Exhibit 1
SALE AND TRANSFER AGREEMENT
by and among
CLAL INDUSTRIES AND INVESTMENTS LTD.
CLAL ELECTRONICS INDUSTRIES LTD.
CLAL VENTURE CAPITAL FUND, L.P.
and
INFINITY-NSF FUND, L.P.
dated as of
SEPTEMBER 20, 2007
LIST OF EXHIBITS
Exhibit A Portfolio Securities.
Exhibit B Clal Disclosure Schedule.
Exhibit C Partnerhip Disclosure Schedule.
SALE AND TRANSFER AGREEMENT
This Sale and Transfer Agreement (the "AGREEMENT"), dated as of September
20, 2007, by and among Clal Industries and Investments Ltd., an Israeli company
("CII"), Clal Electronics Industries Ltd., an Israeli company ("CEI"), Clal
Venture Capital Fund, L.P., an Israeli Limited Partnership ("CVC," each a "CLAL
ENTITY" and collectively, the "CLAL ENTITIES"), and the Infinity-NSF Fund, L.P.,
a Cayman Islands exempted limited partnership (the "PURCHASER"). Certain
capitalized terms used in this Agreement shall have the meanings assigned to
them in Article IX hereof.
WHEREAS, the Clal Entities, severally and not jointly, own all of the
Portfolio Securities as listed on EXHIBIT A and the Clal Entities wish to sell,
assign and transfer to the Purchaser all of their right and title in the
Portfolio Securities (the "TRANSFER"); and
WHEREAS, the Purchaser wishes to be the transferee of the Portfolio
Securities for the consideration set forth herein; and
WHEREAS, the general partners of CVC and the Purchaser and the board of
directors of CII and CEI, have approved, and each of them deems it advisable and
in the best interests of its respective shareholders, and partners, as
applicable, to consummate the transactions contemplated hereby, all upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
representations, warranties, covenants and agreements set forth herein,
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE, ASSIGNMENT AND TRANSFER OF ASSETS
Section 1.1 PURCHASE AND SALE, ASSIGNMENT AND TRANSFER OF PORTFOLIO
SECURITIES. Subject to the terms and conditions of this Agreement each relevant
Clal Entity shall, severally and not jointly, sell, convey, assign, transfer and
deliver to the Purchaser, and Purchaser shall purchase and acquire from each
relevant Clal Entity, all of such Clal Entity's right and title to, and any and
all of its interest in, the Approved Portfolio Securities at a Closing occurring
in the manner set forth in Section 2.1. The Clal Entities shall, severally and
not jointly, promptly provide written notice to the Purchaser with respect to
Portfolio Securities that have become Approved Portfolio Securities. All
obligations of the Clal Entities under the Agreement shall be several and not
joint. Subsequent to the Closing, all capital commitments of each Clal Entity
and all of their written undertakings and commitments referenced in the
documents listed in Exhibit B hereto in respect of the Transferred Portfolio
Company shall be the sole obligation of the Purchaser.
Section 1.2 CONSIDERATION FOR TRANSFER OF PORTFOLIO SECURITIES. Subject to
the terms and conditions of this Agreement, in consideration for the sale,
assignment and transfer to the Purchaser of the Approved Portfolio Securities,
the Clal Entities shall receive, or instruct the Purchaser to make payment to
CII, at the Closing from the Purchaser the payment of an amount with respect to
the transfer of Approved Portfolio Securities as set forth in Exhibit A hereto
corresponding to such transferred Approved Portfolio Securities (as set forth on
Exhibit A hereto and as adjusted (if necessary) pursuant to paragraphs 1.2(a)
and 1.2(b) below, the "ORIGINAL PRICE"), subject to the following adjustments:
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(a) the Original Price shall be reduced by an amount equal to the sum
of
(i) total distributions of cash and Marketable Securities
received by the Clal Entities as dividends from (but shall not include
distributions of the securities, or stock dividends, of Unity Wireless
Corporation, a Delaware limited liability company which, for the
avoidance of doubt, shall be transferred to the Purchaser and shall
not result in an adjustment to the Original Price) or as proceeds from
the liquidation, sale or dissolution of the Transferred Portfolio
Company after June 18, 2007 through the date of Closing pertaining to
the Transferred Portfolio Company; and
(ii) in the case of a sale of less than 100% of each share class
of Approved Portfolio Securities, as set forth in Exhibit A, from the
Clal Entities the amount by which the Original Price is reduced
pursuant to such sale; and
(b) the Original Price shall be increased by an amount equal to the
sum of the capital calls funded by and investments made by the Clal
Entities (but only to the extent that such capital calls and investments
were disclosed to the Limited Partner on or prior to the Closing) in the
Transferred Portfolio Company after June 18, 2007 through the date of
Closing pertaining to the Transferred Portfolio Company.
