EXHIBIT 4.11
SHARE SALES AGREEMENT
ENTERED AND SIGNED IN TEL AVIV ON THE DAY _____OF THE MONTH OF APRIL, 2008
BETWEEN: MIVTACH Shamir Investments (93) Ltd.
Private Company 511841819
0 Xxxxxxx Xx. Xxx Xxxx 00000
(Hereinafter: "SHAMIR" or "THE SELLER")
ON THE ONE PART;
AND: TAT TECHNOLOGIES LTD.
Public Company No. 520035791
X.X. Xxx 00, Xxxxxx 00000
(Hereinafter: "TAT" or "THE BUYER")
ON THE SECOND PART;
WHEREAS the Seller is the owner and holder of 2,000 regular shares of NIS
1 par value each in Betnal Industries Ltd. (hereinafter: "THE
COMPANY"), which as of the date of signing this agreement,
constitute 10% of the Company's issued and paid share capital
(hereinafter: "SALE SHARES");
AND WHEREAS the Seller is interested in selling the Sale Shares to the Buyer
and the Buyer in interested in purchasing all the Sale Shares
from the Seller, being clean and free (as defined below), all
according to the manner and terms specified in this Agreement
below;
AND WHEREAS on March 27, 2008 an agreement was signed between the Buyer and
Bental Investments Cooperative Agricultural Society Ltd.
(hereinafter: "BENTAL") for the sale of 5,400 regular shares of
NIS 1 par value each in the Company, held by Bental and
constituting approx. 27% of the Company's issued share capital
(hereinafter: "BENTAL TRANSACTION") as well as granting a put
option and call option for an additional 3,598 regular shares in
the Company;
AND WHEREAS the completion of the Bental Transaction is a suspending
condition for the completion and execution of the transaction
discussed in this Agreement;
NOW THEREFORE IT IS DECLARED, STIPULATED AND AGREED BETWEEN THE PARTIES AS
FOLLOWS:
1. PREAMBLE AND INTERPRETATION
The preamble and to this Agreement and the parties' statements, constitute
an integral part thereof.
The headings of the clauses in this Agreement were added purely for reading
convenience and should not be used for interpreting the Agreement.
2. DEFINITIONS
In this Agreement, the following terms will be given the meanings that
appear beside them:
2.1 "DOLLAR" - One United States Dollar.
2.2 "COMPANY'S ISSUED AND PAID SHARE CAPITAL" - 20,000 regular shares
included in the Company's issued and paid capital on the date of
signing this Agreement.
2.3 "BUSINESS DAY" - Sundays - Thursdays every week, provided that there
is no holiday, occasion, holiday eve and/or Sabbatical.
2.4 "SUBSIDIARY" - Bental Inc., company incorporated according to the laws
of the State of Maryland, U.S.A, whose entire shares are owned by the
Company. In this Agreement, the term "Company" includes the
Subsidiary.
2.5 "CLOSING DATE" - 7 (seven) business days after fulfilling the finale
suspending condition or any other date after fulfilling the suspending
conditions to be agreed in writing by the parties.
2.6 "MEMORANDUM OF UNDERSTANDING" - The Memorandum of Understanding signed
between the parties, together with Bental on January 2, 2008.
2.7 "COMMISSIONER" - Israel Antitrust Commissioner by virtue of the
provisions of the Restrictive Trade Practices Act, 5748-1988.
2.8 "REGULAR SHARES" - Regular shares of NIS 1 par value each of the
Company's issued and paid share capital.
2.9 "SALE SHARES" - 2,000 regular shares held by the Seller on the date of
signing this Agreement and constituting 10% of the Company's issued
and paid share capital on such date.
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2.10 "CLEAN AND FREE" - Clean and free of any mortgage, pledge, attachment,
lien, right of first refusal, right to tag along, obstruction
settlements, debt or any third party rights.
2.11 "ARREARS INTEREST" - Arrears interest to be paid according to the
provisions of clause 14.5 of this Agreement.
2.12 "SUSPENDING CONDITIONS" - The conditions stipulated in clause 7 of
this Agreement.
