Exhibit 1.1
SCOPE METALS GROUP LTD.
[___] Shares
Ordinary Shares
(NIS 1.00 par value per Share)
UNDERWRITING AGREEMENT
[___________,] 2007
UNDERWRITING AGREEMENT
[_______, __] 2007
UBS Securities LLC
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Scope Metals Group Ltd., an Israeli corporation (the "Company"),
proposes to issue and sell, and Fimsco Holdings Ltd. (the "Selling Shareholder")
proposes to sell, to the underwriters named in Schedule A annexed hereto (the
"Underwriters"), for whom you are acting as representative, an aggregate of [_]
ordinary shares (the "Firm Shares"), NIS 1.00 par value per share (the "Ordinary
Shares"), of the Company, of which [_] Firm Shares are to be issued and sold by
the Company and an aggregate of [_____] Firm Shares are to be sold by the
Selling Shareholder in the respective amounts set forth opposite the Selling
Shareholder's name under the caption "Firm Shares" in Schedule C annexed hereto.
In addition, solely for the purpose of covering over-allotments, the Company and
the Selling Shareholder propose to grant to the Underwriters the option to
purchase from the Company and the Selling Shareholder up to an additional [_]
Ordinary Shares (the "Additional Shares") of which [_______] Additional Shares
are to be issued and sold by the Company and an aggregate of [_] Additional
Shares are to be sold by the Selling Shareholder in the amounts set forth
opposite the Selling Shareholder's name under the caption "Additional Shares" in
Schedule C annexed hereto. The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the "Shares." The Shares are
described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-1 (File No.
[333-____]) under the Act, including a prospectus, relating to the Shares.
Except where the context otherwise requires, "Registration Statement,"
as used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the "Effective Time"),
including (i) all documents filed as a part thereof, (ii) any information
contained in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant to Rule 430A
or Rule 430C under the Act, to be part of the registration statement at the
Effective Time, and (iii) any registration statement filed to register the offer
and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by
dealers in connection with the offering of the Shares, copies of one or more
preliminary prospectuses relating to the Shares. Except where the context
otherwise requires, "Preliminary Prospectus," as used herein, means each such
preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, "Prospectus," as used
herein, means the prospectus relating to the Shares filed by the Company with
the Commission pursuant to Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be required
under the Act), or, if no such filing is required, the final prospectus included
in the Registration Statement at the time it became effective under the Act, in
each case in the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the Shares.
"Permitted Free Writing Prospectuses," as used herein, means the
documents listed on Schedule B attached hereto and each "road show" (as defined
in Rule 433 under the Act), if any, related to the offering of the Shares
contemplated hereby that is a "written communication" (as defined in Rule 405
under the Act) (each such road show, an "Electronic Road Show").
The Underwriters have not offered or sold and will not offer or sell,
without the Company's consent, any Shares by means of any "free writing
prospectus" (as defined in Rule 405 under the Act) that is required to be filed
by the Underwriters with the Commission pursuant to Rule 433 under the Act,
other than a Permitted Free Writing Prospectus.
"Disclosure Package," as used herein, means any Preliminary Prospectus
together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
As used in this Agreement, "business day" shall mean a day on which
the National Association of Securities Dealers Automated Quotation National
Market System (the "NASDAQ") and the Tel Aviv Stock Exchange (the "TASE") are
open for trading. The terms "herein," "hereof," "hereto," "hereinafter" and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement. The term "or," as used herein, is not
exclusive.
The Company has prepared and filed, in accordance with Section 12 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act"), a registration statement (as
amended, the "Exchange Act Registration Statement") on Form 8-A (File No.
000-[____]) under the Exchange Act to register, under Section 12(b) of the
Exchange Act, the class of securities consisting of the Ordinary Shares.
The Company, the Selling Shareholder and the Underwriters agree as
follows:
1. Sale and Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell, and the Selling Shareholder agrees to sell, to the respective
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company and the Selling Shareholder, the respective number of
Firm Shares (subject to such adjustment as UBS Securities LLC ("UBS") may
determine to avoid fractional shares) which bears the same proportion to the
total number of Firm Shares to be sold by the Company or by the Selling
Shareholder, as the case may be, as the
-2-
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A annexed hereto, subject to adjustment in accordance with Section 11
hereof, bears to the total number of Firm Shares, in each case at a purchase
price of $[__] per Share. The Company and the Selling Shareholder is advised by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Firm Shares upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
In addition, the Company and the Selling Shareholder hereby grant to
the several Underwriters the option (the "Over-Allotment Option") to purchase,
and upon the basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the Company and the Selling
Shareholder, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company and the Selling Shareholder for the Firm Shares. The
Over-Allotment Option may be exercised by UBS on behalf of the several
Underwriters at any time and from time to time on or before the thirtieth (30th)
day following the date of the Prospectus, by written notice to each of the
Company and the Selling Shareholder at the addresses provided in Section 14
hereof. Such notice shall set forth the aggregate number of Additional Shares as
to which the Over-Allotment Option is being exercised and the date and time when
the Additional Shares are to be delivered (any such date and time being herein
referred to as an "additional time of purchase"); provided, however, that no
additional time of purchase shall be earlier than the "time of purchase" (as
defined below) nor earlier than the second business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as UBS may
determine to eliminate fractional shares), subject to adjustment in accordance
with Section 11 hereof. Upon any exercise of the Over-Allotment Option, the
number of Additional Shares to be purchased from the Company shall be the number
which bears the same proportion to the aggregate number of Additional Shares
being purchased as [# of company additional shares] bears to [# of additional
shares], and the number of Additional Shares to be purchased from the Selling
Shareholder shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased as the number of Additional Shares
set forth opposite the name of the Selling Shareholder in Schedule C annexed
hereto bears to [# of additional shares], subject, in each case, to such
adjustment as UBS may determine solely to eliminate fractional shares.
Pursuant to the power of attorney (the "Power of Attorney") granted by
the Selling Shareholder (which Power of Attorney shall be satisfactory to UBS),
Xxxxxx Shiloh, Xxx Xxxxx and Xxxx Xxxxxx shall act as representatives of the
Selling Shareholder. Each of the foregoing representatives (collectively, the
"Representatives of the Selling Shareholder") is
-3-
authorized, on behalf of the Selling Shareholder, among other things, to execute
any documents necessary or desirable in connection with the sale of the Shares
to be sold hereunder by the Selling Shareholder, to make delivery of the
certificates of such Shares, to receive the proceeds of the sale of such Shares,
to give receipts for such proceeds, to pay therefrom the expenses to be borne by
the Selling Shareholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to the Selling Shareholder,
to receive notices on behalf of the Selling Shareholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Company and to the Selling Shareholder by Federal Funds
wire transfer against delivery of the certificates for the Firm Shares to you
through the facilities of The Depository Trust Company ("DTC") for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York City time, on [closing date], 2007 (unless another time
shall be agreed to by you and the Company and the Representatives of the Selling
Shareholder or unless postponed in accordance with the provisions of Section 11
hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called the "time of purchase." Electronic transfer of the
Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such names and in
such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with respect
to the purchase of the Shares shall be made at the offices of White & Case LLP
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, at 9:00 A.M., New York City
time, on the date of the closing of the purchase of the Firm Shares or the
Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under
the Act or, with respect to any registration statement to be filed to
register the offer and sale of Shares pursuant to Rule 462(b) under the
Act, will be filed with the Commission and become effective under the Act
no later than 10:00 P.M., New York City time, on the date of determination
of the public offering price for the Shares; no stop order of the
Commission preventing or suspending the use of any Preliminary Prospectus
or Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for such
purpose have been instituted or, to the Company's knowledge, are
contemplated by the Commission; the Exchange Act Registration Statement has
become effective as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective,
complies
-4-
as of the date hereof and, as amended or supplemented, at the time of
purchase, each additional time of purchase, if any, and at all times during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the Registration Statement did
not, as of the Effective Time, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; each Preliminary
Prospectus complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the
requirements of the Act; at no time during the period that begins on the
earlier of the date of such Preliminary Prospectus and the date such
Preliminary Prospectus was first filed with the Commission and ends at the
time of purchase did or will any Preliminary Prospectus, as then amended or
supplemented (including by means of one or more Free Writing Prospectuses),
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no time
during such period did or will any Preliminary Prospectus, as then amended
or supplemented (including by means of one or more Free Writing
Prospectuses), together with any combination of one or more of the then
issued Permitted Free Writing Prospectuses, if any, include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the Prospectus will comply, as
of its date, the date that it is filed with the Commission, the time of
purchase, each additional time of purchase, if any, and at all times during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, in all material respects, with
the requirements of the Act (including, without limitation, Section 10(a)
of the Act); at no time during the period that begins on the earlier of the
date of the Prospectus and the date the Prospectus is filed with the
Commission and ends at the later of the time of purchase, the latest
additional time of purchase, if any, and the end of the period during which
a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will the Prospectus, as then
amended or supplemented (including by means of one or more Free Writing
Prospectuses), include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
at no time during the period that begins on the date of any Permitted Free
Writing Prospectus and ends at the time of purchase did or will any
Permitted Free Writing Prospectus include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty in this Section 3(b) with respect to any
statement contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in
reliance upon and in conformity with information concerning an Underwriter
and furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use in the Registration Statement, such
Preliminary Prospectus, the Prospectus or such Permitted Free Writing
Prospectus;
-5-
(c) prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act) or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Preliminary Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly
or indirectly, prepared, used or referred to any Permitted Free Writing
Prospectus except in compliance with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is accompanied or
preceded by the most recent Preliminary Prospectus that contains a price
range or the Prospectus, as the case may be, and that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was
filed with the Commission (and after such Permitted Free Writing Prospectus
was, if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any Permitted
Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule
433 (without reliance on subsections (b), (c) and (d) of Rule 164); the
Preliminary Prospectus dated [insert date of red xxxxxxx actually
distributed], 2007 is a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of Section 10 of the
Act, including a price range where required by rule; neither the Company
nor the Underwriters are disqualified, by reason of subsection (f) or (g)
of Rule 164 under the Act, from using, in connection with the offer and
sale of the Shares, "free writing prospectuses" (as defined in Rule 405
under the Act) pursuant to Rules 164 and 433 under the Act; the Company is
not an "ineligible issuer" (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the
Act with respect to the offering of the Shares contemplated by the
Registration Statement; the parties hereto agree and understand that the
content of any and all "road shows" (as defined in Rule 433 under the Act)
related to the offering of the Shares contemplated hereby is solely the
property of the Company; the Company has caused there to be made available
at least one version of a "bona fide electronic road show" (as defined in
Rule 433 under the Act) in a manner that, pursuant to Rule 433(d)(8)(ii)
under the Act, causes the Company not to be required, pursuant to Rule
433(d) under the Act, to file, with the Commission, any Electronic Road
Show;
(d) as of the date of this Agreement, the Company has an authorized
and outstanding capitalization as set forth in the sections of the
Registration Statement, the Preliminary Prospectuses and the Prospectus
entitled "Capitalization" and "Description of share capital" (and any
similar sections or information, if any, contained in any Permitted Free
Writing Prospectus), and, as of the time of purchase and any additional
time of purchase, as the case may be, the Company shall have an authorized
and outstanding capitalization as set forth in the sections of the
Registration Statement, the Preliminary Prospectuses and the Prospectus
entitled "Capitalization" and "Description of share capital" (and any
similar sections or information, if any, contained in any Permitted Free
Writing Prospectus) (subject, in each case, to the issuance of Ordinary
Shares upon the exercise of warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus; all of the issued and outstanding shares of
capital stock, including the
-6-
Ordinary Shares, of the Company have been duly authorized and validly
issued and are fully paid and non-assessable, have been issued in
compliance with all applicable Israeli and United States securities laws
and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right; the Shares are duly listed, and
admitted and authorized for trading, subject to official notice of
issuance, on the NASDAQ;
(e) the Company has been duly incorporated and is validly existing as
a corporation under the laws of the Israel, with full corporate power and
authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, to
execute and deliver this Agreement and to issue, sell and deliver the
Shares to be sold by it as contemplated herein;
(f) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, either
(i) have a material adverse effect on the business, properties, condition
(financial or otherwise), earnings, results of operations, shareholders'
equity or prospects of the Company and its Subsidiaries (as defined below)
taken as a whole, (ii) prevent or materially interfere with consummation of
the transactions contemplated hereby or (iii) prevent the Ordinary Shares
from being accepted for listing on, or result in the delisting of Ordinary
Shares from the NASDAQ or the TASE (the occurrence of any such effect or
any such prevention or interference or any such result described in the
foregoing clauses (i), (ii) and (iii) being herein referred to as a
"Material Adverse Effect");
(g) the Company has no subsidiaries other than as set forth in the
Registration Statement under the caption "Business" (collectively, the
"Subsidiaries"); the Company's material subsidiaries are
Primapol-Metal-Spot, s.r.o., Shintu Inc., Materials Technology Solutions
LLC., Hadco Metal Trading Co., LLC and Gilinox s.r.l. (collectively, the
"Material Subsidiaries"), the Company owns, directly or indirectly, all of
the issued and outstanding capital stock or membership or other equity
interests, as applicable, of each of the Subsidiaries except as described
in the Registration Statement; other than the capital stock or membership
or other equity interests, as applicable, of the Subsidiaries, the Company
does not own, directly or indirectly, any shares of stock or any other
equity interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; complete and
correct copies of the memorandum of association or articles of association
of the Company or other organizational documents of each Subsidiary and all
amendments thereto have been delivered to you, and, no changes therein will
be made on or after the date hereof through and including the time of
purchase or, if later, any additional time of purchase; each Subsidiary has
