Exhibit 4.3
EXECUTION COPY
SHARE PURCHASE AGREEMENT
------------------------
Dated September 10, 2004 by and among Trefoil Israel Partners II, L.P., of
0000 Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx, XXX ("Trefoil"),
First Israel Mezzanine Fund L.P. and First Israel Mezzanine Fund (in Israel)
Limited Partnership (together with various affiliated entities "FIMI", and
together with Trefoil, the "Sellers"), and Koor Industries Ltd. (the
"Purchaser"). Each of the Sellers and Purchaser be hereinafter referred to as
a "Party" and collectively the "Parties".
W I T N E S S E T H
WHEREAS, Tadiran Communications Ltd. (the "Company") is a public company
traded on the Tel-Aviv Stock Exchange; and
WHEREAS, Trefoil is the owner and holder of 3,163,375 Ordinary Shares of the
Company par value NIS1.00 each ("Ordinary Shares"), constituting its entire
holdings in the Company representing as of August 31st, 2004 approximately
25.68% of the outstanding share capital of the Company and 25.88% of the
outstanding voting share capital of the Company, and FIMI is the owner and
holder of 780,901 Ordinary Shares of the Company, constituting its entire
holdings in the Company representing as of August 31st, 2004 approximately
6.34% of the outstanding share capital of the Company and 6.39% of the
outstanding voting share capital of the Company (collectively the "Purchased
Shares"); and
WHEREAS, the Sellers wish to sell to Purchaser, and Purchaser desires to
purchase from the Sellers, the Purchased Shares, all under the terms and
subject to the conditions set forth below; and
NOW, THEREFORE, in consideration of the mutual promises and conditions herein
contained, the Parties hereto hereby agree as follows:
1. Purchase of the purchased Shares
--------------------------------
At the Closing (as hereinafter defined), each of the Sellers shall sell and
transfer to the Purchaser its entire portion of the Purchased Shares, free and
clear of any encumbrances or third parties' rights therein, at a price per
Purchased Share of NIS161.5, constituting an aggregate purchase price of: (i)
NIS510,885,062 payable to Trefoil, and (ii) NIS126,115,511 payable to FIMI
(collectively the "Consideration"); provided, however, that in the event that
certain managers of the Company exercise their tag-along rights prior to
Closing, Sellers shall have the option to sell to the Purchaser these
managers' shares as part of the Purchased Shares. For the avoidance of doubt,
in no event shall the Purchaser be obligated to purchase more than the amount
of the Purchased Shares. Sale and transfer of the Purchased Shares shall be
against full and complete payment of the Consideration, by way of wire
transfer in NIS to a bank account designated in writing for that purpose by
each of the Sellers.
2. Closing
-------
The Closing of the transaction contemplated hereunder shall be held at the
offices of Zellermayer Pelossof & Co., 00 Xxxxxxx Xx., Xxx Xxxx, Xxxxxx within
three (3) business days from the satisfaction of all conditions stipulated in
Section 2.1 below but in no event later than the date 90 day from the date
hereof (the "Closing"). This Agreement shall terminate and become void if the
conditions stipulated in Section 2.1 below are not satisfied within the said
90 day period set forth above (unless such period was extended in writing by
all the Parties). In the event of termination in accordance with the terms of
this Section, there shall be no liability on the part of any Party to any of
the other Parties, or their respective officers, directors or affiliates,
provided that each of the aforementioned has used its best efforts to fulfill
the conditions to Closing set forth in Section 2.1 below; provided however,
that the Purchaser shall not be required to accept any approval under
paragraphs 2.1.1 or 2.1.2 below, that contains any unreasonably burdensome
provisions. Any dispute arising on this issue shall be resolved by agreement
between Adv. Xxxxxxx Xxxxxxxxxxx and Adv. Xxxx Xxxxx.
The obligations of each of the Parties to consummate the transaction
contemplated hereunder shall be subject to the satisfaction on or prior to the
Closing of all of the conditions set forth in Section 2.1 below, provided that
the conditions stipulated in Sections 2.1.1 to 2.1.4, may be waived by
Purchaser prior to the Closing. At the Closing, all transactions and all
conditions to Closing shall be deemed to have taken place simultaneously. No
transaction shall be deemed to have taken place at Closing until all
transactions have taken place.