3. THE SELLER'S PRESENTATIONS, STATEMENTS AND UNDERTAKINGS
3.1 The Seller hereby presents, states and undertakes the following to the
Buyer, regarding the Sale Shares:
3.1.1 The Seller is the exclusive owner and holder of the Sale Shares.
3.1.2 That the Sale Shares were duly issued and fully paid, and
subject to the fulfillment of the suspending conditions, on the
date of signing this Agreement are and will be on the closing
date, clean and free for transfer, according to the provisions of
this Agreement.
3.1.3 Not to undermine from the generality of the said in clause 3.1.2
above, subject to fulfilling the suspending conditions, the
Seller did not undertake towards any third party to transfer the
Sale Shares, or any part thereof, or avoid transferring them and
did not grant or give any person or body any option or other
right to purchase or receive the Sale Shares and/or any part
thereof and that no person or body has the right of first
refusal, right to tag along or any other right regarding the Sale
Shares, all or part thereof, except by virtue of the Company's
Founders Agreement and Articles of Association.
3.1.4 Subject to fulfilling the suspending conditions: (a) sale of the
Sale Shares to the Buyer according to this Agreement, is not
contrary or contradicts any contract and/or undertaking by any
party thereto; (b) the Seller received all the authorizations and
certificates required by the law for the sale of the Sale Shares
and transfer thereof to the Buyer, and there is not prohibition
or limitation or prevention of any sort, from executing the
aforesaid.
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3.1.5 The Seller made all the decisions according to its certificates
of incorporation and the law, required for engaging in this
Agreement and executing its obligations according thereto and
that the signatories onto this Agreement in its behalf, were duly
authorized to do so and their signature binds the Seller and
subject to fulfilling the suspending conditions, the Seller's
engagement in this Agreement and executing the provisions
thereof, do not require any consent, certificate or permission
from any person or body or giving any notice, and to the best of
the Seller's knowledge there is no prevention from its engagement
in this Agreement and fulfilling its obligations according
thereto.
3.1.6 Beginning with the date of signing this Agreement, the Seller
and/or a corporation associated therewith, has no and will not
have any claims, demands and/or suits, of any sort or type,
towards the Company, its shareholders, officers, employees and
advisers, whose grounds were created during the period preceding
signing this Agreement, including by virtue of capital bills
granted by the Company to the Seller, and the Seller hereby
waives, decisively and absolutely, on its behalf and on behalf of
anyone representing the Seller, any claim, demand and/or suit as
said, all except as said in this Agreement.
3.1.7 Upon signing this Agreement, the Seller agrees to waive the
right of first refusal concerning the Bental transaction.
3.2 The Seller's presentations specified in this clause 3, will remain
true for the closing date. Not to undermine from the said, if any
change applies on the Seller's presentations as said in this clause 3
until the closing date, the Seller will give the Buyer written notice
of the matter and the Buyer will be entitled to terminate this
Agreement, without bearing any liability towards the Seller for the
termination as said.
4. THE BUYER'S STATEMENTS AND UNDERTAKINGS
The Buyer hereby presents, states and undertakes the following to the
Seller:
4.1 The Buyer is engaging in this Agreement after considering the
advisability of the transaction, as a reasonable investor.
4.2 Subject to the correctness of the Seller's statements in clause 3
above and fulfilling its obligations according to this Agreement, the
Buyer is purchasing the Sale Shares without the Seller making any
presentation beyond the said in this Agreement, regarding the
Company's business condition or assets. Subject to the correctness of
the presentations and the Seller's fulfillment of its obligations
according to this Agreement, the Buyer has no and will not have any
claims or arguments towards the Seller, including claims of
alternative and/or compatibility and/or defect of any sort regarding
the purchase of the Sale Shares and/or the Company and anything
associated or resulting thereby.
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4.3 The Buyer: (a) is fully authorized to engage in this Agreement and
perform all its obligations according thereto; and (b) has no legal
prevention or other prevention from engaging in this Agreement and (c)
does not require the confirmation or consent of any third party,
regarding signing this Agreement or executing the provisions thereof,
except the certificates and approvals forming suspending conditions
for validation of this Agreement.
4.4 The Buyer has the economic and financial abilities required to perform
its obligations according to the provisions of this Agreement.
4.5 The Buyer's presentations specified in this clause 4, will remain true
on the closing date.
5. THE TRANSACTION
5.1 Subject to fulfilling the suspending conditions, the Seller undertakes
to sell the Sale Shares to the Buyer and the Buyer undertakes to
purchase the Sale Shares from the Seller, on the closing date, being
clear and free.
