EXHIBIT 2
SHARE PURCHASE AND SALE AGREEMENT
THIS SHARE PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is entered into on
this 3rd day of September, 2009 by and among ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ("SELLER"); RONEX
HOLDINGS L.P., a limited liability partnership incorporated under the laws of
the State of Israel, ("RONEX"); and the purchasers listed on the signature pages
attached hereto (collectively, "ALPHA", and together with Ronex, the
"PURCHASERS").
WITNESSETH:
WHEREAS, Seller is the sole owner, beneficial and of record, of 1,033,479
Ordinary Shares, par value NIS 1.00 each, of Retalix Ltd., a company
incorporated under the laws of the State of Israel (the "PURCHASED SHARES", the
"ORDINARY SHARES" and the "COMPANY", respectively);
WHEREAS, concurrently with the execution of this Agreement, (i) Alpha and
the Company are entering into that certain Share Purchase Agreement, providing
for the purchase by Alpha of Ordinary Shares and certain warrants to purchase
Ordinary Shares from the Company (the "PIPE AGREEMENT"), (ii) Ronex and Mr.
▇▇▇▇▇ ▇▇▇▇▇▇ are entering into that certain Share Purchase and Sale Agreement
providing for the purchase by Ronex of the entire issued and outstanding
Ordinary Shares held by ▇▇. ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ SPA"); (iii) the Purchasers are
entering into that certain Shareholders Agreement (the "SHAREHOLDERS
AGREEMENT"); and (iv) the Seller, in his capacity as the Chief Executive Officer
of the Company, and the Company are entering into that certain Separation
Agreement, upon which such parties shall separate (the "SEPARATION AGREEMENT",
and together with the agreements indicated above and this Agreement, the "SERIES
AGREEMENTS"); all of which agreements and transactions contemplated hereby and
thereby being conditional upon each other and, subject to their terms, shall be
consummated if all are consummated simultaneously;
WHEREAS, the Seller wishes to sell, transfer and assign to the Purchasers,
and each Purchaser wishes to purchase, assume and receive from Seller, severally
and not jointly, the Purchased Shares for the consideration set forth herein,
subject to the terms and conditions set forth in this Agreement; and
WHEREAS, as a material inducement to the willingness of Purchasers to enter
into this Agreement and the Series Agreements to which each is a party, and
consummate the transactions hereby and thereby, the Seller has agreed to
undertake certain non-competition and non-solicitation obligations and other
restrictions on the holding and voting of securities of the Company, all as
further set forth herein; and
WHEREAS, to secure the actions to be taken by the parties at the Closing,
concurrently with the execution of this Agreement, the parties are entering into
an Escrow Agreement (the "ESCROW AGREEMENT") providing for the deposit by each
party no later than the Pre-Closing (as defined below) its respective
deliverables, as set forth herein, with Clal Finance Trustees 2007 Ltd.
(together with its successors and assigns, the "ESCROW AGENT"), to be held
pursuant to the Escrow Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. PURCHASE AND SALE OF THE PURCHASED SHARES.
1.1. At the Closing (as defined below) and subject to the terms and
conditions of this Agreement, the Seller shall sell, convey, transfer,
assign and deliver to each of the Purchasers, and each Purchaser
shall, severally and not jointly, purchase and acquire from the
Seller, free and clear of any Encumbrance, such portion of Purchased
Shares as set forth below, in consideration for a gross price per
Purchased Share of $12.00, less applicable deductions and withholding
as set forth in Section 1.2. At the Closing, the Purchasers shall
purchase, severally and not jointly, and the Seller shall sell, all
(and not part of the) Purchased Shares. The purchase and sale of
Alpha's portion of the Purchased Shares shall be made according to an
internal allocation agreed among the persons comprising of Alpha, and
as directed in writing prior to the Closing persons comprising of
Alpha, provided that if such allocation is not provided prior to the
Closing, the persons comprising of Alpha shall purchase the Purchased
Shares, severally and not jointly, in equal shares.
Portion of Aggregate
Purchased Shares Purchase Price
---------- --------------------------------- -------------------------
Alpha 566,740 $ 6,800,880.00
---------- --------------------------------- -------------------------
Ronex 466,739 $ 5,600,868.00
---------- --------------------------------- -------------------------
TOTAL 1,033,479 $ 12,401,748.00
---------- --------------------------------- -------------------------
1.2. All capital gain taxes due as a result of the sale and purchase of the
Purchased Shares hereunder shall be the sole liability of the Seller.
Unless the Seller provides to the Purchasers a valid certificate from
the Israeli Tax Authorities providing full exemption from withholding
tax (or a lower rate of withholding) or a tax determination from the
Israeli Tax Authorities indicating otherwise prior to the Closing
Date, then each Purchaser shall be entitled to deduct and withhold
from such payment such amount as required to be deducted and withheld
under any applicable law (which is 20% of the gross consideration in
reliance on the representations and warranties of the Seller contained
herein). To the extent that amounts are so withheld, such withheld
amounts shall be treated for all purposes of this Agreement as having
been delivered and paid to the Seller in respect of which such
deduction and withholding was made.
1.3. In the event of any stock split (bonus shares), consolidation, share
dividend (including any dividend or distribution of securities
convertible into share capital), reorganization, reclassification,
combination, recapitalization or other like change with respect to the
Purchased Shares occurring after the date hereof and prior to the
Closing, all references in this Agreement to specified price per
share, numbers of shares and all calculations provided for that are
based upon numbers affected thereby, shall be equitably adjusted to
the extent necessary to provide the parties the same economic effect
as contemplated by this Agreement prior to such event.
2. PRE-CLOSING.
2.1. Unless this Agreement is earlier terminated pursuant to Section 8
hereof, as promptly as practicable, but in no event later than the
Pre-Closing Date under the PIPE Agreement, and subject to the
satisfaction of the conditions set forth in Section 2.2 (other than
the condition set forth in Section 2.2.3 that by its nature may be
satisfied at the Pre-Closing, but subject to the fulfillment or waiver
of that conditions), any of which may be waived by the party(ies) for
which benefit they are provided, the parties shall deliver to the
Escrow Agent the following deliverables to be held according to the
terms of the Escrow Agreement (the "PRE-CLOSING" and the date upon
which the Pre-Closing actually occurs shall be referred to herein as
the "PRE-CLOSING DATE"). All actions at the Pre-Closing and all
transactions occurring at the Pre-Closing shall be deemed to take
place simultaneously and no action shall be deemed to have been taken,
no transactions shall be deemed to have been completed and no document
delivered until all such actions, transactions and documents have been
taken, completed and all required documents delivered.
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2.1.1. The Seller shall deposit the deliverables set forth in Sections
3.2.1 (SHARE TRANSFER DEED), 3.2.2 (IRREVOCABLE TRANSFER
INSTRUCTIONS) and 3.2.3 (SELLER'S CERTIFICATE) (in each case, if
relevant, with the date and the number of Purchased Shares left
blank); and
2.1.2. The Purchasers shall deposit the deliverables set forth in
Section 3.3.1 (PURCHASE PRICE).
2.2. The respective obligations of the Seller and each of the Purchasers to
effect the Pre-Closing are subject to the satisfaction at or prior to
the Pre-Closing Date of each of the following conditions:
2.2.1. (i) The representations and warranties of the Seller in this
Agreement shall have been true and correct in all material
respects on the date hereof and as of the Pre-Closing Date with
the same effect as if made at and as of the Pre-Closing Date, and
(ii) the Seller shall have performed and complied in all material
respects with all covenants and obligations under this Agreement
required to be performed and complied with by the Seller at or
prior to the Pre-Closing Date.
2.2.2. (i) The representations and warranties of the Purchasers in
this Agreement shall have been true and correct in all material
respects as of the date hereof and on and as of the Pre-Closing
Date with the same effect as if made at and as of the Pre-Closing
Date, and (ii) the Purchasers shall have performed and complied
in all material respects with all covenants and obligations under
this Agreement required to be performed and complied with by the
Purchasers at or prior to the Pre-Closing Date.
