SHARE PURCHASE AGREEMENT
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Made and entered into as of the 26th day of February 1998 among: ARWOL HOLDINGS
LTD. a company incorporated under the laws of Israel and having its registered
office at 00 Xxxx Xx'xx Xxxxxx, Xxx-Xxxx, Xxxxxx ("the Buyer") and XX. XXXXXXX
XXXXX (I.d. No. 00-795101-5), of 00 Xxxxx Xxxxxx, Xxx-Xxxx. Xxxxxx ("X. Xxxxx"),
XX. XXXXXX XXXXX (I.D. No. 00-795102-3), of 00 Xxxxxxx Xxxxxx Xxxxxx, Xxx-Xxxx,
Xxxxxx ("X. Xxxxx"), MAST INDUSTRIES (DELEWARE) INC. (formerly Mast Holding
Corporation), a corporation incorporated under the laws of the State of
Delaware, USA, of c/o THE LIMITED, Inc., Three Limited Parkway, Xxxxxxxx, Xxxx
00000, XXX ("Mast"), XX. XXXXXX XXXXX (I.D. No. 4888660) of 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, XXX ("Xxxxx") and MR. XXXXXXX XXXXXXXXXX (US Passport
No. D2233127), of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX
("Steinhardt") (X. Xxxxx, X. Xxxxx, Mast, Toper and Steinhardt collectively,
"the Main Sellers") and those persons and entities listed in Annexure A hereto
(the Main Sellers and those persons and entities listed in Annexure, A,
collectively, "the Sellers")
WHEREAS: each of the Sellers in the registered or beneficial owner of,
or, entitled to, or has the right to acquire on closing (as
referred to in clause 6 below) (hereinafter "Closing"), a
certain number of ordinary fully paid-up shares of nominal
value NIS 1.0 (one New Israel Sheqel) each in the share
capital of Macpell Industries Ltd. ("the Company");
AND WHEREAS: the Buyer wishes to purchase from the Sellers all shares of
the Company held by the Sellers or to which the Sellers are
entitled or which the Sellers have the right to acquire on
Closing (all such shares, collectively, "the Sale Shares") and
each of the Sellers is willing to sell its portion of the Sale
Shares to the Buyer, all for the consideration and subject to
the terms and conditions set out in this Agreement below,
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. SALE
1.1. Subject to the fulfillment of the Conditions Precedent (as defined in
clause 7 below), each of the Sellers shall sell or produce the sale,
and the Buyer shall purchase from each of the Sellers, free from all
liens, security interests, adverse third party claims or encumbrances
of whatsoever nature, its portion of the Sale Shares, being that number
of the Sale Shares set out opposite such Seller's name in column 6 of
Annexure B to this Agreement, all for, and against payment of, the
Purchase Price (as defined in clause 2 below) and subject to the other
terms and conditions of this Agreement.
1.2. It is expressly recorded and agreed that, under this Agreement, each of
the Sellers is entering into a separate transaction with the Buyer with
respect to the Sale Shares to be sold by such Seller, no Seller shall
be liable for the obligations to be performed by any other Seller and
the liability of each of the Sellers in respect of the obligations
imposed on the Sellers under this Agreement (including, without
limitation, in respect of clause 3 below), shall be several and not
joint as if each of the Sellers had entered into a separate agreement
with the Buyer. Notwithstanding the above, in the event that at the
Closing the number of Sale Shares represented by the share certificates
and duly executed share transfer deeds in favor of the Buyer or
transfer instructions to the Registration Company in favor of the
Buyer, as the case may be, represent, in aggregate, less than
11,365,406 (eleven million three hundred and sixty-five thousand, four
hundred and five) Sale Shares, then the Buyer shall be entitled to
cancel this Agreement. In the event of such cancellation, the Buyer
shall have no rights or claims against any of the Sellers, save for
those of the Sellers who breached this Agreement by not making
available share certificates and duly executed share transfer deeds in
favor of the Buyer or transfer instructions to the Registration Company
in favor of the Buyer, as the case may be, in respect of all of such
Seller's Sale Shares (as reflected opposite such Seller's name in
column 6 of Annexure B) at Closing in accordance with such Seller's
obligations under clause 6 below.
