EXHIBIT 4.10
EXECUTION COPY
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "AGREEMENT") is made as of March
3, 2004 (the "EFFECTIVE DATE"), by and between (i) Tefron Ltd., an Israeli
company ("TEFRON" or the "COMPANY"), whose shares are traded on the New York
Stock Exchange (the "NYSE") and (ii) ▇▇▇▇▇ Partners, L.P., a limited partnership
(the "INVESTOR").
WHEREAS, the Investor desires to invest in the share capital of the
Company, by purchasing the Shares (as defined below) and by providing the
Company the Put Option (as defined below), upon the terms and subject to
the conditions set forth in this Agreement;
WHEREAS, the Board of Directors of the Company has decided to issue to the
Investor 1,075,269 Series A Ordinary Shares of the Company, nominal value
NIS 1.00 per share (the "SHARES"), upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. (a) PURCHASE AND SALE OF SHARES
Upon the terms and subject to the conditions set forth in this Agreement,
the Investor agrees to purchase, and the Company agrees to sell and issue
to the Investor, at the Closing (as defined in Section 2.1) the Shares, at
a price per share of $4.65 (the "PPS"), and an aggregate purchase price of
$5,000,000 (Five Million US Dollars) (the "PURCHASE PRICE").
(b) PPS ADJUSTMENTS
Notwithstanding the foregoing, in the event that the Company's earnings
before income tax, depreciation and amortization (the "EBITDA") (excluding
(i) the EBITDA of Alba Health LLC ("ALBAHEALTH") to the extent it exceeds
zero, and (ii) any increase in the EBITDA of Alba Waldensian, Inc.
("ALBA"), as a result of its exercise of the put option granted under that
certain put agreement dated September 6, 2003) for fiscal year 2004 (the
"2004 EBITDA"), as set forth in the Company's audited consolidated
financial statements for the year ending on December 31, 2004 (the "2004
FINANCIALS"), is less than US$23 million, then the PPS shall be adjusted
as follows: (i) if the Company's EBITDA is equal to or lower than US$16
million, then the PPS will be retroactively reduced by US$0.75 (i.e., to
US$3.9), and (ii) if the Company's EBITDA is higher than US$16 million but
lower than US$23 million, the PPS will be retroactively reduced, as
follows:
PPS= 4.65 - 0.75*[X]
X=[(23,000,000 -2004 EBITDA)/1,000,000]/7]
The PPS, as reduced, shall be referred to herein as the "ADJUSTED PPS".
In the event that the Adjusted PPS is not equal to the PPS, the Company,
at its sole discretion, shall either (i) deliver to the Investor, within
fourteen (14) business days following the release of the 2004 Financials,
a number of additional Ordinary Shares (the "ADDITIONAL SHARES") that is
equal to the difference between the number of Shares issued to the
Investor at the Closing and the number of Ordinary Shares that would have
been issued to the Investor at the Closing had the original PPS been equal
to the Adjusted PPS, or (ii) pay the Investor, within ten (10) business
days following the release of the 2004 Financials a cash amount equal the
difference between the PPS and the Adjusted PPS per each share purchased
by the Investor hereunder.
2. CLOSING OF ISSUE AND PURCHASE
2.1 THE CLOSING. The parties shall hold the closing of the issuance and
purchase of the Shares (the "CLOSING") by facsimile or in person at the
offices of Meitar, Liquornik, Geva & Leshem ▇▇▇▇▇▇▇▇▇, 16 Abba Hillel Rd.,
Ramat Gan, Israel, on the 10th business day following the fulfillment of
the Term Precedent (as defined herein) or at such other date as the
Company and the Investor shall agree (the "CLOSING DATE").
For the Purpose of this Agreement, the "TERM PRECEDENT" shall have the
following meaning: the closing of that certain Share Purchase Agreement
("FIMI'S INVESTMENT AGREEMENT") dated February 17, 2004 between the
Company and Norfet, Limited Partnership, which is controlled by FIMI
opportunity Fund, L.P. and its affiliates ("FIMI"), and of that certain
Agreement ("FIMI'S PURCHASE AGREEMENT"; and together with FIMI's
Investment Agreement: "FIMI'S INVESTMENT AND PURCHASE AGREEMENTS") dated
February 17, 2004 between FIMI, Macpell Industries Ltd. and Arwol Holdings
Ltd. If fundamental changes are made in FIMI's Investment and Purchase
Agreements before their closing, to be fundamentally more favorable to
FIMI, the Investor shall have the right to terminate this Agreement before
the Closing, unless the Company shall agree to enter into similar
amendments to this Agreement to provide the Investor with similar
benefits.
2.2. TRANSACTIONS AT THE CLOSING. At the Closing, the following
transactions shall occur, which transactions shall be deemed to take place
simultaneously and no transaction shall be deemed to have been completed
or any required document delivered until all such transactions have been
completed and all required documents delivered:
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(1) The Investor shall have received from the Company the
following documents:
(a) true and correct copies of the resolutions of the
Company's Board of Directors approving the transactions contemplated herein;
(b) an opinion of counsel to the Company, substantially in
the form of EXHIBIT A to this Agreement;
(c) a certificate duly executed by an officer of the Company
(without personal liability of such officer), dated as of the Closing Date (the
"COMPLIANCE CERTIFICATE"), in the form attached hereto as EXHIBIT B;
(d) copies of the Required Approvals and Notices (as defined
below); and
(2) The Company shall have received from the Investor an opinion
of counsel to the Investor, substantially in the form of EXHIBIT C to this
Agreement.
(3) The Investor shall pay the Purchase Price to the Company by SWIFT wire
transfer of immediately available funds to the Company's following bank
accounts: (i) 60% of the Purchase Price should be transferred to Bank
Hapoalim B.M., Branch ▇▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, and (ii) the
remaining 40% of the Purchase Price shall be transferred to Israel
Discount Bank Ltd., Branch No. 10, Company Account No. 72036, and the
issuance of the Shares in the name of the Investor shall come into effect.
2.3. SHARES CERTIFICATES. Immediately after the Closing, the
Company shall take all actions needed in order to issue the Investor one
or more certificates representing the Shares (including all required
actions VIS-A-VIS the NYSE and American Stock Transfer and Trust Company).
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor, and
acknowledges that the Investor is entering into this Agreement in reliance
thereon, as follows:
3.1 ORGANIZATION. The Company is a corporation duly organized and
validly existing under the laws of the State of Israel. The Company is
duly qualified to conduct its business, and (with respect to those
jurisdictions in which the concept of good standing is relevant) is in
good standing, in each jurisdiction where the character of its properties
owned, operated or leased or the nature of its activities makes such
qualification necessary, except for such failures which would not
reasonably be likely to have a Material Adverse Effect (as defined below).