2.2.3. All conditions set forth in Sections 6.1, 6.2 and 6.3 hereof
are satisfied or waived (to the extent permitted hereunder), as
if the Closing would have occurred on such date, except that (a)
the deliverables set forth in Sections 3.2.1 (SHARE TRANSFER
DEED), 3.2.2 (IRREVOCABLE TRANSFER INSTRUCTIONS), 3.2.3 (SELLER'S
CERTIFICATE) and 3.3.1 (PURCHASE PRICE), shall be deposited with
and held in escrow by the Escrow Agent as set forth in Section
2.1.
2.2.4. The PIPE Agreement shall be in full force and effect, shall not
have been terminated, revoked or amended and all actions required
to be taken or satisfied at the Pre-Closing thereunder in order
to effect it simultaneously with the Pre-Closing hereunder shall
have been duly taken, satisfied or waived in accordance with
their respective terms.
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2.2.5. The ▇▇▇▇▇▇ SPA shall be in full force and effect, shall not
have been terminated, revoked or amended and all actions required
to be taken or satisfied at the Pre-Closing thereunder in order
to effect it simultaneously with the Pre-Closing hereunder shall
have been duly taken, satisfied or waived in accordance with
their respective terms.
2.2.6. The Separation Agreement shall have been authorized by all
necessary corporate action of the Company, shall not have been
terminated, revoked or amended without the consent of the Seller.
2.2.7. The spousal consent to entering into this Agreement and
consummating the transactions contemplated hereby, including,
without limitation, the transfer and sale of Purchased Shares to
the Purchasers pursuant to the terms hereof, validly executed by
the spouse of the Seller, and delivered by the Seller to the
Purchasers concurrently with the signing of this Agreement, shall
be in full force and effect.
3. CLOSING.
3.1. CLOSING; CLOSING DATE. Unless this Agreement is earlier terminated
pursuant to Section 8 hereof, the consummation of the sale by the
Seller and purchase by the Purchasers of the Purchased Shares free and
clear of any Encumbrances (the "CLOSING") will take place at the
offices of Meitar, Liquornik, Geva & Leshem, Brandwein, Law Offices,
16 Abba Hillel Road, Ramat Gan, Israel, at such time designated as the
"Closing Date" under the PIPE Agreement, which in any event shall not
occur prior to the satisfaction (or waiver) of the conditions set
forth in Section 6 herein and subject to the satisfaction (or waiver)
of such conditions. The date upon which the Closing hereunder actually
occurs shall be referred to herein as the "CLOSING DATE". All actions
at the Closing and all transactions occurring at the Closing shall be
deemed to take place simultaneously and no transactions shall be
deemed to have been completed or any document delivered until all such
transactions have been completed and all required documents delivered.
3.2. SELLER'S DELIVERIES AT THE CLOSING. At or prior to the Closing, the
Seller shall deliver, or cause to be delivered or released from
escrow, as the case may be, to each Purchaser the following documents:
3.2.1. Share transfer deed, duly executed by the Seller, transferring
to each of the Purchasers the respective portion of the Purchased
Shares purchased by such Purchaser, in the form attached hereto
as EXHIBIT 3.2.1;
3.2.2. Duly executed irrevocable letter of instructions from the
Seller to the broker holding the Purchased Shares or to the
holder registered as holding the Purchased Shares with any
registration company or otherwise, instructing the transfer of
the Purchased Shares to such Purchaser at the Closing;
3.2.3. A certificate executed by the Seller certifying that: (i) the
representations and warranties of the Seller hereunder are true
and correct as of the date hereof and as of the Closing Date as
if made on such date; and (ii) all covenants required by the
terms hereof to be performed by the Seller on or prior to the
Closing Date have been so performed; and
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3.2.4. Spousal consent to entering into this Agreement and
consummating the transactions contemplated hereby, including,
without limitation, the transfer and sale of Purchased Shares to
the Purchasers pursuant to the terms hereof, validly executed by
the spouse of the Seller.
3.3. PURCHASERS' DELIVERIES AT THE CLOSING. At or prior to the Closing,
each of the Purchasers shall deliver, or cause to be delivered or
released from escrow, as the case may be, to the Seller the following:
3.3.1. Such Purchaser's portion of the Aggregate Purchase Price set
forth in Section 1.1 above, less applicable deductions and
withholding as set forth in Section 1.2, by wire instructions
based on written wire instructions provided by the Seller prior
to the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller hereby represents and
warrants to each of the Purchasers as follows:
4.1. Seller has the full legal capacity, power and authority to execute and
deliver this Agreement and any agreement, document and instrument
provided for or contemplated herein (collectively, the "TRANSACTION
DOCUMENTS") and to perform the transaction contemplated hereby and
thereby. The execution, delivery and performance by the Seller of each
of the Transaction Documents has been, or shall be when entered into,
duly executed and delivered by Seller. The Transaction Documents
constitute or will, when executed and delivered by all parties
thereto, constitute Seller's valid and legally binding obligation
enforceable against him in accordance with its respective terms,
except as such enforceability may be limited by principles of public
policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors.
4.2. The Seller has good and valid title to, and is the sole lawful owner,
beneficially and of record, of all of the Purchased Shares, which
constitute the entire issued and outstanding Ordinary Shares held by
the Seller, free and clear of any and all Encumbrances. The Seller has
sole voting power and sole power to issue instructions with respect to
the matters set forth in this Agreement, sole power of disposition and
sole power to agree to all of the matters set forth in this Agreement.
The Purchased Shares are not "ordinary income" of the Seller. Upon the
sale, delivery and assignment of, and payment for, the Purchased
Shares, as provided herein, Seller shall convey to each Purchaser, and
each Purchaser shall acquire, good and marketable title to the
respective Purchased Shares purchased by such Purchaser, free and
clear of any and all Encumbrances, except for any Encumbrances created
by such Purchaser with respect to the Purchased Shares). "ENCUMBRANCE"
shall mean any lien, pledge, hypothecation, charge, options, proxies
(other than pursuant to this Agreement), security interest,
encumbrance, right of first refusal, preemptive right or restriction
or rights of third parties of any nature (including any spousal
community property rights, any restriction on the voting, transfer,
receipt of any income derived from, the possession of any security, or
the exercise or transfer of any other attribute of ownership of a
security), except for restrictions under applicable law. The Seller
has not sold, pledged or otherwise transferred (whether by operation
of law or otherwise, including, without limitation, transfers pursuant
to any decree of divorce or separate maintenance, any property
settlement, any separation agreement or any other agreement with a
spouse) any interests in the Purchased Shares to any person.
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4.3. Except as set forth in the Schedule 13D under the U.S. Securities
Exchange Act of 1934 filed by the Shareholders on February 12, 2009,
the Purchased Shares, those certain options to purchase Ordinary
Shares listed in the Separation Agreement (the "OPTIONS") and 2,000
Ordinary Shares (the "ADDITIONAL SHARES"), constitute all of the
shares or other securities over which any voting or dispositive power
is held by the Seller and Seller does not own, beneficially or
otherwise, directly or indirectly, any other share capital of, or
other securities, equity or ownership interest in the Company
(including, without limitation, (i) any outstanding options, warrants,
purchase rights, subscription rights, conversion rights, exchange
rights or other securities of the Company, or (ii) outstanding stock
appreciation rights, phantom stock or similar rights). The Purchased
Shares are not subject to any shareholders agreement, voting
agreements, proxies, trusts or other agreement or understandings
relating to the voting or disposition thereof, which would continue to
be binding upon the Purchasers after the Closing. Any proxies
heretofore given in respect of the Purchased Shares are not
irrevocable, and any such proxies are or shall be revoked by the
Closing. There are no transfer restrictions with respect to the
Purchased Shares, except transfer restrictions under applicable law.
