SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into on this
22nd-day of February 2000.
BY AND BETWEEN:
(1) The persons whose names and addresses are set out in the first column of
EXHIBIT 1 (the "SELLING SHAREHOLDERS"); and
(2) SIEMENS Aktiengesellschaft of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(the "PURCHASER"); and
(3) RADVision Ltd. of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the
"COMPANY" and collectively with the Selling Shareholders, the "SELLERS").
WHEREAS:
The Company has filed a registration statement with the U.S. Securities
and Exchange Commission for the purpose of an initial public offering
(the "IPO") of its ordinary shares, par value NIS 0.1 per share (the
"ORDINARY SHARES"); and
II. The Purchaser desires to purchase an aggregate of 1,625,228 Ordinary
Shares (the "SHARES") from the Selling Shareholders and the Company,
subject to and in accordance with the terms and conditions set forth
herein; and
III. The Selling Shareholders desire to sell to the Purchaser 1,259,461 of
the Shares (the "SELLING SHAREHOLDERS' SHARES") and the Company desires
to sell to the Purchaser 365,767 of the Shares (the "COMPANY'S
SHARES"), in each case subject to the terms and conditions set forth
herein.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PREAMBLE AND DEFINITIONS
1.1. The preamble to this Agreement and the exhibits and schedules attached
hereto form an integral part of this Agreement.
1.2. In this Agreement and in the exhibits and schedules hereto, unless the
context otherwise requires, the following terms shall bear the meanings
set forth opposite them:
"Closing" The consummation of the transactions
contemplated by this Agreement as
provided in Section 3.
"Registration Statement" The Company's Registration Statement
on Form F-1 (File No. 333- ), as
amended, initially filed with the
U.S. Securities and Exchange
Commission on February __, 2000
attached hereto as SCHEDULE 1.1.
2. SALE AND PURCHASE OF SHARES
2.1. Subject to the terms and conditions of this Agreement, (i) the Selling
Shareholders agree to sell to the Purchaser, and the Purchaser agrees,
upon the basis of the representations and warranties contained herein,
to purchase from the Selling Shareholders, the Selling Shareholders'
Shares free and clear of any pledges, encumbrances, attachments or any
other third party rights of any nature whatsoever; and (ii) the
Company agrees to sell to the Purchaser, and the Purchaser agrees,
upon the basis of the representations and warranties contained herein,
to purchase from the Company, the Company's Shares free and clear of
any pledges, encumbrances, attachments or any other third party rights
of any nature whatsoever; all of the Shares having all of the rights,
preferences, privileges and restrictions set forth in the form of
amended Articles of Association of the Company (the "New Articles") to
be adopted immediately prior to the closing of the IPO; provided,
that, notwithstanding anything herein to the contrary, the Sellers
shall not be obligated to sell the Shares to the Purchaser unless the
Purchaser purchases all 1,625,228 Shares and the Purchaser shall not
be obligated to buy the Shares from the Sellers unless the Sellers
sell all 1,625,228 Shares. The Purchase and sale of the Shares is
intended to be a private placement and not a public offering or part
of a public offering.
2.2. Each of the Selling Shareholders hereby waives, with respect to the
Shares to be sold to the Purchaser hereunder, any right of first
refusal, pre-emption or any other right which may be conferred on it
by the Articles of Association of the Company in effect on the date
hereof, by any agreement relating to the Ordinary Shares or otherwise.
2.3. To the extent that any of the Selling Shareholders holds Shares as a
trustee for others, it shall be the responsibility of each such
Selling Shareholder to procure all releases and/or waivers from all
persons for whom such Selling Shareholder holds such Shares in trust.
The Selling Shareholders will deliver at the Closing evidence of such
release or waiver in a form reasonably satisfactory to the Purchaser.
