Exhibit 4.2
27,000,000 Ordinary Shares of Makhteshim Xxxx Industries Ltd.
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This agreement dated Wednesday 14 January 2004 sets out the terms under which
UBS Securities Israel Limited ("UBS" / "Buyer") will purchase 27,000,000
Ordinary Shares (the "Shares") of Makhteshim Xxxx Industries Ltd. (the
"Issuer") from Koor Industries Ltd. ("Seller").
1. Purchase and sale
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Subject to the terms and conditions of this agreement (the
"Agreement") Seller agrees as legal and beneficial owner to sell the
Shares, free of all liens, charges or other encumbrances and Buyer
agrees to purchase and pay for the Shares or procure the purchase of
and payment for the Shares at a net price of Israeli Shekels 15.50
per Share for a total consideration of Israeli Shekels 418,500,000
(the "Purchase Price") together with all dividends, distributions and
other benefits attaching to the Shares as at today's date.
2. Closing
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(a) On Sunday 18 January 2004 or at such other time and/or date
as Seller and Buyer may agree (the "Closing Date"), Buyer
shall pay to Seller the Purchase Price for the Shares for
value on the Closing Date against delivery of the Shares on
the Closing Date, such payment and delivery taking place by
way of an off-the-floor, clearing house transaction via
TASE.
(b) Seller undertakes that it will not, and will ensure that
none of its subsidiaries (other than the Issuer) will, prior
to the expiry of 120 days following the Closing Date, offer,
issue, sell or otherwise dispose of (or announce an
intention of doing so) any other shares of the Issuer or any
securities convertible into or exchangeable for or carrying
rights to acquire other shares of the issuer without the
prior written consent of Buyer. This undertaking will not
apply to (i) any Shares offered or sold by Seller (or
announced as an intention to do so), or any of its
subsidiaries or affiliates, as over-allotment shares in any
public capital raising exercise of the Issuer and (ii) any
transfer of Shares by Seller to any of its affiliates,
provided that such affiliate agrees with Buyer to be bound
by the terms of this Agreement.
(c) Seller undertakes with Buyer that it will bear and pay any
stamp or other duties or taxes on or in connection with the
sale, and transfer of the Shares to be sold by Seller and
the execution and delivery of this Agreement and any other
tax payable by Seller in connection with the transactions
contemplated hereby.
3. Expenses
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Seller and Buyer shall bear their own legal costs (if any) and all
their other out-of-pocket expenses (if any).
4. Representations and warranties
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(a) As a condition of the obligation of Buyer to purchase and
pay for, or procure the purchase of and payment for the
Shares, Seller represents and warrants to Buyer as follows:-
(i) that Seller is the holder and sole legal and
beneficial owner of the Shares free from all liens,
charges and other encumbrances and that the Shares
rank pari passu in all respects with other
outstanding ordinary shares of the Issuer,
including their entitlement to dividends,
(ii) that Seller has the corporate power and authority
to sell the Shares hereunder and no person has any
conflicting right, contingent or otherwise, to
purchase or to be offered for purchase, the Shares,
or any of them,
(iii) that the execution, delivery and performance of
this Agreement has been duly authorised by Seller
and upon due execution the same will constitute a
legal, valid and binding obligation of Seller,
(iv) that the execution, delivery and performance of
this Agreement by Seller will not infringe any law
or regulation applicable to Seller and is not and
will not be contrary to the provisions of the
constitutional documents of Seller and will not
result in any breach of the terms of, or constitute
a default under, any instrument or agreement to
which Seller is a party or by which it or its
property is bound,
(v) that there are no restrictions (contractual or
otherwise) prohibiting or otherwise affecting the
sale or transfer of the Shares to Buyer, other than
those necessary to ensure compliance with the
registration requirements of the U.S. Securities
Act of 1933, as amended, or an exemption therefrom,
and no consents or approvals are required to be
obtained in connection with the sale of the Shares
to Buyer and the sale of the Shares to Buyer will
not violate or breach any representation or
warranty made by Seller pertaining to the Shares.
(vi) that all consents and approvals of any court,
government department or other regulatory body
required by Seller for the execution, delivery and
performance of the terms of this Agreement have
been obtained and are in full force and effect,
(vii) to the best of Seller's knowledge, that there has
been no material adverse change in the condition
(financial or otherwise) of the Issuer and its
subsidiaries since the date of the last published
accounts,
(viii) Seller is in compliance with all applicable insider
dealing, market abuse and analogous legislation and
regulation.
