EXHIBIT 4.1 ADDENDUM NO.4 TO INVESTMENT AGREEMENT DATED DECEMBER 10, 2001
ADDENDUM # 4
TO AN AGREEMENT MADE AND ENTERED ON 16 JANUARY 2000
Made and entered on this 10 day of December 2001, by and among:
ACTIVEPOINT LTD.
Company No. 51-0255867-7
Poleg Industrial Park, Giborei Israel 20, Netanya, Israel 42504
(Hereinafter: the "COMPANY")
and
ONN TAVOR
I.D.056148745
of 10 Bet SHAMMAI St., Ramat Hasharon
(Hereinafter the "FOUNDER")
and
TOPSCHUTTER HOLDING B.V.
c/o Mr. Jean Paul Croisier, 61 Rue du Rhone
Geneve, Switzerland
(Hereinafter the "INVESTOR")
WHEREAS, the Parties have previously executed an Agreement dated January 16,
2000 (the "INVESTMENT AGREEMENT") and an Addendum thereto dated May 28, 2000
(the "FIRST ADDENDUM"), a second Addendum thereto dated February 01, 2001 (the
"SECOND ADDENDUM"), and a third Addendum thereto dated July 29, 2001 (the "THIRD
ADDENDUM") (the Investment Agreement, and the First, Second and Third Addendums
shall be hereinafter referred to jointly as the "AGREEMENT"); and
WHEREAS, the parties wish to add to and/or amend the provisions of the
Agreement, as set forth hereinafter in this fourth addendum (the" ADDENDUM");
NOW, THEREFORE, in consideration of the premises, mutual agreements and
covenants set forth below, the Parties agree:
1. Unless the context compels otherwise, the terms used in this Addendum
shall bear the meanings ascribed thereto in the Investment Agreement
2. The Company and the Founder represent that upon completion of the
investment stipulated under the Third Addendum by the Investor, and prior
to the execution of the transaction stipulated herein, and further, prior
to any additional investment or loan undertaken by the Investor with the
approval of the founder as detailed herein, the holdings of the Company's
share capital, on a fully diluted basis, shall be as listed hereunder (all
Company shares bear a par value of NIS 0.1)
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NAME OF SHAREHOLDER HOLDINGS
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a. The Founder 4841 Ordinary Shares
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b. The Investor 2750
Ordinary Shares;
4095 Preferred
Shares (inclusive
of the 25 Preferred
Shares to which the
Investor is
entitled, in
accordance with the
Third Addendum, on
account of
conversion of
expenses borne
thereby, as
specified in
APPENDIX A, into
Company equity).
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c. Target Technology
Center 1500
Ordinary Shares
(out of which 1000
shares are held in
trust for Company
employees, and an
additional 125
shares were held in
trust for Mr.
Azriel Kadim, and
are to be
transferred
thereto).
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d. Daniel Eini 250 Ordinary Shares
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e. Yitzhak Turkeltaub 250 Ordinary Shares
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f. SHIR H.Y.E.R. Holdings Ltd. 250 Ordinary Shares
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g. Y.E.R.H. Trusts Ltd. 159 Ordinary Shares
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h. Dr. Sydney O'hara Vested with option to purchase 127 Ordinary Shares at
par value.
Options to purchase an additional 254 Ordinary Shares
in the aggregate, at par value, will vest in accordance
with the provisions of the Company's agreement
therewith.
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i. Christopher Gare
Vested with option
to purchase 64
Ordinary Shares at
par value. Options
to purchase an
additional 128
Ordinary Shares in
the aggregate, at
par value, will
vest in accordance
with the provsions
of the Company's
agreement
therewith.
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Besides the foregoing, there are no additional outstanding Company shares,
options to purchase shares, or other securities of any kind.
ESTABLISHMENT OF ACTIVEPOINT U.K.
3. The Company will established and incorporate a company in the United
Kingdom (hereinafter: "ACTIVEPOINT U.K." or "AP U.K."), to be a wholly
owned subsidiary of the Company, as soon as feasible subsequent to the
execution of this Addendum, but not later than 45 days subsequent to the
execution hereof AP U.K. will operate in accordance with the ActivePoint
U.K. Operational Management and Structure Appendix, attached hereto as
SCHEDULE A. INVESTOR'S INVESTMENT IN THE COMPANY
4. In addition to the Investor's previous investments in the Company, the
Investor hereby undertakes to provide a further loan to the Company up to
the amount of $75,000 ("'The First Loan") subject to and pursuant with the
provisions hereof The First Loan is intended to be used by the Company as
initial finance for the operations of AP U.K, and shall be used consistent
with a budget to be prepared by the Company in conjunction with the
Investor's representative (notwithstanding the foregoing, the Company
shall have the overriding right to supervise and oversee
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the allocation of the First Loan funds to have access thereto, and to determine
how they shall be expended, including, inter alia, to determine that a portion
of the funds be utilized for different Company requirements, such as travel
expenditures, etc., subject to the Investor's approval at all times). The
Investor will convey the Loan to the Company monthly beginning December 2001,
over a period of six months in equal amounts of $12,500.00 ("THE FIRST LOAN
INSTALLMENTS") each, by way of a bank transfer directly to the bank account of
AP U.K., the details of which will be provided by the Company, or via the
Company's account in Israel. In the event that the Investor decides to
terminate the providing of the First Loan installments he shall be required to
provide the Company with a one month prior written notice to that effect and
continue to pay the installments due be paid hereunder during that one full
month period.