been duly organized and is validly existing as a corporation or other
business entity in good standing under the laws of the jurisdiction of its
organization (as applicable), with full power and authority to own, lease
and operate its respective properties and to conduct its respective
business as described in the Registration Statement, the Preliminary
-7-
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any; each Subsidiary is duly qualified to do business as a foreign
corporation or other business entity and is in good standing in each
jurisdiction (as applicable) where the ownership or leasing of its
respective properties or the conduct of its respective business requires
such qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a Material
Adverse Effect; all of the outstanding shares of capital stock or other
membership interests, as applicable, of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable, have
been issued in compliance with all applicable securities laws, were not
issued in violation of any preemptive right, resale right, right of first
refusal or similar right and are owned by the Company subject to no
security interest, other encumbrance or adverse claims; and no options,
warrants or other rights to purchase, agreements or other obligations to
issue or other rights to convert any obligation into shares of capital
stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares to be sold by the Company pursuant hereto have been
duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid
and non-assessable and free of statutory and contractual preemptive rights,
resale rights, rights of first refusal and similar rights except as
described in the Registration Statement; the Shares to be sold by the
Company pursuant hereto, when issued and delivered against payment therefor
as provided herein, will be free of any restriction upon the voting or
transfer thereof pursuant to the Company's memorandum of association or
articles of association or any agreement or other instrument to which the
Company is a party; the Shares to be sold by the Selling Shareholder
pursuant hereto have been duly and validly authorized and issued and are
and, after they are delivered against payment therefor as provided herein,
will be, fully paid, non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar
rights except as described in the Registration Statement;
(i) the capital stock of the Company, including the Shares, conforms
in all material respects to each description thereof, if any, contained in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any; and the certificates
for the Shares when issued will be in due and proper form;
(j) this Agreement has been duly authorized, executed and delivered by
the Company;
(k) neither the Company nor any of the Subsidiaries is in breach or
violation of or in default under (nor has any event occurred which, with
notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) (i)
its memorandum of association or articles of association (or other similar
organizational document), or (ii) any material indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or
any license, lease, contract
-8-
or other agreement or instrument to which it is a party or by which it or
any of their respective properties may be bound or affected, except for
such breaches, violations or defaults that would not, individually or in
the aggregate, result in a Material Adverse Effect, or (iii) any material
United States federal, state, local or Israeli or other foreign law,
regulation or rule, or any rule or regulation of the NASDAQ or TASE or (iv)
any material decree, judgment or order applicable to it or any of its
properties;
(l) the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares to be sold by the Company pursuant hereto,
the sale of the Shares to be sold by the Selling Shareholder pursuant
hereto and the consummation of the transactions contemplated hereby will
not conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which, with notice, lapse of time
or both, would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (i) the memorandum of
association or articles of association of (or other similar organizational
document) the Company or any of the Subsidiaries, or (ii) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected (other than the consent required from Bank Leumi USA pursuant to
the loan agreement entered into between Bank Leumi USA, Materials
Technology Solutions LLC and Hadco Metal Trading Co., LLC on January 24,
2007 which has been obtained as of the date hereof), or (iii) any United
States federal, state, local or Israeli or other foreign law, regulation or
rule, or any rule or regulation of the NASDAQ or TASE or (iv) any decree,
judgment or order applicable to the Company or any of the Subsidiaries or
any of their respective properties;
(m) no approval, authorization, consent or order of or filing with any
United States federal, state, local or Israeli or other foreign
governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ and the
TASE), or approval of the shareholders of the Company, is required in
connection with the issuance and sale of the Shares to be sold by the
Company pursuant hereto, the sale of the Shares to be sold by the Selling
Shareholder pursuant hereto or the consummation of the transactions
contemplated hereby, other than (i) registration of the Shares under the
Act, which has been effected (or, with respect to any registration
statement to be filed hereunder pursuant to Rule 462(b) under the Act, will
be effected in accordance herewith), (ii) any necessary qualification under
the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters, (iii) under the Conduct Rules
of the National Association of Securities Dealers, Inc. (the "NASD") or
(iv) as may be required by the TASE or any other applicable Israeli
authority, [which approvals have been obtained as of the date
-9-
hereof](1); subject to the Underwriters' compliance with their obligations
hereunder, the Company is not required to publish a prospectus in Israel
under the laws of the State of Israel;
(n) (i) except as set forth in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and any Free Writing Prospectus,
no person has the right, contractual or otherwise, to cause the Company to
issue or sell to it any Ordinary Shares or shares of any other capital
stock or other equity interests of the Company, (ii) no person or entity
has any preemptive rights, resale rights, rights of first refusal or other
rights to purchase any Ordinary Shares or shares of any other capital stock
of or other equity interests in the Company other than as set forth in the
Registration Statement and (iii) no person has the right to act as an
underwriter or as a financial advisor to the Company in connection with the
offer and sale of the Shares; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any Ordinary
Shares or shares of any other capital stock of or other equity interests in
the Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, except as contemplated in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and any Free Writing Prospectus;
(o) Except as set forth in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and any Free Writing Prospectus, each of the
Company, the Material Subsidiaries and Edit Industrial Buildings Ltd. has
all necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under United States (including any state
law), Israeli or any other applicable law, regulation or rule, and has
obtained all necessary licenses, authorizations, consents and approvals
from the appropriate United States (including any state law), Israeli or
other foreign regulatory authority, in order to conduct their respective
businesses, except for such licenses, authorizations, consents, approvals
and filings the failure to so obtain or the failure to so file would not,
individually or in the aggregate, have a Material Adverse Effect; each of
the Company, Materials Technology Solutions LLC. and Hadco Metal Trading
Co., LLC has all necessary export licenses required under United States
(including any state law), Israeli or any other applicable law, regulation
or rule; neither the Company nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings relating
to the revocation or modification of, any such license, authorization,
consent or approval or any United States federal, state, local or Israeli
or other foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, except where such
violation, default, revocation or modification would not, individually or
in the aggregate, have a Material Adverse Effect;
(p) there are no actions, suits, claims, investigations or proceedings
pending or, to the Company's knowledge, threatened or contemplated to which
the Company or any of the Subsidiaries or any of their respective directors
or officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, before or by any
United States federal, state, local or Israeli or other foreign
governmental or regulatory commission, board, body, authority or agency, or
before or
----------
(1) Approval pending.
-10-
by any self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NASDAQ and the TASE), except
any such action, suit, claim, investigation or proceeding which, if
resolved adversely to the Company or any Subsidiary, would not,
individually or in the aggregate, have a Material Adverse Effect;
(q) Kost, Forer, Gabbay & Kasierer, a member of Ernst & Young Global,
whose report on the consolidated financial statements of the Company and
the consolidated subsidiaries is included in the Registration Statement,
the Preliminary Prospectuses and the Prospectus, are independent registered
public accountants as required by the Act and by the rules of the Public
Company Accounting Oversight Board;
(r) the audited consolidated financial statements of the Company
included in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, together
with the related notes and schedules thereto, present fairly, in all
material respects, the consolidated financial position of the Company and
the subsidiaries as of the dates indicated and have been prepared in
compliance with the requirements of the Act and the Exchange Act and in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma financial
statements or data included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any, comply, in all material respects, with the requirements of the Act
and the Exchange Act, and the assumptions used in the preparation of such
pro forma financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the transactions
or circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements and data; the other financial and statistical data contained in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, are accurately and
fairly presented and (except with respect to statistical data not prepared
by the Company or its Subsidiaries) prepared on a basis consistent with the
financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be
included in the Registration Statement, any Preliminary Prospectus or the
Prospectus that are not included as required; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not described in
the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus; and all disclosures contained in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, regarding "non-GAAP
financial measures" (as such term is defined by the rules and regulations
of the Commission) comply with Regulation G of the Exchange Act and Item 10
of Regulation S-K under the Act, to the extent applicable;
(s) subsequent to the respective dates as of which information is
given in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in each
case excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, there has not
-11-
been (i) any material adverse change, or any development involving a
prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company and
the Subsidiaries taken as a whole, (ii) any transaction which is material
to the Company and the Subsidiaries taken as a whole, (iii) any obligation
or liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iv) any change in
the capital stock or outstanding indebtedness of the Company or any
Subsidiaries or (v) except as contemplated in the Registration Statement,
the Preliminary Prospectuses, the Prospectus, and any Free Writing
Prospectus, respectively, any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary;
(t) the Company has obtained for the benefit of the Underwriters the
agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit A
hereto, of (i) each of its directors and "officers" (within the meaning of
Rule 16a-1(f) under the Exchange Act) and (ii) the Selling Shareholder;
(u) the Company is not, and, after giving effect to the offering and
sale of the Shares, will not be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act")
or a "passive foreign investment company" or a "controlled foreign
corporation," as such terms are defined in the Internal Revenue Code of
1986, as amended (the "Internal Revenue Code");
(v) except as described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and any Free Writing Prospectus, the Company
and each of the Subsidiaries have good and marketable title to all property
(real and personal) described in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned by each of them, free and clear of all
liens, claims, security interests or other encumbrances, except where the
failure to possess marketable title would not individually, or in the
aggregate, materially and adversely affect the value of such property or
the actual or proposed use thereof; all the property described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, as being held under lease
by the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases with such exceptions as do not individually, or in the
aggregate, materially interfere with the use made or proposed to be made of
such property and buildings by the Company or such Subsidiary;
(w) each of the Company and the Material Subsidiaries owns or
possesses all trademarks (both registered, if any, and unregistered),
tradenames, service names and other proprietary information described in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any, as being owned or
licensed by it or which is necessary for the conduct of, or material to,
its businesses (collectively, the "Intellectual Property"), except where
failure to own or possess such Intellectual Property would not,
individually or in the aggregate, result in a
-12-
Material Adverse Effect, and the Company is unaware of any claim to the
contrary or any challenge by any other person to the rights of the Company
or any of the Material Subsidiaries with respect to the Intellectual
Property. Neither the Company nor any of the Material Subsidiaries has
infringed or is infringing the intellectual property of a third party, and
neither the Company nor any Material Subsidiary has received notice of a
claim by a third party to the contrary;
(x) neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is (A) no
unfair labor practice complaint pending or, to the Company's knowledge,
threatened against the Company or any of the Subsidiaries before the
National Labor Relations Board or the Israeli labor courts, and no
grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or, to the Company's knowledge,
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or,
to the Company's knowledge, threatened against the Company or any of the
Subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of the Subsidiaries, (ii) to
the Company's knowledge, no union organizing activities are currently
taking place concerning the employees of the Company or any of the
Subsidiaries, (iii) there has been no violation of any United States,
federal, state, local or Israeli or other foreign law relating to
discrimination in the hiring, promotion or pay of employees or any
applicable wage or hour laws concerning the employees of the Company or any
of the Subsidiaries; the Company is in compliance with the labor and
employment laws and collective bargaining agreements applicable to its
employees in Israel except where non-compliance would not reasonably be
expected to have a Material Adverse Effect and (iv) (A) each "employee
benefit plan" (within the meaning of Section 3(3) of the Employee
Retirement Security Act of 1974, as amended ("ERISA")) for which the
Company, any Subsidiary or any member of a "Controlled Group" (defined as
any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as
amended (the "Code")) that includes the Company or any Subsidiary would
have any liability (each a "Plan") has been maintained and administered in
substantial compliance with its terms and with the requirements of all
applicable statutes, rules and regulations, including ERISA and the Code;
(B) none of the Company, any Subsidiary or any ERISA Affiliate sponsors,
maintains or contributes to, or has ever sponsored, maintained or
contributed to (or been obligated to sponsor, maintain or contribute to),
(a) a "multiemployer plan" as defined in Section 3(37) or Section
4001(a)(3) of ERISA, (b) a multiple employer plan within the meaning of
Section 4063 or Section 4064 of ERISA or Section 413 of the Code, (c) an
employee benefit plan, fund, program, contract or arrangement that is
subject to Section 302 of ERISA, Title IV of ERISA or Section 412 of the
Code or (d) a "multiple employer welfare arrangement," as defined in
Section 3(4) of ERISA; (C) each Plan that is intended to be qualified under
Section 401(a) of the Code has received or is entitled to rely upon a
favorable determination or opinion letter from the IRS and nothing has
occurred, whether by action or by failure to act, which would reasonably be
expected to cause the loss of such qualification; and (D) neither the
Company nor any Subsidiary has incurred any material liability in
connection with any non-exempt prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975;
-13-
(y) (i) the Company and the Subsidiaries and their respective
properties, assets and operations are in compliance with, and the Company
and each of the Subsidiaries hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to the extent
that failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material
Adverse Effect; (ii) there are no past, present or, to the Company's
knowledge, reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the Company
or any Subsidiary under, or to interfere with or prevent compliance by the
Company or any Subsidiary with, Environmental Laws; (iii) except as would
not, individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (A) to the Company's
knowledge, is the subject of any investigation, (B) has received any notice
or claim, (C) is a party to or affected by any pending or, to the Company's
knowledge, threatened action, suit or proceeding, (D) is bound by any
judgment, decree or order or (E) has entered into any agreement, in each
case relating to any alleged violation of any Environmental Law or any
actual or alleged release or threatened release or cleanup at any location
of any Hazardous Materials (as defined below) (as used herein,
"Environmental Law" means any United States federal, state, local or
Israeli or other foreign law, statute, ordinance, rule, regulation, order,
decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or release or
threatened release of Hazardous Materials, and "Hazardous Materials" means
any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give
rise to liability under any Environmental Law);
(z) all returns, statements, forms and reports for taxes (the
"Returns") required by law to be filed by or with respect to the income,
properties or operations of the Company and its Material Subsidiaries have
been timely filed with the appropriate taxing authorities. The Returns
accurately reflect in all material respects all liability for taxes of the
Company for the periods covered thereby. Each of the Company and its
Subsidiaries has paid all taxes payable by them other than those contested
in good faith and adequately disclosed in the financial statements of the
Company and its Subsidiaries and for which adequate reserves have been
established in accordance with applicable generally accepted accounting
principles. There is no action, suit, proceeding, investigation, audit, or
claim now pending or, to the best knowledge of the Company, threatened by
any authority regarding any taxes relating to the Company and its
Subsidiaries. The Company has not entered into an agreement or waiver or
been requested to enter into an agreement or waiver extending any statute
of limitations relating to the payment or collection of taxes of the
Company, nor is aware of any circumstances that would cause the taxable
years or other taxable periods of the Company not to be subject to the
normally applicable statute of limitations;
-14-
(aa) assuming that none of the Underwriters is otherwise subject to
taxation in Israel and except as described in the Registration Statement,
the Preliminary Prospectuses, the Prospectus or the Permitted Free Writing
Prospectus, if any, no stamp, or other issuance or transfer taxes or
duties, fees or charges and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to Israel or the
United States or any political subdivision or taxing authority thereof or
therein in connection with (i) the issuance of the Shares in the manner
contemplated hereby or (ii) the sale and delivery by the Underwriters of
the Shares as contemplated herein;
(bb) the Company, each of the Material Subsidiaries and Edit
Industrial Buildings Ltd. maintain insurance covering their respective
properties, operations, personnel and businesses as the Company reasonably
deems adequate; such insurance insures against such losses and risks to an
extent which is adequate in accordance with customary industry practice to
protect the Company, the Material Subsidiaries, Edit Industrial Buildings
Ltd. and each of their respective businesses; all such insurance is fully
in force on the date hereof and will be fully in force at the time of
purchase and each additional time of purchase, if any; neither the Company
nor any Material Subsidiary nor Edit Industrial Buildings Ltd. has reason
to believe that it will not be able to renew any such insurance as and when
such insurance expires;
(cc) except as otherwise described in the Registration Statement,
neither the Company nor any Subsidiary has sent or received any
communication regarding termination of, or intent not to renew, any of the
contracts or agreements referred to or described in any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or
referred to or described in, or filed as an exhibit to, the Registration
Statement, and no such termination or non-renewal has been threatened in
writing by the Company or any Subsidiary or, to the Company's knowledge,
any other party to any such contract or agreement;
(dd) except as otherwise described in the Registration Statement, the
Company and each of the Subsidiaries each maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(ee) each "forward-looking statement" (within the meaning of Section
27A of the Act or Section 21E of the Exchange Act) contained in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, has been made or
reaffirmed with a reasonable basis and in good faith;
(ff) all statistical or market-related data included in the
Registration Statement,
-15-
the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the Company
reasonably believes to be reliable and accurate in all material respects,
and the Company has obtained the written consent to the use of such data
from such sources to the extent required;
(gg) neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has
constituted or would reasonably be expected to cause or result in, under
the Exchange Act, the Israel Securities Law of 1968, as amended (the "ISL")
or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(hh) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of the Subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the "Foreign Corrupt Practices
Act"); and the Company, the Subsidiaries and, to the knowledge of the
Company, its affiliates have instituted and maintain policies and
procedures designed to ensure continued compliance therewith;
(ii) the operations of the Company and the Subsidiaries are and have
been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the "Money Laundering Laws"); and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator or non-governmental authority involving the Company or any of
the Subsidiaries with respect to the Money Laundering Laws is pending or,
to the Company's knowledge, threatened;
(jj) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of the Subsidiaries is currently subject to
any United States sanctions administered by the Office of Foreign Assets
Control of the United States Treasury Department ("OFAC"); and the Company
will not directly or indirectly use the proceeds of the offering of the
Shares contemplated hereby, or lend, contribute or otherwise make available
such proceeds to any Subsidiary, joint venture partner or other person or
entity for the purpose of financing the activities of any person currently
subject to any United States sanctions administered by OFAC;
(kk) except as otherwise provided in the Registration Statement, no
Material Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on
such Subsidiary's capital stock, from
-16-
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Material Subsidiary's property or
assets to the Company or any other Subsidiary of the Company, except as
described in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus;
(ll) the issuance and sale of the Shares to be sold by the Company and
the sale of the Shares to be sold by the Selling Shareholder as
contemplated hereby will not cause any holder of any shares of capital
stock, securities convertible into or exchangeable or exercisable for
capital stock or options, warrants or other rights to purchase capital
stock or any other securities of the Company to have any right to acquire
any shares of preferred stock of the Company;
(mm) except pursuant to this Agreement, neither the Company nor any of
the Subsidiaries has incurred any liability for any finder's or broker's
fee or agent's commission in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby
or by the Registration Statement;
(nn) to the Company's knowledge, there are no affiliations or
associations between (i) any member of the NASD and (ii) the Company or any
of the Company's officers, directors or 5% or greater security holders or
any beneficial owner of the Company's unregistered equity securities that
were acquired at any time on or after the 180th day immediately preceding
the date the Registration Statement was initially filed with the
Commission, except as disclosed in the Registration Statement (excluding
the exhibits thereto), the Preliminary Prospectuses and the Prospectus;
(oo) neither the Company nor any of its Subsidiaries nor any of its or
their properties or assets has any immunity from the jurisdiction of any
court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise)
under the laws of Israel;
(pp) this Agreement is in proper legal form for enforcement against
the Company in Israel, provided that to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement in Israel, it
is not necessary that either of them be filed or recorded or enrolled with
any court or authority in Israel or that any stamp, registration or similar
tax be paid in Israel, other than court costs, including filing fees and
deposits to guarantee judgment required by Israeli law and regulations;
(qq) any final and conclusive monetary judgment against the Company of
any competent New York State or Federal court sitting in New York City
under this Agreement shall be recognized and enforced by the courts of
Israel, without re-examining or re-litigating the merits of the original
action, provided the following conditions are met (the existence or
non-existence of which would be determined by the applicable Israeli
court):
(i) no more than five (5) years has elapsed from the date the
judgment was granted (unless there is an agreement between
the country of origin and Israel or for any other reason
specified in the law);
(ii) adequate service of process has been effected and the
defendant has had a reasonable opportunity to defend;
(iii) such judgment or the enforcement thereof is not contrary to
the public policy of the State of Israel and its
enforcement does not impair the security or sovereignty of
the State of Israel;
-17-
(iv) such judgment was not obtained by fraudulent means and does
not conflict with any other valid judgment in the same
matter between the same parties;
(v) an action between the same parties in the same matter is
not pending in any Israeli court at the time the lawsuit is
instituted in a foreign court;
(vi) such judgment is enforceable in the State of New York; and
(vii) the judgment was rendered by a court of law which was not
authorized to render such judgment under the rules of
private international law currently prevailing in Israel.
Upon compliance with the above, the courts in Israel shall enforce a
final and conclusive monetary judgment rendered by any New York State or
Federal court sitting in New York City, in accordance with the procedure
applicable to the enforcement of final and conclusive foreign judgments in
Israel under the provisions of the Enforcement of Foreign Judgments Law
1958. To enforce a foreign judgment in Israel, a judgment must be submitted
to the applicable Israeli court, in the form of a legalized and officially
translated copy. The applicable Israeli court will hear arguments from the
party against whom enforcement is sought, but such hearing will be limited
to aspects relating to such enforcement and not to substantive issues
resolved in the foreign judgment.
As of the date hereof, there is no treaty between Israel and the
United States on the enforcement of foreign judgments. In practice, due to
the difficulties of proving in each case whether the reciprocity rule on
the enforcement of foreign judgments applies or not in respect of a
specific country, the Israeli court's approach on the matter has generally
been that the reciprocity requirement is to be interpreted with extreme
caution and has been given limited application. In general, the Israeli
courts will enforce foreign judgments, unless it is proved to the Israeli
court that the country from which the foreign judgment originates, does not
give legal recognition specifically to Israel judgments (i.e. enemy
states); and
(rr) the Company has validly and irrevocably submitted to the personal
jurisdiction of any court of the State of New York located in the City and
County of New York or of any court in the United States of America in the
Southern District of New York, has validly and irrevocably waived any
objection to the venue of a proceeding in any such court and the Company
has validly and irrevocably appointed Hadco Metal Trading Co., LLC as its
authorized agent for service of process.
In addition, any certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to and agrees with each of the
Underwriters that:
(a) all information with respect to the Selling Shareholder included
in the Registration Statement, any Preliminary Prospectus or the Prospectus
complied and will comply with all applicable provisions of the Act; the
Registration Statement, as it relates
-18-
to the Selling Shareholder, did not, as of the Effective Time, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; at no time during the period that begins on the earlier of
the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was first filed with the Commission and ends at the time of
purchase did or will any Preliminary Prospectus, as then amended or
supplemented (including by means of one or more Free Writing Prospectuses),
as such Preliminary Prospectus relates to the Selling Shareholder, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no time
during such period did or will any Preliminary Prospectus, as then amended
or supplemented (including by means of one or more Free Writing
Prospectuses), together with any combination of one or more of the then
issued Permitted Free Writing Prospectuses, if any, in each case as they
relate to the Selling Shareholder, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; at no time during the period that begins on the
earlier of the date of the Prospectus and the date the Prospectus is filed
with the Commission and ends at the later of the time of purchase, the
latest additional time of purchase, if any, and the end of the period
during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares did or will the Prospectus, as
then amended or supplemented (including by means of one or more Free
Writing Prospectuses), as the Prospectus relates to the Selling
Shareholder, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
at no time during the period that begins on the date of any Permitted Free
Writing Prospectus and ends at the time of purchase did or will any
Permitted Free Writing Prospectus, as such Permitted Free Writing
Prospectus relates to the Selling Shareholder, include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(b) the Selling Shareholder has not, prior to the execution of this
Agreement, offered or sold any Shares by means of any "prospectus" (within
the meaning of the Act), or used any "prospectus" (within the meaning of
the Act) in connection with the offer or sale of the Shares, in each case
other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement,
the Custody Agreement (as defined below) or Power of Attorney to which the
Selling Shareholder is a party nor the sale by the Selling Shareholder of
the Shares to be sold by the Selling Shareholder pursuant to this Agreement
nor the consummation of the transactions contemplated hereby or thereby
will conflict with, result in any breach or violation of or constitute a
default under (or constitute any event which with notice, lapse of time or
both would result in any breach or violation of or constitute a default
under) (i) if the Selling Shareholder is not an individual, the memorandum
of association and articles of association or other similar organizational
instruments of the Selling
-19-
Shareholder, (ii) any material indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Selling
Shareholder is a party or by which the Selling Shareholder or any of its
properties may be bound or affected, (iii) any material United States
federal, state, local or Israeli or other foreign law, regulation or rule,
or any rule or regulation of the NASDAQ or TASE or (iv) any material
decree, judgment or order applicable to the Selling Shareholder or any of
its properties.
(d) no approval, authorization, consent or order of or filing with any
United States federal, state, local or Israeli or other foreign
governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ and the
TASE), is required in connection with the sale of the Shares to be sold by
the Selling Shareholder pursuant to this Agreement or the consummation by
the Selling Shareholder of the transactions contemplated hereby or by the
Custody Agreement or Power of Attorney to which the Selling Shareholder is
a party other than (i) registration of the Shares under the Act, which has
been effected (or, with respect to any registration statement to be filed
hereunder pursuant to Rule 462(b) under the Act, will be effected in
accordance herewith), (ii) any necessary qualification under the securities
or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters, (iii) under the Conduct Rules of the NASD or
(iv) or (iv) as may be required by the TASE or any other applicable Israeli
authority, [which approvals have been obtained as of the date hereof](2);
subject to the Underwriters' compliance with their obligations hereunder,
the Selling Shareholder is not required to publish a prospectus in Israel
under the laws of the State of Israel;
(e) neither the Selling Shareholder nor any of its affiliates has
taken, directly or indirectly, any action designed to, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of
the NASD and the Selling Shareholder, except as disclosed in the
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus; none of the proceeds received by the Selling
Shareholder from the sale of the Shares to be sold by the Selling
Shareholder pursuant to this Agreement will be paid to a member of the NASD
or any affiliate of (or person "associated with," as such terms are used in
the Rules of the NASD) such member;
(g) the Selling Shareholder now is and, at the time of delivery of
such Shares (whether the time of purchase or any additional time of
purchase, as the case may be), will be the lawful owner of the number of
Shares to be sold by the Selling Shareholder pursuant to this Agreement and
has and, at the time of delivery of such Shares, will have valid and
marketable title to such Shares, and upon delivery of and payment for such
Shares (whether at the time of purchase or any additional time of purchase,
as the case
----------
(2) Approval pending.
