CREDIT LINE AGREEMENT
This Credit Line Agreement (this "Agreement") is made as of this January 25,
2003 by and between m-Wise Inc., a Delaware corporation, ("m-Wise") and Miretzky
Holdings Limited, an Isle of Man corporation ("Miretzky").
WHEREAS m-Wise desires that Miretzky extend to m-Wise a certain credit line
in consideration for the issuance of certain securities of m-Wise to
Miretzky; and
WHEREAS Miretzky agrees to extend such credit line to m-Wise in
consideration for such issuance of securities to Miretzky;
NOW THEREFORE it is agreed as follows:
1. CREDIT LINE. Subject to the terms and conditions set forth in this Agreement,
commencing on the date hereof and until the date on which this Agreement is
terminated pursuant to Section 5 hereunder, Miretzky agrees to extend to m-Wise
a credit line of up to Three Hundred Thousand US Dollars ($300,000) (the "CREDIT
LINE"). The Credit Line will be used mainly to secure m-Wise debts to service
providers, employees, government institutes and other suppliers, and Miretzky
undertakes to represent, upon request of such parties, its commitment to repay
those debts in the event that m-Wise defaults.
2. CONSIDERATION. In consideration for the grant of the Credit Line by Miretzky
to m-Wise, m-Wise shall issue and allot to Miretzky 6,315,258 shares of its
Series C Preferred Stock (the "SHARES"), having the rights, restrictions,
privileges and preferences set forth in the Amended and Restated Certificate of
Incorporation in the form attached hereto as EXHIBIT A (the "RESTATED
CERTIFICATE"). m-Wise shall, promptly after the execution hereof adopt and file
the Restated Certificate with the Secretary of State of Delaware and shall
complete the aforementioned issuance of shares promptly thereafter.
3. ANCILLARY AGREEMENTS. At the Closing, m-Wise and Miretzky shall execute the
joinder to the Investors' Rights Agreement and Stockholders' Agreement in the
form attached hereto as EXHIBIT B. The Investors' Rights Agreement and
Stockholders' Agreement shall be referred to hereinafter as the "Ancillary
Agreements".
4. REPRESENTATIONS OF MIRETZKY. Miretzky hereby represents, warrants and
covenants to the Company that: (a) Miretzky has full power and authority to
enter into this Agreement and the Ancillary Agreements, and each such agreement
constitutes its valid and legally binding obligation, enforceable in accordance
with its terms; (b) The Series C Preferred Stock to be issued to Miretzky
hereunder and the Common Stock issuable upon conversion thereof (collectively,
the "SECURITIES") will be acquired for Miretzky's own account; and (c) Miretzky
acknowledges that it is able to fend for itself and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of entering this Agreement.
5. TERM OF CREDIT LINE. The Credit Line will be provided as set forth in Section
1 above from the date hereof until m-Wise's board of directors will notify
Miretzky that the Credit Line is no longer required.
6. ASSIGNMENT. Miretzky may assign or transfer this Agreement and/or the Shares,
or any rights or obligations herein or therein, to any other entity or person,
without the approval or consent of m-Wise. m-Wise shall not assign or transfer
any of its rights or obligations hereunder without the prior written approval of
Miretzky.
7. NOTICES. Any notice or demand upon any party hereto shall be deemed to have
been sufficiently given or served for all purposes hereof: (i) when delivered in
person, (ii) one business day thereafter if by nationally recognized overnight
courier with receipt requested, or (iii) two business days thereafter if mailed
certified mail postage prepaid, return receipt requested.
8. SEVERABILITY. In the event that any one or more of the provisions contained
in this Agreement or any other agreement, document, or guarantee related hereto
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or such other agreement, document, or guarantee.
9. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the
parties with respect to the repayment of the Applicable Debts by the Investors,
and supersedes any other understandings between the parties in such respect
prior to the date hereof.
10. GOVERNING LAW; DISPUTES. This Agreement, together with all of the rights and
obligations of the parties hereto, shall be construed, governed and enforced in
accordance with the laws of the State of Israel without regard to conflicts of
laws principles. Any dispute in connection with this Agreement shall be
exclusively resolved in the competent court of Tel Aviv-Jaffa.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
M-WISE INC.
Name: /S/ SHAY BEN-ASULIN
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By: Shay Ben-Asulin
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Title: President
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MIRETZKY HOLDINGS LIMITED
Name: /S/ MARK QUIRK
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By: Mark Quirk
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Title: President
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EXHIBIT B
JOINDER TO INVESTORS RIGHTS AGREEMENT
AND STOCKHOLDERS AGREEMENT
This Joinder to Investors Rights Agreement and Stockholders
Agreement is made as of the 25th day of January, 2003 by and among m-Wise, Inc.,
a Delaware corporation (the "Company"), Miretzky Holdings Ltd. ("Miretzky"),
Proton Marketing Associates, LLC, Putchkon.com, LLC and Inter-Content
Development for the Internet Ltd. (the "Major Stockholders").
WHEREAS, the Company and certain of its stockholders have
entered into a certain Investors' Rights Agreement dated as of 11th January 2001
(the "Investors' Rights Agreement") and a certain Stockholders Agreement dated
as of 9th January 2001 (the "Stockholders Rights Agreement");
WHEREAS, Miretzky has been issued certain of the Company's
Series C Preferred Stock pursuant to a certain Credit Line Agreement dated as of
even date herewith;
WHEREAS, the Major Stockholders hold more than 75% of the
issued and outstanding capital stock of the Company, and more than 75% of the
issued and outstanding Series B Preferred Stock of the Company, and desire that
Miretzky be joined as a party to the Investors' Rights Agreement and
Stockholders Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, the parties agree as follows:
1. JOINDER OF MIRETZKY. Commencing as of the date of this
Amendment, Miretzky shall be a party to the Investors' Rights Agreement and the
Stockholders Agreement and shall be deemed to be an "Investor" and shall enjoy
all rights granted to the holders of the Company's Preferred B Stock thereunder.
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[JOINDER - MIRETZKY 2003]
IN WITNESS WHEREOF, the parties have executed this Joinder to Investors Rights
Agreement and Stockholders Agreement as of the date first above written.
m-WISE, INC.
By: /S/ SHAY BEN-ASULIN
--------------------------------
Name: Shay Ben-Asulin
Title:
PROTON MARKETING ASSOCIATES LLC
By: /S/ MATI BROUDO
------------------------------
Name: Mati Broudo
Title: President
PUTCHKON.COM LLC
By: /S/ SHAY BEN-ASULIN
------------------------------
Name: Shay Ben-Asulin
Title: President
INTER-CONTENT DEVELOPMENT FOR THE INTERNET LTD.
By: /S/ KOBI MARENKO
---------------------------------
Name: Kobi Marenko
Title: President
MIRETZKY HOLDINGS LIMITED
By: /S/ MARK QUIRK
--------------------------------
Name: Mark Quirk
Title: President
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