2.1 Conditions to Closing
---------------------
2.1.1 The approval of the Israeli Ministry of Defense to the consummation
of the transaction contemplated hereunder;
2.1.2 The approval of the Israeli Antitrust Authority to the consummation
of the transaction contemplated hereunder as required under the
Restrictive Trade Practices Law 5748-1988;
2.1.3 The approvals to the consummation of the transaction contemplated
hereunder of each of the following financial institutions: (i) Bank
Hapoalim B.M., (ii) Bank Leumi Le'Israel B.M, (iii) Discount Bank
B.M, (iv) Bank Ha'mizrachi United B.M., (v) Bank Leumi Le'Israel New
York, (vi) CityBank, and (vii) Bank BNP (France); and
2.1.4 Any other approval required for the consummation of the transaction
contemplated hereunder under any applicable law or regulations or in
any material agreement to which the Company is a party.
2
EXECUTION COPY
2.2 Closing Deliverables by Sellers
-------------------------------
On Closing and subject to the fulfillment of the obligations of Purchaser
hereunder, each of the Sellers shall deliver to the Purchaser the following:
2.2.1 Duly executed copies of letters of resignation from the Company's board
of directors ("Board") by all of the members of the Board except for
the two external directors and except for Messrs. Xxxx Xxxxxx and Xxxxx
Maidan;
2.2.2 Duly executed copy of minutes of the Board appointing as of Closing the
nominees of the Purchaser to the Board (whose identity shall be
provided to the Sellers at least 7 business days prior to the Closing);
2.2.3 A duly executed copy of letter addressed to Purchaser and signed by
each of the Sellers, confirming that the representations and warranties
contained in Sections 3 and 4 hereto are true and complete at and as of
the Closing as if made at and as of such date;
2.2.4 A duly executed waiver signed by each of the Sellers and addressed to
the Company irrevocably relinquishing any of the Sellers' rights to
receive any unpaid management fees under the Shareholders Agreement
entered into between each of them and the Company on September 6, 1999,
as amended;
2.2.5 The Sellers shall transfer the Purchased Shares to a bank account
designated for this purpose by the Purchaser.
2.3 Closing Deliverables by Purchaser
---------------------------------
At the Closing, and subject to the fulfillment of the obligations of each of
the Sellers hereunder:
2.3.1 Purchaser shall deliver the Consideration in cash, via wire transfer
of immediately available funds to a bank account in Israel designated
by each of the Sellers, as per the provisions of Section 1 hereto.
2.3.2 A duly executed copy of letter addressed to Purchaser and signed by
each of the Sellers, confirming that the representations and
warranties contained in Section 3 hereto are true and complete at and
as of the Closing as if made at and as of such date;
3
EXECUTION COPY
3. Representations and Warranties of each of the Parties
-----------------------------------------------------
Each of the Parties represents and warrants, severally and not jointly, to the
other Parties as follows:
3.1 Full Corporate Power. Such Party has full corporate and/or partnership
power, as applicable, and authority to execute and deliver this Agreement and
any other agreement contemplated hereby, to carry out its obligations
hereunder and thereunder and to consummate the transactions contemplated on
its part hereby and thereby. The execution, delivery and performance by such
Party of this Agreement and any other agreement contemplated hereby have been
duly authorized by all necessary corporate action on the part of such Party,
and no other action on the part of such Party is necessary to authorize the
execution and delivery of this Agreement and any other agreement contemplated
hereby by such Party, or the performance by such Party of its obligations
hereunder. This Agreement has been duly executed and delivered by the Party
and constitutes a legal, valid and binding agreement of such Party,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and subject to general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.2 No Violation. The execution and delivery of this Agreement by such Party,
the performance by such Party of its obligations hereunder and thereunder and
the consummation by it of the transactions contemplated hereby and thereby
will not violate any provision of law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to such Party,
or any agreement to which such Party is a party.
3.3 Financial Ability. In addition, at Closing, the Purchaser will have all
required funds to pay the Consideration in full.