The Original Price, as adjusted pursuant to clauses (a) and (b), shall be
defined as the "FINAL CONSIDERATION".
By virtue of signing this Agreement, CEI and CVC, respectively, hereby (i)
agree that at each Closing CII shall receive the portion of the Final
Consideration paid in respect of Transferred Portfolio Securities that had been
held by CEI or CVC, respectively, and (ii) waive any and all rights and claims
against the Partnership and the Limited Partner in connection therewith.
ARTICLE II
THE CLOSINGS
Section 2.1 THE CLOSING. The transfer of Approved Portfolio Securities (the
"CLOSING") shall take place on the third Business Day of the month after the
month in which Portfolio Securities have become Approved Portfolio Securities,
or at such other time as the parties may agree. The Approved Portfolio
Securities transferred to the Purchaser at the Closing are hereinafter referred
to as "TRANSFERRED PORTFOLIO SECURITIES."
Section 2.2 DELIVERIES BY THE CLAL ENTITIES. The relevant Clal Entities
shall, severally and not jointly, deliver to the Purchaser the following items
in connection with the Closing: copies of (i) duly executed share transfer deeds
and/or stock powers providing for the transfer to the Purchaser of the
Transferred Portfolio Securities based on the "Number and Class of Shares"
column in EXHIBIT A, each such certificate to be duly and validly endorsed in
favor of the Purchaser, and (ii) duly adopted resolutions of the board of
directors of the Transferred Portfolio Company, to the extent required under the
constitutive documents of the Transferred Portfolio Company, approving the
transfer of the Transferred Portfolio Securities, or other confirmations of such
approval.
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Section 2.3 DELIVERIES BY THE PURCHASER. At the Closing, the Purchaser
shall provide the aggregate portion of the Final Consideration relating to the
Transferred Portfolio Securities that were the subject of such Closing as set
forth in Exhibit A as provided herein, and shall deliver to the Clal Entities
any such documents as are required to be delivered to the Clal Entities pursuant
to this Agreement and the Transactions or as reasonably necessary to give effect
to the Transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CLAL
Except as specifically set forth in the Clal Disclosure Schedule, each Clal
Entity represents and warrants, severally and not jointly, that all of the
statements contained in this Article III, as related to that entity, are true
and complete as of the date of this Agreement (or, if made as of a specified
date, as of such date), and will be true and complete as of the Closing Date as
though made on such Closing Date.
Section 3.1 ORGANIZATION. Such Clal Entity is duly organized and validly
existing under the laws of its jurisdiction of organization and has all
requisite corporate or partnership power and authority to carry on its business
as now being conducted.
Section 3.2 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION. Such
Clal Entity has full corporate or partnership power and authority to execute and
deliver this Agreement and to consummate the Transactions as they relate to that
Entity. The execution, delivery and performance of this Agreement and the
consummation of the Transactions have been duly authorized by such Clal Entity's
Board of Directors or general partner, as applicable, and no other corporate or
partnership action on the part of such Clal Entity is necessary to authorize the
execution and delivery by such Clal Entity of this Agreement or the consummation
of the Transactions. Upon due execution and delivery by such Clal Entity, and,
assuming due and valid authorization, execution and delivery hereof by the
Purchaser and each other Clal Entity, this Agreement is a valid and binding
obligation of such Clal Entity, enforceable against such Clal Entity in
accordance with its terms as it relates to that entity except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws of general application affecting enforcement
of creditors' rights generally and (ii) the availability of the remedy of
specific performance or injunctive or other forms of equitable relief may be
subject to equitable defenses and would be subject to the discretion of the
court before which any proceeding therefor may be brought.
