Exhibit 10.41
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ELECTRIC FUEL CORPORATION
COMMON STOCK PURCHASE AGREEMENT
March 15, 2000
To: Koor Industries Limited
Ladies and Gentlemen:
Electric Fuel Corporation, a Delaware corporation (the "Company"), proposes
to sell (the "Offering") to Koor Industries Ltd. (the "Purchaser") 613,139
shares (the "Shares") of EFC Common Stock at a purchase price per share of
$17.125, for an aggregate investment amount of $10,500,000 (the "Purchase
Price"). In connection with and in consideration for the sale and purchase of
the Shares, the Company and the Purchaser agree to abide by the mutual covenants
contained herein.
1. Sale and Purchase of the Shares. On the basis of the representations,
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warranties and agreements contained in, and subject to the terms and conditions
of this Share Purchase Agreement (the "Agreement"), the Company agrees to sell
to the Purchaser, and the Purchaser agree to purchase from the Company, the
Shares. The purchase price per share shall be $17.125.
In the event that within the 90 days immediately following the Closing
hereunder (the "Investment Adjustment Period"), the Company issues shares of its
Common Stock or securities convertible into its Common Stock at a price per
share below $17.125, other than to its employees and consultants under its Stock
option Plan (the "Investment Adjustment Price"), then it shall issue to the
Purchaser, for no additional consideration, either (a) additional shares of the
Company Common Stock such that the total number of shares of the Company Common
Stock issued in consideration for the Purchase Price multiplied by the
Investment Adjustment Price shall equal the Purchase Price, or, at the
Purchaser's discretion, (b) warrants to purchase two times the number of shares
of the Company Common Stock that the Company would be obligated to issue
pursuant to the preceding clause (a) (the "Investment Adjustment Warrants"). The
Investment Adjustment Warrants shall have an exercise price per share equal to
the Investment Adjustment Price. The Investment Adjustment Warrants will be
exercisable immediately upon issuance and shall expire if unexercised on the
first anniversary of the conclusion of the Investment Adjustment Period.
2. Delivery and Payment. On the Closing Date, the Purchaser will pay to
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the Company the Purchase Price and the Company shall deliver the Shares to the
Purchaser. Payment of the Purchase Price shall be made by wire transfer in
immediately available funds in U.S. dollars to account number ________ in the
name of __________, at _________, provided, however, that the Purchaser may, at
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their option wire New Israeli Shekels in lieu of U.S. dollars at the Bank
HaPoalim U.S. dollar cash sell rate (i.e. the rate at which the bank sells to
buyers) as of the Closing of the Offering. The Closing of the Offering shall
take place at the offices of Meitar, Liquornik, Geva & Co.
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concurrently with the Closing of the transactions under the Share and Assets
Purchase Agreement among the Company, the Purchaser, Tadiran Batteries Ltd. and
Tadiran Electric Industries Corporation dated March 15, 2000 (the "Tadiran
Agreement"). The day on which the Closing takes place shall be referred to
herein as the "Closing Date."
3. Offering of Shares. The Shares will be offered and sold to the
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Purchaser without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance on the exemption therefrom provided by
Section 4(2) of the Securities Act.
4. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Purchaser as follows:
(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Delaware. The
Company's wholly-owned Israeli subsidiary, Electric Fuel (E.F.L.) Limited
("EFL"), is duly incorporated and is validly existing. Each of the Company
and EFL is qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or properties
(owned, leased or licensed) or the nature of its business makes such
qualification necessary, except for such jurisdictions where the failure to
so qualify, individually or in the aggregate, would not have a material
adverse effect on the assets or properties, business, results of operations
or financial condition, taken as a whole, of the Company and EFL.