5. The Company shall issue the Investor a total of 536 Preferred Company
Shares at their nominal value (NIS 0.1), which shall be issued thereto in
six installments, subsequent to and commensurate with, the execution of
each First Loan Installment. Following the execution of the initial First
Loan Installment the Company shall issue to the Investor 91 Preferred
Company Shares, while promptly following each of the five ensuing First
Loan Installments the Company shall issue the Investor 89 Preferred
Company Shares. Issuance of shares following each of the First Loan
Installments shall be executed forthwith upon transfer to the Company of
the First Loan Installment corresponding to such issuance pursuant to
clause 4 here above and shall take place not later than fourteen (14) days
from the date of said transfer.
6. In addition to the Investor's undertaking in Clause 4 above, the Investor
hereby undertakes to provide a further loan to the Company up to the
amount of $60,000 ("THE SECOND LOAN") subject to and pursuant with the
provisions hereof The Second Loan is intended to be used by the Company as
continued finance for the operations of AP Israel, and shall be used
consistent with a budget to be prepared by the Company in conjunction with
the Investor's representative (notwithstanding the foregoing, the Company
shall have the overriding right to supervise and oversee the allocation of
the Second Loan funds. to have access thereto, and to determine how they
shall be expended, including, inter alia, to determine that a portion of
the funds be utilized for different Company requirements, such as travel
expenditures, etc., subject to the Investor's approval at all times). The
Investor will convey the Second Loan to the Company monthly, beginning in
December 2001, over a period of six months in equal amounts of $10,000.00
("THE SECOND LOAN INSTALLMENTS") each, by way of a bank transfer to the
bank account of AP Israel. In the event that the Investor decides to
terminate the providing of the Second Loan installments he shall be
required to provide the Company with a one month prior written notice to
that effect and continue to pay the installments due be paid hereunder
during that one full month period.
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7. In addition to the shares to be issued to the Investor in accordance with
section 5 above, the Company shall issue the Investor a total of 428
Preferred Company Shares at their nominal value (NIS O. I), which shall be
issued thereto in six installments subsequent to and commensurate with.
the execution of each Second Loan Installment. Following the execution of
the initial Second Loan Installment the Company shall issue to the
Investor 73 Preferred Company Shares while promptly following each of the
five ensuing Second Loan Insta1Iments the Company shall issue the Investor
71 Preferred Company Shares. Issuance of the shares pursuant to each of
the Second Loan Insta1Iments shall be executed forthwith upon transfer to
the Company of the Second Loan Insta1Iment corresponding to such issuance
pursuant to clause 6 here above and shall take place not later than
fourteen (14) days from the date of said transfer.
8. In addition to the foregoing subject to the execution of the First and
Second Loans, the Investor shall likewise be entitled to receive the
following: Subject to any taxes and mandatory payments imposed on the
Company, (such as royalties due to the Israeli chief scientist), 25% of
all amounts. in excess of an initial sum of U.S. $100,000 which is to
remain in the Company, transferred from AP U.K. to the Company, up to a
total amount equaling the nominal sum of the total of the First and Second
Loans (free of interest and/or adjustment of any kind, i.e. U.S. $135,000)
(the "LOAN REPAYMENT"). All such sums accrued on account of the Loan
Repayment shall be transferred to the Investor immediately (within
fourteen (14) working days) upon their actual receipt by the Company. The
Investor shall harbor no claim towards the Founder personally and The
Founder shall have no responsibility or liability whatsoever if the
company fails to repay any of the loan installments provided by the
investor hereunder
9. Furthermore, in consideration of the Investor undertaking to make the First
and Second Loans to the Company, the Investor shall be entitled to receive from
the Company a further issue of 1,928 Preferred Company Shares at their nominal
value (NIS 0.1). These shares shall be issued pro rata with and at the same
time as, the First and Second Loan Installments being made in accordance with
Clauses 4 and 6 above as follows:
Following the execution of the initial First Loan Insta1Iment the Company shall
issue to the Investor 180 Preferred Company Shares while promptly following
each of the five ensuing First Loan Insta1Iments the Company shall issue the
Investor 180 Preferred Company Shares.
Following the execution of the initial Second Loan Installment the Company
shall issue to the Investor 143 Preferred Company Shares, while promptly
following each of the five ensuing Second Loan Installments the Company shall
issue the Investor 141 Preferred Company Shares.
