AMENDED AND RESTATED SHAREHOLDERS
EXHIBIT
10.4
EXECUTION
COPY
AMENDED
AND RESTATED
SHAREHOLDERS
AGREEMENT
OCTOBER
21, 2010
THIS
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (this “Agreement”) is made as of the
21st day of October 2010, and shall be effective only upon the closing of the
Company’s Qualified Public Offering (as defined below), by and among SodaStream
International Ltd., a company incorporated under the Laws of the State of Israel
(the “Company”); and
certain of the holders of the Company’s Ordinary Shares (the “Ordinary Shares”)
(collectively, the “Holders”).
WITNESSETH:
WHEREAS,
Soda Club Enterprises N.V. and its shareholders entered into a Shareholder
Agreement, dated March 26, 2007, with regard to their shareholdings in the
Company (the “Previous
Shareholder Agreement”).
WHEREAS,
pursuant to the terms of the Previous Shareholder Agreement, an exchange offer
took place where all of the outstanding shares of Soda Club Enterprises were
exchanged for shares of the Company and after such exchange, the Previous
Shareholder Agreement was deemed to apply mutatis mutandis to the
Company.
WHEREAS,
pursuant to the terms of the Previous Shareholder Agreement, such agreement may
be amended upon the signature of the Company and Fortissimo Capital Fund GP,
L.P. (“Fortissimo”) who
have executed this Agreement and through such signatures shall be deemed to
amend and restate the Previous Shareholder Agreement.
WHEREAS,
this Agreement shall supersede the Previous Shareholder Agreement and any
obligations in any previous shareholder agreement is deemed to be
fulfilled.
WHEREAS,
the parties hereto desire to amend and restate the prior Shareholders Agreement
in its entirety by entering into this Agreement; and
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein, the parties
hereby agree as follows:
1. Definitions.
As used herein, the following terms have the following meanings:
1.1. “A1 Holders” shall mean the
holders of the Company’s Ordinary Shares converted from the Company’s Series A1
Convertible Preferred Shares (the “A1 Shares”) listed on Schedule 1
hereto.
1.2. “A2 Holders” shall mean the
holders of the Company’s Ordinary Shares converted from Company’s Series A2
Convertible Preferred Shares (the “A2 Shares”) listed on Schedule 1
hereto.
1.3. “Board” shall mean the Board of
Directors of the Company.
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1.4. “Commission” or “SEC” shall mean the Securities
and Exchange Commission or any other federal agency at the time administering
the Securities Act.
1.5. “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, or any similar federal statute and
the rules and regulations thereunder, all as the same shall be in effect at the
time.
1.6. “Form F-3” shall mean Form F-3
or S-3 under the Securities Act (as defined below), as in effect on the date
hereof or any registration form under the Securities Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
1.7. “Incorporation Documents” shall
mean the Articles of Association of the Company.
1.8. “Initiating Holders” shall mean
the Preferred Holders holding at least 30% of the A1 Shares then outstanding,
assuming for purposes of such determination the conversion of all securities
convertible into or exercisable for A1 Shares.
1.9. “IPO” shall mean the closing of the
sale of the Ordinary Shares of the Company to the public in a bona fide firm
commitment underwriting pursuant to a registration statement under the
Securities Act or similar law of another applicable jurisdiction.
1.10. “Preferred Holders” shall mean
the A1 Holders and the A2 Holders.
1.11. “Qualified Public Offering”
shall mean the Company’s initial public offereing of the Company’s ordinary
shares to be traded on the Nasdaq Global Market.
1.12. “Register”, “Registered” and “Registration” shall refer to a
registration affected by filing a registration statement in compliance with the
Securities Act and the declaration or ordering by the Commission of
effectiveness of such registration statement, or the equivalent actions under
the laws of another jurisdiction.
