Exhibit 2
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. |
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|
Portion of Purchased Shares
|
Aggregate Purchase Price
|
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|
|
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|
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|
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|
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Alpha |
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| 566,740 |
|
$ | 6,800,880.00 |
|
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Ronex | | |
| 466,739 |
|
$ | 5,600,868.00 |
|
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Total | | |
| 1,033,479 |
|
$ | 12,401,748.00 |
|
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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. |
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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. |
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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 |
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2.1.2. |
The
Purchasers shall deposit the deliverables set forth in Section 3.3.1 (Purchase
Price). |
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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: |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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: |
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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; |
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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; |
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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. |
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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: |
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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: |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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Each
Purchaser hereby represents and warrants, severally and not jointly, with respect solely
to each such Purchaser, as follows: |
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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). |
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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. |
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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. |
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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. |
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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. |
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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. |
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5.8. |
It
is acknowledging that except for the representations specifically set forth in
Section 3, the Purchased Shares are sold “AS IS”. |
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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”)). |
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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. |
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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: |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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: |
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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. |
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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. |
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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. |
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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. |
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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. |
| |
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. |
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| |
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. |
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| |
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. |
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| |
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: |
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| |
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. |
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| |
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. |
| |
7.8.1. |
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. |
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| |
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 |
| |
(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. |
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| |
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. |
| |
8.1. |
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. |
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| |
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. |
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| |
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. |
| |
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. |
| |
9.1. |
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. |
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| |
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. |
| |
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. |
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| |
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): |
|
|
|
|
▇▇. ▇▇▇ ▇▇▇▇▇▇ |
|
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
|
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: |
▇▇▇@▇▇▇▇▇▇.▇▇▇ |
|
|
▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
|
|
|
|
c/o FIMI IV 2007 Ltd. |
|
“▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇” |
|
▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ |
|
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: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
——————————————
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO |
- 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:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
——————————————
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇ |
|
|
/s/ ▇▇▇▇ ▇▇▇▇▇
——————————————
Name: ▇▇▇▇ ▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇ |
|
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
——————————————
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
|
|
/s/ ▇▇▇ ▇▇▇▇▇▇
——————————————
Name: ▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇ ▇▇▇▇▇▇ |
|
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇
——————————————
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.
|
|
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
—————————————— |
- 27 -