4.4. Other than filing a Schedule 13D under the U.S. Securities Exchange
Act of 1934, the he execution and delivery by the Seller of the
Transaction Documents do not, and the consummation of the transactions
contemplated hereby and thereby will not, require Seller to obtain or
deliver any notice, consent, waiver, approval, order or authorization
or permit of, or registration, declaration or filing with, or
notification to, any court, administrative agency, commission,
governmental or regulatory authority or any other person, except as
set forth in SCHEDULE 6.1.2.
4.5. The execution and delivery by the Seller of the Transaction Documents
do not, and the consummation of the transactions contemplated hereby
and thereby will not, conflict with, or result in any violation of, or
default under (with or without notice or lapse of time, or both) or
give rise to a right of termination, cancellation, modification or
acceleration of any obligation or loss of any benefit, under any
agreement, law, rule, regulation, order, judgment or decree applicable
to the Seller or that apply to the Purchased Shares or by which the
Purchased Shares are bound.
4.6. There is no suit, action, decrees, orders, judgments, legal proceeding
of any nature or, to Seller's knowledge, governmental investigation,
pending, or, to Seller's knowledge, threatened against him, that seeks
to prevent Seller from executing or delivering the Transaction
Documents or from performing the transactions contemplated hereby and
thereby, or that apply to the Purchased Shares or by which the
Purchased Shares are bound.
4.7. No agent, broker, finder, investment banker, person or firm acting in
a similar capacity on Seller's behalf or under his authority is, nor
will it be, entitled to any brokerage or finder's fee or any other
commission or similar fee, directly or indirectly, in connection with
the origin, negotiation or execution of this Agreement or in
connection with any of the transactions contemplated hereby, which
would be required to be paid by any of the Purchasers or the Company.
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5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby represents and warrants, severally and not jointly,
with respect solely to each such Purchaser, as follows:
5.1. Such Purchaser is duly incorporated and validly existing under the
laws of its jurisdiction of incorporation or formation (in case of a
corporate entity).
5.2. Such Purchaser has the requisite corporate power (in case of a
corporate entity) or legal capacity (in case an individual) and
authority to enter into the Transaction Documents to which such
Purchaser is a party and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of each of the
Transaction Documents to which such Purchaser is a party and the
consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of
such Purchaser (in case of a corporate entity). The Transaction
Documents and Series Agreements to which such Purchaser is a party
have been duly executed and delivered by such Purchaser and, when
executed and delivered by all parties thereto, constitute its valid
and binding obligations, enforceable against such Purchaser in
accordance with their terms, except as such enforceability may be
limited by principles of public policy and subject to the laws of
general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
5.3. The execution and delivery by such Purchaser of the Transaction
Documents do not, and the consummation of the transactions
contemplated hereby and thereby will not, require such Purchaser to
obtain or deliver any notice, consent, waiver, approval, order or
authorization or permit of, or registration, declaration or filing
with, or notification to any court, administrative agency, commission,
governmental or regulatory authority or any other person, that has not
been, or will not be, obtained by the Closing.
5.4. The execution and delivery of the Transaction Documents do not, and
the consummation of the transactions contemplated hereby and thereby
will not, conflict with, or result in any violation of or default
under (with or without notice or lapse of time, or both) or give rise
to a right of termination, cancellation, modification or acceleration
of any obligation or loss of any benefit under any provision of such
Purchaser's incorporation or formation documents; or any agreement,
law, rule, regulation, order, judgment or decree applicable to such
Purchaser.
5.5. There is no suit, action, decrees, orders, judgments, legal proceeding
of any nature or to such Purchaser's knowledge, governmental
investigation, pending, or, to such Purchaser's knowledge, threatened
against such Purchaser, that seeks to prevent such Purchaser from
executing, delivering or performing the Transaction Documents and the
transactions contemplated hereby and thereby.
5.6. No agent, broker, finder, investment banker, person or firm acting in
a similar capacity on such Purchaser's behalf or under such
Purchaser's authority is, nor will it be, entitled to any brokerage or
finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the origin, negotiation or execution of
this Agreement or in connection with any of the transactions
contemplated hereby, which would be required to be paid by any of the
Seller or the other Purchaser.
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5.7. Such Purchaser has and will have as of the Closing sufficient funds
available to them to its portion of the Aggregate Purchase Price.
5.8. It is acknowledging that except for the representations specifically
set forth in Section 3, the Purchased Shares are sold "AS IS".
5.9. Such Purchaser is acquiring the Purchased Shares for its own account
with no present intention of distributing any of such Purchased Shares
and does not have any current arrangement or understanding with any
other persons regarding the distribution of such securities (this
representation and warranty not limiting the Purchaser's right to sell
or distribute in compliance with the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "SECURITIES
ACT")).
5.10. The Purchaser understands that the Purchased Shares are "restricted
securities" or "control securities" under applicable U.S. federal and
state securities laws and that, pursuant to these laws, the Purchaser
must hold the Purchased Shares indefinitely unless they are registered
with the Securities and Exchange Commission or an exemption from such
registration and qualification requirements is available. The
Purchaser further acknowledges that if an exemption from registration
or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of
sale, the holding period for the Purchased Shares, and on requirements
relating to the Company which are outside of the Purchaser's control.
6. CONDITIONS TO CLOSING.
6.1. CONDITIONS TO CLOSING OF EACH PARTY. The respective obligations of the
Seller and each of the Purchasers to effect the Closing are subject to
the satisfaction at or prior to the Closing Date of each of the
following conditions, any of which may be waived, in writing, by
mutual written instrument of the Seller and each of the Purchasers:
6.1.1. NO ORDER. No court or other governmental authority shall have
enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, executive order, decree, judgment, injunction
or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of preventing,
enjoining, restraining, prohibiting or otherwise making this
Agreement, the consummation of the Closing or the transactions
contemplated hereby illegal.
6.1.2. REGULATORY CONSENTS. All approvals set forth in SCHEDULE 6.1.2
required pursuant to any applicable law or under the authority of
any administrative agency, commission, regulatory or governmental
entity for the consummation of the transactions contemplated
hereby shall have been obtained.
6.2. CONDITIONS TO CLOSING OF THE PURCHASERS. The respective obligations of
each Purchaser to effect the Closing are subject to the satisfaction,
at or prior to the Closing Date, of each of the following conditions,
any of which may be waived, in writing, by such Purchaser:
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6.2.1. REPRESENTATIONS. The representations and warranties of the
Seller in this Agreement shall have been true and correct in all
material respects on the date hereof and as of the Closing Date
with the same effect as if made at and as of the Closing Date.
6.2.2. RECEIPT OF CLOSING DELIVERIES. Each of the agreements,
instruments and other documents required to be delivered by the
Seller under Section 3.2 shall be delivered by Seller at the
Pre-Closing and released from escrow and delivered to the
Purchasers, and shall have been received by them.
6.2.3. EFFECTIVENESS AND SIMULTANEOUS CLOSING OF SERIES TRANSACTIONS.
Each of the Series Agreements and the transactions contemplated
thereby, shall be in full force and effect, shall not have been
terminated, revoked or amended and all actions or conditions
required to be taken or satisfied thereunder in order to effect
the closing thereof simultaneously with the Closing shall have
been duly taken, satisfied or waived in accordance with their
respective terms.
Notwithstanding the aforesaid, if Alpha consummates the PIPE
Agreement, the conditions set forth in this Section 6.2.3 shall
be deemed to have been waived, except if an event giving rise to
termination in accordance with Section 8.1.3.2 or 8.1.3.3 has
occurred.
6.3. CONDITIONS TO CLOSING OF THE SELLER. The obligations of the Seller to
effect the Closing are subject to the satisfaction, at or prior to the
Closing Date, of each of the following conditions, any of which may be
waived, in writing, by Seller:
6.3.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchasers in this Agreement shall have been
true and correct in all material respects as of the date hereof
and on and as of the Closing Date with the same effect as if made
at and as of the Closing Date.