The Company has the requisite corporate power and authority and the
necessary governmental authority, franchise, license or permit to own,
operate, lease and otherwise to hold and operate its assets and properties
and to carry on its businesses as now being conducted, except for such
failures which would not reasonably be likely to have a Material Adverse
Effect. As used herein, the term "MATERIAL ADVERSE EFFECT" means any
material adverse effect on the business, as now conducted or proposed to
be conducted by, the assets, condition (financial or otherwise),
liabilities or operations of, the Company and its Subsidiaries (as defined
below) taken as a whole.
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3.2 ORGANIZATIONAL DOCUMENTS. Set forth in SCHEDULE 3.2 is a complete
and correct copy of the Memorandum of Association and the Articles of
Association of Tefron, as amended to date. All of such organizational
documents are in full force and effect.
3.3 CAPITALIZATION.
(a) The registered share capital of the Company as of the date of
this Agreement is NIS 50,000,000, which registered share capital is
divided into (i) 4,500 Ordinary B Deferred Shares (the "DEFERRED SHARES"),
all of which are issued and outstanding, and (ii) 49,995,500 Series A
Ordinary Shares, nominal value NIS 1.00 each (the "ORDINARY SHARES"), of
which 13,409,566 are issued and outstanding as of the date of this
Agreement (of which 997,400 shares are currently held by a wholly owned
subsidiary of the Company).
In addition, the Company has issued employee and/or consultant options to
purchase up to 1,862,323 Ordinary Shares (the "EMPLOYEE OPTIONS") out of a
total amount of 2,266,049 Ordinary Shares, covered by the Company's
Employee Stock Option Plan ("ESOP"). Prior to the Closing, the Company's
General Meeting of Shareholders may approve the grant of additional
options to purchase 650,000 Ordinary Shares of the Company to its CEO, ▇▇.
▇▇▇▇▇▇, in which case, the Company shall increase the number of shares
covered by the ESOP by no more than 446,274 (i.e. to 2,712,323 Ordinary
Shares). Following such increase and grant, options to purchase 200,000
Ordinary Shares shall be available for future grants pursuant to the ESOP.
Except for the foregoing and for the transactions contemplated by FIMI's
Investment and Purchase Agreements and for the transactions contemplated
by this Agreement, there are no other shares, convertible or other
securities, outstanding warrants, options, or other rights to subscribe
for, purchase, or acquire from the Company any securities of the Company,
and there are not any contracts or binding commitments providing for the
issuance of, or the granting of rights to acquire from the Company, any
securities of the Company or under which the Company is, or may become,
obligated to issue any of its securities.
(b) Except as set forth in SCHEDULE 3.3, there are no bonds, debentures,
notes or other indebtedness issued by the Company or any of its Subsidiaries (as
defined below) or, to the Company's knowledge, granted by third parties that
have the right to vote on any matters on which the Company's shareholders may
vote. There are no outstanding contractual obligations of the Company or any of
its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company's
share capital. All of the issued and outstanding share capital of the Company
has been duly authorized and validly issued and is fully paid and nonassessable.
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(c) All of the Shares issuable in accordance with this Agreement will be,
when paid for and issued at the Closing as provided in this Agreement, duly
authorized, validly issued, fully paid and nonassessable, shall not be subject
to call, forfeiture or preemptive rights, and shall be delivered free and clear
of all Encumbrances. The term "ENCUMBRANCE" means and includes any interest or
equity of any person (including any right to acquire, option, or right of
preemption) or any mortgage, charge, pledge, lien, or assignment, or any other
encumbrance or security interest over or in the relevant property.
3.4 SUBSIDIARIES.
(a) The names and jurisdictions of organization of each corporation,
limited liability company, partnership, joint venture or other entity, that the
Company directly or indirectly, controls, whether through the ownership of
voting securities, by contract or otherwise (collectively, the "SUBSIDIARIES" or
individually, a "SUBSIDIARY"), are set forth on SCHEDULE 3.4(A).
3.5 AUTHORITY. The Company has the necessary corporate power and
authority to enter into this Agreement and each of the other agreements,
certificates or other instruments required to be delivered hereunder by
the Company at or prior to the Closing (the "TRANSACTION DOCUMENTS") and
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery
of this Agreement and each of the other Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby shall have been, at the Closing Date, duly
and validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of the Company shall be necessary to
authorize this Agreement or any of the other Transaction Documents or to
consummate the transactions contemplated hereby or thereby. This Agreement
has been duly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the Investor, constitutes a
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting
creditors' rights generally and by the application of general principles
of equity. Each of the other Transaction Documents, when executed and
delivered by the Company, shall have been duly executed and delivered by
the Company and, assuming the due authorization, execution and delivery by
the Investor, shall constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
of general applicability relating to or affecting creditors' rights
generally and by the application of general principles of equity.
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3.6 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement and each of the other
Transaction Documents by the Company do not, and the performance by the
Company of its obligations under this Agreement and under the other
Transaction Documents will not, with or without the giving of notice or
the lapse of time or both, (i) conflict with or violate the organizational
documents of the Company or any of its Subsidiaries, (ii) subject to
obtaining the Required Approvals and Notices (as defined below), conflict
with or violate any law, statute, ordinance, rule, regulation, order,
judgment or decree applicable to the Company or any of its Subsidiaries or
by which any of their respective properties or assets is bound or
affected, or (iii) except as set forth in SCHEDULE 3.6(B), result in any
breach of or constitute a default under, or give to others any rights of
termination, amendment, acceleration or cancellation of any Material
Agreement (as defined below) to which the Company or any of its
Subsidiaries is a party, or result in the creation of any Encumbrance on
the properties or assets of the Company or any of its Subsidiaries
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound.
(b) The execution and delivery of this Agreement by the Company do not,
and the execution and delivery of each of the other Transaction Documents and
the performance of this Agreement and each of the other Transaction Documents by
the Company, will not, require any consent, approval, authorization or permit of
or filing with or notification to, any Governmental Entity (as defined below),
by or with respect to the Company or any of its Subsidiaries, except (i) for
applicable requirements, if any, of the consents, approvals, authorizations,
permits or notification described in SCHEDULE 3.6(B) (the "REQUIRED APPROVALS
AND NOTICES"), and (ii) where failure to obtain the required consents,
approvals, authorizations or permits, or to make such filings or notifications,
(A) would not prevent or delay consummation of any of the transactions
contemplated by this Agreement in any material respect, or otherwise prevent the
Company from performing its obligations under this Agreement in any material
respect, and (B) would not reasonably be likely to have a Material Adverse
Effect. As used herein the term "GOVERNMENTAL ENTITY" means any Israeli or U.S.
entity exercising executive, legislative, judicial, regulatory or administrative
function of or pertaining to government.