4. Representations and Warranties of the Sellers
---------------------------------------------
Each of the Sellers represents and warrants, severally and not jointly, to the
Purchaser as follows:
4.1 Capitalization and Purchased Shares. The Company's entire authorized share
capital is NIS20,000,000 divided into 20,000,000 Ordinary Shares. As of August
31, 2004, the Company's issued and outstanding share capital is 12,317,169. of
which 93,730 are "Treasury Shares" (i.e. Dormant Shares within the meaning of
the Companies Law 5759-1999). All of the Purchased Shares (and any of the
managers' shares as specified in Section 1.1 above) have been validly issued
are fully paid and owned by their respective holders, and when sold and
transferred to Purchaser at the Closing, shall be free and clear of any
encumbrances or third parties' rights.
4
EXECUTION COPY
4.2 Outstanding Options. As of August 31, 2004, there are 900,108outstanding
options, each is exercisable into one Ordinary Share, , and except for such
options, no other options, warrants, convertible securities or to the Sellers'
best knowledge any obligations to grant or issue any of the foregoing to any
person exist.
4.3 Financial Statements. The audited consolidated financial statements of the
Company for the year ending December 31, 2003 and the reviewed and unaudited
financial statements of the Company for the period ending June 30, 2004 fairly
present the financial situation of the Company and have been prepared in
accordance with Israeli generally accepted accounting principles consistently
applied, and since June 30, 2004 there has not been any material adverse
change in the condition, financials, business, assets, liabilities, or
operations of the Company.
4.4 Compliance. The Company has substantially complied with all reporting and
filing (including immediate reporting) requirements under the provisions of
the Securities Act, 1968 and the regulations promulgated thereunder, and all
such reports are complete and accurate in all material respects.
4.5 No Termination or Material Change. Subject to the full satisfaction of the
conditions to Closing, the consummation of the transactions contemplated
hereby does not constitute a ground for termination of or material changes to
any material agreement or arrangement to which the Company is a party.
4.6 No Other Rights. Other than the acceleration of up to 387,500 options of
directors and certain employees of the Company, no other rights shall accrue
to any of the directors and employees of the Company as a result of the
consummation of the transactions contemplated hereunder.
5. Interim Covenants
-----------------
5.1 Subject to applicable law, the Sellers shall employ their best
efforts to procure that from the date hereof until Closing (the
"Interim Period"):
5.1.1 The business of the Company shall be managed in the ordinary
course;
5.1.2 The Company shall not enter into a any material transaction or
undertaking without the prior consultation with the Purchaser;
5.1.3 The Company shall not make any distributions of any kind to its
shareholders except under the buy-back plan recently approved by the
Board;
5.2 The Seller shall pay to the Purchaser at Closing any amount received
by the Sellers from the Company during the Interim Period in respect
of management fees, dividends or otherwise.
5
EXECUTION COPY
6. General Provisions and Miscellaneous
------------------------------------
6.1 Further Assurance. The Parties hereto shall do and perform or cause to be
done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other Party hereto may reasonably request in order to carry out the
intents and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
6.2 Binding Agreement. This Agreement, including all exhibits and other
documents relating hereto, constitutes the entire agreement between the
Parties hereto with respect to the subject matter hereof and embodies all the
terms binding upon the Parties in respect thereof. No Party to this Agreement
shall be liable or bound in any manner by prior or contemporaneous express or
implied representation, warranty, statement, promise, covenant or agreement
pertaining to said transactions made by it or on its behalf unless same is
expressly set forth or referred to herein.
6.3 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 one or more counterparts have been signed by each of the
Parties and delivered to the other Parties.
6.4 Amendments, Waivers, Discharges and Consents. No amendment, change or
modification of this Agreement or any of the provisions, terms or conditions
hereof, no waiver of a right, remedy, privilege or power, or discharge of an
obligation or liability, conferred upon, vested in or imposed on either Party
under or pursuant to this Agreement, and no consent to any act or omission
pertaining hereto shall come into operation and be effective unless duly
embodied in a written instrument signed by or on behalf of the Party against
whom such amendment, change, modification, waiver, discharge or consent is
asserted or sought.
