by an Investor to the ancestors, descendants
or spouse or to trusts for the benefit of such persons or such
Investor or a charitable remainder trust, or by an Investor to a
partner or an affiliate of such Investor.
3.2 Amendments and Waivers
. Any term of this Agreement may be amended or waived
only with the written consent of the Company, e-street and DEP.
Any amendment or waiver effected in accordance with this
paragraph shall be binding upon every party to this Agreement.
3.3 Notices
. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified; (b) when sent by
confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next business day; (c) five
(5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (d) one (1) day
after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of
receipt. All communications shall be sent to the address as set
forth on Exhibit A hereof or at such other address as such party
may designate by ten (10) days advance written notice to the
other parties hereto.
3.4 Effect of Change in Company's Capital Structure.
Appropriate adjustments shall be made in the number
and class of shares subject to any provision of this Agreement in
the event of a stock dividend, stock split, reverse stock split,
combination, reclassification or like change in the capital
structure of the Company.
3.5 Attorney Fees.
In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party
in such dispute shall be entitled to recover from the losing
party all fees, costs and expenses of enforcing any right of such
prevailing party under or with respect to this Agreement,
including without limitation, such reasonable fees and expenses
of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
3.6 Severability
. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (a) such provision shall be
excluded from this Agreement, (b) the balance of the Agreement
shall be interpreted as if such provision were so excluded and
(c) the balance of the Agreement shall be enforceable in
accordance with its terms.
3.7 Governing Law
. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of New York, without giving
effect to principles of conflicts of laws.
3.8 Counterparts
. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
3.9 Titles and Subtitles
. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.10 Aggregation of Stock
. All shares of the Series A Preferred Stock or Series
B Preferred Stock held or acquired by (i) affiliated entities or
persons or (ii) persons or entities under common investment
management, shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
3.11 Specific Enforcement
. It is agreed and understood that monetary damages
would not adequately compensate an injured party for the breach
of this Agreement by any party, that this Agreement shall be
specifically enforceable, and that any breach or threatened
breach of this Agreement shall be the proper subject of a
temporary or permanent injunction or restraining order. Further,
each party hereto waives any claim or defense that there is an
adequate remedy at law for such breach or threatened breach.
3.12 Entire Agreement; Superseding Effect
. This Agreement and the Waiver constitute the entire
agreement between and among the parties hereto pertaining to the
subject matter hereof and any other written or oral agreements
between and among the parties hereto pertaining thereto are
expressly cancelled.
[Signature Page Follows]
The parties have executed this Investors' Rights
Agreement as of the date first above written.
COMPANY:
M-WISE, INC.
By: /s/ ▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
Title: Chairman
Address:
INVESTORS:
PROTON MARKETING ASSOCIATES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title:
Address:
▇▇▇▇▇▇▇▇.▇▇▇ LLC
By: ▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
Name: Shay ▇▇▇ ▇▇▇▇▇▇
Title:
Address:
CHINESE WHISPERS LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Address:
OGEN LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Address:
By: /s/ Barak Galili
Name: Barak Galili
Title:
Address:
CAP VENTURES LTD.
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Address:
E-STREET INTERNATIONAL AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
D.E.P. TECHNOLOGY HOLDINGS LTD
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
EXHIBIT A
INVESTORS
Name/Address/Fax No.
e-street international ag
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Notices shall be addressed as follows:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Group
▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Telephone No: (▇▇) ▇▇-▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇) ▇▇-▇▇▇▇-▇▇▇▇
D.E.P. Technology Holdings Ltd
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Yaron Tal, Chief Financial Officer
Telephone No: (▇▇▇) ▇-▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇-▇▇▇-▇▇▇▇