Section 3.3 GOOD TITLE CONVEYED. Subject to the Transfer Limitations and
expressly subject to the Purchaser's representations set forth in Sections 4.4
and 4.5 hereof, the Clal Entities have good, valid and marketable title and all
rights and interests to the Portfolio Securities being transferred on the
Closing Date, and such Portfolio Securities are not subject to any encumbrances,
liens, impairments or the right or claims of any other person.
Section 3.4 DISCLOSURES. Except as listed on Exhibit B, no Clal Entity or
any Affiliate thereof is party to any agreement, undertaking or arrangement
pertaining to the Transferred Portfolio Securities.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as specifically set forth in the Purchaser Disclosure Schedule, the
Purchaser represents and warrants that all of the statements contained in this
Article IV are true and complete as of the date of this Agreement (or, if made
as of a specified date, as of such date), and will be true and complete as of
the Closing Date as though made on such Closing Date.
Section 4.1 ORGANIZATION. The Purchaser is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and has
all requisite partnership power and authority to carry on its business as now
being conducted.
Section 4.2 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION. The
Purchaser has full organizational power and authority to execute and deliver
this Agreement and to consummate the Transactions. The execution, delivery and
performance by the Purchaser of this Agreement and the consummation of the
Transactions have been duly authorized by the general partner of the Purchaser,
and no other action on the part of Purchaser or its general partner is necessary
to authorize the execution and delivery by the Purchaser of this Agreement or
the consummation of the Transactions. Upon due execution and delivery by the
Purchaser, and, assuming due and valid authorization, execution and delivery
hereof by the Clal Entities, this Agreement is a valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
Section 4.3 KNOWLEDGE AND EXPERIENCE. The Purchaser understands that the
Transactions involve substantial risk. In addition, the Purchaser has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of the transactions contemplated by this
Agreement.
Section 4.4 LIMITATIONS. Without limiting any representation or warranty of
the Clal Entities contained herein, the Purchaser understands and agrees that
the Transferred Portfolio Securities are transferred "as is" pursuant to the
terms of this Agreement and no representations or warranties pertaining thereto
have been made to the Purchaser except as may be provided herein.
Section 4.5 RESTRICTIONS ON TRANSFER. The Purchaser acknowledges that the
Portfolio Securities may be subject to certain restrictions on transfer
including, without limitation, first refusal and/or first offer rights, co-sale
rights and lock-ups, that the Clal Entities will seek to apply and/or obtain
waivers of such rights as provided under the constitutive documents of the
Portfolio Company, that the application of such rights may preclude the Clal
Entities from transferring all or a portion of the Portfolio Securities to the
Purchaser, that the application of co-sale rights may require the Purchaser to
acquire interests in the Portfolio Company in addition to the interests of the
Clal Entities as set forth in Exhibit A hereto, that the consent of the board of
directors of the Portfolio Company may be required in order to effect the
transfer of the relevant Clal Entity's holdings in the Portfolio Company and
that such restrictions may apply to the transfer of the Transferred Portfolio
Securities to the Purchaser as well as the subsequent issuance of interests in
the Purchaser (collectively, the "TRANSFER LIMITATIONS").
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Section 4.6 FURTHER INFORMATION. The Purchaser acknowledges that it has
been given the opportunity to ask such questions of, and receive answers from
the Clal Entities concerning the transactions contemplated by this Agreement.
Section 4.7 EXCLUDED INFORMATION. The Purchaser acknowledges that, except
as expressly stated, it is not relying upon any representations or warranties of
the Clal Entities, including as to material non-public information that may be
in the possession of the Clal Entities (the "EXCLUDED INFORMATION"). The
Purchaser agrees that the Clal Entities shall neither be obligated to disclose
any Excluded Information or have any liability to it with respect to any such
non-disclosure. The Purchaser hereby waives any and all claims and causes of
action now or hereafter arising against the Clal Entities based upon or relating
to such non-disclosure and further covenants not to xxx the Clal Entities or any
of their partners, members, directors, officers, employees, agents or Affiliates
for any Damages arising from or relating to such non-disclosure. Except as
provided in Section 8.1(b), the Purchaser hereby waives any and all claims and
causes of action now or hereafter arising against the Clal Entities in the event
that the Portfolio Company cannot be transferred or in any way related to the
Transfer Limitations. It is understood and agreed that the Clal Entities do not
make any representation or warranty whatsoever with respect to the business,
condition (financial or otherwise), properties, prospects, creditworthiness,
status or affairs of the Portfolio Company, or with respect to the value or
transferability of the Portfolio Securities.