2. PURCHASE PRICE
The purchase price (Purchase Price) per Share for the Sale Shares shall
be US $3.7949 (three United States Dollars, and seventy-nine cents and
forty-nine hundredths of a cent) payable, at the Buyer's discretion
(provided that all of the Sellers shall be paid in the same currency)
either in US Dollars or in New Israel Sheqels equal, in accordance with
the representative rate of exchange of the US Dollar last published by
the Bank of Israel immediately prior to the time of Closing ("the
Determining Representative Rate"), to the Purchase Price. The Buyer
shall notify the Main Sellers within 10 (ten) days of signature of this
Agreement as to the currency (US Dollars or NIS) in which payment shall
be made in accordance with the aforegoing
3. REPRESENTATION, WARRANTIES AND
CERTAIN UNDERTAKING OF THE SELLERS
3.1. Each of the Sellers hereby represents, warrants and undertakes (for the
removal of doubt -as to itself only, severally and not jointly) as
follows:
3.1.1. Annexure B attached hereto sets out opposite the name of such
Seller: (i) in column 1, the number of Sale Shares (if any) of
which it is the registered owner, (ii) in column 2, the number
of Sale Shares (if any) which are registered in the name of
the Trust Company of Bank Leumi Le' Israel B.M. ("BLL Trust")
as trustee on its behalf, (iii) in column 3, the number of
Sale Shares (if any) in an account in its name with the
Registration Company of United Mizrahi Bank Ltd. ("the
Registration
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Company"); (iv) in column 4, the number of Sale Shares (if
any) which it is obliged to transfer to any other Seller on
Closing, the names of each such other Seller and the number of
Sale Shares which is to be transferred to each such other
Seller; (v) in column 5, the number of Sale Shares (if any
which it shall acquire on Closing, from whom it shall acquire
such Sale Shares and in whose name such Sale Shares are
currently registered; and (vi) in column 6, the aggregate
number of Sale Shares which such Seller shall hold and shall
(subject to the provisions of this Agreement) transfer, or
procure the transfer of, to the Buyer on Closing;
3.1.2. such Sellers' Sale Shares, to the extent registered in its
name, in the name of BLL Trust on its behalf or in an account
in its name with the Registration Company or to be acquired by
it on Closing (all as set out in Annexure B) will, at Closing,
be free and clear from all liens, security interests, adverse
third party claims or encumbrances of any nature, subject only
to its obligation (if any) to transfer any of its Sale Shares
to any other Seller on Closing as reflected in column 4, of
Annexure B.
3.2. Each of the Main Sellers (for the removal of doubt - as to itself only,
severally and not jointly) hereby represents, warrants and undertakes
as follows:
3.2.1. the Company is a public company duly registered, validly
existing and in good standing under the laws of the State of
Israel;
3.2.2. the authorized share capital of the Company consists of
50,000,000 (fifty million) ordinary shares of nominal value
NIS 1.0 (one New Israel Sheqel)) each, of which as at the date
of signature of this Agreement, 14,492,958 (fourteen million
four hundred and ninety-two thousand, nine hundred and
fifty-eight shares have been issued and are fully paid-up (it
being recorded by the parties that the Company has issued
various debentures and options convertible into shares of the
Company, which may be exercised at any time after the date of
signature of this Agreement, all as described in the Company's
prospectus of July 21, 1997, a copy of which is annexed hereto
as Annexure C ("the Prospectus"));
3.2.3. save as set forth in the Prospectus, the Company has not
issued any option, warrant, right or commitment for the issue
or acquisition of any shares or other securities of the
Company;
3.2.4. that it hereby waives its rights of first refusal under the
shareholders' agreement dated may 17, 1992 amongst the Main
Sellers ("the Shareholders' Agreement") in respect of the
transfers to be made on Closing pursuant to this Agreement,
and subject to Closing, and that with effect from, and subject
to, the Closing, the Shareholder's Agreement and any other
agreements between any of the Main Sellers relating to the
Sale Shares be cancelled (it being recorded as between the
Main Sellers that, with effect from Closing, no party to the
Shareholders' Agreement or any
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such other agreement shall have any claim or right of
whatsoever nature against any other party arising out of or in
connection with the Shareholders' Agreement or any such other
agreement);
3.2.5. since December 31, 1997, the Company has not declared or paid
any dividend in cash, shares or otherwise.
3.3. Each of the Main Sellers (for the removal of doubt - as to itself only,
severally and not jointly) undertakes to the Buyer that the warranties
and representatives given by such Main Seller pursuant to clauses 3.2.3
and 3.2.5 above (to the extent dependent on such Main Seller) will
continue to be true and accurate in all respects at Closing.
