EXHIBIT 4.2.2
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 29 day of February, 2000 by
and among Commtouch Software Ltd., an Israeli company (the "Company") having its
principal executive offices at 0 Xxxxxxx Xxxxxx, Poleg Industrial Park, X.X. Xxx
0000, Xxxxxxx 00000, Xxxxxx, 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
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 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 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 shares remaining to be sold.
2. Each Holder shall notify the Company 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 Xxxxx Xxxxxx (the "Attorney-in-Fact"), 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,
additional 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 Attorney-in-Fact, including the
making of all representation 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 Attorney-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
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 U.S. 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 Attorney-in-Fact in their
discretion, including, if necessary, the endorsement (if blank
or otherwise) on behalf of the undersigned of the certificate
of 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) The Custodian, the Company and the underwriters
and all other persons dealing with the Attorney-in-Fact as such may
rely upon any writing believed in good faith to be signed by the
Attorney-in-Fact.
(c) The Attorney-in-Fact shall not receive any
compensation for his 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 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.
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: _______________________
SHAREHOLDERS:
By: __________________________
Name: ________________________
Company: _____________________
Title: _______________________
By: __________________________
Name: ________________________
Company: _____________________
Title: _______________________
By: __________________________
Name: ________________________
Company: _____________________
Title: _______________________
By: __________________________
Name: ________________________
Company: _____________________
Title: _______________________
By: __________________________
Name: ________________________
Company: _____________________
Title: _______________________
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
1. Xxxxxx Xxxxxxx
2. Xxxxx Xxxxxxxx
3. Xxxxx Xxxxxxx