Exhibit 99.4
THIS SHARE PURCHASE AGREEMENT (the
“Agreement”) is made as of May 6, 2008 (the
“Effective Date”), by and between Optibase Ltd., an Israeli
company (“Optibase” or the
“Company”) and Mr. Shlomo (Xxx) Xxxxx
(“Xxxxx”).
WHEREAS,
Wyler serves as the Company’s Chief Executive Officer and Executive Chairman of the
Board of Directors and holds as of the date of this Agreement 2,401,838 ordinary shares of
the Company representing approximately 17.60% of the Company’s issued and outstanding
share capital; and
WHEREAS,
Wyler desires to invest an additional investment in the share capital of the Company and
the Company wishes that Wyler invest such additional investment, all upon the terms and
subject to the conditions set forth in this Agreement (the “Private
Placement”).
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth herein, the
parties hereto agree as follows:
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1. |
The
Private Placement. |
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1.1 |
The
Closing. The parties shall hold the closing (the “Closing”)
on June 18, 2008, or such other date as agreed upon between the parties if
one of the conditions precedent to the Private Placement listed in Section
2 below is not satisfied. If the conditions precedents to the Private
Placement are not fulfilled by June 18, 2008, the Private Placement shall
take place on the first U.S. business day following the satisfaction of
all conditions precedents. |
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1.2 |
Upon
the terms and subject to the conditions set forth in this Agreement, the
parties hereby agree that at the Closing, the Company will issue to Wyler
ordinary shares of the Company NIS 0.13 par value each (the “Issued
Shares”) in consideration for the payment by Wyler to
the Company of US $5 million in cash. The number of Issued Shares shall be
calculated by dividing US $5 million by the average closing price of the
Company’s ordinary shares on the Nasdaq Global Market during the 30
days preceding the date of Closing. |
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1.3 |
The
Issued Shares will be issued to Wyler free and clear of any lien or pledge
or any third party right and will be issued to Wyler AS-IS without any
representation or warranty by the Company. |
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1.4 |
Each
of the Company and Wyler hereby represents and warrants that there is no
prevention under any applicable law or agreement to enter into this
Agreement, subject to the fulfillment of the Conditions Precedent
prescribed in Section 2 below. |
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The
fulfillment of the obligations of the parties under this Agreement is subject to the
satisfaction or waiver by the Company, at or before the Closing, of each of the following
approvals: |
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(a) |
The
receipt of approval for the Private Placement by the Company’s audit
committee, board of directors and shareholders, by the required
majority. |
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(b) |
if
applicable, the Nasdaq Stock Market shall have waived application of the 15
day prior notice contained in the NASDAQ Marketplace Rule 4310(c)(17)
or such timeframe shall have expired without objections; and |
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(c) |
The
receipt of approval of the Tel Aviv Stock Exchange for the listing for trade
on the Tel Aviv Stock Exchange of the Issued Shares. |
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The
Company hereby undertakes to make best efforts to register for resale all the Issued
Shares under the Securities Act of 1933, as amended within 6 months as of the Closing. |
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4. |
Legal
Restrictions on the Transfer of the Issued Shares. |
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4.1 |
Wyler hereby acknowledges and agrees that Wyler may not sell, transfer or otherwise
dispose of the Issued Shares, unless pursuant to the requirements provided in Section 15C
of the Israeli Securities Law of 1968, as amended. |
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4.2 |
Wyler hereby acknowledges and agrees that unless and until a resale registration statement
for the Issued Shares is filed with and declared effective by the U.S. Securities and
Exchange Commission, Wyler may not sell, transfer or otherwise dispose of the Issued
Shares, unless pursuant to an available exemption from registration under the Securities
Act of 1933, as amended. |
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5. |
Governing Law; Jurisdiction. |
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5.1 |
This
Agreement, its performance and interpretation shall be governed by the
substantive law of the State of Israel, exclusive of its choice of law
rules. |
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5.2 |
The
competent courts and tribunals situated in Jerusalem, Israel shall have sole
and exclusive jurisdiction in any dispute or controversy arising out of or
relating to this Agreement. |
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6. |
Successors and Assigns; Assignment. |
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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, heirs,
executors, and administrators of the parties. Except as otherwise expressly stated to the
contrary herein, none of the parties hereto shall assign or transfer any of its rights or
obligations hereunder absent the consent of all other parties, which consent shall not be
unreasonably withheld. |
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IN
WITNESS WHEREOF, the parties have signed this Agreement as of the date first
hereinabove set forth. |
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OPTIBASE LTD.
By: /s/ Xxxx Xxxxxxx
——————————————
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer |
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XXXXXX (XXX) XXXXX
By: /s/ Xxx. X. Xxxxx
——————————————
Name: Xxx. X. Xxxxx
Title:______________________ |
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