THIRD AMENDMENT TO LETTER AGREEMENT DATED JUNE 19, 2006
THIRD
AMENDMENT TO LETTER AGREEMENT DATED JUNE 19, 2006
This
Third Amendment to Letter Agreement (this “Amendment”),
is made and entered into as of December 24, 2008, by and among IXI MOBILE (R&D) LTD., an
Israeli limited liability company, (the “Subsidiary”),
IXI MOBILE, INC., a
Delaware corporation (the “Parent”),
GEMINI ISRAEL III LIMITED
PARTNERSHIP, GEMINI ISRAEL III PARALLEL FUND LIMITED PARTNERSHIP, GEMINI ISRAEL
III OVERFLOW FUND LIMITED PARTNERSHIP, GEMINI PARTNER INVESTORS LIMITED
PARTNERSHIP (collectively, "Gemini"). The
parties hereby agree as follows:
RECITALS
WHEREAS, the parties have
previously entered into that certain Letter Agreement dated as of June 19, 2006,
a First Amendment to the Letter Agreement dated as of December 21, 2006, and a
Second Amendment to the Letter Agreement dated as of March 28, 2006
(collectively, the "Letter
Agreement") in relation to a Loan Agreement by and among the Parent, the
Subsidiary and Southpoint Master Fund LP ("Southpoint")
dated of even date therewith (the "Loan
Agreement"); and
WHEREAS, the Parent and
Subsidiary are concurrently entering into a Fourth Amendment to the Loan
Agreement (the "Fourth Amendment
to Loan Agreement") attached hereto as Exhibit A,
pursuant to which, among other things, the parties to the Loan Agreement will
amend the conversion terms of the loan and consent to the contemplated
transaction between the Parent and Runcom Technologies Ltd. (the "Subscriber") whereby the
Subscriber is investing in the Parent in returns for shares and warrants in the
Parent (the "Transaction").
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereby
agree as follows:
Unless
otherwise defined below, all capitalized terms herein shall have the meanings
assigned to such terms in the Loan Agreement as amended by the Third Amendment
to Loan Agreement.
1. Acknowledgement and
Amendment of the Loan Agreement.
Gemini
hereby acknowledges and agrees that the terms of the Fourth Amendment to Loan
Agreement are known and acceptable to Gemini.
2. Amendment of the Letter
Agreement.
2.1 The
following section shall be inserted into the Letter Agreement after section
1.4:
"1.5.
Conversion.
(a) Gemini
shall have the option to convert its respective outstanding Loan Amount and
accrued and unpaid interest (the "Conversion Amount") pursuant
to this Agreement, into such number of fully paid and non-assessable shares of
the Parent's Preferred Stock, par value $0.0001 per share (“IXI
Stock”) as determined by dividing (A) Gemini's Conversion Amount by
(B)$34.50, appropriately adjusted for stock dividends, stock splits and other
recapitalizations subsequent to the date of the Parent's most recent publicly
available securities law filing prior to the execution of this
Agreement..
(b) No
fractional shares of Conversion Stock shall be issued upon an Optional
Conversion. If, upon an Optional Conversion, a fraction of a share
would otherwise result, then in lieu of such fractional share the Parent will
pay the cash value of that fractional share.
(c) An
Optional Conversion shall be effectuated by Gemini by furnishing the Parent at
any time, a notice indicating Gemini’s Conversion Amount and otherwise
evidencing Gemini's intention to convert its respective Conversion Amount (the
“Conversion
Notice”)..
(d) The
date on which the Conversion Participant delivers the Conversion Notice, duly
executed, to the Parent shall be deemed to be the date of Optional Conversion
(the “Optional
Conversion Date”) for the purposes of determining the Conversion
Amount. Facsimile delivery of the Conversion Notice shall be accepted
by the Parent. Certificates representing the shares of Conversion
Stock issuable upon an Optional Conversion, containing the restrictive legend
then in effect, will be delivered to the Conversion Participant as soon as
practicable after the Optional Conversion Date.
(e) Any
Conversion Amount converted into Conversion Stock will be deemed fully paid and
all Obligations relating thereto will be deemed fully satisfied. Upon
issuance of the conversion stock, such shares shall be duly and validly
issued."
3. Consent to Transaction with
Subscriber. Pursuant to section 1.2 of the Letter
Agreement, Gemini hereby consents to the Transaction.
4. No Other
Modifications. Except as expressly set forth herein, all other
terms and conditions of the Letter Agreement shall remain in full force and
effect.
5. Miscellaneous.
5.1 Counterparts; Fax
Signatures. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which together shall
constitute one and the same Amendment. Originally executed
counterparts may be delivered by facsimile and any such delivery shall be valid
for all purposes as delivery of a manual signature and equally admissible in any
legal proceedings to which any of the Subsidiary, the Parent, or the Lender is a
party.
5.2 Severability. If
any provision of this Amendment or the application thereof, shall for any reason
and to any extent be determined by a court of competent jurisdiction to be
invalid or unenforceable under applicable law, the remaining provisions of this
Amendment shall be interpreted so as best to reasonably effect the intent of the
parties hereto.
5.3 Entire
Agreement. This Amendment, together with the Loan Documents
and all exhibits hereto and thereto, constitute the entire understanding and
agreement of the parties with respect to the transactions contemplated herein
and supersede all prior and contemporaneous understandings and agreements,
whether written or oral, with respect to such transactions.
5.4 Governing
Law. This Amendment shall be governed in all respects by
Section 8 of the Letter Agreement.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have executed this Third Amendment to Letter
Agreement as of the date first written above.
|
IXI
MOBILE (R&D), LTD.
|
|
|
By:
|
/S/ |
|
Name:
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
Title:
|
Chairman
of the Board of Directors and Chief Executive Officer
|
|
By:
|
/S/ |
|
Name:
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
Title:
|
Chairman
of the Board of Directors and Chief Executive
Officer
|
[Signature
Page to Third Amendment to Letter Agreement]
IN
WITNESS WHEREOF, the parties have executed this Third Amendment to Letter
Agreement as of the date first written above.
|
by
its general partner Gemini Capital Associates III L.P.,
|
|||
|
by
its general partner Gemini Israel Funds Ltd.
|
|||
|
By:
|
/S/ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇
|
|
|
Title:
Managing Partner General Partner
& CFO
|
|||
|
GEMINI
ISRAEL III PARALLEL FUND LIMITED PARTNERSHIP
|
|||
|
by
its general partner Gemini Capital Associates III, L.P.
|
|||
|
by
its general partner Gemini Israel Funds Ltd.
|
|||
|
By:
|
/S/ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇
|
|
|
Title:
Managing Partner General Partner
& CFO
|
|||
|
GEMINI
ISRAEL III OVERFLOW FUND LIMITED PARTNERSHIP
|
|||
|
by
its general partner Gemini Capital Associates III L.P.,
|
|||
|
by
its general partner Gemini Israel Funds Ltd.
|
|||
|
By:
|
/S/ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇
|
|
| Title: | Managing Partner |
General Partner &
CFO
|
|
|
GEMINI
PARTNER INVESTORS LIMITED PARTNERSHIP
|
|||
|
by
its general partner Gemini Israel Funds Ltd.
|
|||
|
By:
|
/S/ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇
|
|
| Title: | Managing Partner |
General Partner &
CFO
|
|
[Signature
Page to Third Amendment to Letter Agreement]
Exhibit
A