1.13. “Registrable Securities” shall
mean all of the following to the extent the same have not been sold to the
public (i) the Ordinary Shares of the Company issued upon conversion of the A1
Shares and A2 Shares, previously held by A1 or A2 holders; (ii) shares issued in
respect of the A1 Shares and A2 Shares, previously held by A1 or A2 holders
issued as a result of a share split, share dividend, recapitalization or
combination. Notwithstanding the foregoing, Registrable Securities shall not
include otherwise Registrable Securities (i) sold by a person in a transaction
in which the rights under this Agreement are not properly assigned; or (ii) (A)
sold to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction, or (B) the registration rights of which have
been terminated pursuant to this Agreement.
1.14. “Rule 144” shall mean Rule 144
under the Securities Act or any successor or similar rule as may be enacted by
the Commission from time to time, but shall not include Rule 144A.
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1.15. “Rule 144A” shall mean Rule
144A under the Securities Act or any successor or similar rule as may be enacted
by the Commission from time to time, but shall not include Rule
144.
1.16. “Securities Act” shall mean the
U.S. Securities Act of 1933, as amended, or any similar federal statute and the
rules and regulations thereunder, all as the same shall be in effect at the
time.
1.17. “Shareholders” shall mean (i)
the holders of the Company’s Ordinary Shares not registered for trading on any
securities exchange or quotation system on which the Company’s shares are
otherwise traded; (ii) the A1 Holders; and (iii) the A2 Holders (collectively,
the “Shareholders” and
individually, a “Shareholder”).
1.18.
“Transfer” shall mean:
offer to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or
grant any rights with respect to any share capital of the Company (including any
options or warrants to purchase any capital Share or any securities convertible
into or exchangeable for share capital) now owned or hereafter acquired by such
person or with respect to which such person has or hereafter acquires the power
of disposition, other than by will or the laws of intestacy.
2. Registration.
The following provisions, shall govern the registration of the Company’s
securities:
2.1.
Incidental (“Piggyback”) Registration. If
the Company or any Shareholder (other than the Initiating Holders) at any time
after the Qualified Public Offering proposes to register any of its securities,
other than (i) in a registration relating solely to employee benefit plans, or
(ii) a registration relating solely to an SEC Rule 145 transaction, the Company
will give notice to the holders of Registrable Securities of such intention.
Upon the written request of any holder of the Registrable Securities given
within twenty (20) days after receipt of any such notice, the Company shall take
all actions under its power and control to include in such registration all of
the Registrable Securities indicated in such request, so as to permit the
disposition of the shares so registered. Notwithstanding any other provision of
this Section, if in an underwritten offering the managing underwriter advises
the Company in writing that marketing factors require a limitation of the number
of shares to be underwritten, then there shall be excluded from such
registration and underwriting to the extent necessary to satisfy such
limitation, shares held by any Shareholder (other than the Preferred Holders),
and then to the extent necessary, shares held by the Preferred Holders other
than the A1 Holders and then to shares held by the A1 Holders (in each case, pro
rata to the respective number of Registrable Securities held by such
Shareholders), provided, that in all registrations (except for the initial
underwritten public offering where the underwriters may completely restrict
piggyback registration) the Registered Holders holding A1 Shares can not be cut
back in a way that will permit them to sell any less than 30% of the amount of
shares such Holders propose to register on a pro rata basis. The Company shall
have the right to withdraw or terminate any registration initiated by it under
this Section 2.1 prior to the effectiveness of such
registration whether or not any Shareholder has elected to include securities in
such registration. The Registration expenses of such withdrawn registration
(including for avoidance of doubt of such Shareholders) shall be solely borne by
the Company in accordance with Section 2
hereof.
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2.2. Demand
Registration.