-20-
may be), the Underwriters will acquire valid and marketable title to such
Shares free and clear of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other defect in title;
(h) the Selling Shareholder has and, at the time of delivery of the
Shares to be sold by the Selling Shareholder pursuant to this Agreement
(whether the time of purchase or any additional time of purchase, as the
case may be), will have full legal right, power and capacity, and all
authorizations and approvals required by both Israeli and United States law
(other than those imposed by the Act and state securities or blue sky laws
in the United States), to (i) enter into this Agreement and a Custody
Agreement (as defined below) and to execute a Power of Attorney, (ii) sell,
assign, transfer and deliver the Shares to be sold by the Selling
Shareholder pursuant to this Agreement in the manner provided in this
Agreement and (iii) make the representations, warranties and agreements
made by the Selling Shareholder herein;
(i) this Agreement and the custody agreement and power of attorney
(the "Custody Agreement"), dated [_____], between American Stock Transfer &
Trust Company, as custodian (the "Custodian"), and the Selling Shareholder
and the Power of Attorney to which the Selling Shareholder is a party have
each been duly executed and delivered by (or, in the case of this
Agreement, on behalf of) the Selling Shareholder, and each is a legal,
valid and binding agreement of the Selling Shareholder enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(j) the Selling Shareholder has duly and irrevocably authorized each
of the Representatives of the Selling Shareholder (whether acting alone or
together), on behalf of the Selling Shareholder, to execute and deliver
this Agreement and any other documents necessary in connection with the
transactions contemplated hereby or thereby and to deliver the Shares to be
sold by the Selling Shareholder pursuant to this Agreement and receive
payment therefor pursuant hereto;
(k) the sale of the Shares to be sold by the Selling Shareholder
pursuant to this Agreement is not prompted by any information concerning
the Company or any Subsidiary which is not set forth in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and
the Prospectus;
(l) at the time of purchase and each additional time of purchase, all
stock transfer or other taxes (other than income taxes), if any, that are
required to be paid in connection with the sale and transfer of the Shares
to be sold by the Selling Shareholder to the several Underwriters hereunder
will be fully paid or provided for by the Selling Shareholder, and all laws
imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which the Selling Shareholder
is a party, certificates in negotiable form for the Shares to be sold by
the Selling Shareholder pursuant to this Agreement have been placed in
custody for the purpose of making
-21-
delivery of such Shares in accordance with this Agreement; the Selling
Shareholder agrees that (i) such Shares represented by such certificates
are for the benefit of, and coupled with and subject to the interest of,
the Custodian, the Representatives of the Selling Shareholder, the
Underwriters and the Company, (ii) the arrangements made by the Selling
Shareholder for custody and for the appointment of the Custodian and the
Representatives of the Selling Shareholder by the Selling Shareholder are
irrevocable, subject to the conditions set forth therein, and (iii) the
obligations of the Selling Shareholder hereunder shall not be terminated by
operation of law, whether by the death, disability or incapacity of the
Selling Shareholder (or, if the Selling Shareholder is not an individual,
the liquidation, dissolution, merger or consolidation of the Selling
Shareholder) or the occurrence of any other event (each, an "Event"); if an
Event occurs before ----- the delivery of the Shares hereunder,
certificates for the Shares shall be delivered by the Custodian in
accordance with the terms and conditions of the Power of Attorney to which
the Selling Shareholder is a party, the Custody Agreement to which the
Selling Shareholder is a party and this Agreement, and actions taken by the
Custodian and the Representatives of the Selling Shareholder pursuant to
such Power of Attorney or such Custody Agreement shall be as valid as if
such Event had not occurred, regardless of whether or not the Custodian or
the Representatives of the Selling Shareholder, or either of them, shall
have received notice thereof; and
In addition, any certificate signed by the Selling Shareholder (or,
with respect to any Selling Shareholder that is not an individual, any officer
of the Selling Shareholder or of any of the Selling Shareholder's subsidiaries)
or by any Representative of the Selling Shareholder and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed to be a representation and warranty by the Selling
Shareholder, as to matters covered thereby, to each Underwriter.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you
may designate and to maintain such qualifications in effect so long as you
may request for the distribution of the Shares; provided, however, that in
connection therewith, the Company shall not be required to qualify as a
foreign corporation, subject itself to taxation in any jurisdiction or to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the
Shares and as contemplated in this Agreement); and to promptly advise you
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to make available to the Underwriters in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter from
time to time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective
date of the Registration Statement) as the
-22-
Underwriters may request for the purposes contemplated by the Act; in case
any Underwriter is required to deliver (whether physically or through
compliance with Rule 172 under the Act or any similar rule), in connection
with the sale of the Shares, a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act, the Company will prepare, at
its expense, promptly upon request such amendment or amendments to the
Registration Statement and amendment or amendments or supplement or
supplements to the Prospectus as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement, or
a Registration Statement under Rule 462(b) under the Act, to be filed with
the Commission and become effective before the Shares may be sold, the
Company will use its best efforts to cause such post-effective amendment or
such Registration Statement to be filed and become effective, and will pay
any applicable fees in accordance with the Act, as soon as possible; and
the Company will advise you promptly and, if requested by you, will confirm
such advice in writing, (i) when such post-effective amendment or such
Registration Statement has become effective, and (ii) if Rule 430A under
the Act is used, when the Prospectus is filed with the Commission pursuant
to Rule 424(b) under the Act (which the Company agrees to file in
accordance with such Rules);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments to the Registration Statement or
the Exchange Act Registration Statement, amendments or supplements to any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus or for additional information with respect thereto, or of notice
of the institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or
removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or the Exchange
Act Registration Statement, amendments or supplements to any Preliminary
Prospectus or the Prospectus, and to provide you and Underwriters' counsel
copies of any such documents for review and comment a reasonable amount of
time prior to any proposed filing and to file no such amendment or
supplement to which you shall reasonably object in writing (unless the
Company is advised by reputable counsel that it is required by law to make
such filing on such date);
(e) to advise the Underwriters promptly of the happening of any event
within the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, which event
could require the making of any change in the Prospectus then being used so
that the Prospectus would not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading, and to advise UBS promptly if, during such period, it
shall become necessary to amend or supplement the Prospectus to cause the
Prospectus to comply with the
-23-
requirements of the Act, and, in each case, during such time, subject to
Section 5(d) hereof, to prepare and promptly furnish, at the Company's
expense, to the Underwriters such amendments or supplements to such
Prospectus as may be necessary to reflect any such change or to effect such
compliance;
(f) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably practicable
after the termination of such twelve-month period, but in any case not
later than June 30, 2009;
(g) to furnish to you three copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto) and sufficient copies of the foregoing
(other than exhibits) for distribution of a copy to each of the other
Underwriters;
(h) to furnish to you as early as practicable prior to the time of
purchase and any additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim consolidated financial statements, if any, of the Company
and the Subsidiaries which have been read by the Company's independent
registered public accountants, as stated in their letter to be furnished
pursuant to Section 9(e) hereof;
(i) to apply the net proceeds to the Company from the sale of the
Shares in the manner set forth under the caption "Use of proceeds" in the
Prospectus and to file such reports with the Commission with respect to the
sale of the Shares and the application of the proceeds therefrom as may be
required by Rule 463 under the Act;
(j) to comply with Rule 433(d) under the Act (without reliance on
164(b) under the Act) and with Rule 433(g) under the Act;
(k) beginning on the date hereof and ending on, and including, the
date that is 180 days after the date of the Prospectus (the "Lock-Up
Period"), without the prior written consent of UBS, not to (i) issue, sell,
offer to sell, contract or agree to sell, hypothecate, pledge, grant any
option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, with respect to, any Ordinary Shares or
any other securities of the Company that are substantially similar to
Ordinary Shares, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the
foregoing, (ii) file or cause to become effective a registration statement
under the Act relating to the offer and sale of any Ordinary Shares or any
other securities of the Company that are substantially similar to Ordinary
Shares, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the
-24-
foregoing, (iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership
of Ordinary Shares or any other securities of the Company that are
substantially similar to Ordinary Shares, or any securities convertible
into or exchangeable or exercisable for, or any warrants or other rights to
purchase, the foregoing, whether any such transaction is to be settled by
delivery of Ordinary Shares or such other securities, in cash or otherwise
or (iv) publicly announce an intention to effect any transaction specified
in clause (i), (ii) or (iii), except, in each case, for (A) the
registration of the offer and sale of the Shares as contemplated by this
Agreement and (B) issuances of Ordinary Shares upon the exercise of
warrants disclosed as outstanding in the Registration Statement (excluding
the exhibits thereto), each Preliminary Prospectus and the Prospectus;
provided, however, that if (a) during the period that begins on the date
that is fifteen (15) calendar days plus three (3) business days before the
last day of the Lock-Up Period and ends on the last day of the Lock-Up
Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (b) prior to the
expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the last day of the Lock-Up Period, then the restrictions imposed by this
Section 5(k) shall continue to apply until the expiration of the date that
is fifteen (15) calendar days plus three (3) business days after the date
on which the issuance of the earnings release or the material news or
material event occurs;
(l) except as required by law, prior to the time of purchase or any
additional time of purchase, as the case may be, to issue no press release
or other communication directly or indirectly and to hold no press
conferences with respect to the Company or any Subsidiary, the financial
condition, results of operations, business, properties, assets, prospects
or liabilities of the Company or any Subsidiary, or the offering of the
Shares, without your prior consent, which consent shall not be unreasonably
withheld, conditioned or delayed;
(m) not, at any time at or after the execution of this Agreement, to,
directly or indirectly, offer or sell any Shares by means of any
"prospectus" (within the meaning of the Act), or use any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Prospectus;
(n) not to, and to cause the Subsidiaries not to, take, directly or
indirectly, any action designed, or which will constitute, or has
constituted, or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(o) to use its best efforts to cause the Shares, to be quoted on the
NASDAQ and to maintain such quotation on the NASDAQ; and
(p) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Ordinary
Shares.
-25-
6. Certain Covenants of the Selling Shareholder. The Selling Shareholder
hereby, agrees:
(a) not, at any time at or after the execution of this Agreement, to
offer or sell any Shares by means of any "prospectus" (within the meaning
of the Act), or use any "prospectus" (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than
the Prospectus;
(b) not to take, directly or indirectly, any action designed, or which
will constitute, or has constituted, or might reasonably be expected to
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(c) to pay or cause to be paid all taxes, if any, on the transfer and
sale of the Shares being sold by the Selling Shareholder;
(d) to waive any and all preemptive rights, participation rights,
resale rights, rights of first refusal and similar rights that they may
have in connection with the Shares and the offering contemplated in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, or with any issuance or
sale by the Company or the Selling Shareholder of any equity or other
securities before the offering of the Shares contemplated in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, except for any such rights
as have been heretofore duly exercised;
(e) to advise you promptly, and if requested by you, confirm such
advice in writing, so long as a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, of (i) any
material change in the business, properties, financial condition, results
of operations or prospects of the Company and the Subsidiaries taken as a
whole (it being understood and agreed that the Selling Shareholder shall
only be required to advise of such information to the extent it has actual
knowledge of the same), (ii) any change in information in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, relating to the Selling Shareholder or
(iii) any new material information relating to the Selling Shareholder
required to be stated in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any, which comes to the attention of the Selling Shareholder; and
(f) prior to or concurrently with the execution and delivery of this
Agreement, to execute and deliver to the Underwriters a Power of Attorney,
Custody Agreement and a Lock-Up Agreement.
7. Covenant to Pay Costs. The Company agrees to pay all costs, expenses,
fees and taxes in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to
-26-
the Underwriters and to dealers (including costs of mailing and shipment), (ii)
the registration, issue, sale and delivery of the Shares including any stock or
transfer taxes and stamp or similar duties payable upon the sale, issuance or
delivery of the Shares to the Underwriters, (iii) the producing, word processing
and/or printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and Custody Agreements and any closing
documents (including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), if any, (iv)
the qualification of the Shares for offering and sale under state or foreign
laws and the determination of their eligibility for investment under state or
foreign law (including the legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the Underwriters and to dealers
in an amount, with respect to such blue sky survey or legal investment survey,
not to exceed $5,000, (v) any listing of the Shares on any securities exchange
or qualification of the Shares for quotation on the NASDAQ and any registration
thereof under the Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD, including the legal fees and filing fees and
other disbursements of counsel to the Underwriters relating to NASD matters,
(vii) the fees and disbursements of any transfer agent or registrar for the
Shares, (viii) the costs and expenses of the Company relating to presentations
or meetings undertaken in connection with the marketing of the offering and sale
of the Shares to prospective investors and the Underwriters' sales forces,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other expenses
incurred by the officers of the Company and any such consultants (excluding any
such costs incurred by the Underwriters), and 50% of the cost of any aircraft
chartered in connection with the road show, (ix) the costs and expenses of
qualifying the Shares for inclusion in the book-entry settlement system of the
DTC, (x) the preparation and filing of the Exchange Act Registration Statement,
including any amendments thereto, and (xi) the performance of the Company's and
the Selling Shareholder's other obligations hereunder. It is understood,
however, that except as provided in this Section 7 and Sections 8 and 12 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees and disbursements of their counsel, and 50% of the cost of any aircraft
chartered in connection with the road show.
8. Reimbursement of Underwriters' Expenses. If the Shares are not delivered
for any reason other than the termination of this Agreement pursuant to the
fifth paragraph of Section 11 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 7 hereof,
reimburse the Underwriters for all of their out of pocket expenses, including
the fees and disbursements of their counsel.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the respective
representations and warranties on the part of the Company and the Selling
Shareholder on the date hereof, at the time of purchase and, if applicable, at
the additional time of purchase, the performance by the Company and the Selling
Shareholder of each of their respective obligations hereunder and to the
following additional conditions precedent:
-27-
(a) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Xxxxxxxx &
Xxxxxxxx LLP, United States counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each of the other
Underwriters, and in form and substance satisfactory to UBS, in the form
set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Xxxxx X.
Xxxxx, Ashlagi, Fisher, Eshel, Israeli counsel for the Company, addressed
to the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with executed copies for each of the other
Underwriters, and in form and substance satisfactory to UBS, in the form
set forth in Exhibit C hereto.
(c) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Xxxxx & Hill,
United States counsel for Hadco Metal Trading Co., LLC, Shintu Inc., and
Materials Technology Solutions L.L.C., addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may be, with executed copies for each of the other Underwriters, and in
form and substance satisfactory to UBS, in the form set forth in Exhibit D
hereto.
(d) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of JUDr.
Xxxxxxxx Xxxxx, Czech Republic counsel for Primapol-Metal-Spot, s.r.o.,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with executed copies for
each of the other Underwriters, and in form and substance satisfactory to
UBS, in the form set forth in Exhibit E hereto.
(e) The Selling Shareholder shall furnish to you at the time of
purchase and, if applicable, at the additional time of purchase, an opinion
of Naschitz, Xxxxxxx & Co., counsel for the Selling Shareholder, addressed
to the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with executed copies for each of the other
Underwriters, and in form and substance satisfactory to UBS, in the form
set forth in Exhibit F hereto.
(f) You shall have received from Kost, Forer, Gabbay & Kasierer, a
member of Ernst & Young Global, letters dated, respectively, the date of
this Agreement, the date of the Prospectus, the time of purchase and, if
applicable, the additional time of purchase, and addressed to the
Underwriters (with executed copies for each of the Underwriters) in the
forms previously approved by and satisfactory to UBS, which letters shall
cover, without limitation, the various financial disclosures contained in
the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any.
-28-
(g) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinions of
White & Case LLP and Haim Samet, Steinmetz, Xxxxxx & Co., United States and
Israeli counsel, respectively, for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, in form
and substance reasonably satisfactory to UBS.
(h) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which you shall have
reasonably objected in writing.
(i) The Registration Statement, the Exchange Act Registration
Statement and any registration statement required to be filed, prior to the
sale of the Shares, under the Act pursuant to Rule 462(b) shall have been
filed and shall have become effective under the Act or the Exchange Act, as
the case may be. If Rule 430A under the Act is used, the Prospectus shall
have been filed with the Commission pursuant to Rule 424(b) under the Act
at or before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement (or such earlier time as may be required
under the Act).
