This documents has automatic paragraph numbering as follows:
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(a) - Level 4
(i) - Level 5
This document has also been Marked for TOCAGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
12th day of September, 2006 by and between (a) FIMGold, Limited Partnership
("FIMGold"), a limited partnership registered under the laws of the State of
Israel, (b) FIMGold Ltd., a company organized under the laws of the state of
Israel and the general partner of FIMGold (the "GP" and, together with FIMGold,
the "Sellers"), and (c) Emblaze Ltd., a company organized under the laws of the
state of Israel (the "Purchaser") (each Seller and the Purchaser is also
referred to as a "Party").
WHEREAS, the Purchaser is an Israeli public company whose shares are
listed on the Official Listing of the London Stock Exchange.
WHEREAS, FIMGold is the owner of 4,406,237 Ordinary Shares, nominal
value NIS 1.00 each (the "Purchased Shares"), of Formula Systems (1985) Ltd.
("Formula"), an Israeli public company whose American Depositary Receipts, each
representing one Ordinary Share, are listed on the NASDAQ Stock Market, and
whose Ordinary Shares are listed on the Tel-Aviv Stock Exchange (the "TASE").
WHEREAS, the Purchaser wishes to purchase from FIMGold and FIMGold
wishes to sell to the Purchaser all of the Purchased Shares.
WHEREAS, the parties wish to set forth the terms and conditions for the
sale by FIMGold to the Purchaser of the Purchased Shares.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
SALE AND PURCHASE OF PURCHASED SHARES;
PURCHASE PRICE; DISTRIBUTION OF FORMULA VISION SHARES; ESCROW; CLOSING
1.1. Sale and Purchase of Purchased Shares.
Subject to the terms and conditions hereof, at the Closing
(as defined herein), FIMGold shall sell to the Purchaser,
and the Purchaser shall purchase from FIMGold, all of the
Purchased Shares, which constitute as of the date hereof
approximately 33.4% of the outstanding shares of Formula,
free and clear of all Encumbrances (as defined below)
excluding as set forth in Schedule y2.2 (which Encumbrance
shall be removed on or prior to the Closing) and Sections
y2.2(3) and y2.2(4) below (the "Transaction"). The Purchased
Shares shall be sold for a price per share equal to US$16.00
(the "Price Per Share") and an aggregate purchase price
equal to US$70,499,792 (the "Purchase Price").
For purposes of this Agreement, an "Encumbrance" shall mean
any form of legal or security interest of a third party,
including but not limited to any lien, mortgage, pledge,
charge, title retention, right to acquire, hypothecation,
option, right of first refusal, restriction by way of
security of any kind or nature, community property interest,
equitable interest, proxy, right of preemption, transfer or
retention of title agreement, including any restriction on
use, voting, transfer, receipt of income or exercise of any
other attribute of ownership, or any other third party
right.
1.2. Distribution of Formula Vision Shares.
It is clarified that prior to the Closing, FIMGold shall use
its best efforts to cause Formula to publicly declare a
distribution of a dividend in kind of 36,696,000 of the
shares it shall own as of the date of such declaration in
Formula Vision Technologies (F.V.T.) Ltd. ("Formula Vision")
and that the "record date" for such distribution will be set
to be prior to the Closing (the "Distribution").
Accordingly, the Parties hereby agree and acknowledge that
the Price Per Share and the Purchase Price as defined above,
reflect such Distribution. As of the date hereof, Formula
owns 36,707,129 ordinary shares of Formula Vision.
1.3. Escrow Agreement.
Simultaneously with the Closing, and in order to (A)
partially secure repayment by Formula Vision to Formula of
the Formula Vision Debt (as defined in Section y2.5) and (B)
provide for the indemnification of the Purchaser in
accordance with Article VII hereof with respect to any
breach by the Sellers of the representations and warranties
set forth in Sections y2.2 and y2.6 below, in each case all
as provided for in the Escrow Agreement (as hereinafter
defined), (i) at and as a condition to the Closing, FIMGold
and the Purchaser shall enter into an escrow agreement in
substantially the form of Exhibit y1.3 (the "Escrow
Agreement") with Gross Kleinhendler ▇▇▇▇▇ Halevy ▇▇▇▇▇▇▇▇▇
and Co. (the "Escrow Agent"), and (ii) FIMGold shall deliver
one or more autonomous and unconditional bank guarantees for
the aggregate sum of $10 million to the Escrow Agent
(collectively, the "Bank Guarantee").
The Bank Guarantee shall be released or partially released
by the Escrow Agent from escrow in accordance with the terms
of the Escrow Agreement, it being clarified that the sum of
$3.4 million out of the Bank Guarantee shall be released to
FIMGold by the Escrow Agent immediately following the
repayment to Formula of a sum equal to 25% of the Formula
Vision Debt as of the Closing Date, all as set forth in and
subject to the Escrow Agreement. With respect to the
remaining $6.6 million of the Bank Guarantee, in the event
that (i) Formula Vision defaults in the payment of the
Formula Vision Debt to Formula, (ii) following such default
the Bank Guarantee or any portion thereof is released to the
Purchaser in accordance with the terms of the Escrow
Agreement and (iii) following such release of the Bank
Guarantee or any portion thereof to the Purchaser, the
portion of the Formula Vision Debt with respect to which the
default occurred is repaid to Formula in full, including all
costs and expenses incurred by the Purchaser and/or Formula
as a result of such default, if any, the Purchaser will
deliver to the Escrow Agent all such sums released from
escrow as set forth in and subject to the Escrow Agreement.
The release to the Purchaser of the Bank Guarantee or any
portion thereof shall not prevent the Purchaser from seeking
indemnification from the Sellers in accordance with Article
VII for any Damages in an amount that exceeds the amount of
the Bank Guarantee or any portion thereof released to the
Purchaser. For the avoidance of doubt, it is hereby
clarified that the sole liability of the Sellers to the
Purchaser in connection with the Formula Vision Debt shall
be for the sum of the Bank Guarantees, subject to the
provisions of the Escrow Agreement.
1.4. Purchase on As Is Basis.
Subject to Sellers' representations set in Section y2 below,
the Transaction is made on an "As Is" basis and Sellers make
no other representations or warranties of any kind, express
or implied, as to the financial, economic and/or legal state
of Formula, the Purchased Shares or otherwise.
1.5. Closing; Deliveries.
The sale and purchase of the Purchased Shares shall take
place at a closing (the "Closing") to be held at the offices
of ▇▇▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇ at 10:00 AM on
November 10, 2006 or at such other time and place as shall
be agreed to by the Parties, and in any event following the
satisfaction or waiver of all conditions set forth in
Section y5. The date on which the Closing occurs is referred
to herein as the "Closing Date".