5.2 Sale of the Sale Shares and transfer thereof to ownership of the Buyer
on the closing date will be done in exchange for consideration as
specified in clause 6 below.
6. CONSIDERATION FOR THE SALE SHARES AND TERMS OF PAYMENT
The Buyer will pay the Seller for the Sale Shares on the closing date, the
cash amount of USD 1,225,000 (one million, two hundred and twenty five
thousand) US Dollars (hereinafter: "CONSIDERATION FOR THE SALE SHARES") in
exchange for transfer of the Sale Shares to the name of the Buyer, being
clean and free and fulfilling the rest of the Seller's obligations. Payment
of the Consideration for the Sale Shares will be done subject to
"ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR" according to the provisions
of clause 12 below.
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7. SUSPENDING CONDITIONS: INTERIM PERIOD
7.1 This Agreement and fulfillment thereof, are conditioned by fulfilling
and executing the suspending conditions specified below prior to the
closing date:
7.1.1 The Commissioner approved the transaction discussed in this
Agreement. The parties will act in good faith, diligently and
assiduously to fulfill and perform the terms as said, as soon as
possible.
7.1.2 The Bental transaction was concluded concurrently with the
completion of the transaction discussed in this Agreement on the
closing date.
7.1.3 No claim or argument, or thereat or anything similar, was
received in regard to the parties' engagement in this Agreement
or the Buyer's rights as said therein, which remains pending on
the closing date.
7.1.4 The Seller's presentations are true, complete and accurate on
the closing date.
7.1.5 All the additional terms specified in clause 8.1 below were
fulfilled.
7.2 If and as long as the suspending conditions were not fulfilled within
120 days from the date of signing this Agreement (hereinafter:
"INTERIM PERIOD"), after the parties exercised reasonable efforts in
order to fulfill such conditions, and the party to benefit from the
suspending conditions did not agree to waive fulfilling such
condition, then each party will be entitled to terminate this
Agreement and in such case, no party will be entitled to any right or
cause of action according to the Agreement.
7.3 During the Interim Period, the Seller will act in order to assure that
the Company continues to conduct its businesses in the regular course
of business, subject to the law. Not to undermine from the generality
of the said, subject to the law, the Seller will object to the
following acts in the Company or subsidiary thereof (except acts
required for closing the subsidiary): (a) any change in the regular
course of business or the terms for employment of employees thereof;
(b) any profit distribution, any monetary payment in any other manner,
such as management fees, bonuses etc, any loans, securities or
guarantees of any sort, except as said in this Agreement; (c) any
organizational change, including splitting, transferring or selling
rights, purchasing the activity or holdings in another person, merger
etc.; (d) change in ownership and/or holdings, and any endowment or
allocation of capital rights; (e) any appointment or replacement of
senior officers and any transaction or engagement between them and the
Seller and/or related or associated parties thereto; (f) any change in
the terms and conditions of any the Company's material agreements; and
(g) any agreement or obligations to perform any of the abovementioned.
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8. CLOSING
8.1 On the date of closing and after obtaining all the approvals as said
in clause 7 above, the parties will meet at 10:00 in the morning at
the offices of Advocate Zellermayer, Pelossof & Co, at 00 Xxxxxxx Xx.,
Tel Aviv, 12th floor, or other date and location as agreed between the
parties and on such date: the Seller will sell the Sale Shares to the
Buyer and the Sale Shares will be transferred to the name of the
Buyer, being clean and free, concurrently and in exchange for: (1)
performing payment of the entire Consideration for the Sale Shares by
the Buyer; and (2) additional acts as specified below; and all the
following acts will be done simultaneously and considered as done at
the same time and none of them will be considered valid unless all the
other acts are performed; following are the acts:
8.1.1 The Buyer will pay the Seller the Consideration for the Sale
Shares by bank draft or bank transfer to the bank account
instructed by the Buyer in advance in writing; and
8.1.2 The Seller will sign a share transfer certificate as the
transferor, in the version required according to the Company's
Articles of Association, referring to all the Sale Shares held by
the Seller;
8.1.3 The director appointed to the Company's Board on behalf of the
Seller, will submit a letter of resignation, effective from the
closing date.
9. ARBITRATION
9.1 In any case of disputes or differences of opinion between the parties
in any matter concerning, resulting or associated with entering the
Agreement, validity, breach, execution or interpretation of this
Agreement, such will be submitted for decision of a single arbitrator.