3. CLOSING
3.1. The purchase and sale of the Shares shall be held at the Company's
offices on ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Street, Tel Aviv, on the business day of
the closing of the IPO at 15:00 (local time) or, if later, upon
satisfaction or waiver by the parties hereto of each of the conditions
set forth in Section 4 (such date, the "Closing Date"). At the
Closing, the following transactions shall occur, which transactions
shall be deemed to take place simultaneously and none of them shall be
completed or deemed to be completed until all shall have occurred:
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3.1.1 Each of the Selling Shareholders shall execute and deliver
to the Company a share transfer deed, in the form required
to effect the transfer of the number of the Selling
Shareholders' Shares set forth opposite their name on
Exhibit 2.1 hereto.
3.1.2 Each of the Selling Shareholders shall deliver to the
Company its old share certificate or certify in writing
that he lost such share certificate or the Company shall
declare that a share certificate was never issued to such
Selling Shareholder.
3.1.3 The Company shall deliver to the Purchaser, to be held in
escrow by the Escrow Agent as defined below until all
Closing conditions have been fulfilled, a certified copy of
a resolution of the Board of Directors of the Company
issuing and allotting the Company's Shares to the
Purchaser, together with a duly completed notice of such
issuance to the Israel Registrar of Companies in form and
substance acceptable for immediate filing with the Israel
Registrar of Companies.
3.1.4 The Company shall register the Purchaser in its register of
shareholders as the owner of the Shares and shall have the
American stock transfer agent issue to the Purchaser a
validly executed share certificate representing the Shares
within three (3) business days of the Closing.
3.1.5 The Company shall delive to the Purchaser, to be held in
escrow by the Escrow Agent as defined below until all
Closing conditions have been fulfilled, a duly executed
certificate of confirmation from the Secretary of the
Company certifying that the Purchaser has been duly
registered in the registry of shareholders of the Company
as the owner of the Shares.
3.1.6 Each of the Selling Shareholders, the Company and the
Purchaser shall deliver to the other Parties a written
confirmation attesting that all of the representations,
warranties and undertakings provided by it this Agreement
are true, correct and effective on and as of the Closing
Date.
3.1.7 In consideration for the Shares, the Purchaser shall
deposit with the Escrow Agent (as defined hereunder) for
the benefit of the Sellers the Purchase Price (as defined
hereunder) less any tax which is required to be withheld
pursuant to law, to be transferred to the Escrow Agent's
bank account [details of which shall be provided to the
Purchaser in writing at least 5 business days prior to the
Closing Date], in readily available liquid funds, such
funds shall be credited to such account immediately by bank
transfer executed at the Closing.
For purposes of this Agreement, the "PURCHASE PRICE" shall
equal the number of the Shares (transferred and issued)
multiplied by the Per Share Purchase Price (as defined
hereinafter). The "PER SHARE PURCHASE PRICE" shall equal
the per share price of the Company's Ordinary Shares to be
offered to the public in the IPO prior to any public
trading, excluding any underwriting discounts and
commissions, provided that in no event shall the Per Share
Purchase Price exceed U.S.$17.00.
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3.2. The Sellers hereby irrevocably appoint Advocate ▇▇▇▇▇▇ ▇▇▇▇▇▇ as
trustee (the "ESCROW AGENT") to receive the Purchase Price due by the
Purchaser to the Sellers hereunder. The Escrow Agent shall transfer
the Purchase Price to RAD Data Communications Ltd. (the "Payment
Agent") once all of the Closing conditions have been fulfilled. The
Sellers confirm and acknowledge that payments made by the Purchaser or
the Escrow Agent to the Payment Agent and acknowledged as received by
the Payment Agent shall constitute good and sufficient receipt of such
payments as if the payments were made directly to the Sellers. The
Purchaser and Escrow Agent shall have no responsibility for the
allocation by the Payment Agent among the Sellers of any sum paid by
the Purchaser or the Escrow Agent to the Payment Agent.
