Exhibit 1
THIS SHAREHOLDERS AGREEMENT (the
“Agreement”) is made as of this 3rd day of September, 2009, by
and between (i) Ronex Holdings, Limited Partnership (“Ronex”), an
Israeli limited partnership wholly owned by certain limited partnerships managed by FIMI
IV 2007 Ltd. and FIMI Opportunity 2005 Ltd., and (ii) the persons set forth on the
signature page hereto (together, “Alpha”).
| WHEREAS, |
Retalix Ltd. (the “Company”) is an Israeli public company, whose Ordinary
Shares, nominal value NIS 1.00 each (“Ordinary Shares”), are traded on
the Tel-Aviv Stock Exchange and Nasdaq Global Select Market (“Nasdaq”);
and |
| WHEREAS, |
Ronex
and its affiliates own, directly and indirectly, as of the date hereof 3,253,367
Ordinary Shares of the Company; and |
| WHEREAS, |
Subject to the consummation of the transactions contemplated under that certain Purchase
Agreement dated as of the date hereof, by and between Alpha and the Company (the “Purchase
Agreement”), Alpha will own at the Closing thereof (the “Closing”)
such number of Ordinary Shares representing approximately 20% of the issued and
outstanding share capital of the Company and warrants to purchase from the Company up to
1,250,000 Ordinary Shares; and |
| WHEREAS, |
Ronex and Alpha (each, a “Shareholder” and, collectively, the “Shareholders”)
wish to set forth the general terms and conditions with respect to their relationship vis-à-vis
the Company and their holdings of Ordinary Shares of the Company, as of the date hereof. |
NOW, THEREFORE, in
consideration of the mutual promises contained in this Agreement, the parties hereto agree
as follows:
| 1. |
Board
of Directors; CEO. |
| |
1.1. |
The
Shareholders hereby agree to vote in any shareholders meeting during the
term of this Agreement, all of the Ordinary Shares of the Company
(including without limitation, Ordinary Shares owned following the
exercise, conversion or exchange of any options or warrants to purchase
Ordinary Shares, or other securities convertible into, or exercisable for,
Ordinary Shares (collectively, “Convertible Securities”)),
now or hereafter owned or controlled by them, whether beneficially or
otherwise held by them or their affiliates, for the election to the Company’s
board of directors (“Board”) of: (i) six (6) directors
designated by Alpha and three (3) directors designated by Ronex, and (ii)
two (2) external directors designated by Ronex. |
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1.2. |
If
required under applicable law, one of the persons designated by Ronex shall
be female. |
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1.3. |
If
and so long as required under applicable law, rules and regulations, the
Shareholders shall cooperate and use reasonable efforts to designate
directors so that: (i) one of the directors shall qualify as financial
expert in accordance with Nasdaq rules and regulations and, if applicable,
Israeli Companies Law, 1999; (ii) a majority of the Board shall be
considered “independent directors” as defined under Nasdaq rules
and regulations; and (iii) the Company shall have a lawful audit
committee, inter alia, taking into account Section 115 of the Israeli
Companies Law, 1999. Until the second anniversary of the Closing, if Alpha
exercises its right to designate directors to the Company’s Board of
Directors pursuant to this Agreement, then, subject to and to the extent
permitted by applicable law, a majority of the Alpha Promoters (as defined
below) will be designated by Alpha to serve as directors (taking into
account, for such purpose, the Alpha Promoters then serving as directors). |
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1.4. |
To
the maximum extent permitted by applicable law, including fiduciary duties
under applicable law, the Shareholders shall use their reasonable efforts
to cause a number of board designees of Alpha and Ronex, in the same
proportion reflected in the Company’s Board pursuant to Section 1.1
above, to be elected or appointed to the board of directors of any of the
Company’s active subsidiaries. |
| |
1.5. |
The
identity of the Company’s Chief Executive Officer shall be determined
by Board of Directors. Ronex shall be given an opportunity to meet with
the candidate. Alpha shall consult with Ronex prior to determining the
identity of the Company’s Chief Executive Officer, and shall use
commercially reasonable efforts to accommodate the views of Ronex in
connection therewith and take them into account in making its decision. |
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1.6. |
Each
Shareholder agrees not to, and to cause its respective affiliates not to,
whether directly or indirectly, (i) make, or in any way participate in any
“solicitation” of “proxies” to vote (as such terms are
used in the rules under the Securities Exchange Act of 1934 (collectively,
as amended, the “Exchange Act”)), submit any shareholder
proposal to the Company or demand that the Company convene a shareholders
meeting, or (ii) seek to advise or influence any person or entity with
respect to the voting of any voting securities of the Company; in each
case, in respect of any resolution or matter which conflicts, violates or
contravenes the provisions of this Section 1. |
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1.7. |
Each
Shareholder shall vote, and cause its affiliates to vote, any of their
respective Ordinary Shares now or hereafter owned or controlled by them,
whether directly or beneficially, AGAINST any proposed resolution which
may conflict, violate or contravene any of the provisions of this Section
1. |
| 2. |
Sale
of Ordinary Shares by a Shareholder. |
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2.1. |
At
any time, and from time to time after the Closing, if a Shareholder (the
“Selling Party”) wishes to sell or otherwise transfer
(each, a “Transfer”), whether directly or indirectly, in
one or a series of transactions, a block of Ordinary Shares that
represents in the aggregate 5% (five percent) or more of the issued and
outstanding share capital of the Company on the date of the Offer (as
defined below), such Selling Party shall be required to first offer the
Ordinary Shares that such Shareholder wishes to Transfer (the “Offered
Shares”) to the other Shareholder(s) (each, the “Offeree”).