(ix) the representations and warranties of Seller set
forth in Seller's representation letter (in form
similar to the form attached as Exhibit A titled,
"Seller's Representation Letter"), dated on or
about the date hereof, to Buyer are true and
correct.
(b) Seller covenants with Buyer that it will keep Buyer
indemnified against any losses, liabilities, costs, claims,
actions and demands (including any expenses arising in
connection therewith) which it may incur, or which may be
made against it as a result of or in relation to any actual
or alleged misrepresentation in or breach of any of the
above representations and warranties and will reimburse
Buyer for all reasonable costs, charges and expenses which
it may pay or incur in connection with investigating,
disputing or defending any such action or claim.
(c) The above representations, warranties and indemnity shall
continue in full force and effect until 3 months after the
publication of Seller's next Annual Report notwithstanding
any investigation by or on behalf of Buyer or completion of
this Agreement.
5 Conditions to Closing
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The obligations of Buyer hereunder shall be subject to the condition
that all representations and warranties and other statements of
Seller herein are, and as of the Closing Date will be, true, complete
and accurate and to the performance by Seller of all of its
agreements set forth herein.
6. Termination
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Buyer may by notice to the Seller given at any time prior to payment
of the Purchase Price for the Shares terminate this Agreement if any
of the representations and warranties contained in clause 4 was
untrue in any material respect at the time of making thereof or as of
the Closing Date, or Seller shall have failed to perform any of its
undertakings or agreements in this Agreement
Upon such notice being given, the parties hereto shall (except for
any liability arising before or in relation to such termination) be
released from their obligations hereunder.
7. Law and jurisdiction
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This Agreement is governed by English law. It is agreed by Seller for
the benefit of Buyer that the English courts will have jurisdiction
in relation to this Agreement and Seller submits to the jurisdiction
of such courts provided that this submission shall not limit the
right of Buyer to take proceedings in any court of competent
jurisdiction.
8. Miscellaneous
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(a) Time shall be of the essence of this Agreement.
(b) The heading to each Clause is included for convenience only
and shall not affect the construction of this Agreement.
(c) In the event any provision of this Agreement is found to be
or becomes invalid or unenforceable, no other provision of
this Agreement shall thereby be affected and the Agreement
shall remain valid and enforceable in respect of all
remaining provisions, and any invalid or unenforceable
provision will be deemed to be replaced by a provision which
as nearly as possible accomplishes the commercial purpose of
the original.
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof. Upon acceptance by you this Agreement and
such acceptance shall constitute a binding agreement between Buyer and Seller.
Yours faithfully
UBS Securities Israel Limited
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxx
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Agreed to and accepted by Seller: Xxxxx Xxx
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
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Koor Industries Ltd. X. Xxxxxx
X.Xxxxxx
EXHIBIT A
SELLER'S REPRESENTATION LETTER
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UBS Securities Israel Limited ("UBS")
Attention: Equity Risk Management
Facsimile: [ ]
In conjunction with the sale of 27,000,000 ordinary shares ("the Shares") of
Makhteshim Xxxx Industries Ltd. (the "Issuer') to you by Koor Industries
Ltd.("Seller"), Seller represents and warrants to you as follows:
1. the Shares meet the eligibility requirements of Rule 144A(d)(3) under
the Securities Act of 1933, as amended (the "Act").
2. that neither Seller, nor any of its affiliates (as defined in Rule
501(b) of Regulation D ("Regulation D") under the Act), nor any
person acting on its or their behalf (other than UBS or any of its
affiliates as to which no representation is made) (i) has made or
will make offers or sales of any security, or solicited or will
solicit offers to buy, or otherwise negotiated or will negotiate in
respect of, any security, under circumstances that would require the
registration of the Shares under the Act; or (ii) has engaged or will
engage in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or
sale of the Shares in the United States.
3. that neither Seller, nor any of its affiliates (as defined in Rule
405 under the Act), nor any person acting on its or their behalf
(other than UBS or any of its affiliates as to which no
representation is made) has engaged or will engage in any "directed
selling efforts" (as defined in Regulation S under the Act with
respect to the Shares).
Very truly yours,
________________________________
Koor Industries Ltd.
___________
[date]
________________________________
[authorized signatory/ies]