No failure to exercise and no delay in exercising any right, remedy, privilege
or power under or pursuant to this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, remedy,
privilege or power preclude any other or further exercise thereof or the
exercise of any other right, remedy, privilege or power.
6.5 Partial Invalidity or Unenforceability. If any provision of this Agreement
is held to be invalid or unenforceable, such invalidity or unenforceability
shall not invalidate this Agreement as a whole, but this Agreement shall be
construed as though it did not contain the particular provision held to be
invalid or unenforceable and the rights and obligations of the Parties shall
be construed and enforced only to such extent as shall be permitted by law.
Neither this Agreement as a whole nor any right or obligation hereunder shall
be assignable by any Party without the prior written consent of the other
Parties.
6
EXECUTION COPY
6.6 Governing Law and Arbitration. This Agreement and the rights and
obligations of the Parties hereunder or pursuant hereto shall be governed by
and construed in accordance with the laws of the State of Israel. Any
controversy or claim arising under, out of, or in connection with this
Agreement, its validity, its interpretation, its execution or any breach or
claimed breach thereof shall be settled and resolved by an arbitrator mutually
agreed upon by the Parties ("Arbitrator"). If the Parties are unable to reach
an agreement on the identity of the Arbitrator within thirty (30) days from
the first written request made by a Party hereto requesting the initiation of
such arbitration proceedings, then the Arbitrator shall be a retired District
Court or Supreme Court Judge nominated by the Chair of the Israel Bar
Association. The arbitration proceedings shall take place in Tel Aviv, Israel
in English. Either party may be accompanied and represented by its legal
counsel in such proceedings. The Arbitrator shall be required to provide the
Parties with a reasoned arbitration award in writing within no more than 45
days from initiation of the arbitration proceedings. The Arbitrator shall be
authorized to issue injunctions and interim orders. The Arbitrator shall not
be bound by the provisions of the Israeli civil procedures and rules of
evidence but shall be bound by the substantive laws of the State of Israel.
The Parties shall bear the Arbitrator's fees and expenses in equal shares. The
execution of this Agreement by the Parties shall be deemed the execution of an
arbitration agreement as required by the Israeli Arbitration Law - 1968.
6.7 Agreement. This Agreement is the entire agreement among the Parties and
supersedes and replaces any and all other prior agreements and understandings,
both written and oral, among the Parties, or any of them, with respect to the
subject matter hereof
6.8 Purchaser's Undertaking. Subject to law, Purchaser hereby undertakes to
exert, as of Closing, its best efforts as a shareholder of the Company to
procure that as of the Closing and for a period of seven years thereafter, the
Company shall continue to maintain all indemnification arrangements and
insurance coverage currently provided to each of the Office Holders of the
Company.
6.9 Service of Process. The address for service of process in Israel on
Trefoil shall be Zellermayer Pelossof & Co., 00 Xxxxxxx Xx., Xxx Xxxx, Xxxxxx,
and on FIMI shall be Naschitz, Xxxxxxx & Co. 0 Xxxxx Xxxxxx Xxx-Xxxx 00000,
Xxxxxx.
6.10 Taxes. The Purchaser shall be entitled to deduct any withholding tax or
other duty payable in Israel in respect of the Consideration unless the
Sellers shall procure a certificate of exemption from such tax or duty from
the Israeli Tax Authorities. Any stamp duty applicable to this Agreement shall
be borne by the Parties in equal shares.
[Execution page follows]
7
EXECUTION COPY
IN WITNESS WHEREOF, the Parties hereto have caused this SHARE PURCHASE
AGREEMENT to be duly executed and delivered as of the date first written
above.
---------------------------------------
Trefoil Israel Partners II, L.P.
By: its General Partner:
Trefoil Xxxxxx XX, INC.
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
By: Xxxxxx X. Xxxxxxxxx, Vice President
The Israel Mezzanine Fund, L.P.
By: the General Partner:
First Israel Mezzanine Investors Ltd.
/s/ Illegible
----------------------------------
By:
The Israel Mezzanine Fund (In Israel), Limited Partnership
By: its General Partner:
First Israel Mezzanine Investors Ltd.
/s/ Illegible
----------------------------------
By:
Koor Industries Ltd.
By: /s/ Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxx
------------------------------- -------------------------------