3.4. Each of X. Xxxxx and X. Xxxxx (for the removal of doubt - as to himself
only, severally and not jointly) hereby represents, warrants and
undertakes as follows:
3.4.1. he is not aware of any material adverse change in the business
operations or financial condition of the Company which
occurred after the date of the Prospectus, save for any such
change, if any, reflected in the audited financial statements
of the Company as of December 31, 1997 ( a copy of which
statements is annexed hereto as Annexure D) or reported by the
Company to the Israeli Securities Authority, the Tel-Aviv
Stock Exchange and the Registrar of Companies;
3.4.2. he is not aware of any material action of proceeding in any
court or before any governmental authority which has been
instituted or threatened against the Company after December
31, 1997, save as reported (if reported) by the Company to the
Israeli Securities Authority, the Tel-Aviv Stock Exchange and
the Registrar of Companies;
3.4.3. to the best of his knowledge, the signing of the Agreement or
the consummation of the transactions contemplated hereby does
not constitute a default or cause for acceleration under any
material loan agreement, lease agreement or similar agreement
to which the Company is a party;
3.4.4. in the event that he becomes aware, after the date of
signature of this Agreement, of any fact which, had be been
aware of such fact as at the date of signature of this
Agreement, then clause 3.4.1 or clause 3.4.2 would have been
inaccurate, he shall promptly give notice of such fact to the
Buyer, provided, for the removal of doubt, that receipt of
such notice shall not entitle the Buyer to refuse to close
this Agreement (however, the above shall not be construed as
derogating from any remedy available to the Buyer under this
Agreement against either of X. Xxxxx or X. Xxxxx, as the case
may by, in the event of a breach by X. Xxxxx or X. Xxxxx of
the provisions of clause 3.4.1 or 3.4.2 above).
3.5. Mast hereby undertakes to X. Xxxxx and X. Xxxxx that on, and subject
to, the Closing, all options granted under the Option Agreement dated
January 15, 1996
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shall be accelerated and Mast shall transfer to the persons listed
opposite Mast's name in column 4 of Annexure B all the Sale Shares
being the subject of such options, all as contemplated in clause 6.2.1
below.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to Sellers as follows:
4.1. the Buyer is a corporation duly organized, validly existing and in good
standing under the laws of Israel and has all requisite corporate power
and authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby;
4.2. the execution, delivery and performance by the Buyer of this Agreement
and the consummation by the Buyer of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on
the part of the Buyer. This Agreement has been duly and validly
executed and delivered by Buyer and constitutes the valid and binding
obligation of Buyer, enforceable in accordance with its terms;
4.3. subject to the fulfillment of the Conditions Precedent (as defined in
clause 7 below), no consent, approval or authorization of, exemption
by, or filing with, any governmental or regulatory authority is
required in connection with the execution, delivery and performance by
the Buyer of the Agreement or the consummation by the Buyer of the
transactions contemplated hereby;
4.4. the Buyer is aware, inter alia, that the Company is negotiating to sell
its investments in M.I.B.S. International Trade N.V.;
4.5. that Xx. Xxxx Xxxxxxx is the owner and controller of the Buyer and
serves as the Chairman of the Board of Directors of Tefron Ltd. and as
its President and has been involved in the management of Tefron Ltd.
for some years and, accordingly, the Buyer hereby acknowledges and
agrees that nothing in this Agreement (including, without limitation,
clause 3 above) shall be construed as imposing on any of the Sellers
any obligation or liability whatsoever in relation to the business,
operations or condition of Tefron Ltd. or otherwise in connection with
Tefron Ltd.
5. DEPOSIT
5.1. On the date of signature of this Agreement and simultaneously with such
signature, the Buyer shall deposit with the Trust Company of the First
International Bank of Israel Trust Company Ltd. (hereinafter "FIBI
Trust") an amount of US $6,000,000 (six million United States Dollars)
(hereinafter "the Deposit Amount"): the Buyer and the Sellers
(represented for this purpose by the Main Sellers) shall sign the
instructions to FIBI Trust set out in Annexure E hereto ("the Trustee's
Instructions") and the Buyer shall procure that FIBI Trust shall
confirm receipt of the Deposit Amount and shall undertake to act as
trustee for each of the Sellers and for the Buyer in respect to thereof
in accordance
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with the instructions to FIBI Trust set out in the Trustee's
Instruction, by signing in the place indicated therefor on the
Trustee's Instructions.
5.2. In the event of payment by FIBI Trust to the Sellers following the
receipt by FIBI Trust of a notice signed by the Main Sellers to the
effect that as a result of a breach of clause 6 of this Agreement by
the Buyer, this Agreement has been cancelled (all as referred to in
paragraph 3.1 of the Trustee's Instructions), the amount of such
payment shall be deemed liquidated damages in respect of the breach by
the Buyer referred to in such notice, the parties agreeing that such
amount is a genuine pre-estimate of the damages which will be suffered
by each of the Sellers in the event of a breach of this Agreement by
the Buyer resulting in the Closing not taking place.
6. CLOSING
6.1. The Closing of the purchase of the Sale Shares shall take place at the
offices of the First International Bank of Israel Ltd. or Bank Poalei
Agudat Israel Ltd. (as designated by the Buyer to the Sellers not later
than 7 (seven) days prior to the Closing Date)(the bank designated as
aforesaid "the Bank") at 9 Ahad Ha'am Street, Tel Aviv, at 10:00 a.m.,
on the day falling 7 (seven) business days after the date on which the
last of the Conditions Precedent to be fulfilled is fulfilled (provided
that, in the event that payment will be made by the Buyer in NIS, then,
if the representative rate last published by the Bank of Israel prior
to the date determined for Closing in accordance with the aforegoing
("the Intended Date") was published earlier than the business day
before the Intended Date, then the Closing shall take place on the
first business day following the business day on which a representative
rate is next published by the Bank of Israel immediately after the
Intended Date) or at such other place or time as the Buyer and the Main
Sellers may agree to in writing ("the Closing Date").
