Exhibit 2.9.11
ADDENDUM 3 TO CONVERTIBLE LOAN AGREEMENT
THIS ADDENDUM 3 TO CONVERTIBLE LOAN AGREEMENT (this "Addendum") dated
as of November 18, 2003 ("Effective Date"), is by and between Commtouch Software
Ltd., an Israeli corporation ("Commtouch"), and the lenders signing below (each,
a "Lender", and collectively, the "Lenders").
WHEREAS, Commtouch and the Lenders previously executed the Convertible
Loan Agreement on January 29, 2003 and amended the agreement on March 28, 2003
and May 15, 2003 by way of Addendum 1 and Addendum 2, respectively
("Agreement"); and
WHEREAS, the parties are interested at this time in effecting a
Conversion of the Loan;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties agree as follows:
1. Conversion
Provided shareholders approve this transaction as set out in the proxy statement
for the December 26, 2003 annual general meeting, then pursuant to Section 3 of
each Promissory Note held by each of the undersigned Lenders (hereinafter
"Converting Lenders"), the Converting Lenders, constituting a Lender Majority,
on the Effective Date of this Addendum will be deemed to have effected a
Conversion of the Loan plus interest accumulated on the Loan up to the Effective
Date. This Addendum shall be deemed a Conversion Notice, as defined under the
Agreement. As a result thereof, Commtouch shall (i) cause its transfer agent to
issue the Ordinary Shares listed in Column A next to each Converting Lender's
name on Appendix "A" hereto and (ii) issue Warrants on the accumulated interest,
in accordance with the terms of the Agreement, being 100% warrant coverage, with
1/3 exercisable at each of $0.25, $0.33 and $0.50, in the amounts and at the
prices set forth in Column C next to each Converting Lender's name on Appendix
"A".
2. Warrants Exercise
Provided shareholders approve this transaction as set out in the proxy
statement for the December 26, 2003 annual general meeting, the Converting
Lenders agree to exercise the number of warrants at the exercise price(s) set
forth in Column E next to each Converting Lender's name on Appendix "A" hereto
by providing a warrant exercise notice and payment of the exercise price to
Commtouch within five (5) business days following the shareholder approval.
3. Additional Interest Payment
a) In consideration of Converting Lenders actions described in Sections 1 and 2
above, Commtouch agrees to pay additional interest equal to 7.5% of the Loan
Amount by way of a share issuance based on a Conversion as described in Section
1 above. In particular, Commtouch shall (i) cause its transfer agent to issue
the Ordinary Shares listed in Column B next to each Converting Lender's name on
Appendix "A" hereto and (ii) issue Warrants on the aforementioned additional
interest, being 100% warrant coverage, with 1/3 exercisable at each of $0.25,
$0.33 and $0.50, in accordance with the terms of the Agreement, in the amounts
and at the prices set forth in Column D next to each Converting Lender's name on
Appendix "A".
b) For certainty, the Agreement contemplated 100% warrant coverage for principal
and interest. The increase in interest payable, contemplated by this Addendum
will result in an increased number of shares available on conversion, and
therefore an equally increased number of warrants, as set out in Column B and
Column D of Appendix "A".
4. Registration Statement
a) With the execution of this Addendum by Commtouch and a Lender Majority,
Commtouch shall immediately begin preparing a registration statement covering
the Ordinary Shares and Ordinary Shares underlying Warrants listed in Appendix
"A" hereto plus all shares that may be issued upon future exercise of remaining
Warrants held by Converting Lenders, and will work diligently to have the
registration statement filed with the SEC and declared effective, all in
accordance with Section 7 of the Agreement. Commtouch shall be entitled to
aggregate in one registration statement the Converting Lenders' shareholding
interests described above with those of investors under the agreements entered
into by Commtouch with certain investors on July 10, 2003 and July 29, 2003, as
well as with shareholding interests in Commtouch held by any other parties that
may require registration. Once the registration statement becomes effective, the
lenders may at any time resell their shares registered thereunder on the open
market.
b) The registration will register the total number of warrants lenders possess,
not just those exercised pursuant to this Addendum, so investors will be free
thereafter to exercise and sell at their discretion.