6.3.2. RECEIPT OF CLOSING DELIVERIES. The deliveries to be delivered
by the Purchasers pursuant to Section 3.3 hereof shall have been
delivered by the Purchasers at the Pre-Closing and released from
escrow and delivered to the Seller, and Seller shall have
received the Aggregate Purchase Price from all Purchasers, less
applicable deductions and withholding as set forth in Section
1.2.
6.3.3. SEPARATION AGREEMENT. The Separation Agreement shall be in full
force and effect, shall not have been terminated, revoked or
amended without the consent of the Seller.
7. COVENANTS.
7.1. ADDITIONAL DOCUMENTS AND FURTHER ASSURANCE. Subject to the terms and
conditions of this Agreement and any applicable law, each party
hereto, at the reasonable request of another party hereto, shall
execute and deliver, or cause to be executed and delivered, such other
documents and instruments and do and perform such other actions as may
be necessary or desirable for effecting completely the consummation of
the Transaction Agreements and the transactions contemplated hereby
and thereby.
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7.2. REGULATORY APPROVALS. The Seller and the Purchasers shall use best
efforts to deliver and file, as promptly as practicable after the date
of this Agreement, each notice, report or other document required to
be delivered by such party to, or filed by such party with, any
governmental or regulatory authority, with respect to this Agreement
and the Series Agreements and the transactions contemplated hereby and
thereby. The parties hereto shall use best efforts to obtain, as
promptly as practicable after the date of this Agreement, all consents
and approvals that may be required pursuant to any applicable law
(including under antitrust laws), in connection with the consummation
of the transactions contemplated by this Agreement and the Series
Agreements. Each of the Seller and the Purchasers shall cause all
documents that it is responsible for filing with any governmental or
regulatory authority under this Section 7.2 to comply as to form and
substance in all material respects with the applicable legal
requirements and shall keep each other apprised of the status of any
communications with, and any inquiries or requests for additional
information from, any governmental or regulatory authority and shall
comply promptly with any such inquiry or request.
7.3. NO SALE. Unless this Agreement is terminated pursuant to Section 8
hereof or the PIPE Agreement is terminated in accordance with its
terms, Seller shall not, directly or indirectly, (i) offer for sale
(including short sale), sell, transfer, exchange, tender, pledge,
create any Encumbrance, assign, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, transfer the economic risk of ownership
of, loan or otherwise dispose of, or enter into any contract or
arrangement with respect to, or consent to, or offer any, of the
foregoing, any of the Purchased Shares or any right or interest
therein, to any person, other than pursuant to this Agreement; (ii)
except as contemplated by or permitted by this Agreement, grant any
proxies or powers of attorney, deposit any Purchased Shares into a
voting trust or enter into a voting agreement with respect to any
Purchased Shares; and (iii) take any action that is reasonably
expected to make any representation or warranty of the Seller
contained herein untrue or incorrect or have the effect of preventing
or disabling the Seller from performing the Seller's obligations under
the Transaction Documents. Unless this Agreement is terminated
pursuant to Section 8 hereof, the Seller shall not request that the
Company (or any agent thereof) register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing
any of the Purchased Shares, unless such transfer is permitted by and
made in compliance with this Agreement.
- 10 -
7.4. NO-SOLICITATION; STANDSTILL.
7.4.1. Unless this Agreement or the PIPE Agreement is terminated in
accordance with its respective terms, and other than the Series
Agreements and as contemplated thereby, until the expiration of
four (4) years from the Closing, Seller shall not, and shall
cause persons controlled by him and their respective employees,
officers, directors, agents and other advisors and
representatives in their capacities as such not to, whether
directly or indirectly (whether alone or as part of a group of
persons) (i) solicit, initiate, encourage or induce the making,
submission or announcement of any Other Proposal (as defined
below); (ii) make, or in any way participate, directly or
indirectly, in any Other Proposal or Other Transaction (including
by acquiring beneficial ownership of Ordinary Shares or
securities which are convertible into, exchangeable for or
otherwise exercisable to acquire Ordinary Shares of the Company,
or authorizing or making a tender offer, exchange offer or other
offer or proposal, whether oral or written, to acquire the
beneficial ownership of Ordinary Shares of the Company) (other
than the Options as long as they are not exercised and other than
the Purchased Shares and the Additional Shares if this Agreement
is terminated if this Agreement is terminated in accordance with
Sections 8.1.3.2 or 8.1.3.2 and the PIPE Agreement is
consummated), (iii) engage or otherwise participate in any
discussions or negotiations regarding, or furnish to any person
any non-public information with respect to, or take any other
action to facilitate any inquiries or the making of any proposal
that constitutes or may reasonably be expected to lead to, any
Other Proposal; (iii) respond to or engage in discussions with
any person with respect to any Other Proposal, except as to the
existence of these provisions; or (iv) enter into any letter of
intent or similar document or any agreement or commitment
contemplating or otherwise relating to any Other Transaction (as
defined below). The Seller shall, and shall cause affiliates
controlled by him and their respective employees, officers,
directors, agents and other advisors and representatives in their
capacities as such to, immediately cease all existing activities,
discussions and negotiations with any person conducted heretofore
with respect to any Other Proposal and request the return or
destruction of all confidential information regarding the Company
and its affiliates or pertaining to any Other Proposal provided
to any such person prior to the date hereof pursuant to the terms
of any confidentiality agreement or otherwise. Without limiting
the foregoing, it is understood that any violation of the
restrictions set forth in this Section 7.4 by any affiliates
controlled by Seller, or any of their respective employees,
officers, directors, agents and other advisors and
representatives in their capacities as such shall be deemed to be
a breach of this Section 7.4 by the Seller.
7.4.2. Prior to the Closing and unless this Agreement is terminated in
accordance with its terms, the Seller shall promptly advise the
Purchasers orally and in writing of the receipt by Seller (except
in his capacity as an officer and/or director of the Company) of
an Other Proposal, the material terms and conditions thereof, and
the identity of the person or group making the Other Proposal.
The Seller will keep Alpha informed in all respects of the status
and details (including material amendments or proposed
amendments) thereof.
- 11 -
7.4.3. The Seller hereby irrevocably appoints the Chairman of the
Company's Board of Directors, or any other designee of the
Company, as his sole and exclusive attorney and proxy, with full
power of substitution and resubstitution, to vote and exercise
all voting rights with respect to the number of outstanding
Ordinary Shares held by Seller, together with any affiliate
controlled by him and any group of persons to which Seller or any
such affiliate is a party, exceeding 2.0% of the outstanding
Ordinary Shares of the Company from time to time (the "EXCESS
SHARES"), in the proxy's sole and absolute discretion, on every
annual, general, special, class or adjourned meeting of the
shareholders of the Company (and any adjournment or postponement
thereof) and in every written consent in lieu of such meeting.
The proxy hereunder with respect to the Excess Shares shall
automatically expire on the fourth (4th) anniversary of the
Closing. For the purpose of enforcing this provision, following
the delivery by the Company of notice of any general meeting of
the shareholders in which the Seller, any affiliate controlled by
him or any group of persons to which Seller or any such affiliate
is a party wishes to participate and vote, the Seller shall
promptly notify the Company in writing the number of Ordinary
Shares then held by the Seller, together with any affiliate
controlled by him and any group of persons to which Seller or any
such affiliate is a party, and the proxy granted in this Section
shall apply only to any Excess Shares (if any). The Seller shall
not vote, and shall cause any affiliate controlled by him and any
group of persons to which Seller or any such affiliate is a party
not to vote, any Ordinary Shares held by them unless the Seller
has complied with the preceding sentence.
7.4.4. "OTHER PROPOSAL" shall mean any inquiry, offer or proposal
(other than an inquiry, offer or proposal by Alpha or its
affiliates), oral or written, relating to any Other Transaction.