2.2.1. At
any time after six (6) months following the closing of the Company’s Qualified
Public Offering, the Initiating Holders may request in writing that all or part
of the Registrable Securities held by such Initiating Holders shall be
registered for trading on any securities exchange or quotation system on which
the Company’s shares are otherwise traded. Within twenty (20) days after receipt
of any such request, the Company shall give written notice of such request to
the other holders of Registrable Securities and shall take all actions under its
power and control to include in such registration all Registrable Securities
held by all such holders of Registrable Securities who wish to participate in
such demand registration and who provide the Company with written requests for
inclusion therein within fifteen (15) days after the receipt of the Company’s
notice. Thereupon, the Company shall have the registration statement become
effective of all Registrable Securities as to which it has received requests for
registration with an underwriter acceptable to the holders of a majority of the
participating Registrable Securities of such Preferred Holders. The Company
shall not be required to (i) effect more than two (2) registrations under this
Section 2.2.1, (ii) effect a registration for the sale of shares with an
anticipated sales price of less than five million dollars ($5,000,000) or (iii)
effect a registration during the period beginning sixty (60) days before and
extending until 180 days after the effective date of the IPO. If the Initiating
Holders intend to distribute the Registrable Securities covered by their request
by means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2.2 or any request pursuant to Section
2.3, and the Company shall include such information in the written notice
referred to in Section 2.2 or 2.3, as applicable. In such event, the
right of any Shareholder to include its Registrable Securities in such
registration shall be conditioned upon such Shareholder’s participation in such
underwriting and the inclusion of such Shareholder’s Registrable Securities in
the underwriting (unless otherwise mutually agreed by the Initiating Holders,
such Shareholder and the underwriter) to the extent provided
herein. All Shareholders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters designated pursuant to
Section 2.5 below. Notwithstanding any other provision of this
Section 2.2.1, if the managing underwriter advises the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then there shall be excluded from such registration and
underwriting to the extent necessary to satisfy such limitation, first
Registrable Securities held by Shareholders other than the A1 Holders and then
to the extent necessary, and then to the extent necessary, shares held by A1
Holders other than Initiating Holders, and then to the extent necessary,
Registrable Securities held by the Initiating Holders (in each case, pro rata to
the respective number of Registrable Securities held by such Shareholders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
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2.2.2.
In the event that the Initiating Holders request to effect a registration under
this Section and the Company decides to join and register any of its securities
thereunder, such registration shall be regarded as an Incidental (“Piggyback”)
Registration under Section 2.1 and not a Demand Registration under this Section
2.2.
2.2.3. If
all Registrable Securities requested to be registered by the Preferred Holders
are not registered in the Registration, such Registration shall not be counted
as one of the two demand registrations.
2.3. Form F-3
Registration. If the Company shall receive from any Shareholder holding
Registrable Securities a written request or requests that the Company effect a
registration on Form F-3 (if the Company qualifies), and any related
qualification or compliance, with respect to Registrable Securities, the Company
will within twenty (20) days after receipt of any such request give written
notice of the proposed registration, and any related qualification or
compliance, to all other Shareholders, and shall take all actions under its
power and control to include in such registration all Registrable Securities
held by all such Shareholders who wish to participate in such registration and
who provide the Company with written requests for inclusion therein within
fifteen (15) days after the receipt of the Company’s notice. Thereupon, the
Company shall take all actions under its power and control to effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Shareholder’s or Shareholders’ Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Shareholder or Shareholders joining in such request as
are specified in a written request given within fifteen (15) days after receipt
of such written notice from the Company. The right to request such F-3
registration statement shall be unlimited, and such F-3 registrations shall not
be counted as a demand registration under Section 2.2 above. If requested by the
requesting Shareholder, the Company shall file a shelf registration statement
and the Company shall endeavor to keep it effect for nine (9) months unless the
Registrable Shares are completely sold thereunder.
2.4. Notwithstanding
Sections 2.2 and 2.3 above, the Company shall not be required to effect any
registration during the pending period of any Demand Blackout Period (as
hereinafter defined).
“Blackout Periods”: If the
Company determines in good faith that the registration and distribution of
Registrable Securities (or the use of a registration statement or related
prospectus) would interfere with any pending financing, acquisition, corporate
reorganization or any other material corporate development involving the Company
(or would require premature disclosure thereof), and promptly gives the
Shareholders written notice of such determination following their request to
register any Registrable Securities, the Company shall be entitled to postpone
(but not more than once in any twelve (12) month period) the filing of the
registration statement otherwise required to be prepared and filed by the
Company pursuant to Sections 2.2 or 2.3 for a reasonable period of time, but not to exceed 90
days (a “Demand Blackout Period”). The Company
shall promptly notify the Shareholders of the expiration or earlier termination
of any Demand Blackout Period.