3.7 SEC FILINGS; FINANCIAL STATEMENTS.
(a) The Company has filed all forms, reports, statements and other
documents required to be filed with the Securities and Exchange Commission
("SEC") for the two years preceding the date hereof, including all (i) Annual
Reports on Form 20-F, (ii) proxy statements relating to meetings of shareholders
(whether annual or special) and (iii) Reports on Form 6-K (collectively, with
the 2003 Financials (as defined below), the "TEFRON SEC REPORTS"). In addition,
it has furnished under cover of Form 6-K the financial statements for the first
three quarters of fiscal year 2003 (the "2003 FINANCIALS"). Except as set forth
in the letter issued by the SEC on February 11, 2004, attached hereto as
SCHEDULE 3.7(A), as of their respective filing or publication dates, to the best
of the Company's knowledge, the Tefron SEC Reports complied as to form in all
material respects with the requirements of the United States Securities Exchange
Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇") ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Securities Act of 1933,
as amended (the "SECURITIES ACT") applicable to the Company. To the best of the
Company's knowledge, the Tefron SEC Reports and the 2003 Financials did not at
the time they were filed or published, respectively, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(b) The audited consolidated financial statements of the Company included
in the Tefron SEC Reports comply, to the Company's best knowledge, in all
material respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto as in effect at the time
of filing. The financial statements, including all related notes and schedules,
contained in the Tefron SEC Reports (or incorporated by reference therein) and
in the 2003 Financials present fairly, to the Company's best knowledge, in all
material respects the consolidated financial position of the Company and its
Subsidiaries as at the respective dates thereof and the consolidated results of
operations and cash flows of the Company and its Subsidiaries for the periods
indicated, in accordance with United States generally accepted accounting
principles (GAAP).
3.8 OPERATIONS IN THE ORDINARY COURSE. Except as set forth in SCHEDULE
3.8 attached hereto or otherwise disclosed in the Tefron SEC Reports or
the 2003 Financials, between September 30, 2003 and the date of this
Agreement, the Company has operated its business in the usual and ordinary
course consistent with past practices and there has been no event which
resulted or is likely to result in a Material Adverse Effect.
3.9 LITIGATION. Except as set forth in SCHEDULE 3.9 attached hereto,
there are no claims, actions or proceedings pending or, to the Company's
knowledge, threatened against the Company or any of its Subsidiaries, any
of their respective properties (or any of their respective officers or
directors, in such capacity) before any court, arbitral, mediation or
regulatory authority or body, domestic or foreign, that individually or in
the aggregate (i) would reasonable be likely to, or if adversely decided
may be expected to, have a Material Adverse Effect; or (ii) challenge or
seek to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
3.10 COMPLIANCE WITH LAWS; LICENSES AND PERMITS. Except with respect to
the Company's non compliance with the minimum shareholders' equity and the
minimum market capitalization requirements of the NYSE, which non
compliance with respect to the shareholders' equity shall be, and with
respect to the minimum market capitalization requirement, is reasonably
expected to be, rectified by and upon the consummation of the Term
Precedent, to the Company's knowledge, the Company does not lack permits,
licenses, authorizations or approvals necessary to conduct its business,
and is not in material violation of Applicable Law or any permits,
licenses, authorizations and approvals that have been obtained by it,
which the failure to obtain or such violation, as applicable, would
reasonably be likely to have a Material Adverse Effect. As used herein,
the term "APPLICABLE LAW" means any provision of any statute, law,
ordinance, rule, regulation, governmental decree, order, concession,
grant, permit or license, or other governmental authorization or approval
applicable to the Company.
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3.11 INTELLECTUAL PROPERTY.
(a) Except as set forth in SCHEDULE 3.11(A) attached hereto, the
Company has no knowledge of any material infringement by the Company of any
intellectual property right or other proprietary right of any third party, and
no such infringement shall result in any way from the signing and execution of
this Agreement or any of the other Transaction Documents or the consummation of
any or all of the transactions contemplated hereby and thereby, and no claim has
been made by any third party based upon an allegation of any such infringement;
(b) The Company takes commercially reasonable effort to ensure
that all officers, employees and consultants of the Company and its Subsidiaries
shall be under an obligation regarding the protection of proprietary information
and the assignment to such entity of any intellectual property arising from
services performed for such employer by such persons, all in a manner
satisfactory to the Company, except when, having regard to the nature and
function of the tasks performed by the officer, employee, or consultants,
failure to be bound by such an obligation would not be reasonably anticipated to
have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company takes of commercially reasonable effort to ensure
that all use, disclosure or appropriation Confidential Information (as defined
in Section 5.1(b) below) owned by the Company or any of its Subsidiaries by or
to a third party shall be subject to the terms of a confidentiality obligation
taken by, or imposed on, such third party, towards the Company or such
Subsidiary, all in a manner satisfactory to the Company.
(d) Except as set forth in SCHEDULE 3.11(D) attached hereto, no
claim has been made by any third party that the use, disclosure or appropriation
of Confidential Information not owned by the Company or any Subsidiary has been
in material violation of the terms of a written agreement between the Company or
such Subsidiary and the owner of such Confidential Information, or is otherwise
materially unlawful.
3.12 MATERIAL AGREEMENTS. Except as set froth on SCHEDULE 3.12, all
material agreements to which the Company or any of its Subsidiaries is a party
(the "MATERIAL AGREEMENTS"), are valid and in full force and effect on the date
hereof, and, except as set forth in SCHEDULE 3.12, neither the Company or any of
its Subsidiaries nor, to the Company's knowledge, any other party, has violated
any provision thereof or committed or failed to perform any act which with or
without notice, lapse of time or both would constitute a default under the
provisions of any Material Agreement, except for violations or defaults which
would not reasonably be likely to have a Material Adverse Effect.
3.13 TAXATION. Except as set forth in SCHEDULE 3.13 attached hereto, the
financial statements contained in the Tefron SEC Reports make adequate
provisions for taxation for which the Company was then liable or accountable, to
the extent required under United States GAAP (including, without limitation,
with respect to any tax liability relating to the Alba's transactions with Alba
Health), and the Company has promptly paid or provided in its books of account
for all such taxation liability.
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3.14 BROKERS. No person or firm has, or will have, as a result of any
act or omission by the Company or anyone acting on behalf of the Company, any
right,interest or valid claim against the Company or the Investor for any
commission, fee or other compensation as a finder or broker or in any similar
capacity with respect to the transactions contemplated under this Agreement.