7.4.5. "OTHER TRANSACTION" shall mean any transaction or series of
transactions, other than the transactions contemplated by the
Series Agreements, involving: (i) any merger, exchange,
consolidation, business combination, plan of arrangement,
issuance of securities, acquisition of securities,
reorganization, recapitalization, takeover offer, tender offer,
exchange offer, purchase, sale (including short sale), transfer,
option, proxies or other transaction (A) in which a person
(including the Seller) or group of persons directly or indirectly
acquires beneficial or record ownership of securities resulting
in beneficially owning 4.0% or more of the outstanding securities
of any class of voting securities or debt securities of the
Company or any material subsidiary thereof (other than the
Options as long as they are not exercised, and other than the
Purchased Shares and the Additional Shares if this Agreement is
terminated accordance with Sections 8.1.3.2 or 8.1.3.2 and the
PIPE Agreement is consummated, subject, however, in each case, to
complying with the provisions of Section 7.4.3); or (B) in which
the Company or any material subsidiary thereof issues securities
resulting in a person or a group of persons beneficially owning
4% or more of the outstanding securities of any class of voting
securities of the Company or any material subsidiary thereof or
debt securities (subject, however, to complying with the
provisions of Section 7.4.3); (ii) any sale, lease, exchange,
transfer, license, acquisition or disposition of any business or
businesses or assets that constitute or account for 5% or more of
the consolidated net revenues, consolidated net income or
consolidated assets (including for this purpose the outstanding
equity securities of the Company's subsidiaries) of the Company
or any material subsidiary thereof (but other than in the
ordinary course of business consistent with past practice); (iii)
"solicitation" of "proxies" to vote (as such terms are used in
the rules under the Securities Exchange Act of 1934
(collectively, as amended, the "EXCHANGE ACT")) with respect to
any Ordinary Shares, calling or seeking to have called a meeting
of shareholders of the Company or execution of any written
consent in lieu of such a meeting, submitting a shareholder
proposal to the Company or a demand that the Company convene a
shareholders meeting, or seeking to advise or influencing any
person or entity with respect to the voting of any voting
securities of the Company; or (iv) seeking control of the
management or the Board of Directors of the Company or policies
of the Company, or any change which results or is reasonably
likely to result in a change in the majority of the persons who
constitute the board of directors of the Company as of the
Closing.
- 12 -
7.5. VOTING UNDERTAKING AND PROXY.
7.5.1. Prior to the Closing and unless this Agreement is terminated in
accordance with its terms, the Seller hereby agrees, at any
annual, extraordinary, or special meeting of the shareholders of
the Company (including without limitation the meeting called to
approve the Series Agreements), and at any postponement(s) or
adjournment(s) thereof, or pursuant to any consent in lieu of a
meeting or otherwise (the "MEETING"), to vote (or cause to be
voted) all Purchased Shares and all of the Ordinary Shares the
Seller now or hereafter owns or controls, whether beneficially or
otherwise held by him (including as a result of exercise of the
options or other securities or rights convertible, exercisable or
exchangeable into Ordinary Shares or otherwise) (collectively,
the "SHARES") in the following manner: (i) in favor of the Series
Agreements and the approval of the terms thereof and each of the
transactions contemplated thereby, and any actions required in
furtherance thereof; (ii) against any action or agreement that
would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement
of the Company or the Seller hereunder or under the Series
Agreements; (iii) except as otherwise expressly agreed to in
writing in advance by Alpha, against any Acquisition Proposal or
Acquisition Transaction (as defined in the PIPE Agreement) and
any Other Proposal or Other Transaction; and (v) any other action
involving the Company or its subsidiaries which is intended, or
could in any manner be expected, to impede, interfere with,
delay, postpone, or adversely affect the Series Agreements and
the transactions contemplated thereby or hereby. Prior to the
Closing and unless this Agreement is terminated in accordance
with its terms, the Seller shall not enter into any agreement or
understanding with any person the effect of which would be
inconsistent with or violative of the provisions and undertakings
referred to in this Section 7.
7.5.2. As promptly as possible, but in no event later than 14 days
prior to the date scheduled for the Meeting, the Seller shall
deliver to Alpha a validly executed and irrevocable proxy, in a
form reasonably requested by Alpha and shall cause any record
holder(s) of the Shares to grant proxy(ies) in substantially
similar form, accompanied by confirmation of ownership for the
Meeting from the bank or other holder with which the Shares are
deposited.
- 13 -
7.5.3. The Seller understands and acknowledges that the Purchasers are
entering into the Series Agreements in reliance upon the Seller's
execution and delivery of this Agreement. The Seller hereby
affirms that the irrevocable proxy set forth in Section 7.5.2 is
given in connection with the execution of the Series Agreements,
and that such irrevocable proxy is given to secure the
performance of the duties of the Seller under this Agreement and
the Series Agreements. The Seller hereby further affirms that
unless this Agreement or the PIPE Agreement is terminated in
accordance with its respective terms, the irrevocable proxy(ies)
pursuant to Section 7.5.2 may under no circumstances be revoked.
7.5.4. The Purchasers understand and acknowledge that the transactions
contemplated herein are an integral part of the transactions
contemplated under the Series Agreements and the performance by
Seller of his obligations hereunder prior to the Closing Date,
including pursuant to Section 7.5, provides the Purchasers with a
significant benefit. Accordingly, the Purchasers undertake not to
consummate the transactions under any of the Series Agreements
unless the Closing for the sale of all Purchased Shares and the
closing under the ▇▇▇▇▇▇ SPA are consummated concurrently, but
subject to the next sentence. The Purchasers further undertake
that the PIPE Agreement shall provide that (i) closing of
transactions contemplated thereunder the is conditioned upon the
Closing hereunder and under the ▇▇▇▇▇▇ SPA, except if an event
giving rise to termination in accordance with Section 8.1.3.2 or
8.1.3.3 has occurred with respect to this Agreement, or similar
events occurred with respect to the ▇▇▇▇▇▇ SPA, and that (ii) the
Seller is a third party beneficiary of such condition.
7.5.5. Without derogating from the provisions of Section 7.3 and to
the extent permitted under applicable law, the provisions of this
Section 7.5 and the obligations hereunder shall attach to the
Purchased Shares and shall be binding upon any person to which
legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation,
the Seller's heirs, guardians, administrators or successors, and
notwithstanding any transfer of the Shares, the transferor shall
remain liable for the performance of all obligations of the
transferor hereunder.