(j) Prior to and at the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto shall not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; (iii) none of the Preliminary Prospectuses or the
Prospectus, and no amendment or supplement thereto, shall include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading; (iv) no Disclosure Package, and
no amendment or supplement thereto, shall include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
(k) The Company will, at the time of purchase and, if applicable, at
the additional time of purchase, deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer, dated the time of
purchase or the additional time of purchase, as the case may be, in the
form attached as Exhibit G hereto.
(l) The Selling Shareholder will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate signed by a Representative of the Selling Shareholder, dated
the time of purchase or the additional time of purchase, as the case may
be, in the form attached as Exhibit H hereto.
(m) You shall have received each of the signed Lock-Up Agreements
referred
-29-
to in Section 3(t) hereof, and each such Lock-Up Agreement shall be in full
force and effect at the time of purchase and the additional time of
purchase, as the case may be.
(n) The Company shall have furnished to you such other documents and
certificates as you may reasonably request.
(o) The Selling Shareholder shall have furnished to you such other
documents and certificates as you may reasonably request.
(p) The Shares shall have been approved for quotation on the NASDAQ,
subject only to notice of issuance and evidence of satisfactory
distribution at or prior to the time of purchase or the additional time of
purchase, as the case may be.
(q) The NASD shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other arrangements of
the transactions, contemplated hereby.
(r) The Selling Shareholder shall have delivered to you a duly
executed Power of Attorney and a duly executed Custody Agreement, in each
case in form and substance satisfactory to UBS.
10. Effective Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of UBS, if (i) since the time of
execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, there has been any change or any development involving a prospective change
in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, the effect of
which change or development is, in the sole judgment of UBS, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (ii) since
the time of execution of this Agreement, there shall have occurred: (A) a
suspension or material limitation in trading in securities generally on the
NYSE, the American Stock Exchange, the TASE or the NASDAQ; (B) a suspension or
material limitation in trading in the Company's securities on the NASDAQ or
TASE; (C) a general moratorium on commercial banking activities declared by
either United States federal, New York State or Israeli authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States or in Israel; (D) an outbreak or escalation of
hostilities or acts of terrorism involving Israel or the United States or a
declaration by Israel or the United States of a national emergency or war; or
(E) any other calamity or crisis or any change in financial, political or
economic conditions in Israel or the United States or elsewhere, if the effect
of any such event specified in clause (D) or (E), in the sole judgment of UBS,
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares
-30-
on the terms and in the manner contemplated in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or (iii) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement shall
have been given or made of: (A) any intended or potential downgrading or (B) any
watch, review or possible change that does not indicate an affirmation or
improvement in the rating accorded any securities of or guaranteed by the
Company or any Material Subsidiary by any rating agency then providing a rating
to the Company or any Material Subsidiary.
If UBS elects to terminate this Agreement as provided in this Section
10, the Company, the Selling Shareholder and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement, or if such sale is not carried out because the Company or the
Selling Shareholder, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company and the Selling Shareholder shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 7, 8 and 12 hereof), and the Underwriters shall be under no
obligation or liability to the Company or the Selling Shareholder under this
Agreement (except to the extent provided in Section 12 hereof) or to one another
hereunder.
11. Increase in Underwriters' Commitments. Subject to Sections 9 and 10
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 9 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 10
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters (including the
Underwriters, if any, substituted in the manner set forth below) shall take up
and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set forth opposite
the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Selling Shareholder agrees with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing
-31-
provision, the Company or you shall have the right to postpone the time of
purchase for a period not exceeding five (5) business days in order that any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 11 with like effect as if
such substituted Underwriter had originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five (5) business day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company or the Selling Shareholder to
any Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company or to the Selling Shareholder. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
12. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereto by the
Company) or arises out of or is based upon any omission or alleged omission
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement or arises out of
or is based upon any omission or alleged omission to state a material fact
in the Registration Statement in connection with such information, which
material fact was not contained in such information and which material fact
was required to be stated in such Registration Statement or was necessary
to make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the
term Prospectus for the purpose of this Section 12 being deemed to include
any Preliminary Prospectus, the Prospectus and any amendments or
supplements to the foregoing), in any Permitted Free
-32-
Writing Prospectus, in any "issuer information" (as defined in Rule 433
under the Act) of the Company or in any Prospectus together with any
combination of one or more of the Permitted Free Writing Prospectuses, if
any, or arises out of or is based upon any omission or alleged omission to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except, with respect to such Prospectus or Permitted Free Writing
Prospectus, insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with
information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in,
such Prospectus or Permitted Free Writing Prospectus or arises out of or is
based upon any omission or alleged omission to state a material fact in
such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in
such information, in the light of the circumstances under which they were
made, not misleading.
(b) The Selling Shareholder, agrees to indemnify, in proportion to the
number of Shares to be sold by the Selling Shareholder, each Underwriter,
its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, to the same extent as the
indemnity set forth in paragraph (a) above (including with respect to any
exceptions and limitations set forth therein and, where applicable,
substituting references to the "Company" with references to the "Selling
Shareholder"); provided, however, that in each case only with reference to
statements or alleged untrue statements or any omission or alleged omission
to state a material fact of which the Selling Shareholder has knowledge or
is based on written information furnished to the Company by or on behalf of
the Selling Shareholder specifically for inclusion in the Registration
Statement, Preliminary Prospectus, Prospectus or Permitted Free Writing
Prospectuses, if any, provided further, however, that the liability of the
Selling Shareholder pursuant to this paragraph shall not exceed the gross
proceeds after commissions, discounts and fees, but before expenses,
received by the Selling Shareholder from its respective sale of Shares
pursuant to this Agreement.
(c) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its partners, directors and officers, the Selling
Shareholder and any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, the Selling
Shareholder or any such person may incur under the Act, the Exchange Act,
the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company
expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-
-33-
effective amendment thereof by the Company), or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material
fact was not contained in such information and which material fact was
required to be stated in such Registration Statement or was necessary to
make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in,
the Prospectus or a Permitted Free Writing Prospectus, or arises out of or
is based upon any omission or alleged omission to state a material fact in
the Prospectus or such Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in
such information, in the light of the circumstances under which they were
made, not misleading.
(d) If any action, suit or proceeding (each, a "Proceeding") is
brought against a person (an "indemnified party") in respect of which
indemnity may be sought against the Company, the Selling Shareholder or an
Underwriter (as applicable, the "indemnifying party") pursuant to
subsection (a), (b), (c) or (d) respectively, of this Section 12, such
indemnified party shall promptly notify such indemnifying party in writing
of the institution of such Proceeding and such indemnifying party shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees
and expenses; provided, however, that the omission to so notify such
indemnifying party shall not relieve such indemnifying party from any
liability which such indemnifying party may have to any indemnified party
or otherwise, except to the extent that such indemnifying party has been
prejudiced in any material respect by such failure. The indemnified party
or parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party
(or, in the case such indemnifying party is a Selling Shareholder), by the
Selling Shareholder or by a Representative of the Selling Shareholder in
connection with the defense of such Proceeding or the indemnifying party
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from, additional to
or in conflict with those available to such indemnifying party (in which
case such indemnifying party shall not have the right to direct the defense
of such Proceeding on behalf of the indemnified party or parties), in any
of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that, except as
provided in the second paragraph of Section12(a) such indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties
who are parties to such Proceeding). The indemnifying party shall not be
liable for any settlement of any Proceeding effected without its written
consent (or, in the case such indemnifying party is
-34-
a Selling Shareholder, without the written consent of either the Selling
Shareholder or a Representative of the Selling Shareholder) but, if settled
with its written consent (or, in the case such indemnifying party is a
Selling Shareholder, with the written consent of the Selling Shareholder or
of a Representative of the Selling Shareholder), such indemnifying party
agrees to indemnify and hold harmless the indemnified party or parties from
and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party (or, where such indemnifying
party is a Selling Shareholder, requested the Selling Shareholder or any
Representative of the Selling Shareholder) to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second
sentence of this Section 12(d), then the indemnifying party agrees that it
shall be liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party (or, where such
indemnifying party is a Selling Shareholder, receipt by the Selling
Shareholder or by any Representative of the Selling Shareholder) of the
aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party (or, where such indemnifying party is a
Selling Shareholder, given the Selling Shareholder or any Representative of
the Selling Shareholder) at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of
the indemnified party (or, where such indemnified party is a Selling
Shareholder, the prior written consent of the Selling Shareholder or of any
Representative of the Selling Shareholder), effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such Proceeding and does not include
an admission of fault or culpability or a failure to act by or on behalf of
such indemnified party.
(e) If the indemnification provided for in this Section 12 is
unavailable to an indemnified party under subsections (a) and (c) of this
Section 12 or insufficient to hold an indemnified party harmless in respect
of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling
Shareholder on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of
-35-
underwriting discounts and commissions but before deducting expenses)
received by the Company and the Selling Shareholder, and the total
underwriting discounts and commissions received by the Underwriters, bear
to the aggregate public offering price of the Shares. The relative fault of
the Company and the Selling Shareholder on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information
supplied by the Company or the Selling Shareholder or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, preparing to defend or defending
any Proceeding.
(f) The Company, the Selling Shareholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 12 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (e) above. Notwithstanding the provisions of this
Section 12, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered
to the public exceeds the amount of any damage which such Underwriter has
otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 12 are several in proportion to their
respective underwriting commitments and not joint.
(g) The indemnity and contribution agreements contained in this
Section 12 and the covenants, warranties and representations of the Company
and the Selling Shareholder contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf
of any Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, or by or on behalf of the Company or the Selling
Shareholder, their respective directors or officers or any person who
controls the Company or the Selling Shareholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the issuance and delivery of the
Shares to be sold by the Company pursuant hereto and the delivery of the
Shares to be sold by the Selling Shareholder pursuant hereto. The Company,
the Selling Shareholder and each Underwriter agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of
the Company or the Selling Shareholder, against any of their officers or
directors in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus.
-36-
13. Information Furnished by the Underwriters. The statements set forth in
the last sentence of the last paragraph on the cover page of the Prospectus, the
name of the Underwriters on the cover page of the Prospectus and the name of the
Underwriters under the caption "Underwriting" in the Prospectus and the
statements set forth in the fourth, fifth, first three sentences and the fifth
sentence of the eighth, thirteenth, fourteenth, fifteenth, sixteenth,
seventeenth, eighteenth and twenty first paragraphs under the caption
"Underwriting" in the Prospectus, only insofar as such statements relate to the
amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute
the only information furnished by or on behalf of the Underwriters, as such
information is referred to in Sections 3 and 12 hereof.
14. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram or facsimile and, if
to the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at Re'em
Industrial Park, X.X.X. 0, Xxxx Xxxxx 00000, Xxxxxx, Attention: Xxxxxx Shiloh,
Chief Executive Officer, and, if to the Selling Shareholder, shall be sufficient
in all respects if delivered or sent to any Representative of the Selling
Shareholder at Re'em Industrial Park, X.X.X. 0, Xxxx Xxxxx, 00000, Xxxxxx
(facsimile: 972-8-8631020), Attention: Xxxxxx Shiloh, Xxx Xxxxx or Xxxx Xxxxxx".
15. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
16. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company and the
Selling Shareholder each consent to the jurisdiction of such courts and personal
service with respect thereto. The Company and the Selling Shareholder each
hereby consent to personal jurisdiction, service and venue in any court in which
any Claim arising out of or in any way relating to this Agreement is brought by
any third party against any Underwriter or any indemnified party. Each
Underwriter and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its shareholders and affiliates) and the Selling
Shareholder (on its behalf and, in the case the Selling Shareholder is not an
individual, to the extent permitted by applicable law, on behalf of its
Shareholders or other equity holders, as applicable, and affiliates) each waive
all right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or relating to
this Agreement. The Company and the Selling Shareholder each agree that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be
-37-
conclusive and binding upon the Company and the Selling Shareholder and may be
enforced in any other courts to the jurisdiction of which the Company or the
Selling Shareholder is or may be subject, by suit upon such judgment.
17. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and the Selling
Shareholder and to the extent provided in Section 12 hereof the controlling
persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
18. No Fiduciary Relationship. The Company and the Selling Shareholder
hereby acknowledges that the Underwriters are acting solely as underwriters in
connection with the purchase and sale of the Company's and the Selling
Shareholder's securities. The Company and the Selling Shareholder each further
acknowledge that the Underwriters are acting pursuant to a contractual
relationship created solely by this Agreement entered into on an arm's length
basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Company or the Selling Shareholder, their
respective management, shareholders or other equity holders, as applicable, or
creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company's securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim any fiduciary or similar obligations to
the Company or the Selling Shareholder, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions, and the Company and the Selling Shareholder hereby confirms its
understanding and agreement to that effect. The Company, the Selling Shareholder
and the Underwriters agree that they are each responsible for making their own
independent judgments with respect to any such transactions and that any
opinions or views expressed by the Underwriters to the Company or the Selling
Shareholder regarding such transactions, including, but not limited to, any
opinions or views with respect to the price or market for the Company's
securities, do not constitute advice or recommendations to the Company or the
Selling Shareholder. The Company and the Selling Shareholder hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company or
the Selling Shareholder may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company or the
Selling Shareholder in connection with the transactions contemplated by this
Agreement or any matters leading up to such transactions.
19. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
20. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and the Selling Shareholder and their successors
and assigns and any successor or assign of any substantial portion of the
Company's, the Selling Shareholder's and any of the Underwriters' respective
businesses and/or assets.
21. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is
not a
-38-
bank and is separate from any affiliated bank, including any U.S. branch or
agency of UBS AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including
obligations with respect to sales and purchases of securities. Securities sold,
offered or recommended by UBS are not deposits, are not insured by the Federal
Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are
not otherwise an obligation or responsibility of a branch or agency.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE
FOLLOWS]
-39-
If the foregoing correctly sets forth the understanding among the
Company, the Selling Shareholder and the several Underwriters, please so
indicate in the space provided below for that purpose, whereupon this Agreement
and your acceptance shall constitute a binding agreement among the Company, the
Selling Shareholder and the Underwriters, severally.