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In the
event of a Demand Blackout Period, the Company shall undertake to extend the
effectiveness of any then current registration statement on Form F-3 beyond the
anticipated nine (9) month period or any then current registration statement on
other forms (including F-1) beyond the anticipated five (5) month period for the
respective periods of such Demand Blackout Period.
2.5. Designation of
Underwriter.
2.5.1. In
the case of any registration effected pursuant to Section 2.2 or 2.3, a majority
of the Initiating Holders that submitted requests for registration shall have
the right to designate the managing underwriter(s) in any underwritten offering
which shall be a prominent and reputable underwriter, subject to the consent of
the Company, which consent shall not unreasonably withheld.
2.5.2. In
the case of any registration initiated by the Company, the Company shall have
the right to designate the managing underwriter in any underwritten
offering.
2.6. Expenses. All
expenses, including but not limited to SEC registration and blue sky fees and
all legal, accounting and printing fees, including all legal fees and expenses
of one special counsel for the selling Shareholders, shall be borne by the
Company; provided, however, that each of
the Shareholders participating in such registration shall pay its pro rata
portion of the fees, discounts or commissions payable to any
underwriter.
2.7. Indemnities. In the
event of any registered offering of Ordinary Shares pursuant to this Section
2:
2.7.1. The
Company will indemnify and hold harmless, to the fullest extent permitted by
law, any Shareholder (including any officer, director or partner of such
Shareholder) and any underwriter for such Shareholder, and each person, if any,
who controls (within the meaning of the Exchange Act) the Shareholder or such
underwriter, from and against any and all losses, damages, claims, liabilities,
joint or several, costs and expenses (including any amounts paid in any
settlement effected with the Company’s consent) to which the Shareholder or any
such underwriter or controlling person may become subject under applicable law
or otherwise, insofar as such losses, damages, claims, liabilities (or actions
or proceedings in respect thereof), costs or expenses arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the registration statement or included in the prospectus, as
amended or supplemented, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they are made,
not misleading, or (iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act or any rule or regulation promulgated
thereunder applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse the Shareholder,
such underwriter and each such controlling person of the Shareholder or the
underwriter, promptly upon demand, for any reasonable legal or any other
expenses incurred by them in connection with investigating, preparing to defend
or defending against or appearing as a third-party witness in connection with
such loss, claim, damage, liability, action or proceeding; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission so made in conformity with
information furnished in writing by a Shareholder, to such underwriter or such
controlling persons specifically for inclusion therein; provided, further, that this
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations; provided, further, that the
indemnity agreement contained in this subsection 2.7.1 shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Company. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the selling Shareholder, the underwriter or any
controlling person of the selling Shareholder or the underwriter, and regardless
of any sale in connection with such offering by the selling Shareholder. Such
indemnity shall survive the transfer of securities by a selling
Shareholder.
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2.7.2. Each
Shareholder participating in a registration hereunder will indemnify and hold
harmless the Company, its officers and directors, any underwriter for the
Company, and each person, if any, who controls the Company or such underwriter,
from and against any and all losses, damages, claims, liabilities, costs or
expenses (including any amounts paid in any settlement effected with the selling
Shareholder’s consent) to which the Company, its officers or directors, or any
such controlling person and/or any such underwriter may become subject under
applicable law or otherwise, insofar as such losses, damages, claims,
liabilities (or actions or proceedings in respect thereof), costs or expenses
arise out of or are based on (i) any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
included in the prospectus, as amended or supplemented, or (ii) the
omission or to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, and each such Shareholder will reimburse
the Company, its officers and directors, any underwriter and each such
controlling person of the Company or any underwriter, promptly upon demand, for
any reasonable legal or other expenses incurred by them in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with such loss, claim, damage, liability,
action or proceeding; in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission was so made in
strict conformity with written information furnished by such Shareholder
specifically for inclusion therein. The foregoing indemnity agreement is subject
to the condition that, insofar as it relates to any such untrue statement or
alleged untrue statement or omission made in the preliminary prospectus but
eliminated or remedied in the amended prospectus at the time the registration
statement becomes effective or in the final prospectus, such indemnity agreement
shall not inure to the benefit of (i) the Company and (ii) any underwriter, if a
copy of the final prospectus was not furnished to the person or entity asserting
the loss, liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act; provided, further, that this
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations; provided, further, that the
indemnity agreement contained in this subsection 2.7.2 shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Shareholders, as the
case may be, which consent shall not be unreasonably withheld. In no event shall
the liability of a Shareholder exceed the net proceeds received by such
Shareholder from the sale of its securities under the applicable
registration.