At the Closing, the following transactions shall occur and
the following documents shall be delivered, which
transactions shall be deemed to take place and documents
shall be deemed to have been executed simultaneously and no
transaction shall be deemed to have been completed or any
document delivered until all such transactions have been
completed and all required documents delivered:
(a) FIMGold shall deliver to the Purchaser
the following:
(i) written approval from FIMGold's broker,
the information of which shall be
provided by FIMGold to the Purchaser
prior to the Closing, that all of the
Purchased Shares have been transferred
in an `off-market' transaction, to a
securities account to be established by
the Purchaser prior to Closing.
(ii) Letters of resignation of each of
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, dated as
of the Closing Date, and undated and
irrevocable letters of resignation of
each of ▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇,
from the board of directors of Formula
and a resolution signed by all of the
directors of Formula at the time such
resolution is made (and in any event
following the effective resignation of
Messrs. Davidi and ▇▇▇▇ from the board
of Formula), electing four
representatives of the Purchaser (whose
directors, two of which are to fill
the vacancies created on the board
of Formula as a result of the
resignations of Messrs. Davidi and ▇▇▇▇
and an additional two directors which
will enlarge the board to a total of
nine (9) members, all in accordance
with Article 41 of the Articles of
Association of Formula.
(iii) All approvals and consents required
for consummation of the Transaction
as set forth on Schedule y2.3 hereto,
including without limitation the
consent of each of Bank Hapoalim, First
International Bank of Israel and Bank
Discount to the change of control of
Formula, without any material change
to the terms of any agreement or other
document pursuant to which such consent
or approval for the consummation of the
Transaction is required, it being
clarified that the grant by Formula of a
security interest in favor of any of
the foregoing banks in shares of any
publicly-held subsidiary of Formula,
which shares are not already subject to
a security interest in favor of any of
such banks and at the time of the grant
of such security interest are owned by
Formula free and clear of any
Encumbrance, shall not be deemed a
material change to the agreement or
other document pursuant to which such
security interest is granted to such
bank (provided that, the fair market
value of such additional shares at the
time of the grant of a security interest
therein in favor of such bank, is not
substantial compared to the aggregate
fair market value of the shares of
Formula's subsidiaries already subject
to a security interest in favor of such
bank at the time of the grant of such
security interest; the fair market
value of such shares shall be the
average of the closing prices of such
shares on the relevant stock exchange(s)
over the 30 days immediately prior to
the date of grant of the relevant
security interest).
(iv) Written resolutions of each of the GP
and the board of directors of the GP,
approving the execution, delivery and
performance by FIMGold and the GP,
respectively, of this Agreement and all
Transaction Documents (as defined below)
to which FIMGold or the GP, as the case
may be, is a party, all in compliance
with applicable law and, in the case of
FIMGold, its partnership agreement.
(v) The Escrow Agreement, duly signed by
FIMGold and the Escrow Agent.
(vi) Written certification from the
accountants of Formula, setting forth
the amount of the Formula Vision Debt as
of the last day of the last calendar
month ending prior to the Closing.
(b) The Purchaser shall deliver to FIMGold
the following:
(i) The Purchase Price by wire transfer of
immediately available funds (which shall
be denominated in U.S. Dollars) to a
bank account of FIMGold, the details of
which shall be provided by FIMGold to
the Purchaser prior to the Closing.
(ii) The Escrow Agreement duly signed by the
Purchaser.
(c) In addition, FIMGold shall deliver the Bank
Guarantee to the Escrow Agent.
1.6. Transfer Taxes; Tax Withholding.
All taxes imposed upon FIMGold as a result of the sale of
the Purchased Shares transferred hereunder to the Purchaser
(including any taxes on income or capital gains on such)
will be borne and paid by FIMGold.
The Purchaser shall be entitled to deduct and withhold from
the Purchase Price such amounts as the Purchaser in good
faith determines may be required to be deducted or withheld
therefrom under the Income Tax Ordinance of Israel [New
Version], 1961, as amended or under the regulations
promulgated thereunder; provided that with respect to any
such withholding, the Purchaser shall act in accordance with
any tax withholding ruling or exemption from the Israeli Tax
Authority, if obtained and delivered to the Purchaser prior
to Closing. To the extent such amounts are so deducted or
withheld, such amounts shall be treated for all purposes
under this Agreement as having been paid to FIMGold.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers hereby represent and warrant to the Purchaser as follows
and acknowledge that the Purchaser is entering into this Agreement in
reliance thereon:
2.1. Authorization; Binding Authority; Enforceability.
Each of FIMGold and the GP is duly organized and validly
existing under the laws of the State of Israel, and each of
them has all requisite power and authority to execute and
deliver this Agreement and each other document delivered or
to be delivered thereby hereunder (collectively with this
Agreement, the "Transaction Documents") and to perform all
of its obligations hereunder and thereunder. The execution,
delivery and consummation by each of FIMGold and the GP of
this Agreement and each other Transaction Document to which
it is a party have been duly authorized by FIMGold or the
GP, as the case may be, and all actions on the part of
FIMGold or on the part of the GP necessary for the
authorization, execution, delivery of and performance of all
obligations of FIMGold or the GP, as the case may be, under
this Agreement and the other Transaction Documents to which
FIMGold or the GP, as the case may be, is a party have been
taken or will be taken before the Closing; and no further
consent or authorization of FIMGold or the GP, as the case
may be, is or will be required at the Closing. This
Agreement has been duly executed and delivered by each of
FIMGold and the GP and each other Transaction Document to
which FIMGold or the GP, as the case may be, is a party and
constitutes or will constitute the legal, valid and binding
obligation of FIMGold or the GP, as the case may be,
enforceable against FIMGold or the GP, as the case may be,
in accordance with its respective terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting the enforcement of creditors' rights in general
and by general principles of equity.
2.2. Ownership; Title to Purchased Shares. (1) FIMGold has good and valid
title to all of the Purchased Shares, subject only to the
Encumbrances set forth in Schedule y2.2 attached hereto and
to the provisions of subsections (3) and (4) below. FIMGold
is the sole beneficial owner of all of the Purchased Shares.