Very truly yours,
SCOPE METALS GROUP LTD.
By:
------------------------------------
Name:
Title:
FIMSCO HOLDINGS LTD.
By: [REPRESENTATIVE], Attorney-in-Fact
By:
------------------------------------
Name:
Title:
Accepted and agreed to as of the date
first above written, on behalf of itself
and the other several Underwriters named
in Schedule A
UBS SECURITIES LLC
By: UBS SECURITIES LLC
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SCHEDULE A
Number of
Underwriter Firm Shares
------------------------------------------------------------------ -----------
UBS SECURITIES LLC................................................ [____]
CIBC WORLD MARKETS CORP...........................................
JEFFERIES & CO., INC..............................................
------
Total.......................................................... [____]
======
SCHEDULE B
SCHEDULE C
Number of
Number of Additional
Firm Shares Shares
---------------------------------------------------- ----------- -----------
Company............................................. [# of firm [# of
shares company
from additional
company] shares
from
Company]
Fimsco Holdings Ltd................................. [____] [____]
---------- ----------
Total............................................ [# of firm [# of
shares] additional
========== shares]
==========
EXHIBIT A
Lock-Up Agreement
___________ ___, 2007
UBS Securities LLC
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with
the proposed Underwriting Agreement (the "Underwriting Agreement") to be entered
into by Scope Metals Group Ltd., an Israeli corporation (the "Company"), the
Selling Stockholder named therein and you and the other underwriters named in
Schedule A to the Underwriting Agreement, with respect to the public offering
(the "Offering") of Ordinary Shares, par value NIS 1.00 per share, of the
Company (the "Ordinary Shares").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that, for a period (the "Lock-Up Period") beginning on the
date hereof and ending on, and including, the date that is 180 days after the
date of the final prospectus relating to the Offering, the undersigned will not,
without the prior written consent of UBS Securities LLC, (a) sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or file (or participate in the filing of) a registration statement with the
Securities and Exchange Commission (the "Commission") in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder (the "Exchange Act") with respect to, any Ordinary Shares
or any other securities of the Company that are substantially similar to
Ordinary Shares, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing, (b)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of Ordinary Shares or any
other securities of the Company that are substantially similar to Ordinary
Shares, or any securities convertible into or exchangeable or exercisable for,
or any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Ordinary Shares or such other
securities, in cash or otherwise or (c) publicly announce an intention to effect
any transaction specified in clause (a) or (b). The foregoing sentence shall not
apply to (a) the registration of the offer and sale of Ordinary Shares as
contemplated by the Underwriting Agreement and the sale of the Ordinary Shares
to the Underwriters (as defined in the Underwriting Agreement) in the
A-1-1
Offering, (b) bona fide gifts, provided the recipient thereof agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up Agreement, (c)
dispositions to any trust for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned, provided that such trust agrees
in writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement, (d) transfers by way of testate or intestate succession or by
operation of law, provided that the relevant transferee agrees in writing with
the Underwriters to be bound by the terms of this Lock-Up Agreement, (e) if the
undersigned is, or controls, a corporation, partnership, limited liability
company or similar entity, transfers to the stockholders, partners, members or
similar persons of such entity, provided that such stockholders, partners,
members or similar persons of such entity agree in writing with the Underwriters
to be bound by the terms of this Lock-Up Agreement, or (f) the establishment of
any contract, instruction or plan that (i) satisfies all of the requirements of
Rule 10b5-1(c)(1)(i)(B) and (ii) has been reviewed and approved in writing by
UBS Securities LLC (each a "Plan"), provided, that, such Plan(s) shall not be
amended, modified and/or supplemented during the Lock-Up Period without the
prior written consent of UBS Securities LLC, and provided, further, that, prior
to the expiration of the Lock-Up Period (i) no sales of Ordinary Shares or of
securities convertible into, or exchangeable or exercisable for, Ordinary
Shares, shall be made pursuant to such a Plan and (ii) the existence and content
of such Plan(s) shall be kept confidential and shall not be disclosed to the
public. For purposes of this paragraph, "immediate family" shall mean the
undersigned and the spouse, any lineal descendent, father, mother, brother or
sister of the undersigned.
Notwithstanding anything herein to the contrary, the preceding paragraph
shall not apply to the sale of Firm Shares or Additional Shares by any Selling
Stockholder to the Underwriters pursuant to the Underwriting Agreement.
In addition, the undersigned hereby waives any rights the undersigned may
have to require registration of Ordinary Shares in connection with the filing of
a registration statement relating to the Offering. The undersigned further
agrees that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Ordinary Shares or any securities
convertible into or exercisable or exchangeable for Ordinary Shares, or warrants
or other rights to purchase Ordinary Shares or any such securities.
Notwithstanding the above, if (a) during the period that begins on the
date that is fifteen (15) calendar days plus three (3) business days before the
last day of the Lock-Up Period and ends on the last day of the Lock-Up Period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (b) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the
sixteen (16) day period beginning on the last day of the Lock-Up Period, then
the restrictions imposed by this Lock-Up Agreement shall continue to apply until
the expiration of the date that is fifteen (15) calendar days plus three (3)
business days after the date on which the issuance of the earnings release or
the material news or material event occurs.
In addition, the undersigned hereby waives any and all preemptive
rights, participation rights, resale rights, rights of first refusal and similar
rights that the undersigned may have in connection with the Offering or with any
issuance or sale by the Company of any
A-1-2
equity or other securities before the Offering, except for any such rights as
have been heretofore duly exercised.
The undersigned hereby confirms that the undersigned has not, directly
or indirectly, taken, and hereby covenants that the undersigned will not,
directly or indirectly, take, any action designed, or which has constituted or
will constitute or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of Ordinary Shares.
* * *
A-1-3
If (a) the Company notifies you in writing that it does not
intend to proceed with the Offering, (b) the registration statement filed with
the Commission with respect to the Offering is withdrawn or (c) for any reason
the Underwriting Agreement shall be terminated prior to the "time of purchase"
(as defined in the Underwriting Agreement), this Lock-Up Agreement shall be
terminated and the undersigned shall be released from its obligations hereunder.
Yours very truly,
----------------------------------------
A-1-4
EXHIBIT B
OPINION OF XXXXXXXX & XXXXXXXX LLP
1. The Shares, including the Shares being sold under the Underwriting
Agreement by the Company and the Selling Shareholder, are duly listed,
authorized and admitted for trading on The Nasdaq Global Market, subject to
official notice of issuance and evidence of satisfactory distribution.
2. To our knowledge, (i) neither the Company nor the Selling Shareholder is a
party to any legal or governmental action or proceeding that challenges the
validity or enforceability, or seeks to enjoin the performance, of the
Underwriting Agreement, (ii) there is no pending or threatened action,
suit, claim, investigation or proceeding by or before any United States
federal, state, local or governmental agency, regulatory commission, board,
authority or body or any arbitrator, involving the Company or its
properties or the Selling Shareholder, either at law or in equity, of a
character required to be disclosed in the Registration Statement which is
not adequately disclosed in the Registration Statement, the Disclosure
Package or the Prospectus, and (iii) there is no license, agreement, lease,
franchise, contract or other document of a character required to be
described in the Registration Statement, the Disclosure Package or the
Prospectus, or required to be filed as an exhibit to the Registration
Statement, which is not described or filed as required.
3. The statements in the Registration Statement, the Disclosure Package and
the Prospectus under the heading "Taxation and government programs--United
States Federal Income Taxation," to the extent that such statements
constitute matters of United States federal income tax law or legal
conclusions with respect thereto, are a fair and accurate summary in all
material respects of such matters and conclusions.
4. The Registration Statement has become effective under the Act; any required
filing of the Disclosure Package or the Prospectus, and any supplements
thereto, pursuant to Rule 424 under the Act has been made in the manner and
within the time period required by Rule 424 under the Act and in the manner
and within the time period required by Rule 430A under the Act; and to our
knowledge, no stop order with respect to the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act; the class of securities consisting of
the Shares has become registered under Section 12(b) of the Exchange Act;
and the Registration Statement, the Disclosure Package and the Prospectus
(other than the financial statements and other financial information
contained therein, as to which we express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and the
rules thereunder; and the conditions to the use of Form F-1 in connection
with the offering and sale of the Shares as contemplated by the
Underwriting Agreement have been satisfied.
5. The Company is not and, immediately after giving effect to the offering and
sale of the Shares by the Company, will not be, an "investment company" or
an entity "controlled"
B-1
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
6. To our knowledge, the Company is not an "ineligible issuer" (as defined in
Rule 405 under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to the offering of
the Shares contemplated by the Registration Statement.
7. No consent, approval, authorization, filing with or order of any United
States federal or state court or approval, authorization, consent of or
filing with any New York or any other United States federal, state or local
governmental or regulatory commission, board, body, authority or agency is
required in connection with the transactions contemplated in the
Underwriting Agreement, except such as have been obtained under the Act and
the Exchange Act, such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters in the manner contemplated in the Underwriting
Agreement and in the Disclosure Package and the Prospectus and such other
approvals as have been obtained as of the date of this opinion.
8. The execution (it being understood that we are not passing upon, and
express no opinion with respect to, the execution of the Underwriting
Agreement under Israeli law, but are passing upon the application of the
execution of the Underwriting Agreement under New York law) delivery and
performance of the Underwriting Agreement by the Company and the Selling
Shareholder, the issuance and sale of the Shares to be sold by the Company
pursuant to the Underwriting Agreement, the sale of the Shares to be sold
by the Selling Shareholder pursuant to the Underwriting Agreement (it being
understood that we are not passing upon, and express no opinion with
respect to, the issuance of the Shares under Israeli law, but are passing
upon the application of New York law to the issuance of the Shares to be
sold by the Company pursuant to the Underwriting Agreement) and the
consummation of the transactions contemplated by the Underwriting Agreement
do not and will not result in any breach or violation of or constitute a
default under (nor constitute any event which, with notice, lapse of time
or both, would result in any breach or violation of or constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under), or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to, (i) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument that is filed as an exhibit to the Registration Statement
(collectively, the "Material Agreements") (except, with respect to such
Material Agreements that are governed by the laws of a jurisdiction other
than the State of New York, for such breaches, violations, liens, charges,
encumbrances or defaults that would not reasonably be expected to have a
Material Adverse Effect), (ii) United States federal laws or the laws of
the States of New York, or (iii) any decree, judgment or order applicable
to the Company or any of the Subsidiaries or any of their respective
properties, which decree, judgment or order is known to us.
B-2
9. Except as otherwise set forth in the Registration Statement, the Disclosure
Package or Prospectus and except as have otherwise been waived, no holders
of securities of the Company have rights to the registration of the Shares
or any other securities of the Company or to include such shares or
interests in the Registration Statement or in the offering contemplated
thereby.
10. Under the laws of the State of New York relating to personal jurisdiction,
(i) the Company and the Selling Shareholder have, under the Underwriting
Agreement, validly submitted to the personal jurisdiction of any state or
federal court located in the State of New York, County of New York in any
action arising out of or relating to the Underwriting Agreement and the
transactions contemplated therein and have validly and effectively waived
any objection to the venue of a proceeding in any such court as provided in
Section 16 of the Underwriting Agreement, (ii) their appointment thereunder
of Hadco Metal Trading Co., LLC as their authorized agent for service of
process is valid, legal and binding, and (iii) service of process in the
manner set forth in Section __ of the Underwriting Agreement will be
effective to confer valid personal jurisdiction of such court over the
Company and the Selling Shareholder.
11. Assuming that none of the Underwriters has "notice" (within the meaning of
Section 8-105 of the UCC of any "adverse claim" (as defined in Section
8-102(a)(1) of the UCC) with respect to the Shares, upon physical delivery
by or on behalf of the Company and the Selling Shareholder of the
certificates evidencing such Shares (the "Delivered Shares") to UBS
Securities LLC on behalf of the Underwriters, in the State of New York,
through the facilities of The Depository Trust Company with share transfer
deeds duly endorsed to UBS Securities LLC or in blank and upon registration
of transfer by the issuer thereof, and payment therefor in accordance with
the terms of the Underwriting Agreement, the Underwriters will become
"protected purchasers" (as defined in Section 8-303(a) of the UCC) of the
Delivered Shares, and acquire the Delivered Shares free of any "adverse
claim" (as defined in Section 8-102(a)(1) of the UCC).
In addition, we have participated in conferences with your representatives
and your counsel and with officers and other representatives of the Company, its
Israeli counsel and its accountants concerning the Registration Statement, the
Disclosure Package and the Prospectus and have considered the matters required
to be stated therein and the statements contained therein, although we have not
independently verified the accuracy, completeness or fairness of such statements
(other than as stated in paragraph 3 above). We are also not passing upon, and
do not assume any responsibility for ascertaining whether or when any of the
information contained in the Disclosure Package was conveyed to any purchaser of
the Shares. Based upon and subject to the foregoing, nothing has come to our
attention that leads us to believe that (i) the Registration Statement, at the
time it became effective, contained an 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 not misleading, (ii) the documents and information
comprising the Disclosure Package, taken as a whole as of the date of the
Underwriting Agreement, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (iii) the Prospectus, at the time it
was filed with the Commission pursuant to Rule 424(b) under the Act or as of the
date hereof, contained or
B-3
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that we have not been requested to and do not
make any comment in this paragraph with respect to the financial statements,
supporting schedules, footnotes, and other financial information contained in
the Registration Statement, the Disclosure Package or the Prospectus).
All capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Underwriting Agreement.
