EXHIBIT 4.11
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:
I. 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
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 deliver 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 in 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 shall have no responsibility for the allocation by the
Payment Agent among the Sellers of any sum paid by the Purchaser 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. 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 an 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: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President ICN Siemens Vice President ICN Siemens
RADVision Ltd.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman of the Board of Directors
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: *
---------------------------
12 ▇▇▇▇▇▇ ▇▇▇▇▇ Street 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: *
---------------------------
15
c/o Trust Company of Maritime Bank of Name: _________________________
Israel Ltd. Title: ________________________
▇▇ ▇▇▇▇ ▇▇'▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Lerosh Investments Ltd. By: *
---------------------------
c/o Trust Company of Maritime Bank of Name: __________________________
Israel Ltd. Title: _________________________
▇▇ ▇▇▇▇ ▇▇'▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Trust Company of Maritime Bank of Israel By: *
Ltd. ---------------------------
▇▇ ▇▇▇▇ ▇▇'▇▇ ▇▇▇▇▇▇ Name: __________________________
Tel Aviv, Israel Title: _________________________
ECI Telecom Ltd. By: *
---------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: __________________________
Petach Tikva, Israel Title: _________________________
Factory Systemes SA By: *
---------------------------
▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Name: __________________________
Emerainville, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 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: __________________________
Tel Aviv, Israel Title: _________________________
Periscope I Fund LP, a Delaware partnership By: *
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ---------------------------
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Name: __________________________
Tel Aviv, Israel Title: _________________________
* By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-fact
17
EXHIBIT 4.1.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") made and entered into as of the
____ day of _________, 2000 by and between (1) the persons listed in Schedule I
hereto (the "Existing Shareholders"); and (2) Siemens Aktiengesellschaft (the
"New Shareholder", and together with the Existing Shareholders, collectively
referred to herein as the "Parties").
WHEREAS, the Existing Shareholders, RADVision Ltd. (the "Company") and
the New Shareholder have entered into a Share Purchase Agreement of even date
herewith (the "Share Purchase Agreement"), under which the New Shareholder is
acquiring ordinary shares of the Company, par value NIS 0.1 per share (the
"Ordinary Shares") from the Existing Shareholders and the Company; and
WHEREAS, pursuant to the terms of the Share Purchase Agreement, the
Parties have agreed to enter into an agreement with respect to the voting of the
Ordinary Shares held by each of the Parties.
NOW, THEREFORE, the Parties agree as follows:
1. INTERPRETATION
1.1. The recitals to this Agreement constitute an integral part hereof.
1.2. In this Agreement, all capitalized terms which are not defined herein
shall have the meaning ascribed to such terms in the Share Purchase
Agreement.
2. TERM
Subject to Section 4 hereof, the initial term of this Agreement shall
be for three years from the Closing Date, and thereafter shall be automatically
extended for two successive additional one year periods, unless terminated by
any of the Parties upon written notice to the other Parties given at least sixty
(60) days prior to the expiration date of the then current term.
3. Agreement to Vote for Directors
3.1 Each of the Parties hereby agrees to vote, either in person of by its
nominee or proxy, all Ordinary Shares beneficially owned, directly or
indirectly, by such Party on the date hereof or hereafter acquired, at a
regular or special meeting of the Company's shareholders (or by written
consent) at which the directors ("Directors") of the Company's board of
directors (the "Board") are to be elected, in favor of a slate of directors
consisting of: (i) one nominee of the New Shareholder to the Board, and (ii)
as many other representatives that such Selling Shareholders shall
unanimously
indicate (but in no event less then the number and identity of
representatives as they have immediately prior to the IPO).
The Parties further agree to cause the existing Board, and future Boards, to
nominate for election such persons in any proxy statement and written ballot
sent to the shareholders of the Company in connection with such election or
meeting.
3.2 At least three days in advance of each regular or special meeting of the
Company's shareholders at which the Directors of the Board are to be
elected, the Parties entitled to select nominees to the Board will notify
the other Parties of the identity of the nominee(s) to be elected to the
Board in accordance with Section 3.1 above.
3.3 Upon the Closing, the nominee of the New Shareholder shall be appointed as a
Director to the Board in accordance with Article 88 of the Company's
Articles of Association, or by the convention of a regular or special
meeting.