3.3. For the avoidance of doubt and without derogating from any other
documents and agreements which may exist between the parties, it is
hereby clarified that the Purchase Price to be paid at the Closing
shall be full and complete consideration for the Shares and the
Sellers, or any of them, shall not be entitled to any other payment of
any nature whatsoever with respect to the Shares.
4. CLOSING CONDITIONS
4.1. The obligation of the Purchaser to purchase the Shares, and of the
Sellers to sell the Shares, at the Closing shall be subject to the
satisfaction or waiver of the following conditions precedent on or
prior to the Closing Date:
4.1.1. The Voting Agreement among the Purchaser and certain of the
Selling Shareholders, in the form attached hereto as Exhibit
4.1.1 (the "Voting Agreement"), shall have been executed and
delivered by all the parties thereto.
4.1.2. The Umbrella License Agreement between the Company and the
Purchaser in the form attached hereto as Exhibit 4.1.2 (the
"License Agreement"), shall have been executed and delivered by
all the parties thereto.
4.1.3. The execution and the delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have
been approved by the following regulatory authorities: (i) the
Investment Center of the Israeli Ministry of Industry and Trade
and (ii) the Office of the Chief Scientist of the Ministry of
Industry and Trade.
4.1.4. The closing of the IPO of the Company's Ordinary Shares shall
have occurred.
4.1.5. All documents to be delivered by the Company and the Selling
Shareholders pursuant to Section 3 above shall be delivered.
4.1.6. The New Articles shall have been duly adopted.
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5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents
and warrants to the Purchaser as follows:
5.1. ORGANIZATION AND GOOD STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Israel and has all requisite corporate power and authority to
carry on its business as now conducted.
5.2. AUTHORIZATION. All corporate action on the part of the Company and its
officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of the
obligations of the Company hereunder and the authorization, issuance
and delivery of the Company's Shares has been taken or will be taken
prior to the Closing. Except as set forth in Section 4.1.3 hereof, no
consent, approval, order, license, permit, action by, or authorization
of or designation, declaration, or filing with any governmental
authority, domestic or foreign, is required in connection with the
valid execution, delivery and performance of this Agreement or the
offer, sale and/or issuance of the Shares.
5.3. BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms.
5.4. NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the
compliance with the terms and provisions hereof will not conflict
with, result in a breach or violation of, or constitute a default
under (i) the Company's Memorandum of Association, and the New
Articles; (ii) any contract, agreement, lease, license or commitment
to which the Company is a party or to which it is subject; (iii) any
judgment, order, injunction, decree or ruling of any court or
governmental authority, domestic or foreign, to which the Company is
subject; and/or (iv) applicable law.
5.5. COMPANY'S SHARES. The Company's Shares, when issued, sold and
delivered in accordance with the terms hereof for the consideration
expressed, will be duly and validly issued, fully paid and
nonassessable. Furthermore, the Company's Shares, when issued, shall
be free and clear of any pledges, encumbrances, attachments or any
other third party rights of any nature whatsoever.
5.6. EXEMPTION FROM REGISTRATION. Assuming the accuracy of the Purchaser's
representations set forth in Section 7 hereof, the offer, sale and
issuance of the Company's Shares to the Purchaser on the Closing Date
as contemplated by this Agreement are exempt from the registration
requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT").
5.7. DISCLOSURE. On the Closing Date, the Registration Statement: (i) does
not include any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
5.8. ACCOUNTANTS AND FINANCIAL STATEMENTS. The accountants who have
certified or shall certify the financial statements filed or to be
filed with the Securities and Exchange Commission as part of the
Registration Statement are independent accountants as are required by
the Securities Act. The consolidated financial statements (including
all related notes and schedules) of the
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Company and its subsidiaries contained in the Registration Statement
are complete and correct and fairly present the financial position and
results of operations of the Company and its subsidiaries at the
respective dates and for the respective periods to which they apply.