ARTICLE V
COVENANTS
Section 5.1. PRESS RELEASES/ANNOUNCEMENTS. Until the Closing, or the date
the Transactions are terminated or abandoned pursuant to Article VII, no party
nor any of their respective Affiliates shall issue or cause the publication of
any press release or other announcement with respect to this Agreement or the
other Transactions without prior consultation with the other parties, PROVIDED
THAT, any party thereto may disclose information concerning this Agreement or
the Transaction if, in the opinion of its counsel (in its sole discretion), it
is necessary, appropriate or advisable to comply with applicable laws, rules or
regulations of any regulatory agency or stock exchange applicable to them or
their direct or indirect parent companies and further provided that the parties
may need to disclose this Agreement in its financial statements and periodic
reports to its partners. Without derogating from the foregoing, the initial
press release with respect to the Agreement shall be a joint press release
acceptable to the parties.
Section 5.2. ACTIONS TAKEN BY CLAL. Each Clal Entity agrees to act in
accordance with the applicable provisions in the constitutive documents of the
Portfolio Company in seeking to satisfy the Transfer Limitations in connection
with the transfer of the Portfolio Securities. Purchaser acknowledges and agrees
that the Clal Entities will act in accordance with this Section 5.2.
Section 5.3. ACTIONS TAKEN BY THE PURCHASER. The Purchaser agrees to
cooperate with any reasonable request of any Clal Entity in order to assist it
in complying with Section 5.2 hereof. For the avoidance of doubt, Purchaser
acknowledges and agrees that, without derogating from its obligations under this
Agreement, it shall be obligated to acquire any shares of the Portfolio Company
that may be sold by a shareholder thereof in exercising such shareholder's
co-sale rights in connection with the Transactions contemplated hereby.
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ARTICLE VI
CONDITIONS
Section 6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE CLOSING.
The respective obligation of each party to effect the Closing shall be subject
to the satisfaction at or prior to the date thereof of each of the following
conditions:
(a) STATUTES; COURT ORDERS. No statute, rule or regulation shall have
been enacted or promulgated by any Governmental Entity which prohibits the
consummation of the Closing; and there shall be no order or injunction of a
court of competent jurisdiction in effect precluding consummation of the
Closing.
(b) TERMINATION. This Agreement shall not have been terminated in
accordance with its terms.
(c) COOPERATION. The failure to obtain or deliver the items required
to be delivered pursuant to Section 2.2(ii), despite the reasonable efforts
of parties to the Transfer, shall not be deemed a default of the Clal
Entities party to such Transfer.
Section 6.2 CONDITIONS TO OBLIGATIONS OF THE PURCHASER TO EFFECT THE
CLOSING. The obligations of the Purchaser to consummate the Closing shall be
subject to the satisfaction on or prior to the date thereof each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Clal Entities set forth in this Agreement shall be true
and complete in all material respects, in each case as of the date of this
Agreement and as of the Closing Date.
(b) CLAL DELIVERIES. The Clal Entities shall have delivered to the
Purchaser each of the items listed in Section 2.2.
The foregoing conditions are for the sole benefit of the Purchaser and
may be waived, with the consent of the Limited Partner, by the Purchaser,
in whole or in part, at any time and from time to time. The failure by the
Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
Section 6.3 CONDITIONS TO OBLIGATION OF THE CLAL ENTITIES TO EFFECT THE
CLOSING. The obligation of the Clal Entities to consummate a Closing shall be
subject to the satisfaction on or prior to the date thereof each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Purchaser set forth in this Agreement shall be true and
complete in all material respects, in each case as of the date of this
Agreement and as of the Closing Date;
(b) PURCHASER DELIVERIES. The Purchaser shall have delivered to the
Clal Entities each of the items listed in Section 2.3.