3.15 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by the Company herein or in any Schedule or Exhibit hereto or any other
Transaction Document furnished by the Company pursuant to this Agreement contain
or will contain at the Closing Date any untrue statement of a material fact, or
omit or will omit at the Closing Date to state any material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company, and acknowledges
that the Company is entering into this Agreement in reliance thereon, as
follows:
4.1 ENFORCEABILITY. This Agreement, when executed and delivered by the
Investor, constitutes a valid, binding, and enforceable obligation of the
Investor.
4.2 AUTHORITY. The Investor is duly organized, and validly existing
under the laws of the jurisdiction of its organization, and has all requisite
power and authority to carry out the transactions contemplated hereby, and the
execution, delivery, and performance of the obligations hereunder of the
Investor have been duly authorized by all necessary partnership action.
4.3 ACCREDITED INVESTOR. The Investor acknowledges its understanding
that the offering and sale of the Shares is intended to be exempt from
registration under the Securities Act by virtue of Section 4(2) of the
Securities Act and the provisions of Regulation D thereunder. The Investor
represents and warrants that it is an "Accredited Investor", as that term is
defined under Regulation D, and that it is a sophisticated investor that has
experience in business and financial matters and is capable of evaluating the
merits and risks relevant to the Company and to the transaction contemplated by
this Agreement. The Investor is able to bear the economic risk of an investment
in the Shares. The Investor is acquiring the Shares for its own account for
investment purposes only and not with a view to or for distributing or reselling
the Shares.
4.4 DILIGENCE. Without derogating from the representations and
warranties set forth in Section 3 above, the Investor has conducted a due
diligence review of the Company, has been given access to information regarding
the Company, including the Tefron SEC Reports, and has utilized that access to
its satisfaction, in order to receive all such information as it considered
necessary, required and advisable for deciding whether and under which terms to
purchase the Shares, and has had the opportunity to ask such questions as it has
deemed necessary and to receive answers from representatives of the Company
regarding the terms of the offering of the Shares and the business of the
Company. The Investor acknowledges that in making its decision to enter into
this transaction, it has not relied on any information other than the
representations and warranties set forth in this Agreement and public
information filed with the SEC or NYSE.
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4.5 TRANSFERS. The Investor understands, acknowledges and agrees that
the Shares have not been registered under the securities laws of any
jurisdiction, and may not be transferred without such registration or an
exemption therefrom. Until registered under the Securities Act or otherwise
permitted under the Securities Act, all certificates evidencing any of the
Shares shall bear a legend, prominently stamped or printed thereon, reading
substantially as follows:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT") or
applicable State securities laws. These securities have been acquired for
investment and not with a view to distribution or resale, and may not be
sold or otherwise transferred without an effective registration statement
for such securities under the Securities Act and applicable State
securities laws, or the availability of an exemption from the registration
provisions of the Securities Act and applicable State securities laws."
4.6 NO CONFLICT. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not (i) result
in any conflict with, breach of, or default (or give rise to any right of
termination, cancellation or acceleration or the loss of any benefit)
under any of the terms, conditions or provisions of the Investor's
organizational documents or of any material agreement, permit or other
instrument or obligation to which the Investor is a party or is bound, or
(ii) violate any law or regulation, or any order, injunction, or judgment
of any court or any governmental bureau or agency, domestic or foreign
applicable to the Investor. No consent or approval by any governmental
authority or any third party is required in connection with the execution
by the Investor of this Agreement or the consummation by the Investor of
the transactions contemplated hereby except for such actions, consents or
approvals as have been obtained prior to the execution of this Agreement.
4.7 RELIANCE ON REPRESENTATIONS AND WARRANTIES. Nothing set forth in
this Section 4 shall be deemed to detract from or otherwise prejudice the
Investor's reliance on the Company's representations and warranties set forth in
Section 3 above.
5. CONFIDENTIALITY.
5.1 CONFIDENTIALITY.
(a) The Investor agrees that any Confidential Information (defined
below) obtained pursuant to this Agreement, or provided to the Investor
prior to the Closing, will not be disclosed or used by the Investor or any
of its representatives without the prior written consent of the Company.
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(b) For the purposes of this Section 5, "Confidential Information"
shall mean all information, including but not limited to, financial
information, business plans, budgets, customer lists, computer software,
source codes, plans, drawings, technical specifications, patents,
copyrights, and other intellectual property rights, in any form (paper,
disk, or other), relating to the Company or its business . However,
Confidential Information shall not include information which, as
demonstrated by documentary evidence: (a) was in the Investor's possession
prior to its disclosure; (b) is or becomes available to the public through
no fault of the Investor; (c) was disclosed to the public by operation of
law; or (d) is rightfully received by the Investor from a third party
without a duty of confidentiality.
5.2 REMEDIES. The Investor acknowledges and agrees that in the event of
any breach of this Section 5, the Company would be irreparably and
immediately harmed and monetary damages would be inadequate compensation.
It is, therefore, agreed that the Company, in addition to any other remedy
to which it may be entitled by law or in equity, shall be entitled to an
injunction or injunctions to prevent breaches of this Section 5 and to
compel specific performance of this Section 5, without the need for proof
of actual damages.
6. CONDITIONS TO CLOSING
6.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE INVESTOR TO CLOSE.
The obligation hereunder of the Investor to purchase the Shares and pay
the Purchase Price is subject to the fulfillment at or before the Closing
of the following conditions precedent, any one or more of which may be
waived in writing, in whole or in part, by the Investor, which waiver
shall be at the sole discretion of the Investor.
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
Each of the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects as of
the date when made and - except for (a) such changes as are attributable
to the Company's ordinary course of business and do not, in the aggregate,
have a Material Adverse Effect and (b) such changes attributable to the
transactions contemplated in FIMI's Investment and Purchase Agreements -
as of the Closing, as though made at that time.
(b) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
Closing.
(c) ALL DELIVERABLES READY. All documents and other items to
be delivered to the Investor at the Closing as specified in Section 2.2(b)
above, shall be duly executed, ready for delivery to the Investor.
11
(d) TERM PRECEDENT. The Term Precedent shall have been
complied with within 120 days of the date hereof.
6.2. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO
CLOSE. The obligation hereunder of the Company to issue and sell the
Shares to the Investor is subject to the fulfillment at or before the
Closing of the following conditions precedent, any one or more of which
may be waived in writing, in whole or in part, by the Company, which
waiver shall be at the sole discretion of the Company.
(a) ACCURACY OF THE INVESTOR'S REPRESENTATIONS AND
WARRANTIES. Each of the representations and warranties of the Investor
shall be true and correct in all material respects as of the date when
made and as of the Closing, as though made at that time.
(b) PERFORMANCE BY THE INVESTOR. The Investor shall have
performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Investor at or prior to the
Closing.