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2.7.3. Promptly
after receipt by an indemnified party pursuant to the provisions of Sections
2.7.1 or 2.7.2 of notice of the commencement of any action involving the subject
matter of the foregoing indemnity provisions, such indemnified party will, if a
claim thereof is to be made against the indemnifying party pursuant to the
provisions of said Sections 2.7.1 or 2.7.2, promptly notify the indemnifying
party of the commencement thereof; but the omission to notify the indemnifying
party will not relieve the indemnifying party from any liability which it may
have to any indemnified party. In case such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, that if the
defendants in any action include both the indemnified party and the indemnifying
party and there is a conflict of interests which would prevent counsel for the
indemnifying party from also representing the indemnified party, the indemnified
party or parties shall have the right to select one separate counsel to
participate in the defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of said Sections
2.7.1 or 2.7.2 for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed counsel in accordance with the provision
of the preceding sentence, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the notice of the commencement
of the action and within fifteen (15) days after written notice of the
indemnified party’s intention to employ separate counsel pursuant to the
previous sentence, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
No indemnifying party will consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
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2.7.4. If
recovery is not available under the foregoing indemnification provisions, for
any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution to
liabilities and expenses as more fully set forth in an underwriting agreement to
be executed in connection with such registration, if any. In any
event, in determining the amount of contribution to which the respective parties
are entitled, there shall be considered the parties’ relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission, and
any other equitable considerations appropriate under the circumstances, provided, however, that in any
such case, no person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
2.7.5. Notwithstanding
the foregoing, to the extent that the provisions on indemnification contained in
the underwriting agreements entered into among the selling Shareholders, the
Company and the underwriters in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall be controlling as to the Registrable Securities
included in the public offering; provided, however, that if, as
a result of this Section 2.7.5, any Shareholder, its officers, directors, and
partners and any person controlling such Shareholder is held liable for an
amount which exceeds the aggregate proceeds received by such Shareholder from
the sale of Registrable Securities included in a registration, as provided in
Section 2.7.2 above, pursuant to such underwriting agreement (the “Excess Liability”), the
Company shall reimburse any such Shareholder for such Excess
Liability.
2.8. Obligations of the
Company. Whenever required under this Section 2 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as possible, take all actions under its power and control in order to effect and
retain such registration, including but not limited to:
2.8.1. giving
each shareholder entitled to written notice thereof pursuant to this Agreement
as soon as practicable prior to filing the registration statement;
2.8.2. preparing
and filing with the SEC a registration statement with respect to such
Registrable Securities and to use its best efforts to cause such registration
statement to become effective, and, upon the request of the holders of a
majority of the Registrable Securities registered thereunder, keeping such
registration statement effective for a period of up to five (5) months or, if
sooner, until the distribution contemplated in the Registration Statement has
been completed, provided, however, that in the case of any registration of
Registrable Securities on Form F-3 which are intended to be offered on a
continuous or delayed basis, such registration statement be kept effective for a
nine (9) month period and shall be extended to keep the registration statement
effective until all such Registrable Securities are sold.
