AMENDMENT NO. 2
TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 2 TO AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (the "Agreement") is made as of the 10th day of March, 2000 by and
among Commtouch Software Ltd., an Israeli company (the "Company") having its
principal executive offices at 10 Technology Avenue, Ein Vered 40696, Israel,
and the investors identified on the signature page to this Agreement
(collectively, the "Preferred Shareholders").
In accordance with the provisions of Section 7 of the Amended and
Restated Registration Rights Agreement (the "Original Rights Agreement"), as
amended and restated by Amendment No. 1 to Amended and Restated Registration
Rights Agreement, dated January 4, 2000 ("Amendment No. 1" and, together with
the Original Rights Agreement, as amended, the "Rights Agreement") which
provides that any provision of the Rights Agreement may be amended, and the
exercise of any rights under the Rights Agreement may be waived (either
generally or in a particular instance, and either retroactively or
prospectively) only with the written consent of the Company, and at least a 51%
majority in interest of the holders of the Shares (as defined in the Rights
Agreement), the parties to this Agreement hereby agree as follows:
1. In the event that the Company undertakes an underwritten secondary
offering of its ordinary shares during the next sixty (60) days (the
"Offering"), the allocation of the ordinary shares to be sold in connection
therewith shall be as follows:
(a) First, to the Company, in an amount as determined by the
Board of Directors of the Company to be in the best interests of the
Company;
(b) Second, following the allocation to the Company of the
amount set forth under paragraph (a) above, the number of shares
included in the registration and underwriting will be allocated among
the holders of ordinary shares set forth in Exhibit A hereto
(individually, a "Holder" and collectively, the "Holders") requesting
registration in proportion, as nearly as practicable, to the total
number of ordinary shares offered by such Holders at the time of filing
of a registration statement in connection with the offering in an
amount equal to the balance of the ordinary shares remaining to be
sold.
2. Each Holder waived the 30 days notice provision set forth in section
2 of the Rights Agreement and shall notify the Company, within five business
days of its receipt of the Company's notice of the Offering, of the total number
of shares such Holder intends to sell and, to the extent that the underwriters
of the secondary offering determine it necessary to cutback the number of shares
offered to the public, each Holder agrees to a pro rata cutback based upon its
percentage ownership of the total number of shares requested to be sold by all
Holders in the secondary offering.
3. Each Holder hereby grants power of attorney as follows:
(a) The undersigned hereby irrevocably constitutes and
appoints Xxxxxx Xxxxxx and Xxxxx Xxxxxxx (the "Attorneys-in-Fact"), and
each of them, his agent and attorney in fact, with full power of
substitution, with respect to all matters arising in connection with
the secondary offering and sale of the Company's ordinary shares,
including, but not limited to, the power and authority on behalf of the
undersigned to do or cause to be done any of the following things:
(i) negotiate, determine and agree upon (A) the price
at which the ordinary shares will be offered to the public by
the underwriters pursuant to an Underwriting Agreement for the
sale of the ordinary shares (the "Underwriting Agreement"),
(B) the underwriting discount with respect to the ordinary
shares, and (c) the price at which the ordinary shares will be
sold to the Underwriters by the Selling Stockholders pursuant
to the Underwriting Agreement, all of which shall be at the
same price or discount at which the company and other Selling
Stockholders offer or sell ordinary shares.