Such financial statements have been prepared in accordance with
generally accepted principles of accounting consistently applied
throughout the periods involved.
5.9. TAX REPORTS AND LIABILITY. The Company has timely complied with all
requirements pertaining to the filing of tax returns and tax reports
and supplied the tax authorities with all required documentation and
information. The Company has duly and timely paid in full all taxes
shown as due on such returns and reports, except for such untimely
payment that would not have a material adverse effect on the Company,
or to the extent such taxes are accrued but not yet due, has
adequately reserved for the timely payment of any and all such taxes
when due. The Company is unaware of any unpaid tax liability or
potential tax liability of the Company pertaining to any period or
event prior to the date of the execution of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS Each of the
Selling Shareholders hereby represents and warrants to the Purchaser as
follows:
6.1. ORGANIZATION AND GOOD STANDING. Such Seller is a corporation, limited
partnership or limited liability company, as applicable, duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
6.2. AUTHORIZATION. All corporate action on the part of such Seller, and
its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of such Seller hereunder, and the
transfer and delivery of such Selling Shareholders' Shares has been
taken or will be taken prior to the Closing.
6.3. BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of such Selling Shareholder, enforceable against such
Selling Shareholder in accordance with its terms.
6.4. NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the
compliance with the terms and provisions hereof will not conflict
with, result in a breach or violation of, or constitute a default
under (i) such Selling Shareholders' organizational documents; or (ii)
any contract or agreement to which such Selling Shareholder is a
party, except in the case of clause (ii) for such conflict, breach,
violation or default which would not have a material adverse effect on
such Selling Shareholders' business, financial condition or results of
operations.
6.5. REGISTRATION STATEMENT. Such Selling Shareholder is familiar with the
Registration Statement and has no knowledge of any material fact,
condition or information not disclosed in the Registration Statement
which has materially adversely affected or may materially adversely
affect the business of the Company or any of its subsidiaries; and the
sale of the Selling Shareholders' Shares owned by such Selling
Shareholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set
forth in the Registration Statement.
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6.6. TITLE. Such Seller is the record owner of the number of the Selling
Shareholders' Shares set forth opposite the name of such Selling
Shareholder on Exhibit 2.1 hereto and has good and marketable title to
such Shares, free and clear of any pledges, encumbrances, attachments
or any other third party right of any nature whatsoever with respect
to such Shares.
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER The Purchaser hereby
represents and warrants to each of the Sellers as follows:
7.1. ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of
Germany.
7.2. AUTHORIZATION. All corporate action on the part of the Purchaser, and
its officers, directors and shareholders necessary for the purchase of
the Shares pursuant to this Agreement and the performance of its
obligations hereunder has been taken or will be taken prior to the
Closing.
7.3. BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of the Purchaser, enforceable against the Purchaser in
accordance with its terms.
7.4. NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the
compliance with the terms and provisions hereof will not conflict
with, result in a breach or violation of, or constitute a default
under (i) the Purchaser's organizational documents; and (ii) any
contract or agreement to which the Purchaser is a party, except in
the case of clause (ii) for such conflict, breach, violation or
default which would not have a material adverse effect on the
Purchaser's business, financial condition or results of operations.
7.5. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares will be acquired for
investment for the Purchaser's own account, not as a nominee or agent,
and not with a view to the immediate resale or distribution of any
part thereof, and the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the Shares.
7.6. AVAILABLE INFORMATION. The Purchaser has received the following
information: the Registration Statement, audited financial statements
for the year ending December 31, 1999 included in the Registration
Statement and the Business Plan for Year 2000 prior to making its
decision to purchase the Shares.
7.7. INVESTMENT EXPERIENCE. The Purchaser is experienced in evaluating and
investing in securities of companies in the software and information
technology industry. and acknowledges that it is able to fend for
itself, can bear the economic risk of the investment in the Shares,
and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the
investment in the Shares. The Purchaser has not been organized solely
for the purpose of acquiring the Shares.