(b) All necessary corporate action has been duly and validly taken to
authorize the execution, delivery and performance of this Agreement by the
Company. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby or thereby (including, without limitation, the issuance and sale by
the Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a default
(or an event which with notice or lapse of time or both would constitute a
default) under, or require any consent or waiver under, or result in the
execution or imposition of any material lien, charge or encumbrance upon
any properties or assets of the Company pursuant to the terms of, any
material indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which the Company or any
of its properties or businesses is bound, or any franchise, license,
permit, judgment, decree, order, statute, rule or regulation applicable to
the Company, or violate any provision of the charter or by-laws of the
Company or EFL, except for such consents or waivers that have already been
obtained and are in full force and effect, or such consents or waivers the
failure to so obtain would not individually or in the aggregate, have a
material adverse effect upon the assets or properties, business, results of
operations or financial condition, taken as a whole, of the Company and
EFL.
(d) The Company's Annual Reports on Form 10-K for the fiscal year
ended December 31, 1998 and December 31, 1999, the Company's Form 10-Qs for
the fiscal periods ended March 31, 1999, June 30, 1999 and September 30,
1999 and all documents filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (such documents are hereinafter referred to as
the "Exchange Act Documents") were filed in a timely manner and, when they
were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material respects
to the requirements of the Exchange Act, and the rules and regulations
thereunder, and did not contain any 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. Subsequent to the respective
dates as of which information was given in the Exchange Act Documents,
except as described therein, there has not been any material adverse change
in the Company's operations, and, to the Company's knowledge, no event has
occurred which with notice or lapse of time or both, that would constitute
such a material adverse change, in the assets or properties, business,
results of operations or financial condition of the Company taken as a
whole.
(e) Other than as previously disclosed to the Purchaser, there are no
claims for brokerage commissions or finder's fees on similar compensation
in connection with the transactions by this Agreement based on any
arrangement or agreement made by or on behalf of the Company other than as
previously disclosed to the Purchaser, and the Company agrees to indemnify
and hold the Purchaser harmless against any damages incurred as a result of
any such claims.
5. Representations and Warranties of the Purchaser. The Purchaser
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represents and warrants to Company that:
(a) It has full power and authority to execute, deliver and perform
this Agreement. This Agreement constitutes a valid and legally binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles.
(b) The Shares, to be received by the Purchaser will be acquired for
investment for the Purchaser's own account, and not with a view to the
distribution of any part thereof. Other then in context of "Hedging"
transactions, the Purchaser has no present intention of selling, granting
any participation in, or otherwise distributing the same. The Purchaser
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer, or grant participation to such person or to any
third person, with respect to any of the Shares.
(c) The Purchaser understands that the Shares may not be sold,
transferred, or otherwise disposed of without registration under the
Securities Act, or an exemption therefrom, and that in the absence of an
effective registration statement covering the Shares or an available
exemption from registration under the Securities Act, the Shares must be
held indefinitely. In the absence of an effective registration statement
covering the Shares, the Purchaser will sell, transfer, or otherwise
dispose of the Shares only in a manner consistent with its representations
and agreements set forth herein.
(d) The Purchaser understands that until the Shares are registered
under the Securities Act, the certificates evidencing the Shares may bear
substantially the following legends:
(i) "THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND APPLICABLE STATE LAW, AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM (IN EACH CASE BASED
UPON DOCUMENTATION SATISFACTORY TO THE COMPANY,
INCLUDING AN OPINION OF COUNSEL SATISFACTORY TO IT
THAT REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE LAWS IS NOT REQUIRED) OR PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT."
(ii) Any legend required by any applicable law.
(e) The Purchaser is an "accredited investor" as such term is defined
in Rule 501(a)(1) promulgated pursuant to the Securities Act.
(f) The Purchaser's financial condition is such that it is able to
bear the risk of holding the Shares for an indefinite period of time.
(g) The Purchaser has such knowledge and experience in financial and
business matters and in making high risk investments of this type and is
capable of evaluating the merits and risks of the purchase of the Shares.
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(h) There are no claims for brokerage commissions or finder's fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Purchaser, and the Purchaser agrees to indemnify and hold the Company harmless
against any damages incurred as a result of any such claims.