The Purchased Shares constitute FIMGold's entire direct and
beneficial holdings in Formula as of the date hereof and
none of the Sellers owns any option or other right that is
convertible into or exercisable for any other securities,
equity or ownershi interest of Formula, except for the
Purchased Shares. (2) At the Closing, FIMGold shall deliver
and convey to the Purchaser good and valid title to, and all
rights to vote, all of the Purchased Shares, which at the
Closing shall be free and clear of any Encumbrances other
than as set forth in subsections (3) and (4) below. (3) At
the Closing, (a) 2,006,237 of the Purchased Shares shall not
be subject to any transfer restrictions under the Israeli
Securities Law, 1968 and the rules promulgated thereunder
(the "Israeli Securities Law") and (b) 2,400,000 of the
Purchased Shares, which were purchased by FIMGold from
Formula in a private placement on March 3, 2005, shall be
subject to certain restrictions on transfer under the
Israeli Securities Law, including but not limited to volume
limitations. (4) All of the Purchased Shares are
"restricted securities", as defined in Rule 144 under the
U.S.Securities Act of 1933, as amended ("Securities Act").
2.3. No Violations. Subject to obtaining the consents and approvals required
for the consummation of the Transactions, as set forth
in Schedule y2.3 attached hereto, the execution, delivery
and performance by FIMGold of this Agreement do not, and
the execution, delivery and performance by FIMGold of each
other Transaction Document to which it is a party will
not, with or without the giving of notice or lapse of
time or both, conflict with, or result in a breach or
violation of, or a default under, or give rise to any
right of first refusal, tag-along rights, pre-emptive
rights or other rights with respect to any of the
Purchased Shares, result in the creation of any
Encumbrance on any of the assets or properties of Formula or
on any of the Purchased Shares, or conflict with, or
result in a breach or violation of, or a default under,
or trigger any "change of control" right in, or give rise
to a right of amendment, termination, cancellation or
acceleration of any obligation under (i) assuming the
correctness of the representation of the Purchaser in
Section y3.5 below, any applicable law, rule, regulation or
license to which any of the Purchased Shares are
subject, (ii) the partnership agreement of FIMGold or
the Memorandum of Association or Articles of Association
of each of the GP and Formula or (iii) any agreement to
which any Seller is a party or commitment to which it is
obligated.
2.4. No Consents Required. Except as set forth in Schedule y2.3
attached hereto and assuming the correctness of the
representation of the Purchaser in Section y3.5below, the
execution, delivery and consummation by FIMGold of each
Transaction Document to which it is a party do not require
any Seller to obtain any consents or approvals of, conduct
filings or registrations with, or notification to, any third
party (including, but not limited to, governmental agencies
or regulatory authorities), which have not been received,
made or provided, as applicable, before the signing of this
Agreement.
2.5. Formula Vision Debt.
As of August 31, 2006, the aggregate amount owed by Formula
Vision to Formula, which amount is represented by the
debentures issued by Formula Vision to Formula in 2001 and
2002, totaled NIS 214,278,045 (as may be adjusted from
time to time as set forth in the debentures, the "Formula
Vision Debt"). Pursuant to Note no. 1 of the Audited
Financial Statements of Formula Vision in respect of the
period ending December 31, 2005, Formula Vision has
advised its shareholders that (i) it intends to liquidate
certain investments in order to create a positive cash
flow that will enable it to meet its debt repayment
obligations and increase its shareholders equity, (ii) it is
currently engaged in the preparation of documents relating
to a rights offering, through which it will raise an
amount that will provide it on December 31, 2006 with
positive cash flow necessary to meet its short term debt
repayment obligations and (iii) the holders of 24% of its
outstanding share capital have agreed that if the
foregoing liquidation of investments shall be insufficient
to enable Formula Vision to meet its short-term debt
repayment obligations as of December 31, 2006, such
shareholders shall participate in the foregoing rights
offering pro rata to their holdings in Formula Vision.
FIMGold hereby agrees that, as such 24% shareholder, if the
foregoing liquidation of investments shall be insufficient
to enable Formula Vision to meet its short-term debt
repayment obligations as of December 31, 2006, FIMGold
shall, and the GP shall cause FIMGold to, participate in
the foregoing rights offering pro rata to FIMGold's holdings
in Formula Vision at such time.
2.6. Public Reports of Formula. To the Sellers' best knowledge,
none of the publicly filed reports of Formula, at the time
such report was filed with the applicable governmental
authority, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not
materially misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to FIMGold as follows and
acknowledges that FIMGold is entering into this Agreement in reliance
thereon:
3.1. Organization. The Purchaser is duly organized and validly existing under
the laws of the State of Israel.
3.2. Authorization; Binding Authority; Enforceability.
(a) ThePurchaser has full corporate power and authority
(including the approvals of all applicable corporate organs)
to execute and deliver this Agreement and each of the
Transaction Documents to which it is a party, to perform its
obligations hereunder and thereunder, to consummate the
transactions contemplated hereby and thereby and to purchase
the Purchased Shares from FIMGold pursuant to the provisions
of this Agreement, and no further consent or authorization of
the Purchaser is or will at the Closing be required. The
execution, delivery and consummation by Purchaser of this
Agreement and each other Transaction Document to which
Purchaser is a party have been duly authorized by
Purchaser and all actions on the part of Purchaser and its
relevant corporate organs necessary for the authorization,
execution, delivery of and performance of all obligations of
Purchaser under this Agreement and the other Transaction
Documents to which Purchaser is a party have been taken; and
no further consent or authorization of Purchaser or of any of
its corporate organs, is or will be required at the Closing.
(b) This Agreement has been duly executed and delivered by the
Purchaser, and constitutes the legal, valid and binding
obligations of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting the enforcement of creditors' rights in general
and by general principles of equity.
3.3. No Violations. The execution, delivery and performance by
the Purchaser of this Agreement will not, with or without
the giving of notice or lapse of time or both, (i) violate
any laws, rules, regulations or licenses applicable to the
Purchaser; (ii) violate, conflict with, terminate, modify or
constitute a breach of, or a default under, the
organizational documents of the Purchaser or any agreement
to which the Purchaser is a party or a commitment to which
it is obligated; or (iii) require any consents or approvals
from any governmental agency, regulatory authority or any
other party to any agreement to which the Purchaser is a
party.
3.4. Investment. The Purchased Shares are purchased only for
investment, for the Purchaser's own account, not as an
agent or a representative and without any present
intention to sell or distribute them. The Purchaser is
aware that FIMGold is an "affiliate" of Formula, as the
term is defined in the Securities Act and in Rule 144
thereunder, and that the Purchased Shares are deemed to
be "restricted securities" pursuant to the foregoing
rule. The Purchaser possesses sufficient monetary means
for the full payment of the Purchase Price. The Purchaser
is an experienced investor and has the capacity to protect
its own interests in connection with the purchase of the
Purchased Shares hereunder and has the ability to bear the
economic risk of its investment. The Purchaser has had an
opportunity to obtain information regarding Formula and ask
questions and receive answers from the management of
Formula.