7.8. ACCREDITED INVESTOR. The Purchaser is an "accredited investor," as
that term is defined in Rule 501 of Regulation D of the Securities
Act.
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7.9. PURCHASER NOT A U.S. PERSON. The Purchaser is not a "U.S. Person"
within the meaning of Rule 902(k) of Regulation S of the Securities
Act.
7.10. PURCHASE MADE IN AN "OFFSHORE TRANSACTION" WITH "NO DIRECTED SELLING
EFFORTS WITHIN THE UNITED STATES." The Purchaser was not physically
present in the United States when the Purchaser was offered the Shares
and the offer was not accompanied by any form of advertising in the
United States or other "directed selling efforts" within the United
States within the meaning of Rule 902(c) of Regulation S of the
Securities Act.
7.11. BROKERAGE COMMISSIONS. No broker's commissions were, or will be
required to be, paid by the Purchaser in connection with this
transaction.
8. REGISTRATION RIGHTS AND STAMP DUTY
8.1 The Selling Shareholders shall assign to the Purchaser the
registration rights attached to the Shares sold by them. Said
assignment shall be effectuated at the Closing.
8.2 The Company shall pay the stamp duty due on the issuance of the
Company's Shares.
9. COVENANTS OF THE PURCHASER
9.1. LOCK UP. Prior to the date which is 270 days after the closing of the
IPO (the "LOCKUP DATE"), the Purchaser shall not, directly or
indirectly, Transfer (as defined below) or offer to Transfer any of
the Shares, and the Purchaser shall sign an undertaking addressed to
the underwriters in the form set forth in Exhibit 8.1 to such effect.
In order to enforce the transfer restrictions set forth in the prior
sentence, the Company may impose stop-transfer instructions with
respect to the Shares until the Lockup Date. As used in this
Agreement, the term "TRANSFER" shall mean any sale, transfer,
assignment, hypothecation, encumbrance or other disposition, whether
voluntary or involuntary, of any of the Shares, except for a transfer
to a member of the Siemens Group provided that the transferre shall be
bound by all obligations under this Agreement, including, but not
limited to Exhibit 8.1. In the case of a hypothecation, the Transfer
shall be deemed to occur both at the time of the initial pledge and at
any pledgee's sale or a sale by any secured creditor or a retention by
the secured creditor of the pledged Shares in complete or partial
satisfaction of the indebtedness for which the Shares are security.
9.2. MARKET STAND-OFF. In addition to the transfer restrictions set forth
in Section 8.1 (which shall in no way be limited by the following), in
connection with any underwritten public offering by the Company of its
equity securities pursuant to an effective registration statement
filed under the Securities Act, the Purchaser shall not Transfer or
offer to Transfer any of the Shares without the prior written consent
of the Company and its underwriters. Such restriction (the "Market
Stand-Off") shall be in effect for such period of time from and after
the effective date of the final prospectus for the offering as may be
requested by the Company or such underwriters; provided, however, that
such Market Stand-Off shall not exceed 270 days from the Closing. In
order to enforce the Market Stand-Off, the Company may impose
stop-transfer instructions with respect to the Shares until the end of
the applicable stand-off period.
9.3. The Purchaser hereby declares that it will not make a hostile takeover
of the Company.
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9.4. LEGAL OBLIGATIONS. Immediately after the Closing, the Purchaser
undertakes to file all the necessary documents and reports required to
be filed by the Purchaser by any relevant authority, in Israel, the US
or elsewhere, and to abide by all the appropriate rules, regulations
and laws applying to a foriegn equity holder, including, without
limitation, undertaking towards the Office of Chief Scientist to
comply with the Research and Development Law and timely filing a
Schedule 13D reporting the acquisition of securities of a public
company with the US Securities and Exchange Commission.
