SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement"), dated as of August 15 2012, is entered into by and among Formula Systems (1985) Ltd., a company organized under the laws of Israel (the "Purchaser"), and Kardan Technologies Ltd, a company organized under the laws of Israel (the "Seller").
WITNESSETH:
WHEREAS, the Seller wishes to sell to the Purchaser, and the Purchaser wishes to purchase from the Seller, 1,000,000 common shares of Sapiens International Corporation N.V. (the "Company"), par value €0.01 per share (the "Shares");
WHEREAS, the Seller acknowledges that the Purchaser is the largest shareholder of the Company and as such may have access to material, non-public information concerning the Company and the Shares ("Excluded Information") and is precluded from sharing the Excluded Information with the Seller.
NOW, THEREFORE, based on the parties' representations and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
| 1. | CERTAIN DEFINITIONS. |
As used in this Agreement, the following terms have the following meanings:
| 1.1. | "Business Day" means a day, other than Friday, Saturday or other day on which commercial banks in Tel Aviv are authorized or required by applicable law to close. |
| 1.2. | "Lien" means any mortgage, lien, pledge, charge, security interest or any other encumbrance or right of any third party or other adverse claim of any kind in respect of such property or asset. |
| 2. | PURCHASE AND SALE OF THE SHARES. |
| 2.1. | Subject to the terms and conditions set forth in this Agreement, and in reliance on the representations, warranties and covenants of the Purchaser and the Seller contained herein, at the Closing (as defined below) the Seller shall sell to the Purchaser and the Purchaser shall purchase from the Seller the Shares in consideration for the Purchase Price (as defined below), free and clear of any and all Liens (the "Transaction"). |
| 2.2. | In the event of any stock split (bonus shares), consolidation, share dividend (including any dividend or distribution of securities convertible into share capital), reorganization, reclassification, combination, recapitalization or other like change with respect to the Shares occurring after the date hereof and prior to the Closing, all references in this Agreement to numbers of shares and all related calculations shall be equitably adjusted to the extent necessary to provide to the parties the same economic effect as contemplated by this Agreement. |
| 3. | CONSIDERATION |
- 2 -
| 3.1. | As consideration for the sale of all of the Shares to the Purchaser, at the Closing, the Purchaser will pay the Seller, under the terms and conditions of this Agreement, for each Share, an amount in cash equal to NIS12.7904, in an aggregate amount equal to NIS12,790,400 for all Shares (the "Purchase Price") as may be adjusted pursuant to Section 2.2 above. Upon payment of the Purchase Price, the Seller shall no longer be entitled to any of the benefits of ownership of the Shares, including voting rights relating thereto. |
| 3.2. | The payment of the Purchase Price shall be made NIS, by wire transfer of immediately available funds to the bank account of the Seller, the details of which shall be provided by the Seller to Purchaser in writing prior to the Closing Date. |
| 3.3. | Tax Withholding. The payment of the Purchase Price to the Seller hereunder shall be subject to Israeli withholding tax at source, if required pursuant to applicable law, unless the Seller provides the Purchaser with a valid certificate of exemption from tax withholding (or a valid certificate of reduced tax withholding) or any other written instructions or a ruling regarding tax withholding, in each case issued by the Israel Tax Authorities ("ITA"), in form and substance satisfactory to Purchaser (a "Tax Withholding Certificate"), in which case the Purchaser shall act in accordance with such Tax Withholding Certificate with respect to payments made to the Seller hereunder. Any amounts withheld and delivered to the ITA shall be deemed payment on account of the Purchase Price. |
| 4. | CLOSING. |
| 4.1. | Time and Place. The consummation of the Transaction (the "Closing") shall take place at the offices of Meitar, Liquornik, Geva & Leshem, Brandwein, Law Offices, 00 Xxxx Xxxxxx Xxxx, Xxxxx Xxx 00000, Israel at a time and on a date to be specified by the parties, which shall be no later than the second Business Day after the satisfaction or waiver of all the respective conditions set forth in Section 5 (other than those respective conditions that by their nature are to be satisfied at the Closing), or at such other time, date and location as the Purchaser and Seller agree in writing. The date on which the Closing takes place is referred to in this Agreement as a "Closing Date". |
| 4.2. | Transactions at Closing. At the Closing, the following actions will take place, all of which shall be deemed to have occurred 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: |
| 4.2.1. | The Seller and Purchaser will sign a share transfer deed in the form attached hereto as Schedule 4.2.1 (the "Share Transfer Deed") representing the Shares and deliver the executed Share Transfer Deed to the Company. |
| 4.2.2. | The Seller will deliver to American Stock Transfer, the Company's transfer agent ("AST"), a share certificate representing common shares of the Company in an amount greater than the Shares. |
| 4.2.3. | The Seller will deliver to AST an original copy of an executed medallion guaranteed Stock Power in the form attached hereto as Schedule 4.2.3 |
.
