EXHIBIT 4.1H
STOCK REPURCHASE AGREEMENT
This STOCK REPURCHASE AGREEMENT (this "Agreement") is entered into by and
between VocalTec Communications Ltd., an Israeli limited liability corporation
(the "Company"), and Cisco Systems International B.V., a Dutch Private Company
with Limited Liability (the "Seller"), dated as of February 27, 2009.
WHEREAS, the Seller has offered and desires to sell 1,673,549 ordinary
shares of the Company, par value NIS 0.13 per share, owned of record and
beneficially by the Seller (the "Shares"), on the terms and conditions set forth
below; and
WHEREAS, the Company desires to purchase the Shares and is willing to do so
on the terms and conditions set forth below.
NOW, THEREFORE, based on the parties' representations and in consideration
of the mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
1.1. PURCHASE PRICE. The Company shall pay the Seller $0.40 per share, in
an aggregate amount equal to six hundred sixty-nine thousand, four
hundred nineteen Dollars and 60/100 ($669,419.60) as the aggregate
purchase price for the Shares (the "Purchase Price"). Upon payment of
the Purchase Price, the Seller shall no longer be entitled to any of
the benefits of ownership of the Shares, including voting rights
relating thereto.
1.2. STOCK TRANSFER. Seller has delivered stock certificate number A10027,
representing the Shares, and a share transfer deed in the form
attached hereto as Exhibit A, properly endorsed for transfer to the
Company, evidencing the sale, transfer and assignment of the Shares to
the Company. Upon payment of the Purchase Price, the certificate
representing the Shares shall be cancelled and the Shares will become
dormant shares in accordance with the Israeli Companies Law 5759-1999
(the "Companies Law"). In connection therewith, the Seller hereby
irrevocably constitutes and appoints any officer of the Company and
its counsel as Seller's attorney to transfer the Shares on the record
books of the Company and/or its transfer agent with full power of
substitution in the premises.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
Seller represents and warrants to the Company as follows:
2.1. OWNERSHIP. Seller is the sole beneficial owner and record holder of
the Shares, has good and valid title to all of the Shares, free and
clear of any lien, pledge, hypothecation, restriction, third party
right or encumbrance ("Liens"). Seller has the full right and power to
sell and transfer to the Company the Shares and the sale of the Shares
provided in this Agreement will vest in the Company good, valid and
marketable title to the Shares, free and clear of any Liens.
2.2. DUE EXECUTION AND ENFORCEABILITY. Seller is duly organized, validly
existing and in good standing under the laws of the Netherlands.
Seller has full power and authority, corporate or otherwise, to enter
into and to perform this Agreement in accordance with its terms and
all other instruments, certificates and agreements delivered or
required to be delivered by Seller (the "TRANSACTION DOCUMENTS"). This
Agreement and each other Transaction Document have been duly executed
and delivered by Seller, and each constitutes the legal, valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms.
2.3. NONCONTRAVENTION. Execution and delivery by the Seller of the
Transaction Documents and consummation of the transactions
contemplated hereby do not and will not conflict with or otherwise be
in violation or breach of any agreement or obligation to which Seller
is a party, any of the Seller's charter documents or any law, rule,
regulation or court order applicable to Seller.
2.4. NO APPROVALS REQUIRED. No consent or order of, with or to any third
party (including but not limited to any governmental authority) is
required to be obtained or made by or with respect to the Seller in
connection with the execution, delivery and performance by the Seller
of any Transaction Document, except any filing under applicable
securities laws. No action on the part of Seller's shareholders is
required in connection with the execution, delivery and performance by
the Seller of this Agreement in accordance with its terms. Pursuant to
the Waiver Agreement, attached hereto as Exhibit B, Cisco has obtained
an irrevocable waiver of Cisco's voting obligations with respect to
the appointment of directors under that certain Shareholders
Agreement, dated November 2005, by and among Xxxx Xxxxxxx, Xxxx
Xxxxxx, Xxxxx Radian, SilkRoad LLC, Saycom LLC, Trade Enterprises Inc.
and HarborVest International Private Equity Partners III - Direct Fund
L.P. (the "Waiving Parties"), Seller and those additional parties who
are signatories to such Shareholders Agreement. Prior to and as a
condition for the execution of this Agreement, Seller has provided to
the Company copies of the foregoing Waiver Agreement, signed by each
of the Waiving Parties. Without limiting the foregoing, as of the date
hereof Seller is not party to any agreement with, nor under any
obligation towards any, third party with respect to the manner in
which Seller votes its shares of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Seller as follows:
3.1. DUE EXECUTION AND ENFORCEABILITY. The Company is duly organized,
validly existing and in good standing under the laws of the state of
Israel. The Company has full power and authority, corporate or
otherwise, to enter into and to perform this Agreement in accordance
with its terms and all other Transaction Documents. This Agreement and
each other Transaction Document have been duly executed and delivered
by Company, and each constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
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3.2. NONCONTRAVENTION. Execution and delivery by the Company of the
Transaction Documents and consummation of the transactions
contemplated hereby do not and will not conflict with or otherwise be
in violation or breach of any agreement or obligation to which the
Company is a party, any of the Company's charter documents or any law,
rule, regulation or court order applicable to the Company.
3.3. NO APPROVALS REQUIRED. No consent or order of, with or to any third
party (including but not limited to any governmental authority) is
required to be obtained or made by or with respect to the Company in
connection with the execution, delivery and performance by the Company
of any Transaction Document, except any filing under applicable
securities laws. No action on the part of the Company's shareholders
is required in connection with the execution, delivery and performance
by the Company of this Agreement in accordance with its terms.