(c) TERM PRECEDENT. The Term Precedent shall have been
complied with at any time prior to the Closing.
6.3. TERMINATION. For the avoidance of doubt, in the event that the Term
Precedent is not complied with within 120 days, the Investor may terminate
this Agreement and this Agreement shall become null and void and the
parties will not have any claims against each other.
REGISTRATION RIGHTS.
At the Closing, the Company and the Investor shall enter into a
Registration Rights Agreement in the form attached hereto as EXHIBIT D.
8. COVENANTS AND UNDERTAKINGS.
8.1. ADDITIONAL PAYMENT UNDERTAKING
In the event that during the three year period commencing at the Closing
Date the Investor shall sell, for cash or publicly traded securities
(excluding publicly traded securities that are received in connection with
a merger or reorganization of the Company), at least 20% of the total
number of the Company's Ordinary Shares it had purchased at the Closing
and at the Concurrent Closing (as defined hereinafter), at an average
price per Share (adjusted for share combinations and splits) which,
together with the total amount of dividends which had been distributed to
the Investor with respect to each such share prior to the date it was
sold, is equal to or higher than US$9.22 (the "SALE THRESHOLD"), then, on
the third anniversary of the Closing the Investor shall pay the Company an
amount equal to the excess of such average price per share over the Sale
Threshold, but in any event not exceeding US$0.75, per each Share so sold
by the Investor.
12
The provisions of Section 8.1(a) above shall also apply to the Investor's
aggregate sales during the four year period commencing on the Closing
Date; PROVIDED, however, that in such case the Sale Threshold shall be
US$11.6 instead of US$9.22.
8.2. COMPANY'S PUT OPTION.
Subject to the terms and conditions contained in this Section 8.2, the Investor
grants the Company an irrevocable option (the "PUT OPTION") to sell and issue to
the Investor additional shares of the Company, in amount to be determined by the
Company but not exceeding 430,107 shares (the "Put Option Shares"), at the same
price per share and under the same conditions which apply to the issuance and
purchase of the Shares (as defined in the preamble to this Agreement) under this
Agreement.
The Company shall have the right to exercise the Put Option during the 90 days
following the Closing Date (the "Put Option Exercise Period"). The Put Option
shall be exercisable by the Company giving written notice to the Investor (the
"Put Option Notice") within the Put Option Exercise Period.
On the 20th business day following the day in which the Put Option Notice has
been sent by the Company to the Investor, the parties shall hold the closing for
the issuance and purchase of the Put Option Shares (the "CONCURRENT CLOSING") at
the offices of Meitar, Liquornik, Geva & Leshem ▇▇▇▇▇▇▇▇▇, 16 Abba Hillel Rd.,
Ramat Gan, Israel. In such Concurrent Closing, the parties shall effectuate the
issuance and purchase of the Put Option Shares, and the provisions of Sections
2.2 and 6 shall apply, MUTATES MUTANDIS.
As of the completion of the Concurrent Closing, the Put Option Shares shall be
added to the Shares for all purposes of this Agreement, and its provisions shall
apply to the Put Option Shares in the same way it applies to the original Shares
(including, without limitation, with respect to the provision of PPS Adjustments
under Section 1(b) and to the Investor's additional payment undertaking under
Section 8.1).
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made by the Company in this Agreement
shall survive the Closing and be in effect until 60 days following the filing of
Form 20-F with respect to calendar year 2004, on which date they shall expire
and be of no further force or effect; PROVIDED, that the representations set
forth in Section 3.13 (Taxation) shall be in effect until the earlier of (i) the
date on which the tax authorities issue final tax assessments for calendar year
2003 and (ii) the expiration of the statute of limitations with respect to such
assessments.
13
10. MISCELLANEOUS.
10.1 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.
10.2 GOVERNING LAW; DISPUTE RESOLUTION. This Agreement shall be governed
by and construed according to the laws of the State of Israel, without
regard to the conflict of laws provision thereof; provided, however, that
all provisions relating to the registration of the Shares on the NYSE
and/or with the SEC shall be interpreted in accordance with United States
federal securities laws. Any claim arising under or in connection with
this Agreement shall be resolved exclusively in the appropriate court in
Tel-Aviv, Israel. Each of the parties hereby irrevocably consents to the
exclusive jurisdiction of such courts and waives and agrees not to assert
any objection to the jurisdiction or convenience thereof.
10.3 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise expressly
stated to the contrary herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns under law ("HA'▇▇▇▇▇ AL PI
DIN"), heirs, executors, and administrators of the parties. Except as otherwise
expressly stated to the contrary herein, each of the parties hereto shall not
assign or transfer any of its rights or obligations hereunder absent the consent
of the other party, which consent shall not be unreasonably withheld; PROVIDED,
that the Investor may assign its entire rights hereunder (but not any part of
such rights) to any of its Affiliates without the consent of the Company. For
this purpose, an Affiliate is an entity controlled by the Investor.
10.4 ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement and the
Exhibits and Schedules hereto constitute the full and entire understanding
and agreement between the parties with regard to the subject matters
hereof and thereof. All prior understandings, representations and
agreements among the parties (or anyone on their behalf) are void and of
no further effect. Any term of this Agreement may be amended, waived, or
discharged (either prospectively or retroactively, and either generally or
in a particular instance), by a written instrument signed by all the
parties to this Agreement.
10.5 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 telecopied or mailed by registered or certified mail,
postage prepaid, or otherwise delivered by hand or by messenger, addressed
to such party's address as set forth below or at such other address in
Israel as the party shall have furnished to each other party in writing in
accordance with this provision:
If to the Investor:
▇▇▇▇▇ Partners, L.P.
▇/▇ ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ 75116
Facsimile: + ▇▇-▇-▇▇▇▇▇▇▇▇
14
With a copy to:
Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
Tefron Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Israel
Facsimile: + 972-3-579-8715
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Adv.
Meitar, Liquornik, Geva & Leshem ▇▇▇▇▇▇▇▇▇.
16 Abba Hillel Silver,
Ramat Gan, Israel
Facsimile: ▇▇▇▇-▇-▇▇▇▇▇▇▇
All such notices shall be deemed to have been duly given to the addressee
thereof (i) if hand delivered, on the day of delivery, (ii) if given by
facsimile transmission, on the business day on which such transmission is sent
and confirmed, (iii) if mailed by registered mail, return receipt requested,
five business days following the date it was mailed, to such party's address.
10.6 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 therefore 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.
10.7 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.
15
10.8 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.
10.9 HEADING, PREAMBLE, AND EXHIBITS. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement. The Preamble, Schedules and
Exhibits are an integral and inseparable part of this Agreement.