3.5. Annual Revenues of Purchaser in Israel in 2005. The annual
revenues of the Purchaser and of its subsidiaries for the
year ended December 31, 2005 in Israel, for the purpose of
Section 17(a)(2) of the Restrictive Trade Practices Law
5748-1988 and the regulations promulgated thereunder, did
not exceed the sum of NIS 10,000,000.
3.6. Purchase on As is Basis. The Purchaser hereby acknowledge
that, subject to Section y2 above, it is acquiring the
Purchased Shares on an "As-Is" basis, and by signing this
agreement the Purchaser is waiving any and all claims that
it has or may have in the future against the Sellers with
respect to the Purchased Shares other than if arising from
(i) a breach of any of the representations of the Sellers in
Section y2, (ii) fraud or (iii) any breach of this Agreement
by FIMGold.
ARTICLE IV
COVENANTS
4.1. No Transfer, etc. of Formula Shares.
Following the date hereof and through the earlier of (A)
termination of this Agreement and (B) the Closing, FIMGold
shall not, and the GP shall cause FIMGold not to, directly
or indirectly, (1) offer for sale, sell, pledge, create
or let to be created an Encumbrance with respect to or
otherwise dispose of or grant any right in (or enter into
any transaction or device which is designed to result in
the disposition or granting of any right at any time in
the future) any of the Purchased Shares, or sell or grant
options, rights or warrants with respect to any of the
Purchased Shares, or (2) enter into any swap or other
derivative transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of
ownership of any of the Purchased Shares, whether any such
transaction described in clause (1) or (2) above is to be
settled by delivery of securities, in cash or otherwise.
4.2. No Transfer, etc. of Formula Vision Shares. Following
the Closing Date and through the full repayment by Formula
Vision of the Formula Vision Debt, FIMGold shall not, and
the GP shall cause FIMGold not to, directly or indirectly,
(1) offer for sale, sell to or otherwise transfer or
grant any Right (as defined below) in (or enter into
any transaction or device which is designed to result in
the disposition or granting of any Right at any time in
the future) any of the shares of Formula Vision to be
owned by FIMGold immediately following receipt of
shares pursuant to the Distribution ("FIMGold Shares"), or
sell or grant options, Rights or warrants with respect to
any of the FIMGold Shares, or (2) enter into any swap or
other derivative transaction that transfers to another,
in whole or in part, any of the FIMGold Shares, in each
case other than a transfer of such FIMGold Shares to a
person that assumes all of the obligations, covenants
and agreements of FIMGold set forth in Sections y4.2 and
y4.3 therein with respect to the period through the full
repayment by Formula Vision of the Formula Vision Debt,
which transfer, except to a Permitted Transferee (as
defined below), shall be subject to the Purchaser's prior
approval, not to be unreasonably withheld.
"Permitted Transferee" shall mean an entity that, directly
or indirectly, (x) controls, is controlled by or is under
common control with FIMI Opportunity Fund L.P. and/or (y) is
controlled by ▇▇▇ ▇▇▇▇▇▇▇▇▇, and the term `control' shall
have the meaning ascribed to such term in the Israeli
Securities Law.
"Right" shall mean a right of any kind (including the right
to vote such shares) but excluding any security interest of
a Third Party Lender (as hereinafter defined), which
exclusion shall include but shall not be limited to, any
lien, mortgage, pledge or charge in favor of such Third
Party Lender.
"Third Party Lender" shall mean a financial institution that
grants loans in its ordinary course of business and which is
not a FIMGold Affiliate (as defined in Section 4.3 below).
4.3. Conduct of Business of Formula and Formula Vision.
Following the date hereof and through the earlier of (i)
termination of this Agreement and (ii) full repayment by
Formula Vision to Formula of the Formula Vision Debt, the
Sellers shall use their best efforts to cause Formula Vision
not to, without the prior written consent of the Purchaser:
(A) declare, set aside, pay or make any dividend or
other distribution with respect to any of Formula
Vision's share capital then held by FIMGold or by
any FIMGold Affiliate (as defined below), or redeem,
repurchase or otherwise acquire any of Formula
Vision's share capital or other Formula Vision
securities, then held by FIMGold or by any FIMGold
Affiliate or any rights, options or warrants to
acquire any such shares or other securities; or
accelerate the vesting schedule or otherwise revise
any terms of any option or other right to purchase
securities of Formula Vision then held by FIMGold or
by any FIMGold Affiliate;
(B) (i) enter into any transaction with FIMGold, or any
FIMGold Affiliate (including any waiver or release
of any rights or claims against FIMGold or against
any FIMGold Affiliate), or (ii) make any payments or
transfer any property to or on behalf of FIMGold or
any FIMGold Affiliate (in each case other than (1)
pursuant to currently existing agreements with
FIMGold or any such FIMGold Affiliate (which shall
not be amended in favor of FIMGold or any such
FIMGold Affiliate that is party to such existing
agreement), and (2) reimbursements of ordinary and
necessary business expenses of FIMGold or any
FIMGold Affiliate incurred in connection with their
employment with or service to Formula Vision); or
(C) undertake or enter into any agreement to take any of
the types of action described in sub-clauses (A)
through (B).
"FIMGold Affiliate" shall mean (a) any officer or director
of FIMGold, (b) any direct holder of any partnership
interest in FIMGold, (c) any person that has the right to
appoint the general manager or the general partner of
FIMGold or (d) any `Relative' (`Karov', as defined in the
Companies Law, 1999) of any individual referred to in any of
clauses (a) through (c).
Following the date hereof and through the earlier of (A)
termination of this Agreement and (B) the Closing, the
Sellers will use their best efforts to cause Formula: (1)
not to, except as contemplated by this Agreement, engage in
any activity that is outside the ordinary course of
business, (2) to continue to operate its business in the
ordinary course, and not to, without the prior written
approval of the Purchaser, deviate from, or modify in any
manner, its ordinary course of business, and (3) to use
commercially reasonable efforts to (I) preserve its current
business, (II) retain the services of its present officers,
employees, consultants and agents so as to ensure compliance
with the Closing conditions and (III) maintain good business
relationships with third parties having business dealings
with it. Nothing herein shall be deemed to restrict FIMGold
from allowing Formula to take actions that are required to
be taken under this Agreement in order to consummate the
Closing or that are otherwise permitted herein.