B-4
EXHIBIT C
OPINION OF XXXXX X. XXXXX, ASHLAGI, FISHER, ESHEL
[date]
UBS Securities LLC
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as Israeli counsel to Scope Metals Group Ltd., an Israeli company
(the "Company"), in connection with the preparation and filing of a Registration
Statement on Form F-l, Registration No. [___] (as amended through the date
hereof, and including the prospectus constituting a part thereof (the
"Prospectus"), the "Registration Statement"), filed under the United States
Securities Act of 1933, as amended (the "Securities Act") by the Company with
the Securities and Exchange Commission (the "Commission") relating to (i) up to
an aggregate of [______] Ordinary Shares (the "Shares") of a nominal value of
NIS 1 each of the Company, consisting of [__________] shares to be sold by the
Company and an additional [______] shares to be sold by a certain shareholder
thereof (the "Selling Shareholder") and (ii) up [______] Shares which may be
purchased by the underwriters if the underwriters exercise the option granted to
them to cover over-allotments, all of such Shares (being sometimes collectively
referred to herein as the "Securities") are being sold pursuant to an
Underwriting Agreement (the "Agreement"), a form of which is filed as an exhibit
to the Registration Statement.
This opinion is being delivered pursuant to the Agreement. All capitalized terms
used and not otherwise defined herein shall have the meanings ascribed to such
terms in the Agreement.
In rendering the opinions set forth below, we have examined copies of the
Registration Statement and the exhibits attached thereto, the agreements,
corporate documents, records, certificates of public officials, and such other
documents, and we have reviewed such questions of law, as we have considered
necessary and appropriate for the purposes of our opinions set forth below.
As to any facts material to this opinion that we did not or were unable to
independently establish or verify, we have relied upon and assumed the accuracy
of oral and written statements and representations of officers and other
representatives of the Company and the representations and warranties of each
party contained in the Agreement and other documents delivered pursuant thereto.
In rendering the opinions expressed below we have assumed, without independent
investigation or verification of any kind, the authenticity of all documents
submitted to us as originals, the genuineness of all signatures and the
conformity to authentic originals of all documents submitted to us as copies. We
have also assumed the legal capacity for all purposes of all natural persons. We
have assumed, with respect to all parties (other than natural persons) to
agreements or instruments relevant hereto (other than the Company) that such
parties had the
C-1
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements and instruments
have been duly authorized by all requisite action (corporate or otherwise),
executed and delivered by such parties and that such agreements and instruments
are the valid, binding and enforceable obligations of such parties (in each
case, other than with respect to the Company).
Additionally, we have further assumed that the Securities have not otherwise
been "offered" to more than thirty-five "Investors" in Israel (other than to the
entities mentioned in Appendix A ( ) of the Israeli Securities Law,
5728-1968) (as all of such terms are interpreted pursuant to the Israel
Securities Law, 5728-1968).
We express no opinion herein with respect to the validity, binding nature or
enforceability of any contract, agreement, instrument or other document that by
its terms purports to be governed by the laws of any jurisdiction other than the
State of Israel.
Wherever our opinion is stated as being limited to our knowledge, such opinion
is limited to the actual knowledge, acquired during the course of our
representation of the Company, of the members of the Israeli bar who are members
of or employed by this firm.
Based on the foregoing, and subject to the qualifications set forth herein, we
are of the opinion as of the date hereof that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Israel, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement, the
preliminary prospectus of the Company, dated [date], relating to the Shares
the "Preliminary Prospectus"), the Prospectus and the Permitted Free
Writing Prospectuses attached hereto as Annex A,
2. Each of the Subsidiaries organized under the laws of the State of Israel
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement, the
Preliminary Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses attached hereto as Annex A.
3. The Company has the requisite corporate power and authority to execute and
deliver the Underwriting Agreement and to perform its obligations
thereunder, including, without limitation, to issue, sell and deliver the
Shares as contemplated by the Underwriting Agreement.
4. The Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
5. The Company has an authorized and outstanding capitalization as set forth
in the Registration Statement, the Preliminary Prospectus and the
Prospectus (and any similar sections or information, if any, contained in
any Permitted Free Writing Prospectus attached hereto as Annex A); all of
the issued and outstanding shares of the share capital of the Company have
C-2
been duly authorized and validly issued, are fully paid and non-assessable
and are free of statutory preemptive rights and, to our knowledge,
contractual preemptive rights, resale rights, rights of first refusal and
similar rights, except with respect to the provisions of the shareholders
agreement between FIMSCO Limited Partnership and Cotserv Commercial and
Technical Services Ltd. dated March 14, 2006 (the "Shareholders
Agreement");
6. The Shares, including those to be sold by the Company pursuant to the
Underwriting Agreement are free of statutory preemptive rights and, to our
knowledge, contractual preemptive rights, resale rights, rights of first
refusal and similar rights except with respect to the provisions of the
Shareholders Agreement.
7. All of the outstanding shares of share capital of each of the Subsidiaries
organized under the laws of the State of Israel have been duly authorized
and validly issued, are fully paid and non-assessable and, except as
otherwise disclosed in the Registration Statement (excluding the exhibits
thereto), the Preliminary Prospectus and the Prospectus, are owned by the
Company, in each case subject to no security interest, other encumbrance or
adverse claim.
8. The share capital of the Company, including the Shares, conforms in all
material respects to the description thereof, if any, contained in the
Registration Statement, the Preliminary Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses attached hereto as Annex A.
9. Other than an approval from the Tel Aviv Stock Exchange, no approval,
authorization, consent or order under any Israeli law or approval,
authorization, consent of or filing with any Israeli governmental or
regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares to be sold by the
Company pursuant to the Underwriting Agreement or with the consummation by
the Company of the transactions contemplated by the Underwriting Agreement.
10. The Company is not required to publish a prospectus in the State of Israel
with respect to any of the actions contemplated pursuant to the
Registration Statement, the Preliminary Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses attached hereto as Annex A.
11. The execution, delivery and performance of the Underwriting Agreement by
the Company, the issuance and sale of the Shares to be sold by the Company
pursuant to the Underwriting Agreement, the sale of the Shares to be sold
by the Selling Shareholder pursuant to the Underwriting Agreement and the
consummation of the transactions contemplated by the Underwriting Agreement
do not and will not result in any breach or violation of or constitute a
default under (nor constitute any event which, with notice, lapse of time
or both, would result in any breach or violation of or constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (i) the memorandum of
association or the articles of association (or similar organizational
document) of the Company or any of the Subsidiaries, or (ii) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
C-3
indebtedness, or any license, lease, contract or other agreement or
instrument (collectively, "Agreements and Instruments") which is filed as
an exhibit to the Registration Statement or is otherwise known by us to be
an Agreement and Instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or any of their respective properties
may be bound or affected, or (iii) the laws of the State of Israel, or (iv)
any decree, judgment or order applicable to the Company or any of the
Subsidiaries or any of their respective properties, which decree, judgment
or order is known by us.
12. To our knowledge, (i) the Company is not a party to any legal or
governmental action or proceeding that challenges the validity or
enforceability, or seeks to enjoin the performance, of the Underwriting
Agreement; and (ii) there are no actions, suits, claims, investigations or
proceedings pending, threatened or contemplated to which the Company or any
of the Subsidiaries or any of their respective directors or officers is or
would be a party or to which any of their respective properties is or would
be subject at law or in equity, before or by any Israeli governmental or
regulatory commission, board, body, authority or agency which are required
to be described in the Registration Statement, the Preliminary Prospectus
or the Prospectus but are not so described as required.
13. The statements in the Registration Statement, the Preliminary Prospectus
and the Prospectus under the headings "Risk Factors--It may be difficult
and costly to enforce a U.S. judgment against us...," "Risk Factors--Your
rights and responsibilities as a shareholder will be governed by Israeli
law...," "Risk Factors--Provisions of Israeli law may delay, prevent or
otherwise encumber a merger with, or an acquisition of, our company...,"
"Dividend policy," "Management's discussion and analysis of financial
condition and results of operations--Corporate Tax," "Business--Government
Regulations," "Management--Compensation of Directors and Executive
Officers," "Management--Board Practices," "Management--Approval of Related
Party Transactions under Israeli Law," "Management--Indemnification of
Officers and Directors and Limitation of Liability," "Description of Share
Capital," "Israeli Tax Considerations" and "Enforceability of Civil
Liabilities," insofar as such statements constitute summaries of documents
or legal proceedings or refer to matters of Israeli law or legal
conclusions with respect thereto, are accurate and complete in all material
respects and present fairly the information purported to be shown.
14. Except with respect to the provisions of the Share Purchase Agreement
between the Company and FIMSCO Limited Partnership dated March 14, 2006,
and the Registration Rights Agreement signed July 26, 2007, no person has
the right, pursuant to the terms of any contract, agreement or other
instrument described in or filed as an exhibit to the Registration
Statement or otherwise known to us, to cause the Company to register under
the Act any Ordinary Shares or shares of any other share capital or other
equity interest in the Company or to include any such shares or interest in
the Registration Statement or the offering contemplated thereby.
15. The choice of New York law to govern the Underwriting Agreement is binding
upon the Company and, to the extent that procedural law of the State of
Israel is complied with, will be upheld as a valid choice of law by the
courts of Israel in any proceedings arising out of the Underwriting
Agreement, based upon the current state of the law in the State of Israel
and its
C-4
interpretation as reflected by Israeli case law and precedent, subject to
the exercise of judicial discretion which may overturn such precedent, and
provided that application of the foreign law would not generate a result
deemed by a court to be incompatible with the public policy of the State of
Israel.
16. Subject to the limitations set forth under the heading "Enforceability of
Civil Liabilities" in the Registration Statement, and, to the extent that
procedural law of the State of Israel is complied with, the courts in the
State of Israel will enforce a final judgment of a foreign court in a civil
matter.
17. We have participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of
the Company, representatives of the Selling Shareholder and representatives
of the Underwriters at which the contents of the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses were discussed and, although we are not passing upon and do
not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus or any Permitted Free Writing Prospectus
(except as and to the extent stated in subparagraphs 5, 8 and 11 above), on
the basis of the foregoing, nothing has come to our attention that causes
us to believe that (i) the Registration Statement, at the Effective Time,
contained an 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 not misleading, (ii) the Disclosure Package (as defined
below), as of the Applicable Time (as defined below), included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (iii) the Prospectus, as of
its date, or as of the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that we express no opinion in this paragraph 13 with respect to
the financial statements and schedules, and other financial data derived
therefrom, included in the Registration Statement, the Disclosure Package
or the Prospectus). As used herein, (A) "Disclosure Package" means the
Preliminary Prospectus together with the Permitted Free Writing
Prospectuses attached hereto as Annex A and (B) "Applicable Time" means
[________] ["A.M." / "P.M."], New York City time, on [________].
The opinions set forth above are further subject to the following qualifications
and limitations:
(a) We are members of the Israel bar, and the opinions expressed herein are
limited to questions of law arising under the internal laws of the State of
Israel, and we disclaim any opinion whatsoever with respect to matters governed
by the laws of any other jurisdiction.
(b) Without limiting the generality of the above, we express no opinion as to
the adequacy, accuracy, completeness or fairness of any of the financial
statements or schedules or other financial data contained in the Registration
Statement, the exhibits thereto or the Prospectus.
C-5
(c) Without limiting the generality of the above, we express no opinion as to
the validity of any patents, trademarks, copyrights, or other intellectual
property.
The opinions expressed herein are based upon the laws in effect on the date
hereof, and we assume no obligation to revise or supplement this opinion should
any such laws be changed by legislative or administrative action, judicial or
administrative decision, or otherwise.
This opinion is being furnished for your sole use and benefit and the use and
benefit of the other underwriters and their legal counsel, in connection with
the transactions contemplated by the Agreement, and may not be relied upon by
any other person or entity or published, quoted or otherwise used for any
purpose whatsoever without our prior written consent.
Very truly yours,
Xxxxx X. Xxxxx, Ashlagi, Fisher, Eshel
Law Offices
C-6
EXHIBIT D
OPINION OF XXXXX & XXXX
[date]
UBS Securities LLC
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Shintu Inc.
Hadco Metal Trading Co., LLC
Materials Technology Solutions LLC
Gentlemen:
We have acted as legal counsel to Shintu Inc., a Delaware corporation
("Shintu"), Hadco Metal Trading Co., LLC, a Delaware limited liability company
("Hadco"), and Materials Technology Solutions LLC, a New Jersey limited
liability company ("MTS") (Shintu, Hadco and MTS are sometimes individually
referred to as a "Subsidiary" and collectively as the "Subsidiaries").
In rendering the opinions hereinafter expressed, we have examined and
relied upon [Amendment No. 1 to Form F-1 Registration Statement of Scope Metal
Trading and Technical Services Ltd. ("Scope") submitted to the Securities and
Exchange Commission on July 13, 2007] (the "Registration Statement").
We have been furnished with and have examined originals or copies certified
or otherwise identified to our satisfaction of such corporate records and
documents of the Subsidiaries, and other instruments, certificates of public
officials, officers and representatives of the Subsidiaries, and we have made
such examination of law, as we have deemed appropriate to enable us to give the
opinions expressed below. In making such examination, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity with the originals of all documents submitted
to us as copies. As to matters of fact material to such opinions, we have, when
relevant facts were not independently established, relied upon the statements
and the certificates furnished to us.
Based upon and subject to the foregoing, we are of the opinion that:
(i) Shintu has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware. Hadco has been duly
formed and is validly existing as a limited liability company in good standing
under the laws of Delaware. MTS has been duly formed and is validly existing as
a limited liability company in good standing under the laws of New Jersey. Each
Subsidiary has full corporate or limited liability power and authority, as the
D-1
case may be, to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, Prospectus or Preliminary
Prospectus.
(ii) All of the outstanding shares of capital stock of Shintu have
been duly authorized and validly issued, are fully paid and non-assessable and,
except as otherwise stated in the Registration Statement, Prospectus or
Preliminary Prospectus are owned by Scope, subject to no security interest,
other encumbrance or adverse claim; and to our knowledge, no options, warrants
or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership
interests in Shintu are outstanding. The entire membership interests of Hadco
and MTS are owned by Shintu, subject to no security interest, other encumbrance
or adverse claim; and to our knowledge, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligation into ownership interests in either Hadco or MTS are outstanding.