| 4.2.4. | The Seller will deliver to the Company a signed letter to the Company in the form attached hereto as Schedule 4.2.4, instructing AST to issue a share certificate in the name of the Seller for the balance of the common shares represented by the share certificate in excess of the Shares. |
- 3 -
| 4.2.5. | The Purchaser will deliver to the Company an original copy of an executed W-8BEN tax form in the form attached hereto as Schedule 4.2.5. |
| 4.2.6. | The Purchaser will transfer the Purchase Price to the Seller as set forth in Section 3 above. |
| 5. | CLOSING CONDITIONS. |
| 5.1. | Conditions to the obligations of both Parties. The respective obligations of the Seller and Purchaser to effect the Closing are subject to (i) the receipt or delivery, as applicable, of their respective deliverables pursuant to Section 4.2 above and (ii) no court or other governmental authority having enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which has the effect of preventing, enjoining, restraining, prohibiting or otherwise making the consummation of the Transaction illegal. |
| 5.2. | Conditions to the obligations of the Purchaser. The obligation of the Purchaser to effect the Closing with the Seller is subject to the satisfaction, or waiver by the Purchaser, of the following conditions: |
| 5.2.1. | Representations and Warranties. Each of the representations and warranties made by the Seller in this Agreement shall have been true and correct as of the date of this Agreement and as of the date of the Closing (as if made as of the Closing Date). |
| 5.2.2. | Covenants. Each of the covenants and obligations that the Seller is required to comply with or to perform at or prior to the Closing shall have been complied with and performed. |
| 5.3. | Conditions to the obligations of the Seller. The obligation of the Seller to effect the Closing is subject to the satisfaction, or waiver by the Seller, of the following conditions: |
| 5.3.1. | Representations and Warranties. Each of the representations and warranties made by Purchaser in this Agreement shall have been true and correct as of the date of this Agreement and as of the date of the Closing (as if made as of the Closing Date). |
| 5.3.2. | Covenants. Each of the covenants and obligations that the Purchaser is required to comply with or to perform at or prior to the Closing shall have been complied with and performed. |
| 6. | REPRESENTATIONS AND WARRANTIES. |
| 6.1. | Mutual Representations. Each of the Seller and the Purchaser hereby makes to the other party, as of the date hereof, and upon and subject to the Closing, each of the Seller and Purchaser shall be deemed to make to the other party as of the Closing Date, the following representations and warranties (each party with respect to itself only), and to acknowledge that such other party is relying on such representations and warranties in consummating the Transaction at the Closing: |
- 4 -
| 6.1.1. | Each of the Seller and Purchaser has the requisite corporate power and authority to execute and deliver the documents executed (and to be executed) by it hereunder and to perform the Transaction. All documents executed (and to be executed) hereunder and the Transaction have been duly authorized by the necessary corporate action on the part of each of the Seller and Purchaser and constitute the valid and binding obligation thereof, enforceable against it in accordance with the terms thereof (assuming compliance by the other party thereto with the terms thereof), subject to (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. |
| 6.1.2. | Neither the execution and delivery of the documents executed (or to be executed) hereunder, nor the performance thereof, by each of the Seller and Purchaser shall: (a) require the consent or agreement of any court or other governmental authority or (b) conflict with, result in the breach or violation of, or constitute a default under (i) any applicable law, rule or regulation of any governmental authority applicable thereto; (ii) any contract, agreement, instrument, or undertaking of any nature to which it is a party or by which it is bound; or (iii) any of such party's formation documents. |
| 6.2. | Seller’s Representations. Seller represents and warrants to Purchaser that Seller will have, subject to consummation of the Transaction, good and valid title to, and will be the sole lawful owner of all of the Shares, and at the Closing, the Seller shall convey to Purchaser the full legal and beneficial interest and title in the Shares, free and clear of any Liens, other than as set forth in the Company’s Articles of Association or applicable law (if any). |
| 6.3. | Purchaser's Representations. Purchaser represents and warrants to the Seller that it acknowledges and understands that the Shares have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and that Purchaser may not offer, resell or otherwise transfer the Shares except pursuant to (i) an effective registration statement under the Securities Act covering such offer, sale or transfer and such offer, sale or transfer is made in accordance with such registration statement, or (ii) an available exemption from registration under the Securities Act, and that the Company may require that each certificate representing Shares be imprinted with a legend listing such transfer restrictions. |
| 7. | PARTIES ACKNOWLEDGMENTS WITH RESPECT TO EXCLUDED INFORMATION. |