2.8.3. preparing
and filing with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement;
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2.8.4. furnishing
to the Shareholders participating in this registration such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
2.8.5. in
the event of any underwritten public offering, entering into and performing its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. Each shareholder participating in
such underwriting shall also enter into and perform its obligations under such
an agreement;
2.8.6. notifying
each holder of Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement or alleged untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and then, as expeditiously as possible, correcting such omission or
misstatement;
2.8.7. causing
all Registrable Securities registered pursuant hereunder to be listed on each
securities exchange and/or quotation system on which similar securities issued
by the Company are then listed;
2.8.8. providing
a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration;
2.8.9. furnishing,
at the request of any Shareholder requesting registration of Registrable
Securities pursuant to this Section 2, on the date that such Registrable
Securities are delivered to the underwriters for sale in connection with a
registration pursuant to this Section 2, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Shareholders
requesting registration of Registrable Securities and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Shareholders requesting registration of
Registrable Securities and (iii) such other documents, certificates and
instruments as are customarily provided in underwritten offerings;
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2.8.10. using
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment;
2.8.11. using
reasonable best efforts to register or qualify such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
any Shareholder or underwriter reasonably requires, and keeping such
registration or qualification effective during the period set forth in Section
2.8.2 above, except that the Company shall not for any such purpose be required
to qualify to do business as a foreign Company in any jurisdiction wherein it is
not so qualified or intends to be so qualified prior to the effective date of
the applicable registration statement;
2.8.12. causing
its accountants to issue to the underwriter, if any, or the Shareholders, if
there is no underwriter, comfort letters and updates thereof, in customary form
and covering matters of the type customarily covered in such letters with
respect to underwritten offerings;
2.8.13. making
available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and causing the Company’s officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
2.8.14. notifying
each Shareholder, at any time a prospectus covered by such registration
statement is required to be delivered under the Securities Act, of the happening
of any event of which it has knowledge as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; and
2.8.15. taking
such other related actions as shall be reasonably requested by any
Shareholder.
2.9. Lock-Up. Each
Shareholder hereby agrees in connection with the public offering of the
Company’s securities not to sell or otherwise dispose of any share capital of
the Company owned (beneficially or of record) by such Shareholder (other than
shares of Registrable Securities or other Ordinary Shares of being registered in
such offering), without the consent of such managing underwriters, for a period
of not more than (i) in the case of such an initial public offering, one hundred
eighty (180) days following the effective date of the registration statement
relating to such initial public offering (or such other date that the Company’s
officers and directors have agreed to), (ii) in the case of such subsequent
public offerings, ninety (90) days following the effective date of the
registration statement relating to such offering (or such other date that the
Company’s officers and directors have agreed to) or (iii) in either case, for
such shorter period requested by the underwriters; provided, however, all persons
holding in excess of 1% of the share capital of the Company on a fully diluted
basis (calculated assuming the conversion of all outstanding convertible
securities and the exercise of all outstanding rights to acquire Ordinary
Shares) and all officers and directors of the Company are also bound by or shall
have agreed to the same terms. In any case, in the event the underwriters
release any of the above from such “lock-up” restrictions prior to the scheduled
expiration date, the Shareholders shall be released from their “lock-up”
obligations hereunder on a proportionate basis. The Shareholders shall promptly
execute a customary agreement to such effect with any managing underwriters if
so requested.
-12-
2.10. Foreign Offerings.
The provisions of this Section 2 shall apply, mutatis mutandis, to any
registration of the securities of the Company outside of the United States and
any reference to the US laws or rules shall be deemed to be applicable to the
applicable rules of any other jurisdiction that the Company has registered in to
the extent required to achieve the purpose of the aforementioned
rights.
2.11. Rule 144 and 144A
Reporting. With a view to making available to Shareholders the benefits
of certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees at
all times after ninety (90) days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public to:
(a) make
and keep public information available, as those terms are understood and defined
in Rule 144 and Rule 144A; and
(b) use
its best efforts to file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act.
For
purposes of facilitating sales pursuant to Rule 144A, so long as the Company is
not subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, each Shareholder and any transferee of such Shareholder’s securities shall
have the right to obtain from the Company, upon request of the Shareholder prior
to the time of sale, a brief statement of the nature of the business of the
Company and the products and services it offers; and the Company’s most recent
balance sheet and profit and loss and retained earnings statements, and similar
financial statements for the two (2) preceding fiscal years (the financial
statements should be audited to the extent reasonably available).
2.12. Termination. The
obligations of the Company to register shares of Registrable Securities under
Sections 2.1, 2.2 or 2.3 shall terminate immediately with respect to any
Shareholder who holds one percent (1%) or less of the aggregate outstanding
shares of the Company’s share capital, provided that all of
the shares of Registrable Securities held by such Shareholder may be publicly
sold within any three (3) month period pursuant to Rule 144 of the Securities
Act.