9.5. RIGHT TO A DIRECTOR AND VOTING AGREEMENT. Upon the Closing, the
Purchaser shall be entitled to nominate one director on his behalf to
the Company's Board of Directors by way of a voting agreement. The
Board of Directors meetings, and the minutes thereof, shall be in the
English language. Directors of the Company and of its subsidiaries
shall be entitled to attend meetings of the Board of Directors by
means of a conference call, videoconference or similar means of
telecommunication which ensure that all participating directors are
able to hear each other simultaneously. The Purchaser and the Sellers
listed on Schedule 7 hereto agree to enter into an agreement under
which the foregoing rights of the Purchaser shall be included and to
vote the Ordinary Shares of the Company owned by each of them in favor
of the nomination of one representative of the Purchaser to the Board
of Directors of the Company, and as many other representatives of such
Sellers shall indicate (but in no event less then the number of
representatives as they have immediately prior to the IPO), as more
fully set forth in the Voting Agreement attached hereto.(including
certain instances whereby the board members may exclude a member).
10. DEFAULTING SELLING SHAREHOLDER. If, on the Closing Date, any Selling
Shareholder defaults in the performance of its obligations under this
Agreement, any of the remaining non-defaulting Selling Shareholders
shall have the option to sell the Selling Shareholders' Shares which
the defaulting Selling Shareholders agreed but failed to sell on such
Closing Date in the respective proportions which the number of Selling
Shareholders' Shares set forth opposite the name of each Selling
Shareholder in Exhibit 2.1 hereto who elects to sell additional
Ordinary Shares as a result of such default bears to the total number
of Selling Shareholders' Shares set forth opposite the names of all
the Selling Shareholders on Exhibit 1 hereto who elect to sell
additional Ordinary Shares as a result of such default. If none (or an
insufficient number) of the non-defaulting Selling Shareholders elect
to sell the Shares which the defaulting Selling Shareholders agreed
but failed to sell on the Closing Date, this Agreement shall terminate
without liability on the part of any non-defaulting Selling
Shareholders, the Company or the Purchaser. Nothing herein shall
derogate from the rights of the Purchaser, in law or equity, against
such a defaulting Selling Shareholder.
11. NOTICES
11.1. Any notice, declaration or other communication required or authorized
to be given by any party under this Agreement to any other party shall
be in writing and shall be personally delivered or sent by facsimile
transmission (with a copy by registered mail in either case) addressed
to the other party at the address stated below or such other address
as shall be specified by the party concerned by notice in accordance
with the provisions of this Section. Any notice shall be deemed to
have been received on the next following business day.
11.2. Addresses for the purposes of this Section are as follows:
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Company: ▇▇▇▇ ▇▇▇▇▇▇, Adv.
RADVision Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Fax: (▇) ▇▇▇▇▇▇▇
Sellers: As appearing in the first column of Exhibit 1
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇, Adv.
RADVision Ltd. Legal Department
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Fax: (▇) ▇▇▇▇▇▇▇
Siemens: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Adv. and/or Royi Nachimzon, Adv.
Kantor, Elhanani, Tal & Co.
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Fax: (▇) ▇▇▇▇▇▇▇
Payment Agent: RAD Data Communications Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇) ▇▇▇ ▇▇▇▇
ESCROW AGENT: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Adv.
Kantor, Elhanani, Tal & Co.
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Fax: (▇) ▇▇▇▇▇▇▇
12. GENERAL
12.1 This Agreement shall (except for any obligation fully performed
prior to or at the Closing Date) continue in full force and effect
(except for provisions which, in accordance with their express terms, are
limited in time or otherwise, insofar as they are so limited) after the
Closing Date notwithstanding that the Closing shall have occurred.
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12.2 All of the parties to this Agreement will after, as well as before
and upon, the Closing Date do all acts and things and sign and execute
all documents and deeds required for the purpose of implementing the
terms of this Agreement.
