EXHIBIT 4.3 - ADDENDUM NO.6 TO INVESTMENT AGREEMENT DATED AUGUST 21, 2002
Addendum #6
To an Agreement made and entered on 16 January 2000
Made and entered on this 21 day of August 2002, 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")
and
SHIR H.Y.E.R. Holdings Ltd. c/o Dr. Zeev Holender
40 Montefiori st', Tel Aviv
(Hereinafter the "SHIR H. Y.E.R.")
WHEREAS, The Company, the Founder and the Investor 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"), and a fourth Addendum thereto dated
December 10, 2001 (the "FOURTH ADDENDUM") and a fifth Addendum thereto dated
June -' 2002 (the "FIFTH ADDENDUM") (the Investment Agreement, and the First,
Second, Third, Fourth and Fifth Addendums shall be hereinafter referred to
jointly as the "AGREEMENT"); and
WHEREAS, the Company, the Founder and the Investor wish to add to and/or amend
the provisions of the Agreement, as set forth hereinafter in this sixth addendum
(the" ADDENDUM"); and
WHEREAS, SHIR H.Y.E.R. is a shareholder of the Company and has previously
invested funds in the Company; and
WHEREAS, SHIR H.Y.E.R. agreed to provide a loan to the Company, as set forth in
this 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 Agreement.
2. The Company and the Founder represent that upon completion of the investment
stipulated under the Fifth Addendum by the Investor and the investment
stipulated under the agreement entitled "Addendum 5A" with SHIR HY.E.R., and
prior to the execution of the transaction stipulated herein, and further, prior
to any additional investment or loan undertaken by the Investor and SHIR
H.Y.E.R. 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 14,426 Ordinary Shares
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b. The Investor 2750 Ordinary Shares; 29,235 Preferred
Shares.
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c. Target Technology Center 1500 Ordinary Shares (out of which 1000
are held in trust for Company
shares
employees, and an additional 125 shares were I
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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; 1,639 Preferred Shares
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g. Y.E.R.H Trusts Ltd. 159 Ordinary Shares
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h. Dr. Sydney O'Hara 986 Ordinary Shares
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i. M. Porath & Co. Trust Company (1995) 1,550 Ordinary Shares
Ltd.
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j. Christopher Gare Vested with option to purchase 64 Ordinary
Shares at par value.
to purchase an additional 128
Options
Ordinary Shares in the aggregate, at par
value, will vest m accordance with the
.. of the
Company's
agreement
provisions
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.
3. 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 (seventy five thousand dollars) (the "Investor's Loan")
subject to and pursuant with the provisions hereof. The Investor Loan is
intended to be used by the Company to finance the operations of the Company, 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 Investor's 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 Investor's Loan to the Company not later than by
August 30, 2002
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4. The Company shall issue the Investor a total of 127,185 Preferred Company
Shares at their nominal value (NIS 0.1) (CONSEQUENT TO WHICH, UPON COMPLETION
OF ALL THE SHARE ISSUANCES CONTEMPLATED IN THIS ADDENDUM, THE HOLDINGS OF THE
INVESTOR IN THE COMPANY SHALL COMPRISE 67.01% OF THE OUTSTANDING SHARE CAPITAL
OF THE COMPANY, ON A FULLY DILUTED BASIS), which shall be issued thereto
forthwith upon the execution of the Investor's Loan.
5. In addition to the foregoing, 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, up to a total amount equaling the sums of the loans actually extended
by the Investor under the Fourth Addendum, the Fifth Addendum, and this Sixth
Addendum, i.e. up to a possible TOTAL of U.S. $255,000, a sum comprised of the
nominal sum of the actual total of the Investor's Loan (i.e. up to a potential
total of U.S. $75,000) plus the nominal sums of the loans actually granted to
the Company pursuant to the Fourth Addendum (i.e. U.S.$135,000) and the Fifth
Addendum (i.e. U.S. $45,000), all such sums free of any interest and/or
adjustment of any kind (the "Investor's Loan Repayment"). All such sums accrued
on account of the Investors 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 the Investor's Loan provided by the Investor hereunder. The
provisions of this Section 5 shall replace the provisions of Section 5 of the
Fifth Addendum.
6. Following execution in full of the Investor's Loan and SHIR H.Y.E.R.'s Loan,
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"
"Appendix B" hereto. 7. In addition to SHIR H.Y.E.R.'s previous investments in
the Company, SHIR H.Y.E.R. hereby undertakes to provide a further loan to the
Company up to the amount of $3,874 (three thousand, eight hundred and
seventy-four dollars) (the "SHIR H.Y.E.R.'S LOAN") subject to and pursuant with
the provisions hereof. SHIR H.Y.E.R.'s Loan is intended to be used by the
Company to finance the operations of the Company, and shall be used consistent
with a budget to be prepared by the Company in conjunction with SHIR H.Y.E.R.'s
representative (notwithstanding the foregoing, the Company shall have the
overriding right
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to supervise and oversee the allocation of the SHIR H.Y.E.R.'s 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 SHIR
H.Y.E.R.'s approval at all times).