(ii) prepare, execute and deliver an Underwriting
Agreement, but with such insertions, changes, additions or
deletions as the Attorneys in Fact shall approve as not
materially adverse to the undersigned, such approval to be
conclusively evidenced by the execution and delivery of the
Underwriting Agreement by the Attorneys-in-Fact, including the
making of all representations and agreements provided in the
Underwriting Agreement to be made, and the exercise of all
authority thereunder vested in, the undersigned;
(iii) sell, assign, transfer and deliver the ordinary
shares to the underwriters pursuant to the Underwriting
Agreement and deliver to the underwriters certificates for the
ordinary shares so sold;
(iv) take any and all steps deemed necessary or
desirable by the Attorneys-in-Fact in connection with the
registration of the ordinary shares under the Securities Act
of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended, and under the securities or
"blue sky" laws of various states and jurisdictions,
including, without limitation, the giving or making of such
undertakings, representations, warranties, and agreements
(including, without limitations, the restriction on sales of
ordinary shares by the undersigned) and the taking of such
other steps as the Attorneys-in-Fact may deem necessary of
advisable;
(v) instruct the Company and the Company's custodian
for the ordinary shares (the "Custodian") on all matters
pertaining to the sale of the ordinary shares and delivery of
certificates therefor;
(vi) provide, in accordance with the Underwriting
Agreement, for the payment of expenses of the offering and
sale of the ordinary shares covered by a
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registration statement relating thereto and filed by the
Company with the Securities and Exchange Commission;
(vii) retain legal counsel to represent the
undersigned in connection with any and all matters referred to
herein (which counsel will be McCutchen, Doyle, Xxxxx &
Enersen, LLP);
(viii) otherwise take all actions and do all things
necessary or proper, required, contemplated or deemed
advisable or desirable by the Attorneys-in-Fact in their
discretion, including, if necessary, the endorsement (if blank
or otherwise) on behalf of the undersigned of the certificate
or certificates representing the ordinary shares or a stock
power or powers attached to such certificate or certificates
and the execution and delivery of any other documents, and
generally act for and in the name of the undersigned with
respect to the sale of the ordinary shares to the Underwriters
and the reoffering of the ordinary shares by the Underwriters
as fully as could the undersigned if then personally present
and acting.
(b) Each Attorney-in Fact may act alone in exercising the
rights and powers conferred on the Attorneys-in Fact by this Agreement,
and the act of any Attorney-in-Fact shall be considered the act of the
Attorneys-in-Fact. Each Attorney-in-Fact is hereby empowered to
determine, in his sole and absolute discretion, the time or times when,
the purposes for which, and the manner in which, any power herein
conferred upon the Attorney-in-Fact shall be exercised.
(c) The Custodian, the Company and the underwriters and all
other persons dealing with the Attorneys-in-Fact as such may rely upon
any writing believed in good faith to be signed by one or more of the
Attorneys-in-Fact.
(d) The Attorneys-in-Fact shall not receive any compensation
for their services rendered hereunder.
4. Each Holder hereby agrees (a) not to sell, transfer or otherwise
dispose of their ordinary shares remaining after the secondary offering without
the prior written consent of the underwriters for a period not to exceed 90 days
after the commencement of the offering (the length of such period to be
negotiated by the Company and the Underwriters) and (b) to execute a "lock-up"
agreement to that effect which will allow the underwriters to provide for an
orderly distribution of ordinary shares in the proposed offering and for an
orderly market thereafter.
5. This Agreement shall be governed by the laws of Israel, with any
terms relating to United States securities laws to be interpreted in accordance
with the federal laws of the United States of America. Any dispute arising,
under or with respect to this Agreement shall be resolved exclusively in the
appropriate court in Tel-Aviv, Israel.
6. This Agreement and the Rights Agreement shall constitute the entire
agreement among the parties regarding the transactions contemplated herein and
therein, and may not be
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amended except in writing. Except as set forth herein, all of the terms of the
Rights Agreement shall remain unchanged and be in full force and effect and are
hereby ratified and confirmed in all respects. In the event of any conflict
between the provisions of this Agreement and the Rights Agreement, the
provisions of this Agreement shall control. On and after the date hereof, each
reference in the Rights Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the Rights
Agreement as amended hereby.
7. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to
Amended and Restated Registration Rights Agreement as of the date first above
written.
COMMTOUCH SOFTWARE LTD.
By: ___________________________
Name: _________________________
Title: ________________________
PREFERRED SHAREHOLDERS:
By: ___________________________
Name: _________________________
Company: ______________________
Title: ________________________
By: ___________________________
Name: _________________________
Company: ______________________
Title: ________________________
By: ___________________________
Name: _________________________
Company: ______________________
Title: ________________________
By: ___________________________
Name: _________________________
Company: ______________________
Title: ________________________
By: ___________________________
Name: _________________________
Company: ______________________
Title: ________________________
By: ___________________________
Name: _________________________
Company: ______________________
Title: ________________________
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EXHIBIT A
LIST OF SHAREHOLDERS
Preferred Shareholders
All parties who are parties to the Registration Rights Agreement who
request participation in the secondary offering.
Ordinary Shareholders
Any of the following who request participation in the secondary offering:
1. Xxxxxx Xxxxxx
2. Xxxx Xxx
3. Xxxxxx Xxxxxxx
4. Xxxxx Xxxxxxx
5. Xxxxx Xxxxxxxx
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