12.3 None of the rights or obligations under or pursuant to this
Agreement may be assigned or transferred to any other person or entity
without the written consent of all the parties hereto except that the
Sellers and the Purchaser may so transfer or assign to their respective
affiliates or between themselves, provided that: (i) the assignee shall
be an affiliate of the relevant party at the time it exercises any of its
rights or obligations hereunder; (ii) the assignor shall inform the other
parties hereto of such assignment at least 5 business days prior to it
being effected; (iii) the assignee shall agree in writing to be bound by
all of the terms hereof; (iv) the assignor shall remain liable for any
and all of its obligations under this Agreement.
12.4 This Agreement contains the whole agreement between the parties
relating to the transactions provided for in this Agreement and
supersedes all previous agreements, if any, between such parties in
respect of such matters and each of the parties to this Agreement
acknowledges that in agreeing to enter into this Agreement it has not
relied on any representations or warranties except for those contained in
this Agreement.
12.5 No failure or delay by any party hereto in exercising any claim,
remedy, right, power or privilege under this Agreement shall operate as a
waiver nor shall any single or partial exercise of any claim, remedy,
right, power or privilege preclude any further exercise thereof or
exercise of any other claim, right, power or privilege.
12.6 This Agreement may be executed in two or more counterparts each of
which shall be deemed an original but all of which constitute one and the
same instrument.
12.7 Except as expressly provided herein, this Agreement may be amended
or terminated, and any of the terms hereof waived, only by a document in
writing specifically referring to this Agreement and executed by the
parties hereto or, in the case of a waiver, by the party waiving
compliance. The failure of any party hereto at any time or times to
require performance of any provisions hereof shall in no manner affect
this right at a later time. No waiver by any party hereto of a breach of
any term contained in this Agreement, in any one or more instance, shall
be deemed or construed as a further or continuing waiver of any such
breach or a waiver of any breach of any other form.
12.8 All Ordinary Share numbers in this Agreement give effect to the
stock split and distribution of bonus shares which will take place
immediately prior to the closing of the IPO.
12.9 The timing and text of any public announcement regarding the
existence of this Agreement or the terms hereof shall be agreed between
the parties hereto, such agreement not to be unreasonably withheld and
shall also be approved by the Lead Underwriters of the IPO.
12.10 This Agreement shall not be construed as granting any rights to any
third party. In this Agreement, third party shall mean any person or
entity that is not a party to this Agreement.
13. GOVERNING LAW AND SERVICE OF PROCESS
11
13.1 This Agreement is subject to and shall be interpreted in accordance
with the laws of the State of Israel.
13.2 For the purposes of any claim under this Agreement, the addresses of
the Selling Shareholders for the purposes of service of process shall be
their addresses as set forth in the first column of Exhibit 1, or such
other address as any Selling Shareholder shall notify the Purchaser in
writing.
14. ARBITRATION
14.1 All disputes arising out of or in connection with this Agreement and
other agreements resulting herefrom, including any question regarding its
existence, validity or termination, shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce, Paris
France, by three arbitrators in accordance with the said rules. The seat
of arbitration shall be Tel Aviv, Israel. The procedural law of Israel
shall apply where the rules are silent. The language to be used in the
arbitration proceeding shall be English
14.2 The parties undertake to abide by and fully implement the
arbitration award rendered, and this Section 14 shall be deemed to be an
arbitration agreement in accordance with the Arbitration Law-1968.
14.3 Each of the parties or, if there are more than one plaintiff or
defendant, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ together on behalf of
the Sellers and the Purchaser shall nominate one arbitrator for
confirmation by the competent authority under the applicable rules
("APPOINTING AUTHORITY") within thirty (30) days. Both arbitrators shall
agree on the third arbitrator within 30 days. In the event that an
arbitrator is to be appointed by more than one party, and they fail to
agree upon the identity of such arbitrator within the aforesaid time
period, any other party to the arbitration may request that such
arbitrator be appointed by the Appointing Authority. Should the two
arbitrators fail, within the above time-limit, to reach agreement on the
third arbitrator, he shall be appointed by the Appointing Authority.