4.4. No Shop. Following the date hereof and through the earlier
of (i) termination of this Agreement and (ii) the Closing,
none of Sellers shall solicit, initiate, induce,
facilitate or encourage the making, submission or
announcement of any proposal for the Acquisition (as
defined below) of any of the Purchased Shares or of
Formula or all or substantially all of its assets (an
"Acquisition Proposal") or an inquiry in this respect
(an "Acquisition Inquiry"), furnish any nonpublic
information regarding Formula or any of its subsidiaries or
holding companies in connection with or in response to an
Acquisition Proposal or Acquisition Inquiry; engage in
discussions or negotiations with any person with respect to
any Acquisition Proposal or Acquisition Inquiry; approve,
endorse or recommend any Acquisition Proposal or
Acquisition Inquiry; or enter into any letter of intent or
similar document or any contract contemplating or
otherwise relating to any acquisition of any of the
Purchased Shares or of Formula; and if any Seller or
Formula receives any written Acquisition Inquiry or
written Acquisition Proposal between the date hereof and
the earlier of (i) termination of this Agreement and (ii)
the Closing, the respective Seller shall immediately
notify the Purchaser in writing of such Acquisition
Inquiry or Acquisition Proposal, including all terms
thereof (including but not limited to the identity of
the person making it), and shall immediately deliver to
the Purchaser all documents received by such Seller or
Formula or any affiliate or agent or other representative of
any of them in connection with any such Acquisition Inquiry
or Acquisition Proposal.
"Acquisition" means (i) a transaction or series of related
transactions pursuant to which any person or group of
persons acquires or would acquire beneficial ownership of a
control interest in Formula, whether from FIMGold or
pursuant to a tender offer, exchange offer or otherwise;
(ii) a merger, consolidation, business combination,
reorganization or share exchange pursuant to which any
person or group of persons acquires or would acquire a
control interest in Formula, or a recapitalization,
liquidation, dissolution or similar transaction involving
Formula; (iii) any transaction or series of transactions
which would result in any third party, un-affiliated with
FIMGold or Formula, acquiring a control interest in Formula
or in Formula's business (whether by purchase of assets,
acquisition of share capital or otherwise); or (iv) any
combination of the foregoing, in each case other than to the
Purchaser pursuant to this Agreement. For the purpose
hereof, the term `control' shall have the meaning ascribed
to such term in the Securities Law - 1968.
4.5. Further Assurance, Regulatory Approvals. Subject to the
terms and conditions of this Agreement and applicable
law, each Party will use its commercial reasonable efforts
to take, or cause to be taken, all actions required to be
taken by such Party, and to do, or cause to be done,
all things required to be done by such Party and that
are reasonably necessary, proper or advisable under
applicable laws and regulations or otherwise to consummate
and make effective the Transaction as soon as practicable.
From time to time, each Party will execute and deliver, or
cause to be executed and delivered, all such reasonable
documents and instruments and will take, or cause to be
taken, all such reasonable actions, as may reasonably
be deemed necessary or desirable to consummate the
Transaction. Each of FIMGold and the Purchaser shall
cause their respective legal counsel and tax advisers to
coordinate all activities and to cooperate with each
other. Without derogating from the generality of the
foregoing:
4.5.1. each Party undertakes to use its best efforts to
make, as promptly as possible following the date
hereof, any filings required under any
applicable laws to be made by such Party for the
consummation of the Transaction;
4.5.2. each Party shall promptly after the execution of
this Agreement apply for or otherwise seek, and
use its reasonable best efforts to obtain, all
consents and approvals required to be obtained
by such Party for the consummation of the
Transaction; and
4.5.3. following the date hereof and until the earlier
of (i) the Closing or (ii) termination of this
Agreement, FIMGold shall, and the Sellers shall
cause it to, vote all of the Purchased Shares at
any meeting or in connection with a written
consent of the shareholders of Formula against
(i) any Acquisition of Formula and (ii) the sale
of all or substantially all of the assets of
Formula.
Without derogating from the foregoing, (i) neither any
Seller nor anyone on either Seller's behalf shall take any
action with the intention that same will adversely affect
the business of Formula between the date hereof and the
Closing, and (ii) each Seller shall, as promptly as
practicable, inform the Purchaser in the event that any of
Formula's customers advises Formula or such Seller of its
intention not to continue its engagement with Formula should
the Transaction be consummated. In such event, the Sellers
and the Purchaser shall, and the Sellers shall cause Formula
to, reasonably cooperate with each other in attempting to
reduce such customer's concerns and securing its continued
business relationship with Formula after Closing.
4.6. Notification of Certain Matters. From the date hereof and
through the earlier of (i) termination of this Agreement and
(ii) the Closing Date (except with respect to clause (C)
below, as to which the obligation to provide notice shall
terminate upon the earlier of termination of this Agreement
and 12:00 pm on September 29, 2006), the Sellers shall give
prompt notice in writing to the Purchaser upon becoming
aware of the occurrence or non-occurrence of (Ai) any event
which will or is reasonably likely to result in the failure
of any covenant, agreement or condition in this Agreement to
be complied with or satisfied by the Sellers or in any
representation and warranty given hereunder by either
Seller to be inaccurate in any material respect, (B) any
legal action or proceeding or investigation by or before
any governmental authority or arbitrator initiated by or
against it or known by it to be threatened against it or
any of its directors, officers, employees or interest
holders in their capacity as such, in each case other than
if such legal action or proceeding or investigation was
known to the Purchaser on the date of this Agreement, or
(C) any event occurring following the date of this Agreement
and through 12:00 pm on September 29, 2006 that may
result in a Material Adverse Effect (as defined below) to
Formula; provided that the delivery of any notice
pursuant to this Section y4.7 shall not (a) limit or
otherwise affect any remedies available to the party
receiving such notice or (b) constitute an acknowledgement
or admission of a breach of this Agreement. No disclosure
by any Party pursuant to this Section y4.7 shall prevent or
cure any misrepresentations, breach of
warranty or breach of covenant.
"Material Adverse Effect" shall mean any act, omission,
fact, occurrence, circumstance or condition that has or is
reasonably likely to have a material adverse effect on, or
cause a material adverse change in, (i) the condition
(financial or otherwise), properties, business, results of
operations, assets, liabilities or prospects of the subject
person and its subsidiaries taken as a whole and arising
from events that occurred following the date of this
Agreement (even if the cause underlying such event has
occurred prior to the date hereof), (ii) the enforceability
of the Transaction Documents or (iii) the subject person's
ability to perform its obligations under the Transaction
Documents or consummate the Transaction, but shall not
include an adverse effect or adverse change resulting (A)
from any change to the trading price of the ordinary shares
of Formula or any of its publicly traded subsidiaries, in
each case in and of itself (i.e., not from the cause
underlying such change), or (B) primarily from (1) effects,
changes, events, circumstances or conditions generally
affecting the industry or markets in which the subject
person operates or arising from changes in general business
or economic conditions, or (2) any breach by any Party of
the covenants set forth in the last paragraph of Section
4.5.