6.2. Each of the Sellers and the Buyer, or their respective authorized
signatories or attorneys shall be present at the Closing. The Main
Sellers and the Buyer shall procure that representatives of FIBI Trust
are present at Closing, the Main Sellers shall procure that
representatives of the Registration Company, of BLL Trust and of the
Company (duly authorized to act on behalf of the Company to perform the
acts which the Company is to perform hereunder) are present at Closing
and the Buyer shall procure that representatives of the Bank shall be
present at Closing. The Main Sellers shall further give written
instructions to BLL Trust to carry out the acts to be performed by it
as provided below. At the Closing, the acts referred to in clauses
6.2.1. - 6.2.9. shall be performed in the sequence set out below. Each
of the parties hereto undertakes to perform those acts which it is
required to perform below and to procure, to the extent within its
power, that FIBI Trust, BLL Trust, the Bank, the Registration Company
and the Company perform the acts which each of them is required to
perform below. For the removal of doubt, Closing shall not be deemed to
have been performed and all acts referred to below (to the extent
performed) shall be cancelled and of no force and effect in the event
that any of the acts set out below is not performed at Closing (but
without
6
derogating from the remedies available to any party against any other
party for the failure by such other party to perform any of its
obligations under this clause 6.2. below).
6.2.1. Mast shall, against the payment referred to hereunder,
transfer to each of the Sellers listed in column 4 of Annexure
B, that number of the Sale Shares to be transferred by Mast to
it (as per Annexure B), by way of delivery to each such Seller
of share certificates and share transfer deeds in favor of
such Seller duly executed by Mast or BLL Trust (as the case
may be) and /or instructions to the Registration Company to
hold such Sale Shares to the order of such Seller, as the case
may be, and, against such transfer, each of the aforegoing
Sellers shall pay Mast, by way of wire transfer to an account
designated, at least 2 (two) business days prior to Closing,
by Mast to Xxxxxx Xxxxx, on behalf of such Sellers, in
writing, an amount equal to the NIS equivalent, in accordance
with the Determining Representative Rate, of US $0.63
(sixty-three United States cents) per share in respect of the
Sale Shares transferred to it in accordance with the
aforegoing, and, to the extent applicable, each such Seller
shall execute the share transfer deed relating to the Sale
Shares transferred to it aforesaid;
6.2.2. Xxxxx shall deliver share certificates and share transfer
deeds duly executed by BLL Trust in respect of the number of
Sale Shares listed opposite his name in column 4 of Annexure B
to the Seller to whom Xxxxx is to transfer such Sale Shares
pursuant to such column 4 and such transferee shall execute
such transfer deeds;
6.2.3. Xxxxx shall procure that Xxxxx Xxxxx shall deliver share
certificates and share transfer deeds duly executed by BLL
Trust in respect of the number of Sale Shares listed opposite
her name in column 4 of Annexure B to the Seller to whom Xxxxx
Xxxxx is to transfer such Sale Shares pursuant to the said
column 4 and such transferee shall execute such transfer
deeds;
6.2.4. the Main Sellers shall procure the delivery to the Buyer of an
authenticated copy of minutes of a meeting of the Board of
Directors of the Company, at which a resolution was passed by
the meeting by the vote of at least 75% (seventy-five percent)
of the directors of the Company to appoint as new directors of
the Company, those persons designated by the Buyer to the Main
Sellers in writing at least 7 (seven) days before Closing
(subject to the limit on the number of directors of the
Company set out in its Articles of Association), their
appointments to become effective immediately after, and
subject to, the Closing;
6.2.5. X. Xxxxx, X. Xxxxx and Mast (each with respect to the
directors of the Company designated by it only) shall procure
the delivery to the Buyer of (i) resignation notices addressed
to the Company by each of the Company's directors, save for
Messrs. Uzi Tzur and Raphael Vacht
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(directors from amongst the public), X. Xxxxx and X. Xxxxx;
(ii) a resignation notice addressed to the Company by X. Xxxxx
in respect of his office as Chairman of the Board of Directors
of the Company by X. Xxxxx in respect of his office as Chief
Executive Officers of the Company, all such resignations to
become effective immediately after, and subject to, the
Closing;
6.2.6. against and simultaneously with the transfers referred to in
clause 6.2.7. below: (i) FIBI Trust shall pay to the Buyer the
Deposit Amount, together with all interest accrued thereon in
the trust account, and (ii) the Buyer shall give to the Bank
irrevocable written instructions to transfer, and the Bank
shall transfer, from the Buyer's account to each of the
Sellers (to a bank account in Israel designated by such Seller
to the Buyer and the Bank in writing at least 2 (two) days
before the Closing), an amount equal to the Purchase Price
multiplied by the number of Sale Shares to be transferred by