(i) The Purchaser acknowledges that the Company will rely upon
the truth and accuracy of the foregoing acknowledgments, representations
and agreements and agrees that, if any of the acknowledgments,
representations and agreements are no longer accurate, it shall promptly
notify the Company, and the Company acknowledges that the representations
and the agreements of the Purchaser herein are without prejudice to the
representations and warranties of the Company contained in Section 4 above.
6. Conditions of the Purchaser's Obligations. The obligation of the
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Purchaser to purchase the Shares is subject to each of the following terms and
conditions:
(a) The representations and warranties of the Company contained in this
Agreement shall be true and correct when made and on and as of the
Closing Date as if made on such date and the Company shall have
performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by it at or before the Closing Date.
(b) the Closing of the Tadiran Agreement.
7. Conditions of the Company's Obligations. The obligation of the Company to
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sell the Shares is subject to each of the following terms and conditions:
(a) The representations and warranties of the Purchaser contained in this
Agreement shall be true and correct when made and on and as of the Closing Date
as if made on such date and the Purchaser shall have performed all covenants and
agreements and satisfied all the conditions contained in this Agreement required
to be performed or satisfied by it at or before the Closing Date.
(b) the Closing of the Tadiran Agreement.
8. Registration Rights. The Purchaser shall have registration rights
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with respect to the Shares as detailed in the Registration Right Agreement which
is attached as a schedule of the Tadiran Agreement.
9. Covenant of the Company. The Company covenants and agrees as follows:
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The Company shall use its reasonable best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date, and to satisfy all conditions precedent
to the delivery of the Purchase Price.
10. Covenants of the Purchaser. The Purchaser covenants and agrees as
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follows:
(a) The Purchaser shall use its reasonable best efforts to do and
perform all things required or necessary to be done and performed under
this Agreement by it prior to the Closing Date, and to satisfy all
conditions precedent to the delivery of the Shares.
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(b) The Purchaser agrees that from the date hereof until the fifth
anniversary of the Closing Date, it will not, and will not permit any of
its Affiliates, as defined in the Securities Act, to directly or indirectly
or in conjunction with or through any Associate (as defined in Rule 12b-2
of the Exchange Act), (i) solicit proxies with respect to any capital stock
or other voting securities of the Company under any circumstances, or
become a "participant" in any "election contest" relating to the election
of directors of the Company (as such terms are used in Rule 14a-11 of
Regulation 14A of the Exchange Act) or (ii) make an offer for the
acquisition of substantially all of the assets or capital stock of the
Company or induce or assist any other person to make such an offer or (iii)
form or join any "group" within the meaning of Section 13(d)(3) of the
Exchange Act with respect to any capital stock or other voting securities
of the Company for the purpose of accomplishing the actions referred to in
clauses (i) and (ii). The covenant contained in this section 10(b) shall
expire in relation to the Purchaser upon the sale by the Purchaser of the
Shares issued to it hereunder.
11. Miscellaneous. This Agreement has been and is made for the
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benefit of the Purchaser and the Company, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from the Purchaser merely because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Purchaser to Koor Industries Limited, Beit Platinum,
Ha'arbaah Street, Tel Aviv, attention: Xxxxx Xxx Xxxxxx, with a copy to Xxxx
Xxxxx, Xxxxxx, Xxx and Xxxxxx, 0 Xxxxxxxx Xxxxxx, Xxx Xxxx and (b) if to the
Company, to Xxxxxx Xxxxxx, Electric Fuel Ltd., Western Industrial Zone, X.X. Xxx
000, Xxx Xxxxxxx 00000, Xxxxxx, with a copy to Xxx Xxxx or Xxxxxx Xxxxxx, Adv.,
Meitar, Liquornik, Geva & Co., 00 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx Xxx 00000,
Israel.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Israel, without regard to any conflicts or choice of
law principles which would cause the application of the internal laws of any
jurisdiction other than the State of Israel.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among
us.
Very truly yours,
ELECTRIC FUEL CORPORATION
By /s/
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Title:
Agreed and accepted:
KOOR INDUSTRIES LTD.
/s/ .
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