The arbitrator will be Xxxxx Xxxxx, Advocate and if he is refrained
from serving as an arbitrator, an arbitrator will be appointed by the
Buyer and Sellers' attorneys and in lack of agreement between them
after 14 days from the appeal from one party to the other, an
arbitrator will be appointed by the Israel Bar Association.
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9.2 The arbitrator will be entitled to grant interlocutory orders and
other temporary remedies that a court of law is authorized to give and
will be linked and subject to the substantive law, but not laws of
evidence and legal procedures. The arbitrator will explain his
arbitration award.
9.3 The provisions of this clause will be valid as though they are an
arbitration agreement between the parties and the provisions of the
addition to the Arbitration Law, 5728-1968, will apply to the
arbitration procedures and the arbitrator.
10. JURISDICTION
Subject to the said in clause 9 of the Agreement referring to the matter of
arbitration, the jurisdiction in all matters concerning this Agreement or
resulting from the Agreement, are awarded to the authorized courts of Tel
Aviv and only such courts.
11. GENERAL UNDERTAKING TO PERFORM ACTS AND SIGN DOCUMENTS
The parties undertake to perform all actions and sign all documents,
certificates, forms and statements, as required and beneficial for
performing the provisions of this Agreement. Not to undermine from the
generality of the aforesaid, the parties undertake to comply with all
reporting obligations required by the law (including to the Registrar of
Companies), as entailed in performing this Agreement.
12. ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR
Payment for the Sale Shares as said in clause 6 above, will be done subject
to adjustment to the exchange rate of the US Dollar as specified below in
this clause (hereinafter respectively: "ADJUSTED PAYMENT" and " ADJUSTMENT
TO THE EXCHANGE RATE OF THE DOLLAR")
On the date of performing the Adjusted Payment, the adjustment to the
exchange rate of the Dollar will be done as specified below:
12.1 If the representative rate on the date of performing the Adjusted
Payment is less than NIS 3.70 per Dollar, the Buyer will pay the
Seller, in addition to the amount of Adjusted Payment, which should be
paid according to the said in the provisions of this Agreement, an
additional amount to be calculated according to the following formula:
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D * P
X? ----------
R
X - Means the additional amount that the Buyer must pay in US Dollars
D - Means the difference between the NIS 3.70 per Dollar and the
representative rate known on the date of the relevant Adjusted Payment
P - Means the relevant Adjusted Payment (as defined above) in US
Dollars before the adjustment to the exchange rate of the Dollar
R - Means the representative rate known on the date of performing the
Adjusted Payment.
12.2 If the representative rate on the date of performing the Adjusted
Payment exceeds NIS 3.95 per Dollar, the amount to be calculated
according to the following formula will be deducted from the amount of
the Adjusted Payment that the Buyer must pay the Seller:
D * P
X? ----------
R
X - Means the amount that should be deducted from the Adjusted Payment
in US Dollars
D - Means the difference between representative rate known on the date
of the Adjusted Payment and NIS 3.95 per Dollar
P - Means the Adjusted Payment in US Dollars, before the adjustment to
the exchange rate of the Dollar
R - Means the representative rate known on the date of performing the
Adjusted Payment.
12.3 For the avoidance of doubt, if the representative rate of the Dollar
on the date of the Adjusted Payment will be in the range between NIS
3.70 and NIS 3.95, then there will be no adjustment according to this
clause and the payment will be performed according to the
representative rate known on such date.
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13. GENERAL
13.1 Each payment that must be done according to the provisions of this
Agreement will be paid on a business day until 11:00 before noon. If
the date for payment is not a business day, the payment will be
delayed to the first business day after the date of payment.
13.2 This Agreement, after signing thereof, exhausts all the agreements
between the parties referring to matters mentioned therein and negates
any prior agreement, presentation, drafts or understandings between
the parties or anyone on their behalf referring to matters included
therein, including the Memorandum Of Understanding, and such documents
will not be used in any way for interpretation, claims or any other
manner.
13.3 Any promise or statement of any sort, whether in writing or verbally
or by manner of conduct or omission, made prior to the date of signing
this Agreement, will be perceived as negated and this Agreement will
be perceived as including, reflecting and exhausting all the parties
statements and obligations regarding matters arranged in this
Agreement as said.