The foregoing conditions are for the sole benefit of the Clal Entities and
may be waived by the Clal Entities, in whole or in part, at any time and from
time to time in the sole discretion of the Clal Entities. The failure by the
Clal Entities at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an ongoing
right which may be asserted at any time and from time to time.
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ARTICLE VII
TERMINATION
Section 7.1 TERMINATION. The Transaction may be terminated or abandoned
only if and when the Sale and Transfer Agreement among the parties hereto of
even date herewith is terminated or abandoned.
Section 7.2 EFFECT OF TERMINATION. In the event of the termination or
abandonment of the Transactions by any party hereto pursuant to the terms of
this Agreement, written notice thereof shall forthwith be given to the other
party or parties specifying the provision hereof pursuant to which such
termination or abandonment of the Transaction is made, and there shall be no
liability or obligation thereafter on the part of the Purchaser or the Clal
Entities.
ARTICLE VIII
INDEMNIFICATION; SURVIVAL
Section 8.1 INDEMNIFICATION. The Purchaser or its designees (the
"INDEMNIFYING PARTY") shall indemnify, defend and hold harmless the Clal
Entities and any of their partners, members, directors, officers, employees,
agents or affiliates (the "INDEMNIFIED PARTY") for any and all liabilities,
demands, claims, actions or causes of action, assessments, losses, damages,
costs and expenses imposed or sustained, incurred or suffered, directly or
indirectly (the "DAMAGES") resulting from the Transaction. Any indemnification
provided by the Indemnifying Party to all Indemnified Parties with respect to
Damages resulting from the Transaction shall be limited to the portion of the
Final Consideration relating to the Transferred Portfolio Securities that are
the subject of such Transaction unless the amount of Damages awarded is pursuant
to the order of a court of competent jurisdiction or a settlement consented to
by the Indemnifying Party, in which case the amount of indemnification shall be
the amount of the order or settlement plus, in such case, legal expenses
incurred by the Indemnified Party (and not previously reimbursed by the
Indemnifying Party) in connection with the defense of the related claim.
Pursuant to the terms of Section 8.2, the Indemnifying Party can compel the
Indemnified Party to appeal any such court order or subsequent order, to the
extent such appeal(s) is available.
Section 8.2 DEFENSE. The parties shall provide the other parties prompt
notice of any third-party claim under Section 8.1 provided that no delay in
providing such notice shall affect the Indemnified Party's rights under this
Article VIII, unless (and then only to the extent that) the Indemnifying Party
is materially prejudiced thereby. The Indemnified Party shall apprise the
Indemnifying Party of the status of the claim or dispute periodically on a
reasonable basis, or pursuant to reasonable requests of the Indemnifying Party.
The Indemnified Party shall not consent to the settlement of any claim without
the consent of the Indemnifying Party. The Indemnifying Party shall have the
right to assume the defense (at its expense) of any such claim through counsel
of its own choosing by so notifying the Indemnified Party within 30 days of the
first receipt by the Indemnifying Party of such notice. If the Indemnifying
Party assumes such defense, the Indemnified Party shall have the right to
participate in the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the Indemnifying Party, it being
understood that the Indemnifying Party shall control such defense. If the
Indemnifying Party chooses to defend or prosecute a third-party claim, the
Indemnified Party shall reasonably cooperate in the defense or prosecution
thereof at the expense of the Indemnifying Party. Nothing in this Section 8.2
shall derogate from the obligations of the Purchaser under Section 8.1.
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Section 8.3 SURVIVAL. The representations of the Clal Entities in Article
III hereof with respect to Transferred Portfolio Securities shall expire upon
the Closing.
ARTICLE IX
DEFINITIONS AND INTERPRETATION
Section 9.1 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context clearly requires otherwise:
"AFFILIATE" shall mean a Person who directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, any other Person.
"AGREEMENT" or "THIS AGREEMENT" shall mean this Transfer Agreement,
together with the Exhibits and appendices hereto.
""APPROVED PORTFOLIO SECURITIES" shall mean (a) Portfolio Securities whose
transfer from the Clal Entities to the Purchaser have been approved by the board
of directors of the Portfolio Company, where such approval is required by such
Portfolio Company's constitutive documents and any conditions contained in the
board of directors' approval have been satisfied, and all other Transfer
Limitations have been applied or waived, in each case, in accordance with the
Portfolio Company's constitutive documents, and (b) all other Portfolio
Securities as to which approval of such transfer is not required and such
Transfer Limitations do not apply.