10.10 EXPENSES. Each party hereto shall pay its own expenses in
connection with the negotiation and preparation of this Agreement and the
consummation of the transactions contemplated hereby. Any stamp duty
payable in connection with the issue of the Shares will be borne by both
parties, in equal parts.
10.11 LIMITATIONS ON RIGHTS OF THIRD PARTIES. Nothing expressed or
implied in this Agreement is intended or shall be construed to confer
upon or give any person, other than the Company and the Investor, any
rights or remedies under this Agreement.
10.12. ▇▇▇▇▇▇ ISKA. Wherever this Agreement, or any other future agreement
between the parties hereto, refers to loans and/or interest rates, such
agreements will be subject to ▇▇▇▇▇▇ Iska, under the customary terms used
for that purpose in Israeli banks.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF the parties have signed this Share Purchase Agreement
as of the date first hereinabove set forth.
Tefron Ltd. ▇▇▇▇▇ Partners, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ By: /s/ ▇▇▇ ▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ Limited
--------------------------- Title: General Partner
Title: Chairman of the Board / CEO
---------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------
Name: ▇▇▇ ▇▇▇▇▇
---------
Title: Director
--------
17
EXHIBIT D
Registration Rights Agreement
TEFRON LTD.
REGISTRATION RIGHTS AGREEMENT
__, 2004
18
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the __ day of ____, 2004, by
and among Tefron Ltd., an Israeli company (the "COMPANY"), and Macpell
Industries Ltd., Arwol Holdings Ltd., Norfet, Limited Partnership and ▇▇▇▇▇
Partners L.P. (the "OTHER SHAREHOLDER") (each of the foregoing, a "PRINCIPAL
SHAREHOLDER" and collectively, the "PRINCIPAL SHAREHOLDERS").
RECITALS
WHEREAS, in order to allow the Company's principal shareholders to register
their shares in the Company in the future in the manner and at the times set
forth in this Agreement, the Principal Shareholders and the Company hereby agree
that this Agreement shall govern the rights of the Principal Shareholders to
cause the Company to register Ordinary Shares of the Company held now or in the
future by the Principal Shareholders.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
For purposes of this Agreement:
(a) The term "ACT" means the Securities Act of 1933, as amended.
(b) The term "FORM F-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC that permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(c) The term "HOLDER" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 12 hereof.
(d) The term "1934 ACT" shall mean the Securities Exchange Act of 1934,
as amended.
(e) The term "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f) The term "REGISTRABLE SECURITIES" means: (i) any Ordinary Shares of
the Company held now or in the future by a Principal Shareholder and (ii) any
Ordinary Shares of the Company issuable upon exercise of any warrant, option or
other right of a Principal Shareholder, excluding, however, any Registrable
Securities sold by a person in a transaction in which such person's rights under
this Agreement are not assigned.
(g) The number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING"
shall mean the number of shares of Ordinary Shares that are Registrable
Securities and (i) are then issued and outstanding or (ii) are then issuable
pursuant to the exercise or conversion of then outstanding and then exercisable
options, warrants or convertible securities.
(h) The term "SEC" shall mean the United States Securities and Exchange
Commission.
2. DEMAND REGISTRATION
2.1 If the Company shall receive at any time at least six months from
the date hereof, (i) a written request from one or more Holders holding in
the aggregate at least 25% of the total Registrable Securities as of the
time of the request to register under the Act, a minimum of five percent
(5%) of the share capital of the Company then outstanding but not less
than 500,000 Ordinary Shares of the Company, or (ii) a written request
from the Other Shareholder to register under the Act all, but not less
than all, of the Registrable Securities held by the Other Shareholder at
such time, but in any event not less than 500,000 Ordinary Shares of the
Company, the Company shall:
(a) within twenty (20) days of the receipt thereof, give written notice
of such request to all Holders; and
(b) use its reasonable efforts to effect as soon as practicable, the
registration under the Act of all Registrable Securities that the Holders
request to be registered as soon as reasonably practicable so as to permit
the sale thereof and in connection therewith shall prepare and file a
registration statement on Form F-3, subject to the limitations of
subsection 2.2 hereof.
The written request referred to in this Section 2.1 shall (i) specify the
number of Registrable Securities intended to be offered and sold, (ii)
express the present intent of the Holder or Holders to offer or cause the
offering of such shares for distribution, (iii) describe the nature and
method of the proposed offer and sale thereof, and (iv) contain an
undertaking of the Holder or Holders to provide all such information and
materials and take all such action as may be required in order to permit
the Company to comply with all applicable requirements of the SEC.
2.2 If the Holders initiating the registration request hereunder (the
"INITIATING HOLDERS") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, the underwriter will
be selected by the Company and shall be reasonably acceptable to
Initiating Holders holding a majority of the Registrable Securities to be
registered. In such event, the right of any Holder to include such
Holder's Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of
such Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by Initiating Holders holding a majority of the
Registrable Securities to be registered and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities
through such underwriting and the Company shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected
for such underwriting. Notwithstanding any other provision of this Section
2.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant
hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders thereof,
including the Initiating Holders, on a pro rata basis based upon the total
number of Registrable Securities then held by each such Holder.
2.3 Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2, a
certificate signed by an authorized officer of the Company of the Company
stating that filing a registration statement in the good faith judgment of
the Board of Directors of the Company (i) would have a material adverse
effect on the Company or its shareholders, (2) would require disclosure of
material information that the Company has a valid business purpose of
retaining as confidential or (3) would interfere with a registration
statement of the Company contemplated to be filed or filed with the SEC or
declared effective by the SEC, the Company shall have the right to defer
taking action with respect to such filing for a period not to exceed one
hundred and eighty (180) days after receipt of the request of the
Initiating Holders; PROVIDED, HOWEVER, that the Company may not utilize
this right more than once in any twelve-month period.
2.4 In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 2:
(a) after the Company has effected three (3) registrations pursuant to
this Section 2 and such registrations have been declared or ordered
effective;
(b) within six (6) months after any other registration by the Company
under the Act;
(c) if the Holders, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public (net of any underwriters' discounts or commissions) of less than
$1,000,000; or
(d) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance.