4.7. Public Announcements. No press release or announcement
concerning the Transaction will be issued by FIMGold or the
Purchaser or any affiliate thereof without the prior written
consent of the Purchaser or FIMGold, respectively, except as
such release or announcement may be required by applicable
law, rule or regulation or under this Agreement, in which
case the Party required to make the release or announcement
will allow the opposing Party reasonable time (subject to
the timing required under the applicable law for such
release or announcement to be made) to comment on such
release or announcement in advance of such issuance and
shall incorporate into such press release or announcement
all of the opposing Party's reasonable comments thereto
The foregoing shall not be in limitation of the Parties'
obligations hereunder to take such actions as required for
the consummation of the Transaction.
4.8. Releases and Waivers. For and in consideration of the
aggregate Purchase Price, to the extent permitted under
applicable law, except:
(i) for any breach of or claim under any of the Transaction
Documents and any Damages (as defined below) with respect
thereto, either in contracts, torts or under applicable law,
(ii) if arising from any rights of any of ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇▇▇▇▇▇ pursuant to
(x) any indemnification undertakings they have from Formula
in their capacity as officers and/or directors of Formula,
(y) pursuant to any directors and officers insurance policy
obtained by Formula in respect of which they are
beneficiaries, and/or (z) otherwise in their capacity as
office holders of Formula, and/or
(iii) with respect to any counterclaim or any other legal
action of any kind, filed by it, in connection with a
lawsuit filed against it by Formula or any affiliate
thereof, by the Purchaser or any affiliate thereof or, in
connection with any third party claim against Formula and
its officers, directors and/or shareholders,
effective as of the Closing Date, FIMGold hereby releases,
acquits and forever discharges Formula and each of its
present and former officers, directors, employees,
representatives, advisors and agents (solely in their
capacities as such) and each of their respective heirs,
executors, administrators, successors and assigns, of and
from any and all manner of action or actions, cause or
causes of action, demands, rights, Damages, debts, costs,
expenses, responsibilities, contracts, agreements, legal
actions and claims whatsoever, whether known or unknown, of
every name and nature, both in law and in equity, which
FIMGold or any of its affiliates, heirs, executors,
administrators, successors or assigns ever had, now has or
may have or shall have against such persons, in each case,
only if arising out of any matters, causes, acts, claims,
circumstances or events occurring or failing to occur or
conditions, existing at or prior to the Closing.
"Damages" means any and all losses, liabilities, claims,
damages, deficiencies, diminutions in value, fines,
payments, costs and expenses, however arising and whether or
not resulting from a third party claim (including all
related taxes); all amounts paid in connection with any
demands, assessments, judgments, settlements and compromises
relating thereto; interest and penalties with respect
thereto; and reasonable costs and expenses, including
reasonable attorneys', accountants' and other experts' fees
and expenses, incurred in investigating, preparing for or
defending against any legal action or in asserting,
preserving or enforcing the rights of any person.
4.9. Directors and Officers Insurance. Subject to any applicable
law (as may be amended from time to time), the Purchaser
undertakes to maintain the current directors and officers
insurance policies of Formula and its subsidiaries (the
"Existing D&O Policies"), which shall include insurance
coverage for a sum that is no less than, and on all other
terms substantially similar to, those contained in the
Existing D&O Policies ("Current Coverage"), in a manner that
will cover any claim against any of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇▇▇▇▇▇ in respect of their
serving as officers and/or directors of Formula or any of
its subsidiaries (excluding Formula Vision) prior to the
date on which they cease to be office holders of Formula,
until expiration of the limitation period for any such
claim (`run-off insurance'). Notwithstanding the foregoing,
in order to comply with the foregoing, the Purchaser
may substitute for any Existing D&O Policy, a policy or
policies providing for the Current Coverage. The Purchaser
shall provide to the Sellers a copy of any policy that
substitutes the Existing D&O Policy and any substitute
policy therefor, promptly after such policy is obtained by
the Purchaser.
ARTICLE V
CONDITIONS TO CLOSING
5.1. Conditions to the obligation of Purchaser to Close:
The obligation of the Purchaser to consummate the Transaction 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 Purchaser, which waiver shall be
at the sole discretion of the Purchaser:
(a) Representations and Warranties. The
representations and warranties made by the
Sellers in this Agreement shall be true and
correct in all respects as of the date of this
Agreement and (after giving effect to the events
and situations disclosed under paragraph (c)
below) as of the Closing with the same effect as
if made on such date (except for any
representation or warranty made as of a
particular date, which shall be true and correct
in all respects as of such date).
(b) Performance of Obligations of the Sellers. Each
and all of the covenants and agreements of the
Sellers to be performed or complied with pursuant
to the Transaction Documents on or prior to the
Closing Date shall have been performed and
complied with in all respects.
(c) Compliance Certificate. Each Seller shall have
delivered to the Purchaser a certificate (which
in the case of FIMGold shall be signed by the GP)
in the form of Exhibit y5.1(c), (i) certifying
that the conditions specified in Sections y5.1(a)
and y5.1(b) hereof have been fulfilled (with
respect to such Seller), and (ii) to the extent
applicable, disclosing any situation or event
that shall have occurred following the date
hereof and through the Closing and which, had
such event occurred or situation existed, as the
case may be, prior to the date hereof, would be
required to be disclosed by the Sellers
hereunder.
(d) Delivery of Documents. All Closing deliveries of
FIMGold as specified in Section y1.5 shall have
been delivered by FIMGold.
(e) No Tax Liabilities. Formula shall not have
incurred any tax liabilities as a result of the
Distribution (except for the duty to withhold and
transfer to the Israeli tax authorities
withholding tax, which shall be paid out of
proceeds from the sale of ordinary shares of
Formula Vision retained by Formula for such
purpose) which shall not have been paid by the
Sellers.
5.2. Conditions to the obligation of the Sellers to
Close.
The obligation of the Sellers to consummate the Transaction is subject to
the fulfillment at or before the Closing of the following conditions,
each of which may be waived in writing by the Sellers, which waiver shall
be at the sole discretion of the Sellers:
(a) Representations and Warranties. The
representations and warranties made by the
Purchaser in this Agreement shall be true and
correct in all respects as of the date of this
Agreement and (after giving effect to the events
and situations disclosed under paragraph (c)
below) as of the Closing with the same effect as
if made on the date hereof (except for any
representation or warranty made as of a
particular date, which shall be true and correct
in all respects as of such date).