7.6. NON-COMPETE; NON-SOLICITATION OF EMPLOYEES, CUSTOMERS AND SUPPLIERS.
7.6.1. In order to induce Purchasers to purchase the Purchased Shares
hereunder and consummate the transactions under the Series
Agreements, and to protect the Company's sensitive and valuable
proprietary information, property (including, intellectual
property) and technologies, as well as its goodwill and business
plans (the "COMPANY'S MAJOR ASSETS"), to which Seller has been
exposed prior to the date hereof as a result of his involvement
in the Company's business, whether in his capacity as a
shareholder, director, employee or service provider of the
Company, until the earlier of: (i) termination of this Agreement,
or (ii) expiration of four (4) years from the Closing (the "NON
COMPETE PERIOD"), Seller shall not, and shall cause affiliates
controlled by him not to, directly or indirectly:
- 14 -
7.6.1.1. engage, promote, establish, market, become or be
financially interested in, consult with or for, or associate
in a business relationship with, or in any manner become
involved, in any other person, business (or any component
thereof), occupation, work, operation or any other activity,
anywhere in the world, which engages or intends to engage in
the developing, producing, offering, distributing,
licensing, selling or supporting of products or services
similar to, or that competes with the business (or any
component thereof), products and services of the Company and
any of its affiliates, as currently conducted and as
currently proposed by the Company to be conducted by the
Company (a "COMPETING BUSINESS");
7.6.1.2. solicit the services, hire or retain any person employed
or engaged by the Company and/or any of its affiliates as
employees or contractors during the Non-Compete Period, or
otherwise encourage or induce any such employee or
contractor to terminate their engagement with the Company
and/or any of its affiliates by their resignation,
retirement or otherwise or to become an employee,
contractor, consultant or service provider of any person
other than the Company and/or its affiliates. The foregoing
shall not apply to approaches initiated by persons employed
or engaged by the Company and/or any of its affiliates,
including as a response to general solicitation of
employment, at any time after the lapse of 18 months from
the Closing or if Seller was not aware that such persons
were employed or engaged by the Company and had no active
involvement in their hiring;
7.6.1.3. solicit or otherwise encourage or call on any actual or
prospective customer, supplier, distributor, vendor, service
provider or agent of the Company and/or any of its
affiliates prior to the Closing for any Competing Business
or influence, induce or attempt to influence or induce any
customer, supplier, distributor, vendor, service provider or
agent to terminate, reduce or adversely modify any written
or oral agreement, relationship, or course of dealing with
the Company and/or any of its affiliates; and
7.6.1.4. Without limiting the generality of the foregoing,
register or challenge any intellectual property rights
owned, used or otherwise licensed by the Company and/or any
of its subsidiaries.
7.6.2. The Seller acknowledges that the consideration received by him
under this Agreement is paid in consideration, in part, for the
obligations and undertakings under this Section 7.6 and that in
light of the nature of the transactions contemplated hereunder
and under the Series Agreements, the interest that the Purchasers
have in the success of the Company and the critical significance
of the covenants under this Section 7.6 to the Company's business
and to Purchasers' willingness to enter into this Agreement and
the Series Agreements, the covenants under this Section 7.6 are
reasonable and fair under the circumstances.
- 15 -
7.7. CONFIDENTIALITY. The Seller acknowledges that he has had access to,
and became familiar with, certain confidential, non-public,
proprietary information of the Company and its affiliates, including
such documents and information, in any form whatsoever, concerning the
business, operations, financial condition, shareholders, customers,
suppliers and intellectual property of the Company and/or its
affiliates (collectively, "CONFIDENTIAL INFORMATION"), and that such
Confidential Information is a valuable and unique asset of the Company
and is and will remain the exclusive property of the Company.
Therefore, the Seller and any successor or assignee thereof, agrees
and undertakes, and shall cause his affiliates (i) to maintain
securely and hold in strict confidence all Confidential Information
received, acquired or developed by him whether following or prior to
the Closing, (ii) not to disclose to any Person, nor use, whether in
whole or in part, any Confidential Information for any purpose (other
than for and as authorized in writing by the Company). The obligation
of non-disclosure and non-use imposed on Seller hereunder shall not
apply to information that is or becomes generally known to the public
through no wrongful act or breach of Seller or any of his affiliates
and representatives and shall not apply to disclosure to legal
counsels, accountants and other advisors of the Seller and to the
extent required to enforce the provisions of this Agreement.
Notwithstanding the foregoing, the Seller shall not be prohibited from
disclosing such Confidential Information to the extent required by a
court order or applicable law, provided that in either event, the
Seller shall first give prompt prior written notice to the Purchasers
and shall use reasonable efforts to (and cooperate with the Company in
seeking to) seal, redact, or otherwise minimize such disclosure and to
protect the confidentiality of any Confidential Information eventually
disclosed.
7.8. WAIVER AND RELEASE.
7.8.1. In consideration for the amounts payable to the Seller under
this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged,
effective as of and subject to the Closing, the Seller hereby
irrevocably and unconditionally waives, releases, acquits,
indemnifies, holds harmless and forever discharges each of the
Purchasers, the Company and their respective affiliates,
shareholders, officers, directors, employees and agents, and each
of their respective heirs, executors, administrators, successors
and assigns (collectively, the "PURCHASERS RELEASED ENTITIES"),
of and from any and all Claims (as defined below) that the
Seller, or his heirs, executors, administrators, successors or
assigns ever had, now has, or may have against any of the
Purchasers Released Entities, provided, however, that if the
Purchasers shall be in breach of this Agreement in any material
respect, the Seller shall be entitled to rescind the foregoing
release.
- 16 -
7.8.2. In consideration for Seller's representations, warranties and
undertaking hereunder, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
effective as of and subject to the Closing, each of the
Purchasers, severally and not jointly, and solely in their
capacity as shareholders, hereby irrevocably and unconditionally
waives, releases, acquits, indemnifies, holds harmless and
forever discharges the Seller and his respective affiliates, and
each of their respective heirs, executors, administrators,
successors and assigns (collectively, the "SELLER RELEASED
ENTITIES"), of and from any and all Claims that the Purchasers,
or their heirs, executors, administrators, successors or assigns
ever had, now has, or may have against any of the Seller Released
Entities, provided, however, that if the Seller shall be in
breach of this Agreement in any material respect, the Purchasers
shall be entitled to rescind the foregoing release.
7.8.3. For purposes of this Section 7.8, "CLAIMS" shall mean any and
all actions or causes of action, suits, claims, liabilities,
losses, obligations, agreements, promises, debts, damages,
diminutions in value, costs and expenses, judgments, rights and
demands, whether fixed or contingent, known or unknown, in law or
in equity, in each case arising out of or in connection with (i)
any engagement of Seller and/or its affiliates (as the case may
be) with the Company and/or its affiliates, whether as an
employee, consultant and/or director (in the case of Seller
Released Entities, other than claims under directors and officers
insurance policy, indemnification under agreements existing prior
to the Closing or under the Company's Articles of Association),
or (ii) any other matters, causes, acts, conduct, claims,
circumstances or events occurring or failing to occur or
conditions existing at or prior to the Closing. "Claims" shall
not include actions or causes of action, suits, claims,
liabilities, losses, obligations, agreements, promises, debts,
damages, diminutions in value, costs and expenses, judgments,
rights and demands under this Agreement, the Separation Agreement
(to the extent provided therein) or any other Series Agreement to
which the Seller is party to.
7.8.4. Without derogating from the generality of the foregoing,
(a) the parties acknowledge that Alpha conducted its own due
diligence and analysis with respect to the Company's
business, prospects and financial condition, for its own
account and purposes, all of which may provide Alpha with a
different knowledge and view of the prospects and potential,
relative to the other parties hereto. Thus, such other
parties acknowledge that he/it has agreed to sell the
Purchased Shares to the Purchasers, and to purchase the
Purchased Shares from the Seller, as the case may be, at the
purchase price provided for herein notwithstanding any such
possible knowledge differential or any potential or
prospects they may view for the Company, and such other
party hereby waives any right, claim or demand that may
arise as a result thereof against the Purchasers Released
Parties; and
- 17 -
(b) The parties acknowledge that the Seller has acted as an
officer and director of the Company for an extended period
of time and that he possess significant information
regarding the Company, its affairs, business, prospects and
financial conditions, all of which may provide Seller with a
different knowledge and view of the prospects and potential,
relative to the Purchasers. Thus, the Purchasers acknowledge
that they have agreed to purchase the Purchased Shares from
the Seller at the purchase price provided for herein
notwithstanding any such possible knowledge differential or
any potential or prospects they may view for the Company,
and the Purchasers hereby waive any right, claim or demand
that may arise as a result thereof against the Seller
Released Parties.