such Seller to the Buyer on Closing (as set out in column 6 of
Annexure B);
6.2.7. each of the Sellers shall, in respect of all the Sale Shares
to be transferred by it to the Buyer (as set out in column 6
of Annexure B): (i) deliver or procure the delivery to a
representative of the Bank, acting on behalf of the Buyer, of
share certificates together with share transfer deeds in favor
of the Buyer and/or its order duly executed by the Seller or,
as the case may be, BLL Trust; and/or, as the case may be,
(ii) deliver to the Bank's representative a confirmation
signed by the Registration Company that following instructions
given to it by such Seller, the Registration Company shall
hold a specific number of Sale Shares in favor of the Buyer
and/or to its order;
6.2.8. the Company shall pay to The Limited, Inc. (to a bank account
designated at least 2 (two) days prior to Closing by it to the
Company in writing), the loan in the principal amount of US
$1,000,000 (one million United States Dollars) granted by The
Limited, Inc. under a loan agreement dated January 15, 1996,
together with all accrued interest thereon up to Closing;
6.2.9. X. Xxxxx shall procure that Xxxxxx Xxxxx Ltd. and X. Xxxxx
shall procure that M.G.N. Peleg Ltd. shall execute consulting
agreements between each of them and the Company in the forms
annexed hereto as Annexures F and G respectively and the
Company shall execute such consulting agreements.
6.3. The Company shall register all transfers referred to in this clause 6
above and shall issue to each of the parties entitled thereto share
certificates in respect of those shares that are transferred to them
pursuant to the provisions of clause 6 above and shall, thereafter,
cancel all of the Sellers' respective share certificates in respect of
the Sale Shares.
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7. CONDITION PRECEDENT
7.1. This Agreement is conditional upon the fulfillment of all of the
conditions set out in this clause 7.1 below ("the Conditions
Precedent"). In the event that all of the Conditions Precedent have not
been fulfilled by April 30, 1998, or such other date (if any) as may be
agreed by the parties in writing, this Agreement shall terminate and be
null and void and no party shall have any claims against any other,
save to the extent that such claim arises out of a failure by a party
to act in accordance with clause 7.2 below.
7.1.1. receipt of the approval by the Controller of Restrictive Trade
Practices of the "merger of companies" (within the meaning of
such term in Section 1 of the Restrictive Trade Practices Law,
1958 ("the Law"), contemplated under this Agreement;
7.1.2. receipt of the approval by the Investment Centre established
under the Encouragement of Capital Investments Law, 1959, of
the change in ownership structure of the Company as
contemplated under this Agreement;
7.1.3. receipt of a written agreement by the Company (duly approved
by the audit committee, Board of Directors and Shareholders'
Meeting of the Company) to the prepayment of the loan as
contemplated in clause 6.2.8 above and to the execution of the
consulting agreements as contemplated in clause 6.2.9 above;
7.1.4. The Limited, Inc. shall have given to the Company its written
consent to prepayment of the loan referred to in clause 6.2.8
above upon Closing, all in accordance with the provisions of
clause 6.2.8 above;
7.1.5. the Company shall have duly amended the stock option plan for
employees adopted by it on June 16, 1996 (as described in the
Prospectus) such that: (i) in the event that any beneficiary
under the plan shall cease to be an employee of the Company in
circumstances in which he would be entitled to full severance
pay under the Severance Pay Law, 1963, then such cessation
shall not affect such beneficiary's rights to exercise all its
options under the plan; or such that (ii) all options under
such stock option plan would be realizable with immediate
effect (as if the conditions for the exercise of such options
had already been fulfilled).
7.2. As soon as practicable after the date of signature of this Agreement,
the Main Sellers will each use their reasonable best efforts (each to
the extent within their reasonable control) in order to complete or to
cause the Company to complete (as the case may be), as soon as
possible, the process for fulfilling the Conditions Precedent and the
Buyer (to the extent relevant to it) will cooperate with the Main
Sellers and use its reasonable best efforts with regard to the process
for fulfilling the Conditions Precedent as aforesaid. Nothing in this
clause 7.2 shall be
9
construed as imposing on any party an obligation actually to procure
fulfillment of any of Conditions Precedent, as distinct from an
obligation to exercise its reasonable best efforts to do so.
8. INDEMNIFICATION FOR BREACH OF WARRANTIES
8.1. With effect from the Closing, subject to the provisions of clauses
8.2., 8.3. and 8.4. below, each of the Sellers shall (with respect to
such Seller's warranties only), indemnify and hold harmless each of the
Sellers, from and against any losses or damages (including, without
limitation, reasonable legal fees), arising out of or resulting from a
material inaccuracy of any representation or warranty given by such
Seller or Buyer (as the case may be) under this Agreement.