4. TERMINATION OF DIRECTORSHIP
In the event that all Directors, except for one Director, decide in good faith
and believing it to be in the best interests of the Company and can substantiate
their decision by reasonable proof that the continuing presence of any Director
appointed by a Party pursuant to Section 3 hereof as a director of the Board may
damage the business prospects of the Company, then (i) the right of such Party
to appoint a Director under this Agreement shall immediately terminate and such
Board Member shall immediately resign from the Board, (ii) the other Parties
shall be released from any obligation to vote their Ordinary Shares in favor of
such Party's nominee, and such party shall be released from its obligations to
vote as well and (iii) the Parties shall take all actions necessary, including,
without limitation, convening a meeting of shareholders, to effect the removal
of such Director from the Board.
5. TRANSFER AND PLEDGE OF ORDINARY SHARES
5.1 Ordinary Shares of a Party to this Agreement transferred to an
Affiliate or to another Party to this Agreement shall continue to be bound by
this Agreement.
For purposes of this Agreement, an "Affiliate" shall mean a 'relative'
(as such term is defined in the Companies Law-1999) and/or any entity in which a
Party hereto, or a 'relative' of a Party hereto, holds an equity interest.
5.2 Any pledge, mortgage, hypothecation, encumbrance and the like
(collectively referred as the "Pledge") of the Ordinary Shares owned by the
Parties hereto shall be subject to: (i) the inclusion of the provisions of this
Agreement in the Pledge documents; and (ii) the written commitment of the
Pledgee to be bound by, and comply with, the provisions of this Agreement,
including the commitment of the Pledgee to bind any transferees to such a
commitment should it exercise the Pledge.
2
6. REMEDIES
The Parties acknowledge that time is of the essence under this
Agreement for the performance of the acts contemplated hereunder and that this
Agreement, and each provision contained herein, is subject to specific
performance by any court of competent jurisdiction.
7. NOTICES
All notices or other communications required or permitted hereunder
shall be in writing (except as otherwise provided herein) and shall be deemed
duly given when received by delivery in person, by facsimile, telex or telegram
or by an overnight courier service addressed to the address of the respective
Party set forth opposite the name of such Party on Schedule I hereto.
8. SUCCESSORS
The terms and conditions of this Agreement shall inure to the benefit
and be binding upon the respective successors of the Parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the Parties 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.
9. GOVERNING LAW AND ARBITRATION
9.1 This Agreement is subject to and shall be interpreted in accordance
with, the laws of the State of Israel.
9.2 Without derogating from that stated in section 6 above, the Parties
hereto agree that the Arbitration provision of the Share Purchase Agreement
shall be binding upon them with respect to this Agreement and any and all issues
and disputes arising hereunder.
3
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of the
date first above-mentioned.
Siemens Aktiengesellschaft ▇▇▇▇ ▇▇▇▇
By:_______________________ ____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________ ____________________________
Plonit Achzakot Ltd. Nichsei Almonit Ltd.
By:_______________________ By:_________________________
Name: Name:
Title: Title:
▇▇▇▇▇▇▇ and Klil Holdings (93) Ltd. Evergreen Canada Israel Management Ltd.
By:_______________________ By:_________________________
Name: Name:
Title: Title:
Lomsha Ltd. Periscope I Fund, Israeli Partnership
By:_______________________ By:_________________________
Name: Name:
Title: Title:
RAD Data Communications Ltd. Periscope I Fund, LP
By:_______________________ By:_________________________
Name: Name:
Title: Title:
Clal Venture Capital Fund LP IJT Technologies Ltd.
By:_______________________ By:_________________________
Name: Name:
Title: Title:
4
SCHEDULE I
PARTY ADDRESS
--------------------------------------------------------------------------------
Siemens Aktiengesellschaft
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Atidim Technllogical Park, Building
No. 4, Tel-Aviv
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ and Klil Holdings (93) Ltd. ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Lomsha Ltd. ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
RAD Data Communications Ltd. ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 9/3, Tel-Aviv
--------------------------------------------------------------------------------
Plonit Achzakot Ltd. ▇▇▇▇▇▇ ▇▇▇▇▇ 9/3, Tel-Aviv
--------------------------------------------------------------------------------
Nichsei Almonit Ltd. ▇▇▇▇▇▇ ▇▇▇▇▇ 9/3, Tel-Aviv
--------------------------------------------------------------------------------
Clal Venture Capital Fund LP Atidim Technllogical Park, Building
No. 4, Tel-Aviv
--------------------------------------------------------------------------------
Evergreen Canada Israel Management Ltd. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
Periscope I Fund, Israeli Partnership ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
Periscope I Fund, LP ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
IJT Technologies Ltd. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
5