Purchaser and the Seller each acknowledge, understand and agree as follows:
| 7.1. | The Seller has requested that Purchaser not disclose to it any of the Excluded Information. |
| 7.2. | Purchaser has complied with the Seller request not to disclose to the Seller the Excluded Information. |
| 7.3. | As a consequence of such non-disclosure of Excluded Information, there may exist a disparity of information between Purchaser and Seller with respect to the Shares and/or the Company. The Seller acknowledge that, had it been informed of the Excluded Information by the Purchaser, the Seller might have concluded that the Shares may have a different value than the value that the Purchaser is paying in the Transaction. |
- 5 -
| 7.4. | As a condition to Purchaser’s agreement to buy, and the Seller's agreement to sell, the Shares, Seller expressly release Purchaser from any and all damages as well as loss of profit or potential profit that may be incurred by the Seller as a result of the Seller’s decision to sell the Shares to the Purchaser without having access to the Excluded Information, provided that the Excluded Information shall not and does not affect the truth or accuracy of Seller’s representations and warranties made herein. |
| 8. | SELLER'S COVENANTS. |
From the date hereof and until the earlier of (i) the termination of this Agreement according to Section 10 below and (ii) the Closing, the Seller shall not:
| 8.1. | Transfer or otherwise give any rights of any kind or type to or in any of the Shares to any third party; or |
| 8.2. | Subject any of the Shares, or allow any of the Shares to become subject, to any Lien. |
| 9. | COMMERCIALLY REASONABLE EFFORTS. |
Subject to the terms and conditions contained herein, the Seller and the Purchaser shall cooperate and use their respective commercially reasonable efforts (a) to take, or cause to be taken, all appropriate action, and to make, or cause to be made, all filings and deliveries necessary, proper or advisable under applicable Law or otherwise, to consummate and make effective the transactions contemplated by this Agreement, and (b) to fulfill the conditions to consummation of the transactions contemplated hereby as set forth in Section 5 of this Agreement.
| 10. | TERMINATION. |
| 10.1. | This Agreement may be terminated at any time prior to the Closing: |
| 10.1.1. | By mutual written agreement of the Seller and Purchaser; |
| 10.1.2. | By the Seller or Purchaser, by written notice to the other parties, if a governmental authority shall have issued any order, injunction or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins or otherwise prohibits the Transaction or if there shall be any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Transaction by any governmental authority that would make consummation of the Transaction illegal. |
| 10.2. | If this Agreement is terminated pursuant to Section 10.1 , this Agreement shall become void and of no effect with respect to the Transaction, provided, however, that nothing herein shall relieve any party from liability arising from any prior breach by such party of any provision of this Agreement. |
| 11. | MISCELLANEOUS. |
| 11.1. | Severability. All representations, warranties and covenants, wherever in this Agreement contained, shall survive the date hereof. |
- 6 -
| 11.2. | Entire Agreement; No Third Party Beneficiaries. This Agreement, together with the Schedules attached hereto (when duly executed and delivered by the parties thereto), (a) constitute a valid, legally, binding and enforceable agreement among the Seller and Purchaser for the sale and purchase of the Shares, and (b) shall not be enforceable by, are not intended to confer, and shall not be construed as conferring, upon any person (other than the Seller and Purchaser) any rights or remedies hereunder. |
| 11.3. | Expenses; Taxes. Each of the Seller and Purchaser shall bear its respective costs and expenses related to this Agreement and the performance of its obligations hereunder, including all tax consequences. |
| 11.4. | Further Assurance. Each of the Seller and Purchaser shall do all things and carry out all acts which are reasonably necessary to effect the Transaction. |
| 11.5. | Public Announcements. Neither the Seller nor the Purchaser will make any public announcement or, directly or indirectly, disclose the specific terms of this Agreement or the existence hereof, unless if and as required by applicable law or the rules of any applicable stock exchange. |
| 11.6. | Notices. All notices required or permitted hereunder to be given to a party pursuant to this Agreement shall be in writing and shall be sent to such party’s address as set forth below or at such other address as such party shall have furnished to the other party in writing in accordance with this provision. |
All such notices shall be deemed to have been duly given to the addressee thereof (i) if hand delivered on a Business Day, then on the day of delivery and, if not on a Business Day, then on the following Business Day, (ii) if given by facsimile transmission on a Business Day, then on the day on which such transmission is sent and confirmed by telephone and if not on a Business Day, then on the following Business Day, subject to telephone confirmation, or (iii) if mailed by registered mail, return receipt requested, five Business Days following the date it was mailed, to:
if to Purchaser, to:
Address: 5 HaPlada St.