c) If (a) the Registration Statement is not filed by the Company within 60 days
from the date of signing by the Lender Majority, (b) the Registration Statement
is not declared effective by the Commission within 120 days from the date of
signing by the Lender Majority, (c) such Registration Statement is not
maintained as effective by the Company for 36 months as from the date of signing
by the Lender Majority, or (d) NASDAQ approval (if required) is not obtained,
(each a "Registration Default"), and the reason for any one of the above
occurrences is not an event of Force Majeure, then the Company will pay each
Investor (pro-rata on a monthly basis), for each Registration Default then in
effect, as liquidated damages and not as a penalty, during any period in which a
Registration Default is occurring, 5% (five percent) per calendar month or
portion thereof of (i) the aggregate principal plus interest owed to the
Investor for the Securities, and (ii) the value of any outstanding Warrants
(valued at the difference between the average volume weighted average price
[based on a trading day from 9:30 a.m. to 4:00 p.m.] on the NASDAQ SmallCap
Market as reported by Bloomberg Financial LP using the AQR function [i.e. volume
weighted average quote recap] for the Ordinary Shares for each Trading Day (the
"VWAP") during the applicable month and the exercise price multiplied by the
number of Warrant Shares the Warrants are exercisable into, but in no case less
than zero), held by such Investor until such corresponding Registration Default
no longer exists ("Liquidated Damages"). Such payment of the Liquidated Damages
shall be made to the Investor upon 5 Trading Days' irrevocable notice to the
Investor, in cash or registered Ordinary Shares (based on the average of the
closing sale prices of an Ordinary Share during the 5 Trading Days immediately
following such irrevocable notice by the Company of such issuance), on the last
day of each month during which a Registration Default occurred or was
continuing, without demand therefor by the Investor; provided, however, that the
payment of the Liquidated Damages shall not relieve the Company from its
obligations to register the Securities pursuant to this Section. Provided
however that in no event shall the amount of Liquidated Damages payable
hereunder to any Investor exceed 45% (forty-five percent) of the Purchase Price
paid by that Investor. And provided however that the Company retains the
discretion whether to pay such Liquidated Damages in cash or registered Ordinary
Shares. To the extent that the issuance of Ordinary Shares that are registered
as Liquidated Damages is subject to the same delay, notwithstanding the above
monthly requirement for payment, the Company may deliver to the Investor such
shares as soon as they become registered.
5. General
a. Terms used herein shall have the same meaning as ascribed to such terms
in the Agreement.
b. Subject to s.4(a), this Addendum and the performance hereunder is
conditioned on receipt of shareholder approval at the upcoming annual
meeting of December 26, 2003.
c. Except to the extent amended hereby, the terms and conditions of the
Agreement shall remain in full force and effect as between the parties
hereto throughout the term of the Agreement.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed as of
the Effective Date by their respective authorized representatives.
COMMTOUCH SOFTWARE LTD.
By: ________________ By: _______________
Title: _______________ Title:______________
LENDERS:
AxcessNet Resources LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: ____________________________ By: ____________________________
Title: _________________________ Title: _________________________
▇▇▇▇ ▇▇▇▇▇
By: ____________________________
Title: _________________________
Compugen Systems Ltd. Delta Capital Investments Ltd.
By: ____________________________ By: ____________________________
Title: _________________________ Title: _________________________
KKB Ventures LLC ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ____________________________ By: ____________________________
Title: _________________________ Title: _________________________
XDL Capital Corp. (as lender and not as Collateral Agent) OZF Ltd.
By: ____________________________ By: ____________________________
Title: _________________________ Title: _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Clarenville Ltd.
By: ____________________________
Title: _________________________ By: ____________________________
Title: _________________________
LENE L.P.
By: ____________________________
Title: _________________________
APPENDIX "A"
Column A Column B Column C Column D Column E
Lenders' Names and Ordinary Ordinary Warrants to be Warrants Warrants
Addresses Shares to be Shares issued on to be to be
issued to be issued accumulated issued on exercised by
following following interest on additional Converting
Conversion conversion of Loan (and 7.5% Lenders
Loan and Additional exercise interest (and (and
Accumulated 7.5% (and exercise exercise
Interest Interest prices) prices) prices)
AxcessNet 842,433 60,000 14,145@$0.25 20,000@$0.25 150,406@$0.25
Resources LLC. ------- ------ ------------ ------------ -------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(Suite 2400), 14,144@$0.33 20,000@$0.33 150,406@$0.33
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ------------ ------------ -------------
Tel: (▇▇▇)▇▇▇-▇▇▇▇;
Fax:(▇▇▇)▇▇▇-▇▇▇▇; 14,144@$0.50 20,000@$0.50 150,405@$0.50
Email:▇▇▇▇@▇▇▇▇▇▇-▇▇▇.▇▇▇ ------------ ------------ -------------
▇▇▇▇ ▇▇▇▇▇ 422,795 30,000 7,599@$0.25 10,000@$0.25 75,467@$0.25