(iii) To the best of our knowledge, there is no pending or threatened
action suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any Subsidiary that is not
disclosed in the Registration Statement, Prospectus or Preliminary Prospectus,
except, in each case, for such proceedings that would not, individually or in
the aggregate, result in a Material Adverse Effect. "Material Adverse Effect"
means a material adverse effect on the assets, properties, liabilities, business
or financial condition of any Subsidiary resulting in liability or damages in
the amount of $50,000 or more.
(iv) Each Subsidiary has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any of
the laws of the United States, or any other applicable state, local or other
foreign law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in each case that are, both
individually and in the aggregate, material to the conduct of its respective
business, provided that this opinion is made to the best of our knowledge with
respect to any requirement that a Subsidiary obtain an export license in
connection with any product sale; none of the Subsidiaries is in violation of,
or in default under, or has received notice of any proceedings relating to
revocation or modification of, any such license, authorization, consent or
approval or any of the laws of the United States, or any other applicable
regulation or rule or any decree, order or judgment applicable to each such
Subsidiary, except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material Adverse Effect.
Members of our firm are admitted to the Bar in the State of New York.
We do not express any opinion herein concerning the laws of any country,
territory or jurisdiction other than the Federal laws of the United States of
America and the laws of the State of New York in respect of the matters referred
to herein, except to the extent matters set forth in paragraphs (i), (ii) and
(iv) of our opinion relate to matters of Delaware Law and New Jersey Law.
Members of our firm are not admitted to the bar of the States of Delaware or New
Jersey, but the opinions expressed above with respect to Delaware Law and New
Jersey Law are based on our familiarity with the Delaware Limited Liability
Company Act and the New Jersey Limited Liability Company Act, respectively, in
connection with transactions of a similar nature. We neither express nor imply
any opinion as to the laws of any jurisdiction other than the Federal laws of
the United States of America, and the laws of the States of New York, Delaware
and New Jersey,
D-2
as applied by courts of competent jurisdiction in the United States of America,
in each case as such laws are in effect on the date hereof.
The opinions expressed in this letter (a) are strictly limited to the matters
stated in this letter and, without limiting the foregoing, no other opinions or
confirmations of facts are to be implied; and (b) speak only as of the date
hereof, and we are under no obligation, and do not undertake, to advise you or
any other person or entity of changes of law or fact that occur after the date
of this letter, even though the change may affect the legal analysis, a legal
conclusion or an informational confirmation in this letter.
D-3
EXHIBIT E
OPINION OF JUDr. XXXXXXXX XXXXX
[date]
Reference number: 1083/2007
Prague, [INSERT CLOSING DATE], 2007
UBS SECURITIES LLC
AS MANAGING UNDERWRITER
000 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
SUBJECT: DECLARATION
I, JUDr. Xxxxxxxx Xxxxx, am an attorney-at-law, a member of the Czech Bar
Chamber, Reg. No 3582 and my registered office and mailing address is Xxxxx 0,
Xx Xxxxxxx 397/5. Reference is hereby made to that certain Underwriting
Agreement (the "Underwriting Agreement") dated [____], 2007 among Scope Metals
Group Ltd. (the "Company"), Fimsco Holdings Ltd. and UBS Securities LLC as the
representative of the several Underwriters named in Schedule A thereto. All
capitalized terms used and not otherwise defined herein shall have the measing
ascribed to such terms in the Underwriting Agreement.
At the request of my client PRIMAPOL-METAL-SPOT s.r.o. ("Primapol"), the
registered office of which is located at Praha 1, Stare Mesto, Dlouha 727/39 and
whose company registration number is 271 87 098, I
HEREBY DECLARE
Primapol's registered office is located at Praha 1, Stare Mesto, Dlouha
727/39, PSC 110 00 and its company registration number is 27107098.
Primapol was founded in accordance with Czech law.
Since November 12, 2004, Primapol has been registered in the Comercial
Register which is maintained by The Municipal Court in Prague, division C,
insertion 102923.
(v) Primapol was duly incorporated and is validly existing as a
corporation in good standing under the laws of Czech Republic, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, Prospectus or
Preliminary Prospectus.
(vi) The registered capital of Primapol amounts to CZK 200.000. Such
registered capital is paid in full and is owned by Scope Metals Group Ltd. which
is located at X.X. Xxx 0, Xxx Xxxxx, Xxxx Xxxx (Xxxxx), 00000, Israel. All
outstanding shares of capital stock of Primapol are non-assessable and, except
as otherwise stated in the Registration
E-1
Statement, Prospectus or Preliminary Prospectus, in each case, are subject to no
security interest, other encumbrance or adverse claim; and to our knowledge, no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligation into shares of capital stock
or ownership interests in Primapol are outstanding.
(vii) To the best of our knowledge, there is no pending or threatened
action suit or proceeding by or before any court of governmental agency,
authority or body or any arbitrator involving Primapol that is not disclosed in
the Registration Statement, Prospectus or Preliminary Prospectus, except, in
each case, for such proceedings that would not, individually or in the
aggregate, result in a Material Adverse Effect.
(viii) Primapol has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any of the laws
of Czech Republic, or any other applicable state, local or other foreign law,
regulation or rule, and has obtained all necessary authorizations, consents and
approvals from other persons, in each case that are, both individually and in
the aggregate, material to the to conduct its respective business; Primapol is
not in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any of the laws of Czech Republic, or any
other applicable regulation or rule or any decree, order or judgment applicable
to Primapol, except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material Adverse Effect.
E-2
EXHIBIT F
OPINION OF NASCHITZ XXXXXXX
[date]
UBS Securities LLC
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
[NB: please provide entry/exit language to be inserted into this exhibit]
Ladies and Gentlemen:
We have acted as Israeli counsel to Fimsco Holdings Ltd. (the "Selling
Shareholder"), in connection with the preparation and filing of a Registration
Statement on Form F-l , Registration No. [_] (as amended through the date
hereof, and including the prospectus constituting a part thereof (the
"Prospectus"), the "Registration Statement"), filed under the United States
Securities Act of 1933, as amended (the "Securities Act") by Scope Metals Group
Ltd. with the Securities and Exchange Commission (the "Commission") relating to
(i) [_____] shares to be sold by the Selling Shareholder and (ii) up [_____]
Shares which may be purchased by the underwriters if the underwriters exercise
the option granted to them to cover over-allotments, all of such Shares (being
sometimes collectively referred to herein as the "Securities") are being sold
pursuant to an Underwriting Agreement (the "Agreement"), a form of which is
filed as an exhibit to the Registration Statement.
This opinion is being delivered pursuant to the Agreement. All capitalized terms
used and not otherwise defined herein shall have the meanings ascribed to such
terms in the Agreement.
In rendering the opinions set forth below, we have examined copies of the
Registration Statement and the exhibits attached thereto, the agreements,
corporate documents, records, certificates of public officials, and such other
documents, and we have reviewed such questions of law, as we have considered
necessary and appropriate for the purposes of our opinions set forth below.
As to any facts material to this opinion that we did not or were unable to
independently establish or verify, we have relied upon and assumed the accuracy
of oral and written statements and representations of officers and other
representatives of the Selling Shareholder and the representations and
warranties of each party contained in the Agreement and other documents
delivered pursuant thereto.
In rendering the opinions expressed below we have assumed, without independent
investigation or verification of any kind, the authenticity of all documents
submitted to us as originals, the genuineness of all signatures and the
conformity to authentic originals of all documents submitted to us as copies. We
have also assumed the legal capacity for all purposes of all natural
F-1
persons. We have assumed, with respect to all parties (other than natural
persons) to agreements or instruments relevant hereto (other than the Selling
Shareholder) that such parties had the requisite power and authority (corporate
or otherwise) to execute, deliver and perform such agreements or instruments,
that such agreements and instruments have been duly authorized by all requisite
action (corporate or otherwise), executed and delivered by such parties and that
such agreements and instruments are the valid, binding and enforceable
obligations of such parties (in each case, other than with respect to the
Selling Shareholder).
Additionally, we have further assumed that the Securities have not otherwise
been "offered" to more than thirty-five "Investors" in Israel (other than to the
entities mentioned in Appendix A ( ) of the Israeli Securities Law, 5728-1968)
(as all of such terms are interpreted pursuant to the Israel Securities Law,
5728-1968).
We express no opinion herein with respect to the validity, binding nature or
enforceability of any contract, agreement, instrument or other document that by
its terms purports to be governed by the laws of any jurisdiction other than the
State of Israel.
Wherever our opinion is stated as being limited to our knowledge, such opinion
is limited to the actual knowledge, acquired during the course of our
representation of the Selling Shareholder, of the members of the Israeli bar who
are members of or employed by this firm.
Based on the foregoing, and subject to the qualifications set forth herein, we
are of the opinion as of the date hereof that:
18. The Selling Shareholder has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Israel.
19. The Selling Shareholder has the requisite corporate power and authority to
execute and deliver the Underwriting Agreement and to perform its
obligations thereunder, including, without limitation, to issue, sell and
deliver the Shares as contemplated by the Underwriting Agreement.
20. The Underwriting Agreement has been duly authorized, executed and delivered
by the Selling Shareholder.
21. The Shares to be sold by the Selling Shareholder pursuant to the
Underwriting Agreement are free of statutory preemptive rights and, to our
knowledge, contractual preemptive rights, resale rights, rights of first
refusal and similar rights except with respect to the provisions of the
Shareholders Agreement.
22. Other than an approval from the Tel Aviv Stock Exchange, no approval,
authorization, consent or order under any Israeli law or approval,
authorization, consent of or filing with any Israeli governmental or
regulatory commission, board, body, authority or agency is required in
connection with the sale of the Shares to be sold by the Selling
Shareholder pursuant to the Underwriting Agreement or with the consummation
by the Selling Shareholder of the transactions contemplated by the
Underwriting Agreement.
23. The execution, delivery and performance of the Underwriting Agreement by
the Selling Shareholder and the sale of the Shares to be sold by the
Selling Shareholder pursuant to the
F-2
Underwriting Agreement and the consummation of the transactions
contemplated by the Underwriting Agreement do not and will not result in
any breach or violation of or constitute a default under (nor constitute
any event which, with notice, lapse of time or both, would result in any
breach or violation of or constitute a default under) (or result in the
creation or imposition of a lien, charge or encumbrance on the Shares) (i)
the memorandum of association or the articles of association (or similar
organizational document) of the Selling Shareholder, or (ii) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument (collectively, "Agreements and Instruments") which is known by
us to be an Agreement and Instrument to which the Selling Shareholder is a
party or by which it may be bound or affected, or (iii) the laws of the
State of Israel, or (iv) any decree, judgment or order known by us to be
applicable to the Selling Shareholder.
The opinions set forth above are further subject to the following qualifications
and limitations:
(a) We are members of the Israel bar, and the opinions expressed herein are
limited to questions of law arising under the internal laws of the State of
Israel, and we disclaim any opinion whatsoever with respect to matters governed
by the laws of any other jurisdiction.
(b) The opinions expressed herein are based upon the laws in effect on the date
hereof, and we assume no obligation to revise or supplement this opinion should
any such laws be changed by legislative or administrative action, judicial or
administrative decision, or otherwise.
This opinion is being furnished for your sole use and benefit and the use and
benefit of the other underwriters and their legal counsel, in connection with
the transactions contemplated by the Agreement, and may not be relied upon by
any other person or entity or published, quoted or otherwise used for any
purpose whatsoever without our prior written consent.
Very truly yours,
Naschitz, Xxxxxxx & Co.
F-3
EXHIBIT G
OFFICERS' CERTIFICATE
Each of the undersigned, Xxxxxx Shiloh, Chief Executive Officer and
Chairman of Scope Metals Group Ltd., an Israeli corporation (the "Company"), and
Xxx Xxxxx, Chief Financial Officer of the Company, on behalf of the Company,
does hereby certify pursuant to Section 9(k) of that certain Underwriting
Agreement dated [___], 2007 (the "Underwriting Agreement") among the Company,
the Selling Shareholder named in Schedule C to the Underwriting Agreement and
UBS Securities LLC, as representative (the "Representative") of each of the
several Underwriters (the "Underwriters") named in Schedule A to the
Underwriting Agreement, that as of [____], 2007:
1. They have each reviewed the Registration Statement, the Preliminary
Prospectus, the Prospectus and each Permitted Free Writing Prospectus.
2. The representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof and as if
made on the date hereof.
3. The Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date hereof.
4. The conditions set forth in paragraph (j) of Section 9 of the Underwriting
Agreement have been met.
Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Underwriting Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
this [___], 2007.
-------------------------------------------
Name: Xxxxxx Shiloh
Title: Chief Executive Officer and Chairman
-------------------------------------------
Name: Xxx Xxxxx
Title: Chief Financial Officer
G-1
EXHIBIT H
CERTIFICATE OF A REPRESENTATIVE OF THE SELLING SHAREHOLDER
The undersigned, [____], on behalf of the Selling Shareholder (the
"Selling Shareholder") named in Schedule C to the Underwriting Agreement, does
hereby certify pursuant to Section 9(l) of that certain Underwriting Agreement
dated [____], 2007 (the "Underwriting Agreement") among Scope Metals Group Ltd.
(the "Company"), the Selling Shareholder and UBS Securities LLC, as
representative (the "Representative") of each of the several Underwriters (the
"Underwriters") named in Schedule A to the Underwriting Agreement, and pursuant
to the Powers of Attorney (as defined in the Underwriting Agreement), that as of
[____], 2007:
1. The Selling Shareholder has reviewed the Registration Statement, the
Preliminary Prospectus, the Prospectus and each Permitted Free Writing
Prospectus.
2. The representations and warranties of the Selling Shareholder as set forth
in the Underwriting Agreement are true and correct as of the date hereof
and as if made on the date hereof.
3. The Selling Shareholder has performed all of its obligations under the
Underwriting Agreement as are to be performed at or before the date hereof.
Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Underwriting Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto set his hands on this
[____], 2007 on behalf of the Selling Shareholder.
FIMSCO HOLDINGS LTD.
By: [REPRESENTATIVE], Attorney-in-Fact
-------------------------------------------
Name:
Title:
H-1