7.9. SHAREHOLDERS AGREEMENT. The parties acknowledge that with no further
action required by any party, that certain Shareholders Agreement by
and between the Seller, Ronex and Mr. ▇▇▇▇▇ ▇▇▇▇▇▇, dated March 3,
2008, and any rights, entitlements or obligation thereunder, shall
terminate and be of no further effect effective as of the date hereof,
unless (and only if) this Agreement is terminated in accordance with
its terms in which case such Shareholders Agreement shall remain in
effect, provided that members of the Board of Directors of the Company
serving during the period ending at the Closing shall be elected in
accordance with such Shareholders Agreement. The parties further
acknowledge that as part of the Series Agreements, the Purchases are
entering into that certain Shareholders Agreement, providing for,
inter alia, a voting agreement with respect to the designation by the
Purchasers of the entire board of directors of the Company, and
pursuant to which the persons proposed to be elected at the meeting of
the shareholders of the Company called to approve the Series
Agreements shall be nominated.
8. TERMINATION.
8.1. This Agreement may be terminated at or prior to the Closing, only as
follows:
8.1.1. By written consent of all parties hereto.
8.1.2. By written notice of Alpha or the Seller to the other parties,
if the PIPE Agreement or the ▇▇▇▇▇▇ SPA is terminated, for any
reason, pursuant to their respective terms; provided, however,
that the right to terminate this Agreement under this Section
8.1.2 shall not be available to (i) any party whose action or
failure to act has been a principal cause of or resulted in
termination of PIPE Agreement or the ▇▇▇▇▇▇ SPA (as the case may
be), and (ii) the Seller, if the ▇▇▇▇▇▇ SPA is terminated because
the shares sold under the ▇▇▇▇▇▇ SPA are subject to an
Encumbrance Order (as defined below) or the shares to be sold
under the ▇▇▇▇▇▇ SPA cannot be sold to Ronex free and clear of
any Encumbrance.
8.1.3. By written notice of both Purchasers to Seller, referring to
the relevant clause of this subsection if:
8.1.3.1. there has been a breach of any representation, warranty,
covenant or agreement of the Seller contained in this
Agreement such that if Closing were to occur on the date of
such termination such breach would result in the failure of
any of the conditions set forth in Section 6 hereof to be
satisfied (when read as required to be satisfied on and as
of the date of such termination) and such breach has not
been cured within ten (10) days after written notice thereof
to the Seller; provided, however, that no cure period shall
be required for a breach which by its nature cannot be
cured.
- 18 -
8.1.3.2. there shall be order decree or judgment issued against
the Seller or applicable to the Purchased Shares by any
governmental or judicial authority creating an Encumbrance
over the Purchased Shares and such Encumbrance has not been
removed or dismissed within thirty (30) days after written
notice thereof to the Seller (an "ENCUMBRANCE ORDER").
8.1.3.3. there has been a breach of the representation set forth
in Section 4.2 such that if Closing were to occur on the
date of such termination such breach would result in the
failure of any of the conditions set forth in Section 6
hereof to be satisfied (when read as required to be
satisfied on and as of the date of such termination) and
such breach has not been cured within thirty (30) days after
written notice thereof to the Seller; provided, however,
that no cure period shall be required for a breach which by
its nature cannot be cured.
8.1.4. By written notice of Seller to the Purchasers to Seller if
there has been a breach of any representation, warranty, covenant
or agreement of any Purchaser contained in this Agreement such
that if Closing were to occur on the date of such termination
such breach would result in the failure of any of the conditions
set forth in Section 6 hereof to be satisfied (when read as
required to be satisfied on and as of the date of such
termination) and such breach has not been cured within ten (10)
days after written notice thereof to such Purchaser; provided,
however, that no cure period shall be required for a breach which
by its nature cannot be cured.
8.1.5. By written notice of either Purchasers or Seller, referring to
the relevant clause of this subsection if:
8.1.5.1. there shall be a final non-appealable order of any
governmental authority in effect preventing consummation of
the transactions contemplated hereby; provided, however,
that the right to terminate this Agreement under this
Section 8.1.5.1 shall not be available to any party whose
action or failure to act has been a principal cause of or
resulted in such order preventing the consummation of the
transactions contemplated hereby and such action or failure
to act constitutes a breach of this Agreement.
8.1.5.2. there shall be any statute, rule, regulation, executive
order, decree, judgment, injunction or other order enacted,
issued, promulgated, enforced, entered or deemed applicable
by any governmental authority that would make this Agreement
or the transactions contemplated hereby and thereby illegal.
Notwithstanding anything to the contrary in this Section
8.1, except in accordance with Sections 8.1.3.2 or 8.1.3.2,
the Purchasers may not terminate the Agreement if the
transactions contemplated under the PIPE Agreement are
consummated.
- 19 -
8.2. EFFECT OF TERMINATION. In the event of termination of this Agreement
as provided in Section 8.1 hereof, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part
of the Purchasers or the Seller, or their respective employees, agents
or shareholders, if applicable, except that (i) the provisions of
Section 9 and this Section 8.2 shall remain in full force and effect
and survive any termination of this Agreement pursuant to the terms of
this Section 8, (ii) if this Agreement is terminated in accordance
with Sections 8.1.3.2 or 8.1.3.2 and the PIPE Agreement is
consummated, than notwithstanding anything to the contrary contained
herein, the provisions of Sections 7.4 through 7.9 (inclusive) shall
survive such termination and remain in full force and effect (and any
reference to such Sections being subject to this Agreement not
terminated shall be read to include as an exception "except if this
Agreement is terminated in accordance with Sections 8.1.3.2 or 8.1.3.2
and the PIPE Agreement is consummated"); and (iii) except to the
extent that such termination results from a material breach by the
other party of any representation, warranty or covenant set forth in
this Agreement in which case the breaching party shall not be relieved
of liability or damages to the other parties. Notwithstanding anything
to the contrary herein, in no event shall any party be liable to other
party for indirect or consequential damages.
9. GENERAL PROVISIONS.
9.1. EXPENSES. Each party shall bear its own costs and expenses incurred
with respect to the negotiation, execution, delivery and performance
of this Agreement.
9.2. ENTIRE AGREEMENT. This Agreement and the Series Agreements and their
respective exhibits and schedules attached hereto, and the documents
and instruments and other agreements among the parties hereto
referenced herein, constitute the full and entire understanding and
agreement between the parties with respect to the subject matters
hereof and thereof, and supersedes any prior understandings,
agreements, or representations by or among the parties, written or
oral, to the extent they relate in any way to the subject matter
hereof.
9.3. AMENDMENT. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Seller, Ronex and
a majority of the members of Alpha (except that, at any time after the
Closing, any amendment and/or waiver with respect to any of the
covenants set forth in Section 7 above shall require the written
consent of the Seller and each Purchaser, if and so long as such
Purchaser and its affiliates hold 10% or more of the Company's issued
and outstanding share capital (and for such purpose, the holdings of
all members comprising Alpha and their affiliates shall be
aggregated). Any amendment or waiver effected in accordance with this
Section shall be binding upon all parties of this Agreement and their
respective successors and assignees.
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9.4. EXTENSION; WAIVER. The Purchasers (or, at any time after the Closing,
if and so long as such Purchaser and its affiliates hold 10% or more
of the Company's issued and outstanding share capital (and for such
purpose, the holdings of all members comprising Alpha and their
affiliates shall be aggregated)) or the Seller, as the case may be,
may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations of the other party hereto, (ii)
waive any inaccuracies in the representations and warranties made to
such party contained herein or in any document delivered pursuant
hereto, and (iii) waive compliance with any of the covenants,
agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid against such party giving the
waiver or extension and only if set forth in an instrument in writing
signed on behalf of such party.
9.5. PRESS RELEASES. No party shall issue any statement or communication to
any third party (other than their respective agents, partners,
affiliates and representatives that are bound by confidentiality
restrictions) regarding this Agreement, its existence and content, or
the transactions contemplated hereby, including, if applicable, the
termination of this Agreement and the reasons therefor, without the
consent of the other parties hereto, except as required to comply with
applicable legal requirements and the rules of any stock exchange and
except as required in connection with the Series Agreements and the
transactions contemplated thereby.