"BUSINESS DAY" shall mean any day (except Friday) on which banks are open
for business in both Tel Aviv and New York City.
"CLAL DISCLOSURE SCHEDULE" shall mean the disclosure schedule of even date
herewith delivered to the Purchaser simultaneously with the execution hereof.
"CLOSING" shall have the meaning ascribed to such term in Section 2.1.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"DAMAGES" shall have the meaning ascribed to such term in Section 8.1.
"DISCLOSURE SCHEDULE" shall mean the Clal Disclosure Schedule or the
Purchaser Disclosure Schedule, as the case may be.
"EXCLUDED INFORMATION" shall have the meaning ascribed to such term in
Section 4.7.
"FINAL CONSIDERATION" shall have the meaning ascribed to such term in
Section 1.2.
"GOVERNMENTAL ENTITY" shall mean a court, arbitral tribunal, administrative
agency or commission or other governmental or other regulatory authority or
agency.
"LIMITED PARTNER" shall mean the Newbury Secondary Fund, L.P., a Delaware
limited partnership.
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"LIMITED PARTNERSHIP AGREEMENT" shall mean the Amended and Restated Limited
Partnership Agreement of the Purchaser.
"LIMITED PARTNERSHIP INTEREST" shall mean the rights and obligations
conferred upon Limited Partners pursuant to the Limited Partnership Agreement.
"MARKETABLE SECURITIES" shall mean securities that are traded on an
established U.S. or foreign securities exchange, reported through the U.S.
National Association of Securities Dealers, Inc. Automated Quotation System or
comparable foreign established over-the-counter trading system, otherwise traded
over-the-counter or traded on PORTAL (in the case of securities eligible for
trading pursuant to Rule 144A under the Securities Act or any successor rule
thereto ("RULE 144A")); PROVIDED that any such securities shall be deemed
Marketable Securities only if they are freely tradeable and not subject to any
contractual restrictions on transfer. Freely tradeable for this purpose shall
mean securities that, following their distribution by the Purchaser to a limited
partner, would be either (A) transferable by a limited partner pursuant to
Section 4(l) of the Securities Act or a then effective registration statement
under the Securities Act (or similar applicable statutory provisions in the case
of foreign securities), (B) transferable by a limited partner who are not
Affiliates of the General Partner pursuant to Rule 144(k) under the Securities
Act or any successor rule thereto (or similar applicable rule in the case of
foreign securities) or (C) transferable by a limited partner pursuant to Rule
144A which shall include (x) a covenant by the issuer of such security to comply
with the reporting and informational requirements under Rule 144A and (y)
eligibility for trading such securities on PORTAL.
"ORIGINAL PRICE" shall have the meaning ascribed to such term in Section
1.2.
"PURCHASER DISCLOSURE SCHEDULE" shall mean the disclosure schedule of even
date herewith delivered to the Clal Entities simultaneously with the execution
hereof.
"PURCHASER" shall have the meaning ascribed to such term in the preamble.
"PERSON" shall mean a natural person, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Entity or other entity or organization.
"PORTFOLIO COMPANY" shall mean the entity that has issued any of the
Portfolio Securities as set out in EXHIBIT A.
"PORTFOLIO SECURITIES" shall collectively mean the respective number of
shares of the Portfolio Company set forth opposite each such entity's name as
stated in EXHIBIT A.
"TRANSACTION" shall mean each transfer of Approved Portfolio Securities at
the time of a Closing.
"TRANSFER" shall have the meaning ascribed to such term in the preamble.
"TRANSFER LIMITATIONS" shall have the meaning ascribed to such term in
Section 4.5.
"TRANSFERRED PORTFOLIO COMPANY" shall mean the Portfolio Company at such
time at which the Portfolio Securities are Transferred Portfolio Securities.
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"TRANSFERRED PORTFOLIO SECURITIES" shall have the meaning ascribed to such
term in Section 2.1.