-13-
2.13. Limitations on Subsequent
Registration Rights. The Company shall not, without the prior written
consent of Fortissimo enter into any agreement with any holder or prospective
holder of any securities of the Company to grant registration
rights.
2.14. Obligations of the holders
of Registrable Securities. Holders of Registrable Securities desiring to
sell in a registration statement will furnish to the Company such information as
the Company may reasonably require from such holders of Registrable Securities
in connection with the registration statement (and the prospectus included
therein). No Shareholder may participate in any offering unless such holder (i)
agrees to sell his Registrable Securities on the basis provided in any agreement
governing the offering and (ii) completes and executes all reasonable and
customary questionnaires, indemnities, and other documents required in
connection with the offering.
2.14.1. Failure
of a Shareholder to furnish the information and agreements described in this
Agreement shall not affect the obligations of the Company under this Agreement
to the remaining holders of Registrable Securities to furnish such reasonable
and customary information and agreements unless, in the reasonable opinion of
counsel to the Company, such failure impairs or may impair the viability of the
entire offering or the legality of the registration or the underlying
offering.
2.14.2. The
Shareholders holding shares included in the registration will not (until further
notice by the Company) effect sales thereof (or deliver a prospectus to any
purchaser) after receipt of telegraphic or written notice from the Company to
suspend sales to permit the Company to correct or update a registration
statement or prospectus. At the end of the period during which the Company is
obligated to keep the registration statement current and effective as described
in Section 2.8.2 the Shareholders holding shares of Registrable Securities
included in the registration shall discontinue sales of shares pursuant to such
registration statement upon receipt of written notice from the Company of its
intention to remove from registration the shares of Registrable Securities
covered by such registration statement that remain unsold, and such holders
shall notify the Company of the number of such shares registered that remain
unsold promptly upon receipt of such written notice from the
Company.
2.14.3. In
connection with any offering, each holder who intends to sell Registrable
Securities will not use any offering document, offering circular or other
offering materials with respect to the offer or sale of Registrable Securities,
other than the prospectuses provided by the Company and any documents
incorporated by reference therein.
3. Shareholder
Loans. The
shareholders loans listed on Schedule 2 hereto
shall be repaid within 30 days after the Qualified Public Offering.
4. Miscellaneous.
4.1. Supersede other Shareholder
Agreements. Certain shareholders of the Company have
previously executed the Previous Shareholder Agreement. When
effective pursuant to Section 4.12 hereof, this Agreement hereby supersedes the
Previous Shareholder Agreement and such shareholder agreement shall be null and
void and this Agreement shall govern the relationship among the shareholders who
are signatories thereto and hereto. At such time, any obligations
under any other shareholder agreement with respect to the shares of the Company
shall be deemed to be fulfilled.
-14-
4.2. Further Assurances.
Each of the parties hereto shall perform such further acts and execute such
further documents as may reasonably be necessary to carry out and give full
effect to the provisions of this Agreement and the intentions of the parties as
reflected thereby.
4.3. Governing Law;
Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of Israel, without regard to principles of conflict of
law provisions thereof and the competent courts in Tel Aviv shall have exclusive
jurisdiction in all matters pertaining to this Agreement.
4.4. Successors and Assigns;
Assignment. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and are binding upon, the successors,
assigns, heirs, executors, and administrators of the parties
hereto. None of the rights, privileges, or obligations set forth in,
arising under, or created by this Agreement may be assigned or transferred
without the prior consent in writing of each party to this Agreement, with the
exception of: (i) assignments and transfers among the Preferred Holders; (ii)
assignments and transfers from a Preferred Holder to any other entity which
controls, is controlled by or is under common control with, such Preferred
Holder; and (iii) as to any Preferred Holder which is a limited partnership,
assignments and transfers to its partners or members and to affiliated limited
partnerships managed by the same management Company or managing partner or by an
entity which controls, is controlled by, or is under common control with, such
management Company or managing general partner; provided, however, that no such
assignment or transfer shall become effective unless each such transferee has
provided the Company with a confirmation in writing that it is bound by all
terms and conditions of this Agreement as if it were an original party to
it.