(b) Performance of Obligations of the Purchaser. Each
and all of the covenants and agreements of the
Purchaser to be performed or complied with
pursuant to the Transaction Documents on or prior
to the Closing Date shall have been performed and
complied with in all respects.
(c) Compliance Certificate. The Purchaser shall have
delivered to the Sellers a certificate signed by
its Chief Financial Officer in the form of
Exhibit y5.2(c), (i) certifying that the
conditions specified in Sections y5.2(a) and
y5.2(b) hereof have been fulfilled, and (ii) to
the extent applicable, disclosing any situation
or event that shall have occurred following the
date hereof and through the Closing and which,
had such event occurred or situation existed, as
the case may be, prior to the date hereof, would
be required to be disclosed by the Purchaser
hereunder.
(d) Delivery of Documents. All Closing deliveries of
the Purchaser as specified in Section y1.5 shall
have been delivered by the Purchaser.
(e) Declaration of Distribution. Formula shall have
publicly declared the Distribution; provided that
such declaration shall be a condition to the
obligation of the Sellers to consummate the
Transaction only if the Sellers shall have used
their best efforts and taken all actions
reasonably necessary or advisable to cause such
declaration to have been made. If the Sellers
waive this condition and consummate the
Transaction notwithstanding the fact that the
Distribution shall not have been declared, there
shall be no adjustments to the Purchase Price.
ARTICLE VI
TERMINATION
6.1. Termination. This Agreement may be, and with respect to paragraph (f)
below shall be, terminated and the Transaction abandoned as follows:
(a) at any time prior to the Closing, by the mutual written
agreement of the Purchaser and FIMGold;
(b) at any time prior to the Closing, by either of the Purchaser
and FIMGold, in the event that the Closing shall not have
occurred by November 10, 2006, provided, however, that the
right to terminate this Agreement under this Section
y6.1y(b) shall not be available to any party whose failure
to fulfill any obligation under this Agreement shall have
been the cause of, or results in, the failure of the Closing
to occur on or before such date, and further provided that
the right to terminate this Agreement under this Section
6.1(b) shall be notwithstanding the provisions of Sections
6.1(c),(d) and (e) below;
(c) at any time prior to the Closing, by written notice by
the Purchaser to FIMGold if there shall have been a
breach of any representation, warranty, covenant or
undertaking on the part of FIMGold set forth in this
Agreement or any other Transaction Document which is
material to this Agreement as a whole, provided that if
such breach or misrepresentation is curable by FIMGold,
then the Purchaser shall give written notice of such
breach or misrepresentation to FIMGold and it shall only
be entitled to give the notice of termination if such
breach or misrepresentation shall not have been cured
within 10 days from the date of the Purchaser's notice
notifying of such breach or misrepresentation;
(d) at any time prior to the Closing, by written notice by
FIMGold to the Purchaser, if there shall have been a
breach of any covenant, representation, warranty or
undertaking on the part of the Purchaser set forth in
this Agreement or any other Transaction Document which is
material to this Agreement as a whole, provided that if
such breach or misrepresentation is curable by the
Purchaser, then FIMGold shall give written notice of such
breach to the Purchaser, and it shall only be entitled to
give the notice of termination if such breach shall not have
been cured within 10 days from the date of notice from
FIMGold notifying of such breach;
(e) at any time prior to the Closing, if there shall be any
law that makes consummation of the Transaction illegal or
otherwise prohibited or any ruling, judgment, injunction,
order or decree of any governmental authority having
competent jurisdiction enjoining any Party from
consummating the Transaction is entered and the ruling,
judgment, injunction, order or decree shall have become
final and non-appealable and, prior to that termination,
the Parties shall have used reasonable efforts to resist,
resolve or lift, as applicable, any law, ruling, judgment,
injunction, order or decree; provided, however, that the
right to terminate this Agreement pursuant to this Section
6.1(e) shall not be available to any Party whose breach of
any provision of this Agreement or other action
results in the imposition of such ruling, judgment,
injunction, order or decree or the failure of such ruling,
judgment, injunction, order or decree to be resisted,
resolved or lifted, as applicable; or
(f) by the Purchaser, by providing to FIMGold written notice to
be received by FIMGold not later than 10:00 am on October 1,
2006, that a Material Adverse Effect has occurred with
respect to Formula following the date hereof and prior to
the time of delivery of such notice; and upon delivery of
such notice this Agreement shall be deemed to have been
terminated and abandoned. If the Purchaser does not deliver
such notice to FIMGold by such time, the Purchaser shall be
deemed to have confirmed that no Material Adverse Effect has
occurred with respect to Formula through such time.
6.2. Effect of Termination. In the event of the termination of
this Agreement pursuant to 6.1, this Agreement shall
thereafter become void and have no effect, without any
liability on the part of any Party in respect thereof,
except that (i) nothing herein will relieve any Party from
liability for any breach of any representation, warranty,
covenant or agreement in this Agreement and (ii)this section
6.2 and Section 8 shall survive termination of this
Agreement. Without limiting the foregoing, if the Purchaser
terminates this Agreement pursuant to Section 6.1(f), the
Sellers shall not be prevented from raising any claims with
respect to such termination.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
7.1. Survival. The representations and warranties of each of the
Sellers and the Purchaser contained herein will survive the
execution and delivery of this Agreement, the consummation
of the Transaction and the Closing Date and will continue in
full force and effect for a period of thirty six (36) months
from the Closing Date, other than the representations set
forth in Section 2.2, which shall survive the execution and
delivery of this Agreement, the consummation of the
Transaction and the Closing Date and shall continue until
expiration of the applicable statute of limitations (in each
case, the "Expiry Date") and shall then expire.
7.2. Indemnification Obligation. The Sellers shall indemnify,
defend and hold harmless the Purchaser, and the Purchaser
shall indemnify, defend and hold harmless the Sellers,
from and against any and all Damages as incurred or suffered
by the Purchaser or by the Sellers, respectively, based
upon, arising out of or otherwise in any way relating to or
in respect of (i) any breach of any representation or
warranty made by the Sellers or the Purchaser,
respectively, in any Transaction Document or (ii) any
breach or violation of any covenant or agreement of the
Sellers or the Purchaser, respectively, contained in any
Transaction Document, in each case provided that written
notice of such Damages and the basis thereto, have been
received by the indemnifying party no later than the
applicable Expiry Date.
7.3. Procedures for Indemnification. If a claim or demand is made
against a Party (an "Indemnitee"), or an Indemnitee shall
otherwise learn of an assertion, by any person who is not a
Party (and who is not an affiliate of a Party) (a "Third
Party Claim") as to which a Party (the "Indemnifying Party")
may be obligated to provide indemnification pursuant to this
Agreement, such Indemnitee will notify the Indemnifying
Party in writing, and in reasonable detail, of the Third
Party Claim reasonably promptly after becoming aware of such
Third Party Claim.