2A. F-3 REGISTRATION
2A.1 In any case that the Company shall receive from any Holder a
written request or requests at least six months from the date hereof that
the Company effect a registration on Form F-3 and any related
qualification or compliance with respect to Registrable Securities where
the aggregate net proceeds from the sale of such Holders' Registrable
Securities equal to at least three million United States Dollars
($3,000,000), the Company shall promptly give notice to the other Holders
of such request, at least sixty (60) days prior to the filing of the
registration statement in connection with such registration. Upon the
written request of any other Holder given within twenty (20) days after
mailing of such notice by the Company in accordance with Section 15.5, the
Company shall include in such registration (subject to the provisions of
this Section 2A) all of the Registrable Securities indicated in the
request of the Holders. The Company shall then use its reasonable efforts
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 of such Registrable Securities as are specified in the
requests; provided, however, that the Company shall not be obligated to
effect any such registration, qualification, or compliance, pursuant to
this Section 2A if the Company has, within the eighteen (18) month period
preceding the date of such request, already effected one (1) registration
for the Holders requesting registration pursuant to this Section 2A. The
Company undertakes that it will, once having qualified for registration on
Form F-3, use its reasonable efforts to comply with all necessary filings
and other requirements so as to maintain such qualification for a period
of two (2) years or such earlier date as the Registrable Securities
covered by such Registration Statement have been sold or may be sold
without volume restrictions pursuant to Rule 144 promulgated under the
Act.
2A.2 If at any time or from time to time after the date of effectiveness
of the Registration Statement, the Company notifies in writing the
Principal Shareholders participating in the Form F-3 Registration pursuant
to this Section 2A of the existence of a Potential Material Event
("Blackout Notice"), the registration of Registrable Securities on the
Form F-3 shall be suspended from the time of the giving of notice with
respect to a Potential Material Event until such Principal Shareholders
receive written notice from the Company that such Potential Material Event
either has been disclosed to the public or no longer constitutes a
Potential Material Event; PROVIDED, HOWEVER, that the Company may not so
suspend such registration for more than ninety (90) days in the aggregate
during any 12-month period ("Blackout Period") during the periods the Form
F-3 Registration Statement is required to be in effect.
For purposes of this Section 2A, "Potential Material Event" means any of
the following: (a) the possession by the Company of material information
not ripe for disclosure in a Registration Statement, which shall be
evidenced by a good faith determination by the Board of Directors of the
Company that disclosure of such information in the Registration Statement
would be detrimental to the business and affairs of the Company, or (b)
any material engagement or activity by the Company which would, in the
good faith determination of the Board of Directors of the Company, be
adversely affected by disclosure in a Registration Statement at such time,
which determination shall be accompanied by a good faith determination by
the Board of Directors of the Company that the Registration Statement
would be materially misleading absent the inclusion of such information.
2A3. The Company shall not be obligated to effect, or to take any action
to effect, any registration pursuant to this Section 2A: (i) within six
(6) months after any other registration by the Company under the Act; or
(ii) in any particular jurisdiction in which the Company would be required
to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
3. INCIDENTAL REGISTRATION
(a) If (but without any obligation to do so) the Company proposes to
register for its own account any of its capital stock or other securities
under the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the sale of
securities to participants in a Company share option plan, a registration
on any form that does not include substantially the same information as
would be required to be included in a registration statement covering the
sale of the Registrable Securities or a registration in which the only
Ordinary Shares being registered is Ordinary Shares issuable upon
conversion of debt securities that are also being registered or a
transaction under Rule 145 of the Act), the Company shall, at such time,
promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing
of such notice by the Company in accordance with Section 15.5 the Company
shall, subject to the provisions of Section 8, use its reasonable efforts
to cause to be registered under the Act all of the Registrable Securities
that each such Holder has requested to be registered; PROVIDED, HOWEVER,
that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such securities, the Company shall give written notice of
such determination and its reasons therefor to the Holders, and (i) in the
case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities, for
the same period as the delay in registering such other securities.
(b) Any registration by holders of Registrable Securities in a
registration by the Company shall be in accordance with the Company's plan
of distribution.
4. OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement to use its reasonable efforts to
effect as soon as practicable the registration of Registrable Securities,
the Company shall:
4.1 Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and 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
(other than a registration statement filed pursuant to Section 2A of this
Agreement), keep such registration statement effective for a period of up
to one hundred twenty (120) days or 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 that
are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold but not longer
than one hundred and eighty (180) days, provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment that (x) includes any prospectus
required by Section 10(a)(3) of the Act or (y) reflects facts or events
representing a material or fundamental change in the information set forth
in the registration statement, the incorporation by reference of
information required to be included in (x) and (y) above to be contained
in periodic reports filed pursuant to Section 13 or 15(d) of the 1934 Act
in the registration statement.
4.2 Prepare and file 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 Act with respect to the disposition of all securities
covered by such registration statement.
4.3 Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as they may reasonably request to
facilitate the disposition of Registrable Securities owned by them.
4.4 Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the
Holders; PROVIDED THAT the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions,
except as may be required by the Act.
4.5 In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
4.6 Notify 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 Act or 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 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.
4.7 Cause all such Registrable Securities registered hereunder to be
listed on a securities exchange on which similar securities issued by the
Company are then listed.
4.8 Provide 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.
4.9 Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 2, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to 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, 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 Holders requesting registration of
Registrable Securities.
5. FURNISH INFORMATION
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to Sections 2, 2A and 3 with respect to the
Registrable Securities of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such
Holder's Registrable Securities.
6. EXPENSES OF DEMAND AND F-3 REGISTRATION
All registration, filing and qualification fees, printers' and accounting
fees and fees and disbursements of counsel for the Company and the
underwriters, but excluding underwriting discounts and commissions, stock
transfer taxes and fees, incurred in connection with registrations,
filings or qualifications pursuant to Sections 2 and 2A (collectively,
"Registration Expenses") shall be borne by the parties in the following
manner: the first $50,000 of such Registration Expenses shall be borne by
the Company, and all such Registration Expenses in excess of the first
$50,000 shall be borne 50% by the Company, on the one hand, and 50% by the
selling shareholders, on the other hand, proportionately among the selling
shareholders in accordance with the number of Registrable Securities each
selling shareholders elects to have registered; PROVIDED, that if such
registration is demanded by the Other Shareholder pursuant to Section
2.1(ii) (and none of the other Principal Shareholders is requesting to
join the Other Shareholder and sell its shares at the same time as well) ,
all such Registration Expenses shall be borne by the Other Shareholder.
Underwriting discounts and commissions, and stock transfer taxes and fees
shall be paid in their entirety by the selling shareholders.
7. EXPENSES OF INCIDENTAL REGISTRATION
The Company shall bear and pay all expenses incurred in connection with
any registration, filing or qualification of Registrable Securities with
respect to the registrations pursuant to Section 3 for each Holder,
including (without limitation) all registration, filings and qualification
fees, printers' and accounting fees and fees and disbursements of counsel
for the Company, but excluding underwriting discounts and commissions with
respect to Registrable Securities to be sold for the selling shareholders
stock transfer taxes and fees.