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ------- ------ ------------ ------------ -------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ 7,598@$0.33 10,000@$0.33 75,466@$0.33
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------- ------------ ------------
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇ 7,598@$0.50 10,000@$0.50 75,466@$0.50
----------- ------------ ------------
Compugen Systems Ltd. 528,493 37,500 9,498@$0.25 12,500@$0.25 94,333@$0.25
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ------- ------ ----------- ------------ ------------
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 9,498@$0.33 12,500@$0.33 94,333@$0.33
tel: ▇▇▇ ▇▇▇-▇▇▇▇, ----------- ------------ ------------
▇-▇▇▇-▇▇▇-▇▇▇▇;
fax: (▇▇▇) ▇▇▇-▇▇▇▇ 9,497@$0.50 12,500@$0.50 94,332@$0.50
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ ----------- ------------ ------------
Column A Column B Column C Column D Column E
Delta Capital 211,397 15,000 3,799@$0.25 5,000@$0.25 37,733@$0.25
Investments Ltd. ------- ------ ----------- ----------- ------------
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 3,799@$0.33 5,000@$0.33 37,733@$0.33
Fax ▇▇-▇▇-▇▇▇▇▇▇▇▇ ----------- ----------- ------------
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Attn: ▇▇▇▇▇ Teacher 3,799@$0.50 5,000@$0.50 37,733@$0.50
----------- ----------- ------------
KKB Ventures LLC 1,061,370 75,000 20,457@$0.25 25,000@$0.25 189,396@$0.25
Attn: ▇▇▇ ▇▇▇▇▇ --------- ------ ------------ ------------ -------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ 20,457@$0.33 25,000@$0.33 189,395@$0.33
Tel: ▇▇▇ ▇▇▇-▇▇▇▇ ------------ ------------ -------------
Fax: none
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ 20,456@$0.50 25,000@$0.50 189,395@$0.50
------------ ------------ -------------
XDL Capital Corp. 905,852 64,500 15,284@$0.25 21,500@$0.25 161,726@$0.25
▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ------- ------ ------------ ------------ -------------
▇▇▇▇, ▇▇▇. ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ 15,284@$0.33 21,500@$0.33 161,726@$0.33
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, ASO ------------ ------------ -------------
& ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel:▇▇▇-▇▇▇-▇▇▇▇ 15,284@$0.50 21,500@$0.50 161,725@$0.50
fax:▇▇▇-▇▇▇-▇▇▇▇ ------------ ------------ -------------
Email: ▇▇▇▇▇▇▇@▇▇▇.▇▇▇;
▇▇▇▇▇▇▇@▇▇▇.▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 317,095 22,500 5,699@$0.25 7,500@$0.25 56,600@$0.25
▇▇▇▇▇ ▇▇▇▇▇▇▇ Professor ------- ------ ----------- ----------- ------------
of the Management of
Technology 5,698@$0.33 7,500@$0.33 56,599@$0.33
MIT ▇▇▇▇▇ School of ----------- ----------- ------------
Management
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. 5,698@$0.50 7,500@$0.50 56,599@$0.50
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ----------- ----------- ------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
Column A Column B Column C Column D Column E
LENE L.P. 211,397 15,000 3,799@$0.25 5,000@$0.25 37,733@$0.25
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ------- ------ ----------- ----------- ------------
General Partner
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. 3,799@$0.33 5,000@$0.33 37,733@$0.33
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ----------- ----------- ------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ 3,799@$0.50 5,000@$0.50 37,733@$0.50
Email: ----------- ----------- ------------
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 84,559 6,000 1,520@$0.25 2,000@$0.25 15,094@$0.25
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ------ ----- ----------- ----------- ------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ 1,520@$0.33 2,000@$0.33 15,094@$0.33
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇ ----------- ----------- ------------
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
1,519@$0.50 2,000@$0.50 15,093@$0.50
----------- ----------- ------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 104,822 7,500 1,608@$0.25 2,500@$0.25 18,721@$0.25
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ------- ----- ----------- ----------- ------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ 1,607@$0.33 2,500@$0.33 18,720@$0.33
Fax: ▇▇▇-▇▇▇-▇▇▇▇ ----------- ----------- ------------
Email:
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ 1,607@$0.50 2,500@$0.50 18,720@$0.50
----------- ----------- ------------
OZF Ltd. 377,359 27,000 5,787@$0.25 9,000@$0.25 67,394@$0.25
Tropic Isle Building ------- ------ ----------- ----------- ------------
Wickhams Cay,
▇.▇. ▇▇▇ ▇▇▇ 5,786@$0.33 9,000@$0.33 67,393@$0.33
Road Town, Tortola, ----------- ----------- ------------
British Virgin Islands
c/o Tis Prager, Prager 5,786@$0.50 9,000@$0.50 67,393@$0.50
Dreifuss, ----------- ----------- ------------
▇▇▇▇▇▇▇▇▇▇▇▇▇. ▇,
▇▇-▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇
Email:
▇▇▇▇@▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇
Column A Column B Column C Column D Column E
Clarenville Ltd. 209,644 15,000 3,215@$0.25 5,000@$0.25 37,441@$0.25
▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇ ------- ------ ----------- ----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 3,215@$0.33 5,000@$0.33 37,441@$0.33
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ----------- ----------- ------------
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ 3,214@$0.50 5,000@$0.50 37,440@$0.50
Email: ----------- ----------- ------------
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇;
▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇.▇▇▇
Attn: Mr. Elikos ▇▇▇▇
Tel: ▇▇▇ ▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇▇▇▇▇
Email:
▇▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇.▇▇▇