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Issuance of all above shares following each of the abovementioned loan
installments shall be executed forthwith upon transfer to the Company of the
relevant loan installment corresponding to such issuance pursuant to clause 4
and 6 here above and shall take place not later than fourteen (14) days from
the date of said transfer.
In addition and further to issuance of Preferred Shares to the investor as
specified above, within 14 days following payment of the initial installments
on account of the First Loan and Second Loan the Company shall issue the
Investor 1250 Preferred Shares at their nominal value (NIS 0.1), in lieu of the
option to purchase said shares in the sum of $175,000, as carried forward from
Section 3 of the Second Addendum.
FOUNDER'S COMPENSATION
10. The Company and the Investor consider that the Founder should receive
adequate compensation for his agreement to work for the company at this
stage notwithstanding the Company's bad financial condition, and as such,
his shareholding should not be materially diluted. As a precondition of
its further financial support, the Investor has required and the Company
agrees that, the Founder is to receive 809 Ordinary Company Shares at
their nominal value (NIS O. I), to be issued to the Founder as follows:
11. Following the execution of the initial First Loan Insta11ment, the Company
shall issue to the Founder 73 Ordinary Shares, while promptly following
each of the five ensuing First Loan Installments the Company shall issue
the Founder 76 Ordinary Shares. Following the execution of the initial
Second Loan Installment, the Company shall issue to the Founder 56
Ordinary Shares, while promptly following each of the five ensuing Second
Loan Installments the Company shall issue the Founder 60 Ordinary Shares.
Issuance of all above shares following each of the abovementioned loan
installments, shall be executed forthwith upon transfer to the Company of
the relevant loan installment corresponding to such issuance pursuant to
clause 4 and 6 here above and shall take place not later than fourteen
(14) days from the date of said transfer. 0.(1),
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. ,
VESTING OF DR. SYDNEY O'HARA WITH OPTIONS, AND ADDITIONAL GRANT THERETO
12. Notwithstanding the provisions of the Company's agreement with Dr. Sydney
O'Hara, the Company agrees that the vesting schedule stipulated therein
shall be accelerated, and Dr. O'Hara shall hereby be vested with the full
amount of options stipulated therein. Thus. in addition to the option to
purchase 127 Ordinary Company Shares which have heretofore vested in Dr.
O'Hara, he shall henceforth be vested with the option to purchase an
additional 254 Ordinary Company Shares, totaling 381 Ordinary Company
Shares, which Dr. O'Hara is vested with the right to purchase for their
nominal value (NIS 0.1 per share, which is equivalent to a total of
approximately $9.00 for the full total of381 shares). These options to be
issued within 14 days from payment in full of the first installments on
account of the First and Second Loans such that Dr, Sydney O'Hara shall be
allocated the full 381 shares at that time.
13. In addition, Dr. O'Hara shall be granted options to purchase Ordinary
Company Shares, at an am01mt equal to 25% of the options to which the
Marketing Team of AP U.K. shall be entitled (which shall be derived from
its performance), as stipulated in the agreements the Company intends to
sign with the key members of the Marketing Team (a copy of which is
appended hereto as SCHEDULE B). For avoidance of doubt, said members of
the Marketing Team will have the right to receive one half of their
remuneration in cash payments, and the remaining half in the form of
options, and Dr. O'Hara's entitlement under this clause will be to receive
an amount of options equal to 25% of the options to which the Marketing
Team shall be entitled; i.e., Dr O'Hara shall be entitled to the
equivalent of 12.5% of the total remuneration to which the said Marketing
Team shall be entitled. The options granted Dr. O'Hara hereunder shall be
exercisable at their nominal value. (NIS 0.1).
14. Following execution in full of all installments of the First and Second
Loans and issuance of all shares to be issued to all parties mentioned
herein, all in accordance with the terms of this Addendum, the holdings of
the Company's share capital, on a fully diluted basis, shall be as listed
in the "cap table" "SCHEDULE C" hereto.
15. Nothing in this agreement shall be construed as any waiver made on the
part of the Founder with respect to shortfalls in salary due to the
Founder from the Company.
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16. Nothing in this agreement shall be construed as any waiver made on the
part of the Investor or the Company with respect to the requirement for
full compliance on the part of the Founder, with the relevant provisions
of the Companies Law relating to duties and responsibilities imposed on
directors and officers of a company.
17. The execution of this Addendum shall be subject to, inter alia" the
approval of the Company shareholders. Subject to the provisions of this
Addendum, the Agreement (including with respect to all special rights
granted to the holders of the Preferred Shares) shall remain unaltered.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed on the date first above written:
/S/ ONN TAVOR
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ACTIVEPOINT, LTD.
BY: ONN TAVOR
TITLE: CEO
/S/ ONN TAVOR
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ONN TAVOR
/S/ J.P. CROISIER
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TOPSCHUTTER HOLDING B.V.
BY: /S/ J.P. CROISIER
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TITLE: DIRECTOR