SHIR H.Y.E.R. will convey the SHIR H.Y.E.R.'s Loan to the Company not later
than by August 30,2002. 8. The Company shall issue SHIR H.Y.E.R.'s a total of
6,570 Preferred Company Shares at their nominal value (NIS 0.1) (CONSEQUENT TO
WHICH, UPON COMPLETION OF ALL THE SHARE ISSUANCES CONTEMPLATED IN THIS
ADDENDUM. THE HOLDINGS OF SHIR H.Y.E.R.. IN THE COMPANY SHALL COMPRISE 3.56% OF
THE OUTSTANDING SHARE CAPITAL OF THE COMPANY, ON A FULLY DILUTED BASIS), which
shall be issued thereto forthwith upon the execution of SHIR H.Y.E.R.'s Loan.
9. In addition to the foregoing, SHIR H.Y.E.R. 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, up to a total amount equaling the sums of the loans actually extended
by SHIR H.Y.E.R.'s under Addendum 4A and 5A signed between the Company and SHIR
H.Y.E.R., and this Sixth Addendum, i.e. up to a possible total of U.S. $21,400,
a sum comprised of the nominal sum of the actual total of the SHIR H.Y.E.R.'s
Loan (i.e. up to a potential total of U.S. $3,874) plus the nominal sums of the
loans actually granted to the Company pursuant to Addendum 4A (i.e.
U.S.$15,000) and Addendum 5A (i.e. U.S. $2,526), all such sums free of any
interest and/or adjustment of any kind (the "SHIR H.Y.E.R.'S LOAN REPAYMENT").
All such sums accrued on account of SHIR H.Y.E.R.'s Loan Repayment shall be
transferred to SHIR H.Y.E.R. immediately (within fourteen (14) working days)
upon their actual receipt by the Company. SHIR H.Y.E.R. shall harbor no claim
towards the Founder personally and the Founder shall have no responsibility or
liability whatsoever if the Company fails to repay SHIR H.Y.E.R.'s Loan
provided by SHIR H.Y.E.R. hereunder. The provisions of this Section 9 shall
replace the provisions of Section 5 of Addendum 5A.
10. In the event that at any time prior to the full repayment of the above
loans, the Company will not have sufficient funds to allow full repayment of
both the Investor's Loan and SHIR H.Y.E.R.'s Loan in accordance with Sections 5
and 9 above, repayment will be made by the Company to both said lenders, out of
the available amounts in excess of an initial sum of U.S. $100,000, pro rata to
the Company's outstanding debt to each of them at such time.
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11. The Company and the Investor consider that the Founder should receive
adequate compensation for his agreement to work for the company at this stage,
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 a total of 45,010 Ordinary
Company Shares at their nominal value (NIS 0.1) (CONSEQUENT TO WHICH, UPON
COMPLETION OF ALL THE SHARE ISSUANCES CONTEMPLATED IN THIS ADDENDUM, THE
HOLDINGS OF THE FOUNDER IN THE COMPANY SHALL COMPRISE 25.02% OF THE OUTSTANDING
SHARE CAPITAL OF THE COMPANY, ON A FULLY DILUTED BASIS)" to be issued to the
Founder following the execution of the Investor's Loan and SHIR H.Y.E.R.'s
Loan. 12. The Company and the Investor consider that Dr. Sydney O'hara should
receive adequate compensation for his agreement to consult for the company at
this stage, and as such, the Company should accord him additional Company
shares for his ongoing significant efforts and contributions to the Company. As
a precondition of its further financial support, the Investor has required, and
the Company agrees, that Dr. Sydney O'hara is to receive a total of 5,695
Ordinary Company Shares at their nominal value (NIS 0.1) (CONSEQUENT TO WHICH,
UPON COMPLETION OF ALL THE SHARE ISSUANCES CONTEMPLATED IN THIS ADDENDUM, THE
HOLDINGS OF DR. 0'HARA IN THE COMPANY SHALL COMPRISE 2.81% OF THE OUTSTANDING
SHARE CAPITAL OF THE COMPANY, ON A FULLY DILUTED BASIS)" to be issued to Dr.
Sydney O'hara following the execution of the Investor's Loan and SHIR
H.Y.E.R.'s Loan. 13. The execution of this Addendum shall be subject to, inter
alia, the approval of the Company's Board of Directors and Shareholders'
Meeting. Subject to the provisions of this Addendum, the Agreement (including
all Addendums thereto) 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_______ /S/ A. B. SIITOM_________
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ACTIVEPOINT LTD. TOPSCHUTTER HOLDING B.V.
BY: ONN TAVOR_____ BY: A.B. SIITOM________
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TITLE: CEO________ TITLE: AUTHORIZED SIGNATORY
/S/ ONN TAVOR______ ______________________
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SHIR H.Y.E.R. HOLDINGS LTD.
BY: ___________________
TITLE: _________________
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