4.5. Entire Agreement; Amendment
and Waiver. This Agreement, together with the Incorporation Documents of
the Company, constitutes the full and entire understanding and agreement between
the parties with regard to the subject matters hereof and thereof. Any term of
this Agreement may be amended and the observance of any term hereof may be
waived (either prospectively or retroactively and either generally or in a
particular instance) only with the written consent of the Company and
Fortissimo.
4.6. Notices, etc. All
notices and other communications required or permitted hereunder to be given to
a party to this Agreement shall be in writing and shall be faxed or mailed,
postage prepaid, or otherwise delivered by hand or by guaranteed courier,
addressed to such party’s address as set forth below or at such other address as
the party shall have furnished to each other party in writing in accordance with
this provision:
-15-
|
if
to the Company:
|
address
on the signature pages hereto
|
|
With
a copy to
(such
copy not constituting notice)
Gornitzky
& Co.
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇
▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Adv.
Fax:
▇▇▇-▇-▇▇▇-▇▇▇▇
|
|
|
If
the Ordinary Shareholders
|
address
on the signature pages
hereto
|
or such
other address with respect to a party as such party shall notify each other
party in writing as above provided. Any notice sent in accordance with this
Section shall be effective (i) if mailed, seven (7) business days after mailing,
(ii) if sent by guaranteed courier, the second day after pick-up by the
guaranteed courier, and (iii) if sent via fax, upon transmission and electronic
confirmation of receipt or (if transmitted and received on a non-business day)
on the first business day following transmission and electronic confirmation of
receipt.
4.7. Delays or Omissions.
No delay or omission to exercise any right, power, or remedy accruing to any
party upon any breach or default under this Agreement, shall be deemed a waiver
of any other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent, or approval of any kind or character on the part of any party
of any breach or default under this Agreement, or any waiver on the part of any
party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
of the parties, shall be cumulative and not alternative.
4.8. Severability. If any
provision of this Agreement is held by a court of competent jurisdiction to be
unenforceable under applicable law, then such provision shall be excluded from
this Agreement and the remainder of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms; provided, however, that in such
event this Agreement shall be interpreted so as to give effect, to the greatest
extent consistent with and permitted by applicable law, to the meaning and
intention of the excluded provision as determined by such court of competent
jurisdiction.
4.9. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and enforceable against the parties actually executing such
counterpart and all of which together shall constitute one and the same
instrument.
4.10. Attorneys’ Fees. In
the event that any dispute among the parties to this Agreement should result in
litigation, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
-16-
4.11. Third
Parties. Nothing express or implied in this Agreement is
intended or shall be construed to confer upon or give any person other than the
parties hereto and their respective permitted assigns any rights or remedies
under or by reason of this Agreement or the transactions contemplated
hereby.
4.12. Effectiveness; Enforceability.
This Agreement shall be effective concurrently with the closing of the Company's
Qualified Public Offering of its shares on the Nasdaq Global
Market. It shall also be enforceable by or against any other
shareholders of the Company who are parties to the Previous Shareholders
Agreement after such Qualified Public Offering and delivery to the Company and
its acceptance thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]
-17-
IN
WITNESS WHEREOF the parties have signed this Amended and Restated Shareholders
Agreement as of the date first hereinabove set forth.
|
Fortissimo
Capital Fund GP, L.P.
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇
|
|
|
Title:
|
General
Counsel
|
Title:
|
Partner
|
|
-18-
Schedule
1
A1
Holders
Fortissimo
Capital Fund (Israel), L.P,
Fortissimo
Capital Fund, L.P
Fortissimo
Capital Fund (Israel-DP), L.P.
Kendray
Properties Ltd.
Keswick
Properties Ltd.
A2
Holders
Real
Property Investments Ltd.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Schedule
2
Shareholder
Loans
|
Real
Property Investments Ltd
|
$ | 1,274,117 | ||
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
$ | 422,584 | ||
| $ | 85,577 |
-19-