15. TERMINATION At any time prior to the Closing Date, the Company shall have
the right, in its sole reasonable discretion, to terminate this Agreement AB
INITIO without any liability or adverse affect or without it being considered a
breach of this Agreement, if the Company can substantiate by reasonable proof
that the applicable governmental authorities may prevent the IPO from going
forward or substantially delay the IPO process as a result of the transactions
contemplated by this Agreement. If the closing of the IPO does not occur within
sixty days of the effective date of this Agreement, the Purchaser shall have a
right, in its sole and absolute discretion, to terminate this Agreement AB
INITIO without any penalty, liability or adverse affect, and without such
termination being considered a breach of this Agreement.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by its duly authorized representatives as of the date first above
written.
SIEMENS Aktiengesellschaft
By: _______________________________
Name:
Title:
RADVision Ltd.
By: _______________________________
Name:
Title:
THE REST OF THIS PAGE IS LEFT INTENTONALLY BLANK
13
NAME AND ADDRESS OF SELLING SHAREHOLDER SIGNATURE
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
▇▇▇▇▇▇▇ & Klil Properties (93) Ltd. By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Title: ___________________________
Lomsha Ltd. By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Title: ___________________________
▇▇▇▇ ▇▇▇▇ By: _____________________________
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
Plonit Achzakot Ltd. By: _____________________________
9 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Street Name: ____________________________
Tel Aviv, Israel Title: ___________________________
14
Nichsei Almonit Ltd. By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Title: ___________________________
RAD Data Communications Ltd. By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Title: ___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Raanana, Israel Title: ___________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
▇▇▇▇▇ ▇▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Ramat Hasharon, Israel Title: ___________________________
▇▇▇▇▇ ▇▇▇▇▇▇ By: _____________________________
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Ramat Hasharon, Israel Title: ___________________________
▇▇▇▇ ▇▇▇▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Ramat Aviv Title: ___________________________
▇▇▇▇ ▇▇▇▇ By: _____________________________
▇ ▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Rosh Haayin, Israel Title: ___________________________
▇▇▇▇▇ Strossberg By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Rishon Lezion, Israel Title: ___________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Mevasseret Zion, Israel Title: ___________________________
▇▇▇ ▇▇▇ By: _____________________________
▇▇
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Ltd. Name: ____________________________
▇▇ ▇▇▇▇ ▇▇'▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇: ___________________________
Tel Aviv, Israel
Lerosh Investments Ltd. By: _____________________________
c/o Trust Company of Maritime Bank of Israel Ltd. Name: ____________________________
▇▇ ▇▇▇▇ ▇▇'▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇: ___________________________
Tel Aviv, Israel
Trust Company of Maritime Bank of Israel Ltd. By: _____________________________
▇▇ ▇▇▇▇ ▇▇'▇▇ ▇▇▇▇▇▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
ECI Telecom Ltd. By: _____________________________
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Petach Tikva, Israel Title: ___________________________
Factory Systemes SA By: _____________________________
▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Name: ____________________________
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ Title: ___________________________
Clal Venture Capital LP By: _____________________________
Atidim Technology Park, ▇▇▇▇. ▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _____________________________
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Name: ____________________________
Neptune, New Jersey Title: ___________________________
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company Ltd. By: _____________________________
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
Tel Aviv, Israel Title: ___________________________
Evergreen Canada Israel Management Ltd. By: _____________________________
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Title: ___________________________
Tel Aviv, Israel
IJT Technologies Ltd. By: _____________________________
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Title: ___________________________
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇
Periscope I Fund LP, an Israeli partnership By: _____________________________
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Title: ___________________________
Tel Aviv, Israel
Periscope I Fund LP, a Delaware partnership By: _____________________________
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ____________________________
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Title: ___________________________
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