14. TAXES AND EXPENSES
14.1 Any tax or other levy, if and as such applies to the Seller or to a
seller of shares by virtue of the provisions of the law or signing
this Agreement of performing the provisions thereof, will be paid by
the Seller.
14.2 Any tax or other levy, if and as such applies to the Buyer or to a
buyer of shares by virtue of the provisions of the law or signing this
Agreement of performing the provisions thereof, will be paid by the
Buyer.
14.3 Any payment performed according to the provisions of this Agreement,
will be paid subject to the deduction of tax at source or against
presentation of exemption from deduction of tax at source.
14.4 Each party will bear its expenses, including fees for its legal
advisers concerning preparation and executing this Agreement.
14.5 If the obligation to pay linkage differentials or interest will apply
to any payment according to this Agreement, then due V.A.T will be
added to such linkage differentials or interest as said, if such
applies, all in exchange for submission of a tax invoice. Payment of
the due V.A.T to apply as said, if such applies, for any payment, will
be performed by submitting a postdated cheque to be paid on the 15th
of the subsequent month of the said payment.
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15. ARREARS INTEREST
If the Buyer did not pay the Seller any amount that the Buyer is obligated
to pay the Seller by virtue of the provisions of this Agreement on the date
determined for such payment, then in such case, the Buyer will be obligated
to pay the Seller arrears interest, with the addition of due V.A.T for the
amount in arrears, according to the rate customary at the time by Bank
Leumi of Israel Ltd. in case of deviating from an approved credit limit in
a US Dollar loan accounts, without undermining from any right or remedy
awarded to the Seller by virtue of the provisions of this Agreement or the
provisions of the law.
16. JOINT STIPULATION
The Seller's obligations to transfer the Sale Shares to the Buyer on the
Closing Date and the Buyer's obligations to pay the Seller the
Consideration for the Sale Shares are considered joints stipulations as
defined by the law.
17. AMENDMENTS AND WAIVERS
17.1 Any change or amendment to this Agreement will be done in writing and
signed by the parties thereto.
17.2 Not to undermine from the said in this Agreement, in any case that a
party to this Agreement will not demand the execution of the Agreement
or any part thereof, this will not be considered as waiving his right
to do so and any waiver of a breach of any provision of the provisions
of this Agreement, will not be considered as an continuing waiver of
the breach.
18. LACK OF RIGHTS TO A THIRD PARTY
This Agreement does not award and the parties thereto do not intend to
award rights to any third party.
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19. MAINTAINING CONFIDENTIALITY
The parties declare and mutually undertake, that as of the date of signing
this Agreement, they will maintain complete confidentiality and will not
make any use intended for themselves or others, will not tell, reveal or
publish in any other way, information or knowledge associated, directly or
indirectly, to the business and/or activity of each party and any
information connected thereto and/or business connected to any of the
parties in any manner. Not to undermine from the generality of the said,
the Seller undertakes to maintain complete confidentiality and not to make
any use of business, economic, commercial or other information that came to
its knowledge and/or possession during or as a result of the negotiations
and/or holding the Company shares and/or positions filled in the Company.
The aforesaid will not apply to information that the Buyer or Seller
(including companies controlling them) are obligated to publish as public
companies according to the law, including the Securities Act and the
provisions installed according thereto, provided that any exposure or
publication of information as said, will be arranged in advance in writing
between the parties.
20. NOTICES
20.1 All notices that should be given according to the provisions of this
Agreement will be in writing and sent to the addresses indicated in
the preamble to this Agreement or other address informed in writing by
one party to the other.
20.2 All notices will be sent by messenger, registered mail or facsimile.
Notice sent by registered mail will be considered as received within
seven (7) days from dispatch thereof, notice sent by messenger or
facsimile, will be considered as received one business day after
dispatch thereof.
IN WITNESS THEREOF THE PARTIES HAVE HEREUNTO SIGNED IN THE PLACE AND
DATE INDICATED ABOVE:
Signed: Signed with stamp:
MIVTACH SHAMIR HOLDINGS LTD.
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TAT TECHNOLOGIES LTD. MIVTACH SHAMIR INVESTMENTS (93) LTD.
By: DOV TSEELIM By: SHAMIR
--------------- ----------
Yisrael Ofan Xxxxxx
00