9.6. REMEDIES. Seller hereby acknowledges that monetary damages may not be
a sufficient or adequate remedy for any breach or violation of any of
its obligations under Section 7 and that, in addition to any other
remedy which may be available to Purchasers hereunder or in law or
equity, and without any waiver or limitation with respect thereto, the
Purchasers shall be entitled to seek injunctive and other equitable
relief, including specific performance, with respect to any such
breach or violation and to enforce specifically the terms and
provisions hereof, in any court of competent jurisdiction. Any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a
party of any one remedy will not preclude the exercise of any other
remedy.
9.7. ASSIGNMENT. Neither this Agreement, nor any rights, interests or
obligations under this Agreement may be assigned or transferred, in
whole or in part, by operation of law or otherwise by any party
hereto, without the prior consent in writing of each the other parties
hereto, and any such assignment without such prior written consent
shall be null and void, except that this Agreement or any of the
rights, interests or obligations under this Agreement may be assigned
by any Purchaser, upon notice to the other parties, to any member
comprising of Alpha (in case of an individual), the beneficiary
thereof (in case of a trust) or the controlling holder thereof (in
case of a corporate entity) and any affiliate thereof, provided such
assignee has agreed in writing to assume and be bound by all of a the
assignor's obligations hereunder as if it were an original party
hereto (it being clarified that, notwithstanding any assignment, the
provisions of Sections 7.8 shall continue to apply to the original
parties hereto). Subject to the foregoing, this Agreement shall inure
to the benefit of, and be binding upon, and be enforceable by, the
parties hereto and their respective successors, assigns, heirs,
executors, and administrators.
9.8. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of any
competent court located in Tel-Aviv-Jaffa, Israel in connection with
any matter based upon or arising out of this Agreement or the matters
contemplated herein, agrees that process may be served upon them in
any manner authorized by the laws of the State of Israel for such
persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction and such process.
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9.9. INTERPRETATION. When used herein: the words "include," "includes" and
"including" shall be deemed in each case to be followed by the words
"without limitation"; the words "herein," "hereof," "hereto" and
"hereunder" and words of similar import, shall refer to this Agreement
as a whole and not to any particular provision of this Agreement; the
word "person(s)" shall include an individual, corporation,
partnership, association, trust, enterprise or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof; the phrase "beneficial ownership"
of any securities or "own" (and phrases of similar import) shall mean
beneficial ownership for purposes of Rule 13d-3 under the Exchange Act
(and for the purposes of Rule 13d-3(d)(1)(i) as if the right to
acquire beneficial ownership of such security would have been within
60 days); the word "affiliate(s)" (and words of similar import) shall
mean as set forth in Rule 405 promulgated under the Securities Act of
1933, as amended, and with respect to any natural person, also, (i)
grandparents, parents, siblings, lineal descendant of such person or
their spouse (including step and adopted children), and any spouse (or
widow or widower) of such person or any of the foregoing, (ii) any
trust established for the benefit of such natural person or any
affiliate of such natural person, or (iii) any executor or
administrator of the estate of such natural person; and the word
"group" shall mean any group of persons acting together in the manner
described in Rule 13d-5(b)(1) of the Exchange Act. Unless the context
otherwise requires, words denoting the singular number only shall
include the plural and vice versa. The headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. The recitals, exhibits
and schedules form part of this Agreement and shall have the same
force and effect as if expressly set out in the body of this
Agreement, and any reference to this Agreement shall include the
exhibits and schedules hereto.
9.10. SEVERABILITY. If any provision of this Agreement or the application
thereof becomes or is declared by a court or arbitrator of competent
jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given
the intent of the parties hereto. If such clause or provision cannot
be so enforced, such provision shall be stricken from this Agreement
only with respect to such jurisdiction in which such clause or
provision cannot be enforced, and the remainder of this Agreement
shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained
in this Agreement. In addition, if any particular provision contained
in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing the scope of such provision so that
the provision is enforceable to the fullest extent compatible with
applicable law.
9.11. RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities
in an agreement or other document will be construed against the party
drafting such agreement or document.
- 22 -
9.12. NOTICES. All notices and other communications hereunder shall be in
writing and shall be shall be emailed, faxed or mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, addressed to the parties at the following addresses (or
at such other address for a party as shall be specified by like
notice):
9.12.1. if to Alpha, to:
▇▇. ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Telephone No.: (972)-(3)-6352724
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
And to:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Telephone No.: (972)-(3)-7371111
Facsimile No.: (972)-(3)-7371110
Email: ▇▇▇▇@▇▇▇▇▇.▇▇▇
with a mandatory copy to (which shall not constitute notice):
Meitar Liquornik Geva & Leshem ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Israel
Attention: ▇▇▇ ▇▇▇▇, Advocate
▇▇▇▇▇ ▇▇▇▇▇, Advocate
Telephone No.: (972)-(3)-610-3100
Facsimile No.: (972)-(3)-6103-111
Email: ▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
9.12.2. if to Ronex, to:
c/o FIMI IV 2007 Ltd.
"▇▇▇▇▇▇▇▇▇▇ House"
▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇
Telephone No.: ▇▇-▇▇▇▇▇▇▇
Facsimile No.: ▇▇-▇▇▇▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇.▇▇.▇▇
with a mandatory copy to (which shall not constitute notice):
Naschitz, ▇▇▇▇▇▇▇ & Co.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Advocate
Telephone No.: (972)-(3)-6235022
Facsimile No.: (972)-(3)-6235106
Email: ▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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9.12.3. if to the Seller, to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Facsimile No.: (972)-(9)-9585682
with a mandatory copy to (which shall not constitute notice):
▇▇▇▇▇▇, Fox & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Alon Sahar, Advocate
Telephone No.: (972)-(3)-692-2861
Facsimile No.: (972)-(3)-696-6464
Email: ▇▇▇▇▇@▇▇▇.▇▇.▇▇
Any notice sent in accordance with this Section 9.12 shall be
effective (i) if mailed, three (3) business days after mailing, (ii)
if sent by messenger, upon delivery, and (iii) if sent via email or
facsimile, upon transmission and electronic confirmation of receipt
(or recipient's electronic "read receipt" in case of email) or (if
transmitted and received on a non-business day) on the first business
day following transmission and electronic confirmation of receipt (or
recipient's electronic "read receipt" in case of email (provided,
however, that any notice of change of address shall only be valid upon
receipt). ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ are hereby designated as the
representatives of Alpha for the receipt of notices under this
Agreement, until such time as a majority of the members of Alpha shall
otherwise notify the other parties.
9.13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and
enforceable against the parties actually executing such counterpart,
and all of which together shall be considered one and the same
agreement, it being understood that all parties need not sign the same
counterpart. The exchange of an executed Agreement (in counterparts or
otherwise) by facsimile transmission or by electronic delivery in .pdf
format or the like shall be sufficient to bind the parties to the
terms and conditions of this Agreement, as an original.
- SIGNATURE PAGES FOLLOW -
- 24 -
IN WITNESS WHEREOF, the parties have caused this Share Sale and Purchase
Agreement to be duly executed as of the date first written above.
RONEX HOLDINGS L.P
BY: RONEX HOLDING LTD., ITS GENERAL PARTNER
By:
-------------------------------------------
Name:
Title:
- 25 -
IN WITNESS WHEREOF, the parties have caused this Share Sale and Purchase
Agreement to be duly executed as of the date first written above.
ALPHA:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: M.R.S.G (1999) Ltd. and ▇▇▇▇▇ ▇▇▇▇▇
By: ▇▇▇▇▇ ▇▇▇▇▇
- 26 -
IN WITNESS WHEREOF, the parties have caused this Share Sale and Purchase
Agreement to be duly executed as of the date first written above.
▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
- 27 -
SCHEDULE 6.2
(i) Approval of the Investment Center
(ii) Notice to the OCS (if applicable)
(iii) Approval of the Israeli Restrictive Trade Practices Authority
(all capitalized terms as defined in the PIPE Agreement)
- 28 -