8.2. Not withstanding anything in this Agreement to the contrary, none of
the Sellers shall be liable for any claims in respect of a breach of
any warranty or representation unless:
8.2.1. the warranty or representation in respect of which the claim
is made is one given by such Seller;
8.2.2. (save with respect to the warranties given under clauses 3.1.1
and 3.1.2 above), written particulars of the matters in
respect of which such claim is made, specifying in detail the
basis of such claim, the facts pertaining thereto or arising
therefrom, the amount, or an estimate of the amount of the
liability arising therefrom supported by documentary evidence,
shall have been given to such Seller within a period of 1
(one) year from the Closing Date; it being recorded, for the
removal of doubt, that upon the termination of such 1 (one)
year period, all the warranties and representations (if any)
given by such Seller (save for those referred to in clauses
3.1.1 and 3.1.2 above) shall expire and no longer be of any
force or effect;
8.2.3. the amount of such claim shall exceed US $250,000 (two hundred
and fifty thousand United States Dollars) and, if so, the
amount recoverable in respect of such claim shall be reduced
by the aforegoing amount of US $250,000 (two hundred and fifty
thousand United States Dollars).
8.3. The maximum liability of any Seller in respect of the warranties and
representations given by such Seller shall not exceed the amount
received by such Seller from the Buyer in consideration for such
Seller's Sale Shares pursuant to this Agreement.
8.4. Without derogating from the provisions of clause 8.3 above (and as an
additional limit) the maximum liability of each of X. Xxxxx or X. Xxxxx
in respect of a material inaccuracy of any representation or warranty
given by such Seller to the Buyer pursuant to clauses 3.4.1, 3.4.2 or
3.4.3 above, shall not exceed that percentage of the losses or damages
(including, without limitation, reasonable legal fees) of the Buyer
arising out of or in respect of such material inaccuracy
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equal to the percentage which the Sale Shares set out opposite such
Seller's name in column 6 of Annexure B constitute of the aggregate
number of issued shares of the Company as at the date of the signature
of this Agreement.
9. INSURANCE AND INDEMNITY OF DIRECTORS
9.1. The Buyer undertakes to procure that the Company shall continue to
maintain in respect of each of the directors of the Company as at the
date of signature of this Agreement (save for the directors from
amongst the public) directors'/officers' liability insurance for a
period of at least 7 (seven) years from the date of resignation of such
director form the Board of Directors of the Company, such insurance to
be on the same terms and conditions and in the same amounts of cover as
currently applicable, subject to customary increases in the amounts of
such cover or improvements in such terms and conditions.
9.2. In the event that any such resigning directors shall suffer any loss or
damage (including reasonable attorneys' fees) by reason of any claim in
relation to the period prior to the date of resignation by such
director from the Board of Directors of the Company, in respect of
which the Company would under the Ordinance (subject to the necessary
approvals by the Company) have been entitled to indemnify such
director, then to the extent that such resigning director does not
receive from the insurance referred to in 9.1 above the full amount of
such loss or damage (including reasonable attorneys' fees), the Buyer
shall procure that the Company shall indemnify such resigning director
against such loss or damage (including reasonable attorneys' fees) not
covered or not fully-covered by the insurance policy referred to in 9.1
above or. if the Buyer is unable to procure that the Company indemnify
such resigning director, the Buyer shall itself indemnify such
resigning director against any such loss or damage (including
reasonable attorneys' fees) not so covered.
10. CERTAIN PUT OPTIONS
10.1. The Buyer hereby grants to each of those employees of the Company
referred to in the Prospectus as having options to acquire shares of
the Company under the employee stock option plan referred to in the
Prospectus ("the Employee Stock Option Plan"), the following put
options in relation to all shares acquired by such employee upon
realization of his still unrealized options under the Employee Stock
Option Plan (which options constitute 2/3 (two-thirds) of the aggregate
number of options originally granted to such employee under the
Employee Stock Option Plan (the maximum number of shares which may be
acquired by such employee on exercise of all such unrealized options
hereinafter "the Maximum Number")). Such employee shall with respect to
any shares of the Company acquired by him (whether held by such
employee or by a trustee on his behalf) after July 15, 1998 (or before
July 15, 1998, provided that such employee is not entitled in respect
of such shares to any dividend declared by the Company prior to July
15, 1998) as a result of exercise of options under the Employee Stock
Option Plan, be entitled:
11
10.1.1. by the giving to the Buyer of notice to such effect at any
time during the period August 1, 1998-September 30, 1998, to
require the Buyer to purchase such number of such shares not
exceeding 50% (fifty percent) of the Maximum Number, free and
clear of all liens, security interests, adverse third party
claims or encumbrances of any nature, at a price equal to the
Purchase Price per share, less any amount of dividends (net of
taxes paid by such employee on such dividends) (such amount of
dividends, net of taxes as aforesaid, to be expressed in US
Dollars in accordance with the representative rate of exchange
of the US Dollar and the NIS last published by the Bank of
Israel prior to the date of actual payment of such dividends)
received by such employee (or for his account) in respect of
such shares;
10.1.2. by the giving to the Buyer of notice to such effect at any
time during the period commencing 18 (eighteen) months after
the Closing Date and ending 20 (twenty) months after the
Closing Date, to require the Buyer to purchase such number of
such shares not exceeding the Maximum Number of shares less
the number of shares, if any, purchased by the Buyer pursuant
to clause 10.1.1 above, such shares to be free and clear of
all liens, security interests, adverse third party claims or
encumbrances of any nature, at a price equal to the Purchase
Price per share, less any amount of dividends (net of taxes
paid by such employee on such dividends) (such amount of
dividends, net of taxes as aforesaid, to be expressed in US
Dollars in accordance with the representative rate of exchange
of the US Dollar and the NIS last published by the Bank of
Israel prior to the date of actual payment of such dividends)
received by such employee (or for his account) in respect of
such shares.