4. RELEASE OF CLAIMS.
In exchange for the payments and deliveries described herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, (i) Seller hereby agrees that Seller and Seller's successors
and assigns (collectively and individually and on behalf of their
respective stockholders, the "Seller Releasor"), absolutely and
unconditionally hereby release, remise, indemnify, hold harmless and
forever discharge the Company, its successors and assigns, as well as its
and its successors' and assigns' current and former subsidiaries and
affiliates and their respective directors, stockholders, officers,
employees, attorneys, representatives, and/or agents of every nature
(collectively and individually, the "Seller Releasees"), from any and all
"Claims" that the Seller Releasor has, may have or has had against the
Seller Releasees and (ii) the Company hereby agrees that the Company and
the Company's successors and assigns (collectively and individually and on
behalf of their respective stockholders, the "Company Releasor"),
absolutely and unconditionally hereby release, remise, indemnify, hold
harmless and forever discharge the Seller, its successors and assigns, as
well as its and its successors' and assigns' current and former
subsidiaries and affiliates and their respective directors, stockholders,
officers, employees, attorneys, representatives, and/or agents of every
nature (collectively and individually, the "Company Releasees"), from any
and all Claims that the Company Releasor has, may have or has had against
the Company Releasees. For purposes of this Agreement, "Claims" shall mean
any and all actions or causes of action, suits, claims, complaints,
contracts, liabilities, obligations, agreements, promises, debts, damages,
judgments, rights and demands, whether existing or contingent, known or
unknown, in law or in equity, in each case arising out of or in connection
with (i) Seller's ownership of the Shares and/or (ii) any federal, state or
local law, constitution or regulation regarding stock, stock options,
equity, ownership interests and/or securities, relating to Seller's
ownership of the Shares.
5. MISCELLANEOUS.
5.1. SEVERABILITY. All representations, warranties and covenants, wherever
in this Agreement contained, shall survive the date hereof.
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5.2. SUCCESSORS AND ASSIGNS. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable
by the respective heirs, successors and assigns of Seller and the
Company. Neither party may assign any such rights, without the prior
written consent of the other party. Notwithstanding any such
assignment, the original signatories hereto shall continue to be
bound.
5.3. FURTHER ASSURANCES. The parties hereto agree to execute such further
instruments and to take such further action as may be reasonably
necessary to carry out the intent of this Agreement.
5.4. GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of Israel without regard to the
conflicts of laws rules thereof. Any dispute under or relating to this
agreement shall be submitted to the applicable court in the City of
Tel Aviv, Israel.
5.5. TAXES AND EXPENSES. Each Party shall pay all taxes imposed on it and
its own expenses (including fees of its financial advisors, attorneys
and accountants) arising out of or in connection with the negotiation
of this Agreement, the performance of its respective obligations
hereunder and thereunder, and the consummation of the transactions
contemplated by this Agreement (whether consummated or not).
5.6. ENTIRE AGREEMENT. This Agreement comprises the entire agreement of the
parties with respect to the subject matter hereof, and no
representations or warranties have been made by Seller or the Company
not contained herein, and no statements, written or oral, made by one
of the parties to the other (except as contained or provided for
herein) shall be deemed to have been relied upon by the other.
5.7. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
5.8. NOTICES. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be
in writing and shall be deemed given: (i) on the date established by
the sender as having been delivered personally; (ii) on the date
delivered by a private courier as established by the sender by
evidence obtained from the courier; or (iii) on the date sent by
facsimile, with confirmation of transmission, if sent during normal
business hours of the recipient, if not, then on the next business
day. Such communications, to be valid, must be addressed as follows:
If to Seller, to:
Cisco Systems International X.X.
Xxxxxxxxxxxxxx 00-00
0000 XX Xxxxxxxxx
The Netherlands
Attn: General Counsel
Facsimile: x00.00.000.0000
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With a copy to:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000 U.S.A.
Attn: General Counsel
Facsimile: x0.000.000.0000
If to the Company, to:
VocalTec Communications Ltd.
00 Xxxxxxx Xx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxx
Attn: Ido Gur, CEO.
Facsimile: 000-0-0000000
With a copy to:
Meitar, Liquornik, Geva & Leshem, Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxx-Xxx 00000, Xxxxxx
Attn: Xxxx Xxxxx, Adv.
Facsimile: 972-3-610-3687
or to such other address or to the attention of such person or persons
as the recipient party has specified by prior written notice to the
sending party (or in the case of counsel, to such other readily
ascertainable business address as such counsel may hereafter
maintain). If more than one method for sending notice as set forth
above is used, the earliest notice date established as set forth above
shall control.
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5.9. CONFIDENTIALITY. Each of the parties agrees to keep this Agreement and
the Exhibits thereof, and any information obtained by it pursuant
thereto and identified as confidential in writing at the time of
entering into, confidential, and agrees that it will only use such
information in connection with the transactions contemplated by this
Agreement and the Exhibits thereof and not disclose any of such
information other than (a) to the employees, representatives,
directors, attorneys, auditors, agents or affiliates of such party
with a need to know and who are advised of the confidential nature of
such information, (b) to the extent such information presently is or
hereafter becomes available to such party on a non-confidential basis
and without a breach of a similar confidentiality obligation from any
source or such information that is in the public domain at the time of
disclosure through no fault of such Party, and (c) to the extent
disclosure is required by law (including applicable securities laws
and stock exchange reporting obligations), regulation, subpoena or
judicial order or process.
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Accepted and agreed to as of the date first above written by:
COMPANY:
VOCALTEC COMMUNICATIONS LTD.
By: _______________________
Name:
Title:
SELLER:
CISCO SYSTEMS INTERNATIONAL B.V.
By: _______________________
Name:
Title:
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