Or Xxxxxx
Israel
Attention: CEO
Fax No. 000-0-0000000
Email: xxx.xxxxxxxxx@xxxxxxx.xx.xx
if to the Seller, to:
1. Kardan Technologies Ltd.
000 Xxxxxxxx Xxxxx Xx.
Xxx-Xxxx 00000
- 0 -
Xxxxxx
Attention: Finance Manager
Fax No. 000-0-0000000
Email: xxxxxxx@xxxxxx.xxx
| 11.7. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Israel, excluding its conflict of laws rules. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any competent court located in Tel-Aviv-Jaffa, Israel in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein. |
| 11.8. | Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
[Signature Page Follows]
- 8 -
IN WITNESS WHEREOF, the parties hereto have executed this SHARE PURCHASE AGREEMENT as of the date first written above.
By: __________________________________________
Name:
Title:
Kardan Technologies Ltd.
By: __________________________________________
Name:
Title:
- 9 -
SCHEDULE 4.2.1
SHARE TRANSFER DEED
I, Kardan Technologies Ltd (hereinafter, the "Transferor"), for good consideration paid to us by Formula Systems (1985) Ltd. (hereinafter, the "Transferee"), do hereby transfer to the said Transferee 1,000,000 common shares of nominal value of €0.01 each, of Sapiens International Corporation N.V., to hold unto the said Transferee, its executors, administrators and assigns, subject to the several conditions on which we held the same at the time of the execution thereof; and we, the said Transferee, do hereby agree to take the said shares subject to the conditions aforesaid.
In witness whereof, the parties have executed this deed on this ___ day of _____, 2012.
| WITNESSES | THE PARTIES | |
| Witness to the signature of | THE TRANSFEROR | |
| the Transferor | ||
| Name: _________________ | By: ____________________ | |
| Witness to the signature of | THE TRANSFEREE | |
| the Transferee | ||
| Name: _________________ | By: ____________________ |
- 10 -
SCHEDULE 4.2.3
STOCK POWER
- 11 -
SCHEDULE 4.2.2.4.2.4
LETTER TO THE COMPANY
August [___], 2012
Sapiens International Corporation N.V. (the "Company")
Xxxxx Science Park
X.X. Xxx 0000
Xxx Xxxxx 00000, Xxxxxx
Attn: Chief Financial Officer
Re: Transfer of Shares
Dear Sir/Madam:
The undersigned, Kardan Technologies Ltd (the "Seller"), has taken all steps necessary to sell 1,000,000 common shares of the Company (the "Shares"), previously owned by the Seller, to Formula Systems (1985) Ltd. (the "Purchaser").
Attached hereto are (i) a copy of the share transfer deed effecting such sale, executed by the Seller and the Purchaser and (ii) a medallion guaranteed stock power executed by Seller. A share certificate representing the Shares (the "Share Certificate") has been delivered to American Stock Transfer, the Company's transfer agent ("AST").
Please take all actions necessary to amend the Company's shareholders register accordingly to reflect such transfer, including by instructing American Stock Transfer to cancel the original share in the name of Seller, and issue (i) one new share certificate in the name of the Purchaser, representing the Shares, to be delivered to Purchaser's address at 0 XxXxxxx Xx. Xx Xxxxxx, Xxxxxx; and (ii) one share certificate in the name of Seller representing the balance of the shares represented in the Share Certificate, not purchased by Purchaser, to be delivered to Seller's address at 000 Xxxxxxxx Xxxxx Xx., Xxx Xxxx 00000, Israel, Attn: Finance Manager.
Sincerely,
Kardan Technologies Ltd.
By: ____________________________
Name: _________________________
Title: __________________________
- 12 -
SCHEDULE 4.2.5
W-8BEN TAX FORM