10.2. The provisions of clause 10.1 above shall constitute a contract for the
benefit of those third parties referred to in clause 10.1.
10.3. For the purpose of clauses 10.1.1 and 10.1.2 only, "the Purchase Price"
shall mean the NIS equivalent, at the representative rate of exchange
of the US Dollar last published by the Bank of Israel immediately prior
to the completion of the relevant purchase under this clause 10, of US
$3.7949 (three United States Dollars and seventy-nine cents and
forty-nine hundredths of a cent).
11. MISCELLANEOUS
11.1. Entire Agreement
This Agreement constitutes the sole understanding of the parties with
respect to the subject matter hereof. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be
binding unless the same shall be in writing and duly executed by the
parties hereto.
12
11.2. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall, for all purposes, be deemed to be an original and all of
which shall constitute the same instrument.
11.3. Headings
The headings of the clauses of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this
Agreement or to affect the interpretation hereof.
11.4. Preamble and Annexures
The preamble to this Agreement and the Annexures attached thereto
constitute an integral part of this Agreement.
11.5. Expenses
Each party shall pay all costs and expenses incurred by it or on its
behalf in connection with this Agreement and the transactions
contemplated hereby including, Inter alia, fees and expenses of its own
counsel, financial consultants and accountants.
Stamp duty if demanded in relation to this Agreement and/or to the
transactions contemplated hereby shall be borne equally by the Sellers
(in proportion to their respective holdings of the Sale Shares to be
transferred on Closing (as to 50(degree)/a (fifty percent)) and the
Buyer (as to 50% (fifty percent))).
11.6. Taxes
Each Seller shall be responsible for the payment of capital gains tax
or income tax if and to the extent due from him as a result of the sale
of Sale Shares hereunder.
11.7. Notices
Any notice, request, instruction or other document to be given
hereunder by any party hereto to any other party hereto shall be in
writing and delivered personally or sent by registered or certified
mail, postage prepaid, with a copy by fax (if a fax number is indicated
below).
11.7.1. to the Buyer:
Arwol Holdings Ltd.: 00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Attention: Adv. X. Xxxxxxxxxx
Facsimile: 000 (0) 000 0000
13
to the Sellers:
\
X. Xxxxx: 00 Xxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
with a copy to: Adv. Xxxx Xxxx or Adv. Xxxxxxx Xxxxx
X. Xxxxxxxx & Co.
00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 000 (0) 000 0000
X. Xxxxx: 00 Xxxxxxx Xxxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 000 (0) 000 0000
with a copy to: Adv. Xxxx Xxxx or
Adv. Xxxxxxx Xxxxx
X. Xxxxxxxx & co.
00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 000 (0) 000 0000
Mast: Xxxxxx Xxxxx, Esq.
General Counsel
The Limited, Inc.
Three Limited Parkway
Columbus, OH 43230
U.S.A.
Facsimile: 000 (000) 000 0000
with a copy to: Xxxxxxx Xxxxxxxx, Esq. or
Xxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
X.X.X.
Facsimile: 000 (000) 000 0000
Xxxxx: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 000 (000) 000 0000
14
with a copy to:
-------------------------------
-------------------------------
Facsimile:
---------------------
X. Xxx-Xxxxx: 00 Xxxxx Xxxxxx
Xxxx Xxxx
Herzliya
Israel
Facsimile: 972 (9) (________)
with a copy to: X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 001 (212) 371-7171
X. Xxxxxxxxx: 0 Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx
Facsimile: 972 (3) (________
with a copy to: X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 001 (212) 371 7171
The Xxxxx Family
Foundation: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 001 (212) 371 7171
Steinhardt: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 001 (212) 371 7171
with a copy to:
-------------------------------
-------------------------------
Facsimile:
---------------------
X. Xxxxx: 8 Shchunat HaHaruvim
Kfar Tavor
15
Israel
Facsimile: 972 (-) (________)
A. Rotlevi: 00 Xxxxxxxx
Xxxxxx Xx Xxxx
Xxxxxx
Facsimile: 972 (3) (________)
with a copy to:
-------------------------------
-------------------------------
Facsimile:
---------------------
X. Xxxxx: 00 Xxxxxxx Xxxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 000 (0) 000 0000
with a copy to: Adv. Xxxx Xxxx or
Adv. Xxxxxxx Xxxxx
X. Xxxxxxxx & Co.
00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 000 (0) 000 0000
S. Nir: 00 Xxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 972 (3) (________)
with a copy to:
-------------------------------
-------------------------------
Facsimile:
---------------------
Xxx Xxxxx: 0 Xxxxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: [_______________]
with a copy to: Adv. Xxxx Xxxx or
Adv. Xxxxxxx Xxxxx
X. Xxxxxxxx & Co.
00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 000 (0) 000 0000
16
X. Xxxxx: 0 Xxxxxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: 972 (3) (________)
with a copy to:
-------------------------------
-------------------------------
Facsimile:
---------------------
11.8. Further Assurances
From and after the Closing Date, each party, at the request of another
party, will take all such action and deliver all such documents as
shall be reasonably necessary or appropriate to perform the
transactions contemplated by this Agreement.
11.9. Governing Law
The validity, performance, interpretation and enforcement of this
Agreement and any agreement entered into pursuant hereto, will be
governed by the laws of the State of Israel and the competent courts of
Tel-Aviv shall have jurisdiction in all matters arising from this
Agreement.
11.10. Public Announcement
The Buyer and the Main Sellers (represented by X. Xxxxx) shall consult
with one another before issuing any press releases or otherwise making
any public statements with respect to this Agreement and the
transactions contemplated hereby and shall not issue any such press
releases or make any public statement prior to such consultation,
except to the extent required by law.
17
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the date first above written.
for ARWOL HOLDINGS LTD.
----------------------------------
XXXXXXX XXXXX
By:
-----------------------------------
Title:
-------------------------------- ----------------------------------
XXXXXX XXXXX
for MAST INDUSTRIES (DELAWARE) INC.
By:
-----------------------------------
Title:
--------------------------------
-------------------------------------- -----------------------------------
XXXXXX XXXXX XXXXXXX XXX-XXXXX
for THE XXXXX FAMILY FOUNDATION
-----------------------------------
XXXXXXX XXXXXXXXXX
By:
-----------------------------------
Title:
-------------------------------- -----------------------------------
XXXXX XXXXXXXXX
-------------------------------------- -----------------------------------
PALMACH XXXXX XXXX ROTLEVI
-------------------------------------- -----------------------------------
XXXXXX NIR TSAFI PELEG
-------------------------------------- -----------------------------------
XXX XXXXX XXXXX XXXXX
18
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the date first above written.
for ARWOL HOLDINGS LTD.
-----------------------------------
XXXXXXX XXXXX
By:
-----------------------------------
Title:
-------------------------------- -----------------------------------
XXXXXX XXXXX
for MAST INDUSTRIES (DELAWARE) INC.
By:
-----------------------------------
Title:
--------------------------------
-------------------------------------- -----------------------------------
XXXXXX XXXXX XXXXXXX XXX-XXXXX
for THE XXXXX FAMILY FOUNDATION
-----------------------------------
XXXXXXX XXXXXXXXXX
By:
-----------------------------------
Title:
-------------------------------- -----------------------------------
XXXXX XXXXXXXXX
-------------------------------------- -----------------------------------
PALMACH XXXXX XXXX ROTLEVI
-------------------------------------- -----------------------------------
XXXXXX NIR TSAFI PELEG
-------------------------------------- -----------------------------------
XXX XXXXX XXXXX XXXXX
19
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the date first above written.
for ARWOL HOLDINGS LTD.
-----------------------------------
XXXXXXX XXXXX
By:
-----------------------------------
Title:
-------------------------------- -----------------------------------
XXXXXX XXXXX
for MAST INDUSTRIES (DELAWARE) INC.
By:
-----------------------------------
Title:
--------------------------------
-------------------------------------- -----------------------------------
XXXXXX XXXXX XXXXXXX XXX-XXXXX
for THE XXXXX FAMILY FOUNDATION
-----------------------------------
XXXXXXX XXXXXXXXXX
By:
-----------------------------------
Title:
-------------------------------- -----------------------------------
XXXXX XXXXXXXXX
-------------------------------------- -----------------------------------
PALMACH XXXXX XXXX ROTLEVI
-------------------------------------- -----------------------------------
XXXXXX NIR TSAFI PELEG
-------------------------------------- -----------------------------------
XXX XXXXX XXXXX XXXXX
20