8. UNDERWRITING REQUIREMENTS
If a registration statement for which the Company gives notice pursuant to
Section 3 is for an underwritten offering, then the Company shall so
advise the Holders of Registrable Securities. In such event, the right of
any Holder's Registrable Securities to be included in a registration
pursuant to Section 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein.
All Holders proposing to distribute their Registrable Securities through
such underwriting shall enter into an underwriting agreement in customary
form with the managing underwriter or underwriter(s) selected for such
underwriting. Notwithstanding any other provision of this Agreement, if
the managing underwriter(s) determine(s) in good faith that marketing
factors require a limitation of the number of shares to be underwritten,
then the managing underwriter(s) may exclude shares (including Registrable
Securities) from the registration and the underwriting, and the number of
shares that may be included in the registration and the underwriting shall
be allocated FIRST, to the Company, and SECOND, to each of the Holders
requesting inclusion of their Registrable Securities in such registration
statement on a pro rata basis based upon the total number of Registrable
Securities then held by each such Holder. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter, delivered
at least 20 business days prior to the effective date of the registration
statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
9. DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an injunction restraining
or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. INDEMNIFICATION
In the event any Registrable Securities are included in a registration
statement under Agreement:
10.1 To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions
or violations (collectively a "VIOLATION"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of
the Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law; and
the Company will reimburse each such Holder, underwriter or controlling
person any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this subsection 10.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to
which a Holder, underwriter or controlling person become subject to the
extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished for use
in connection with such registration by any such Holder, underwriter or
controlling person.
10.2 To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages or liabilities (joint or several) to which any of
the foregoing persons may become subject, under the Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder for use in connection with such
registration; and each such Holder will reimburse any person intended to
be indemnified pursuant to this subsection 10.2 for any legal or other
expenses reasonably incurred by such person, in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in this
subsection 10.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; PROVIDED, FURTHER, that in no event shall any indemnity under
this subsection 10.2 exceed the gross proceeds from the offering received
by such Holder.
10.3 Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 10, deliver to
the indemnifying party a written notice of the commencement thereof, and
the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that all
indemnified parties shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified parties by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under
this Section 10.
10.4 If the indemnification provided for in this Section 10 is held by a
court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
10.5 Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
10.6 The obligations of the Company and Holders under this Section 10
shall survive the completion of any offering of Registrable Securities in
a registration statement under this Agreement and otherwise.
11. REPORTS UNDER THE 1934 ACT
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that
may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form F-3, the
Company agrees to:
11.1 make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
11.2 file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
11.3 furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at
any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant
to Form F-3 (at any time after it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports
and documents filed under the 1934 Act by the Company, and (iii) such
other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
12. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
pursuant to this Agreement may be assigned (but only with all related
obligations) by a Holder to a transferee or assignee of such securities
provided: (a) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions
of this Agreement, including without limitation the provisions of Section
14 below; (c) the transfer involves a transfer of at least the lesser of
(i) five percent (5%) of the share capital of the Company then
outstanding, but not less than 500,000 Ordinary Shares of the Company and
(ii) all shares of Registrable Securities held by such Holder; PROVIDED,
HOWEVER, that transfers or assignments to affiliates of a Holder shall be
without restriction as to the minimum number of shares to be transferred;
and (d) such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee
or assignee is restricted under the Act.
13. "MARKET STAND-OFF" AGREEMENT
Each Principal Shareholder hereby agrees that, during the period of
duration specified by the Company and an underwriter of Ordinary Shares or
other securities of the Company, following the effective date of a
registration statement of the Company filed under the Act, it shall not,
to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company during such period except Ordinary
Shares included in such registration; PROVIDED, HOWEVER, that:
13.1 all executive officers, directors and holders of at least 1% of the
outstanding capital stock of the Company enter into similar agreements;
and
13.2 such market stand-off time period shall not exceed one hundred
eighty (180) days. Each Principal Shareholder hereby agrees that it will
enter into the underwriter's standard lock-up agreement containing
restrictions similar to those set forth in this Section 13. In addition,
in order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of
each Principal Shareholder (and the shares or securities of every other
person subject to the foregoing restriction) until the end of such period.
14. TERMINATION OF REGISTRATION RIGHTS
No Holder shall be entitled to exercise any right provided for in this
Agreement after the earlier of:
(a) November 24, 2010 (the "Expiration Date"); PROVIDED, HOWEVER, that
if on or prior to such date the Principal Shareholders have not sold or
otherwise transferred or disposed of at least 3,041,950 ordinary shares in
the Company (which represent 50% of the ordinary shares held by them in
the aggregate on the date of this Agreement), the Expiration Date shall be
November 24, 2013, or
(b) such time as all Registrable Securities held by such Holder can be
sold in any three (3) month period without registration under SEC Rule
144.
15. MISCELLANEOUS
15.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
15.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Israel as applied to agreements among Israeli
residents entered into and to be performed entirely within Israel. Each of the
parties hereto irrevocably consents to the sole and exclusive jurisdiction and
venue of any court within Tel Aviv - Jaffa, State of 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 that they might otherwise have to
such jurisdiction, venue and such process.
15.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
15.5 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(iii) two days after being sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the address as set
forth on the signature page hereof or at such other address as such party may
designate by ten days advance written notice to the other parties hereto.
15.6 EXPENSES. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
15.7 AMENDMENTS AND WAIVERS. 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 Company and the holders of
at least a majority of the Registrable Securities then outstanding; PROVIDED,
that any amendment which is not applicable to all holders of Registrable
Securities will require the written consent of holders of all of the Registrable
Securities. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities and the
Company.
15.8 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
15.9 AGGREGATION OF STOCK. All shares of Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
15.10 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Principal Shareholders'
Rights Agreement as of the date first above written.
COMPANY:
TEFRON LTD.
By: ________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
By: ________________
Name:
Title:
SHAREHOLDERS:
MACPELL INDUSTRIES LTD. Address for Notices:
By: ________________
▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇,
Name: Israel
Title:
---------------------------------
By: ________________ Fax: 03 - ▇▇▇ ▇▇ ▇▇
Name:
Title:
ARWOL HOLDINGS LTD. Address for Notices:
By: ________________
_________________________
Name:
Title:
--------------------------
By: ________________ Fax:
-------------------------
Name:
Title:
[Signature page continued]
NORFET, LIMITED PARTNERSHIP Address for Notices:
By: N.D.M.S Ltd. c/o FIMI 2001 Ltd.
By: _______________ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Tel-Aviv
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Fax: ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ PARTNERS, L.P. Address for Notices:
By:________________ c/o ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ Limited ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇-▇-▇▇▇▇▇▇▇▇
By:________________
Name: ▇▇▇ ▇▇▇▇▇
Title: Director