ARTICLE X
MISCELLANEOUS
Section 10.1 FEES AND EXPENSES. All costs and expenses incurred in
connection with this Agreement and the consummation of the Transactions shall be
paid by the party incurring such expenses, except as specifically provided to
the contrary in this Agreement.
Section 10.2 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented in any and all respects, but only by a written
instrument signed by all of the parties hereto expressly stating that such
instrument is intended to amend, modify or supplement this Agreement.
Section 10.3 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if mailed, delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Purchaser, to: Infinity-NSF Fund, L.P.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xxxxx Xxxx
Fax: 000-000-0000
with copies to: Newbury Partners LLC
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xxxxx Xxxx
Fax: 000-000-0000
If to the Clal Entities, to: Clal Industries and Investments Ltd.
3 Azrieli Center
Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx 00000 Xxxxxx
Attention: Xxxxx Xxxxx, Adv.
Fax: x000-0-000-0000
with a copy to: Fischer, Behar, Chen, Well, Orion & Co.
0 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxx 00000 Israel
Attention: Xxx Xxxxxxx, Adv.
Fax: x000-0-0000000
Section 10.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties.
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Section 10.5 ENTIRE AGREEMENT. This Agreement, including the Exhibits and
appendices hereto constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and thereof.
Section 10.6 THIRD PARTY BENEFICIARY For the avoidance of doubt, the
Limited Partner shall be deemed a third party beneficiary of the rights and
interests arising from and in connection with this Agreement, in particular
Clal's representations in Article III and undertaking in Section 5.2.
Section 10.7 SEVERABILITY. Any term or provision of this Agreement that is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction or other authority declares that any term or provision
hereof is invalid, void or unenforceable, the parties agree that the court
making such determination shall have the power to reduce the scope, duration,
area or applicability of the term or provision, to delete specific words or
phrases, or to replace any invalid, void or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision.
Section 10.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel.
Section 10.9 VENUE. The parties irrevocably consent to the exclusive
jurisdiction of any competent court located within the city of Tel Aviv-Jaffa
with respect to any and all disputes arising from this Agreement.
Section 10.10 EXTENSION; WAIVER. At any time prior to a Closing, with
respect to the transactions being consummated at such Closing, the parties may
(a) extend the time for the performance of any of the obligations or other acts
of the other parties, (b) waive any inaccuracies in the representations and
warranties of the other parties contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) waive compliance by the other
parties with any of the agreements or conditions contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of those rights.
Section 10.11 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
content of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
11
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement or
caused this Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
CLAL ELECTRONICS INDUSTRIES LTD. INFINITY-NSF FUND L.P.
By: _______________________ By: Infinity-Partners Ltd., its General
Partner
Name: ________________________ By:_____________________
Title: Name:
Title:
CLAL VENTURE CAPITAL FUND, L.P. CLAL INDUSTRIES AND INVESTMENTS LTD.
By: _______________________, its By: _______________________
General Partner
By:________________________ Name: ________________________
Name: Title:
Title:
12
EXHIBIT A
PORTFOLIO SECURITIES
----------------- ------------------------------- ----------------- ------------
Unity Wireless(1) Common Stock 5,126,416 $100,000
------------------------------- -----------------
Warrants issued pursuant to the 2,278,412
sale of Celletra Ltd.
------------------------------- -----------------
Warrants issued pursuant to the 119,963
sale of Avantry Ltd.
------------------------------- -----------------
Convertible Promissory Note Principal Amount
issued pursuant to the sale $349,893.48
of Avantry Ltd.
----------------- ------------------------------- ----------------- ------------
----------
(1) Additional shares which may be issued to the Clal Entities in the future in
accordance with prior agreements between the Clal Entities and Unity
Wireless shall be issued to the Purchaser.
13
EXHIBIT B
CLAL DISCLOSURE SCHEDULE
SECTION 1.2(A), (B) ADJUSTMENTS
None.
PORTFOLIO COMPANY DILIGENCE DOCUMENTS PROVIDED
-------------------------- ------------------------------------
PORTFOLIO COMPANY DOCUMENTS RECEIVED
-------------------------- ------------------------------------
Unity Wireless Documentation as available on Xxxxx.
-------------------------- ------------------------------------
14
EXHIBIT C
PURCHASER DISCLOSURE SCHEDULE
No items to include.
15