The Indemnifying Party will be entitled to assume the
defense thereof (at the expense of the Indemnifying Party)
with counsel selected by the Indemnifying Party. Should the
Indemnifying Party so elect to assume the defense of a Third
Party Claim, the Indemnifying Party will not be liable to
the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with the defense
thereof. If the Indemnifying Party assumes the defense of
any such Third Party Claim, the Indemnitee will have the
right to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel
employed by the Indemnifying Party. If the Indemnifying
Party assumes the defense of any such Third Party Claim, the
Indemnifying Party will keep the Indemnitee fully informed
of all material developments relating to or in connection
with such Third Party Claim. If the Indemnifying Party
chooses to defend a Third Party Claim, the Indemnitee will
reasonably cooperate with the Indemnifying Party in the
defense thereof if requested by the Indemnifying Party. No
Indemnitee will consent to any settlement, compromise or
discharge (including the consent to entry of any judgment)
of any Third Party Claim without the Indemnifying Party's
prior written consent.
7.4. Certain Limitations. No loss, liability, damage or
deficiency shall constitute Damages to any Party to the
extent of any insurance proceeds actually received by such
Party with respect to such loss, liability, damage or
deficiency. The amount of Damages for which indemnification
is provided under this Agreement will be (i) increased to
take account of any tax cost incurred (grossed up for such
increase) by the Indemnitee arising from the receipt of
indemnity payments hereunder (unless such indemnity payment
is treated as an adjustment to the purchase price for tax
purposes) and (ii)reduced to take account of any tax benefit
realized by the Indemnitee arising from the incurrence or
payment of any such Damages. Notwithstanding anything
contained herein to the contrary, (i) neither Party will be
entitled to any recovery under this Agreement for any
consequential, incidental or indirect Damages (including any
loss of profit), (ii) the aggregate liability of a Party
under this Agreement for Damages or otherwise in the event
of a breach of this Agreement by such Party (which in case
of the Purchaser shall be in addition of the obligation of
the Purchaser to pay the Purchase Price hereunder), will in
no event exceed the sum of the Purchase Price, and (iii) the
indemnification provisions of this Section 7 shall be the
sole remedy of the Parties in the event of a breach of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1. Expenses. Each Party hereto shall pay its own expenses in
connection with the negotiation and preparation of this
Agreement and the other Transaction Documents and the
consummation of the Transaction.
8.2. Notices. All notices required or permitted hereunder to
be given to a Party pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given to the
addressee thereof (i) if hand delivered on a business day,
on the day of delivery and if not on a business day on
the following business day, (ii) if given by facsimile
transmission on a business day, on the day on which such
transmission is sent and confirmed and if not on a
business day on the following business day, (iii) if mailed
by registered mail, return receipt requested, five
business days following the date it was mailed, to such
Party's address as set forth below or at such other
address in Israel as such Party shall have furnished to
the other Party in writing in accordance with this
provision:
If to FIMGold:
c/o FIMI Opportunity Fund, ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇, Adv.
Naschitz, ▇▇▇▇▇▇▇ & Co.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇, Adv.
Goldfarb, Levy, Eran, Meiri & Co.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇▇▇▇▇
If to the GP:
c/o FIMI Opportunity Fund, ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,, ▇▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇, Adv.
Naschitz, ▇▇▇▇▇▇▇ & Co.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
If to the Purchaser:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇'▇▇▇▇▇, ▇▇▇▇▇▇
Facsimile:▇▇▇▇-▇-▇▇▇-▇▇▇▇
Attn.: Chief Financial Officer
With a copy to:
▇▇▇ ▇▇▇▇▇▇▇, Adv.
Meitar Liquornik Geva & Leshem ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Israel
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
8.3. Waiver. Any waiver hereunder must be in writing, duly
authorized and signed by the Party to be bound, and shall be
effective only in the specific instance and for the purpose
for which it was given. No failure or delay on the part of
FIMGold or the Purchaser in exercising any right, power or
privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
power or privilege.
8.4. Entire Agreement. This Agreement, the exhibits and the
schedules hereto and the non disclosure agreement dated
August 1, 2006 between the Purchaser and Formula,
constitutes the entire agreement among the Parties and
supersede any other agreement that may have been made or
entered into by either of Sellers on the one hand, and the
Purchaser on the other, relating to the Transaction,
including without limitation the letter of intent dated
August 22, 2006 sent by Purchaser to FIMGold and FIMGold's
response to such letter of intent dated August 24, 2006.
8.5. Amendments. This Agreement may be amended or modified in
whole or in part only by a duly authorized written agreement
that refers to this Agreement and is signed by both Parties.
8.6. 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 Sellers and the
Purchaser, any rights or remedies under this Agreement.
8.7. Captions Preamble and Exhibits. The captions in this
Agreement are inserted for convenience of reference only and
shall not be considered a part of or affect the construction
or interpretation of any provision of this Agreement. The
Preamble, Schedules and Exhibits are an integral and
inseparable part of this Agreement.
8.8. Counterparts. This Agreement may be executed in counterparts
and by facsimile signature, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument.
8.9. Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed and enforced in accordance with,
the laws of the State of Israel without regard to the
conflict of laws provisions thereof. Any dispute arising
under or with respect to this Agreement shall be resolved
exclusively in the appropriate court in Tel Aviv, Israel and
each of the parties hereby irrevocably submits to the
exclusive jurisdiction of such court.
8.10. 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.
8.11. Manner of Payment. All payments that are paid pursuant to
this Agreement shall be paid in U.S. Dollars. All payments
shall be made by initiating such payment on a banking day,
before 11.00 a.m., Israel time, by bank wire transfer in
immediately available funds, marked for attention as
indicated.
8.12. Successors and Assigns. Neither Party shall assign or
transfer any of its rights or obligations hereunder without
the written consent of the other Party. Any conveyance,
assignment or transfer requiring prior written consent which
is made without such consent will be void ab initio. The
provisions hereof shall inure to the benefit of, and be
binding upon, the successors, permitted assigns under law
("Ha'▇▇▇▇▇ Al Pi Din"), heirs, executors, and administrators
of the Parties.
IN WITNESS WHEREOF, FIMGold and the Purchaser have each caused this
Agreement to be duly executed as of the date first above written.
FIMGold, Limited Partnership
By: FIMGold Ltd., the General Partner
By: _______________ By: _______________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Title:
FIMGold Ltd.
By: _______________ By: _______________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Title:
Emblaze Ltd.
By: _________________
Name: _________________
Title: _________________