For the purpose of this Section 2, (i) Transfers of Ordinary Shares to any
person or group of persons (other than to Permitted Transferees) of an
aggregate of 5% (five percent) or more of the issued and outstanding share
capital of the Company during any six months period shall be subject to
this Section; (ii) Transfers of Ordinary Shares that, to the Selling Party’s
knowledge (based solely on a representation or public filing made by the
transferee(s) as to their holdings prior to the Transfer), result in any
person or group of persons holding in the aggregate 5% (five percent) or
more of the issued and outstanding share capital of the Company shall be
subject to this Section; (iii) unless expressly stated otherwise, any
reference in this Section to “Shareholder” shall also include
its Permitted Transferees which following a Permitted Transfer (as defined
below) become the holders or owners of Ordinary Shares, whether directly
or beneficially; and (iv) any Permitted Transferees of the Selling Party,
which are or become the holders or owners of Ordinary Shares, whether
directly or beneficially, shall not be deemed an Offeree in a Transfer by
such Selling Party. |
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2.2. |
The
Selling Party shall send the Offeree(s) a written offer in which the Selling
Party shall specify the following information (the “Offer”):
(i) the number of Offered Shares that the Selling Party proposes to sell
or transfer; (ii) a representation and warranty that the Offered Shares
proposed to be sold or transferred are free and clear of all liens,
pledges, debts, security interests and other third party interests; and
(iii) the price that the Selling Party intends to receive in respect of
the Offered Shares, which shall be stated in cash, and the requested terms
of payment thereof. |
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2.3. |
The
Offer shall constitute an irrevocable offer made by the Selling Party to
Transfer to such Offeree(s) the Offered Shares covered by the Offer, upon
the terms specified in the Offer and as described below. In case of more
than one Offeree, each Offeree shall be entitled to purchase its pro rata
portion of the Offered Shares and any pro rata portion that the other
Offerees declined or failed to purchase (for the purposes of this Section
2, “pro-rata portion” of an Offeree shall mean: a fraction, the
nominator of which shall be the number of issued and outstanding shares
held by such Offeree and the denominator of which shall be the aggregate
number of all issued and outstanding shares held by the Offerees). An
Offeree that wishes to purchase the Offered Shares, shall notify the
Selling Party of its agreement to purchase the Offered Shares by no later
than 3 business days of receipt of the Offer, indicating the maximum
number of Offered Shares it wishes to so purchase (and, without derogation
from the above, it is clarified that the pro-rata portion of the Offered
Shares of any single member comprising of Alpha need not necessarily
reflect such member’s pro-rata portion holdings vis-à-vis the
other members of Alpha). The Selling Party shall be obligated to sell the
Offered Shares to the Offeree(s) only if the acceptance(s) of the Offer by
the Offeree(s), in the aggregate, is in respect of all (but not less than
all) of the Offered Shares on the terms and conditions as described in the
Offer. |
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2.4. |
If
the Offeree(s) decline(s) to purchase the Offered Shares in their entirety
upon the terms specified in the Offer or do(es) not respond to the Offer
within the period mentioned above, the Selling Party may Transfer all the
Offered Shares (but not less than all, and subject to Section 3 below) to
a third party, provided that such Transfer is consummated (i) in a bona
fide transaction, (ii) at a price that is not lower than that specified in
the Offer, and other terms (including, payment terms) that are no more
favorable to the purchaser than those specified in the Offer, and (iii)
within 90 days following the expiration of the foregoing 3 business-days
period. Any transaction contemplated under the Offer that is not
consummated by the Selling Party in compliance with the preceding
sentence, shall require the Selling Party to again comply with the terms
and conditions of this Section 2. |
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2.5. |
If
the Offeree(s) agree(s) to purchase the Offered Shares upon the terms
specified in the Offer, the Selling Party shall sell the Offered Shares to
the Offeree(s) against payment by the Offeree(s) of the aggregate
consideration as specified in the Offer. The closing of the purchase of
the Offered Shares shall take place on the later of (i) the third business
day following the acceptance(s) of the Offer by the Offeree(s), or (ii)
such time as the regulatory approvals and requirements with respect to the
purchase of such Offered Shares (if any) shall have been satisfied (other
than the internal corporate approvals of each of the parties to such
transaction which shall be obtained at the entry into such transaction),
at such place in Israel as the relevant parties shall agree. |
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2.6. |
Without
derogating from the provisions of the above sub-Sections in this Section 2
and Section 3, a Shareholder that wishes to Transfer, in one or a series of
transactions, Ordinary Shares in such amount that following such Transfer
the Shareholder’s holding in the Company will be less than 9% of the
then issued and outstanding share capital of the Company (a “Qualified
Sale”), will (i) notify the other Shareholder in writing of its
intention to do so prior to the consummation of the Qualified Sale, and in
any event no less than 60 days in advance; and (ii) will not consummate
such Qualified Sale until the expiration of the no sale period provided
for in the Purchase Agreement (in the case the Selling Party is Alpha). In
case a notice of a Qualified Sale is given pursuant to the preceding
sentence, the Selling Party agrees, that in the event that the Offeree
proposes to cause the Company to adopt takeover defense measures, the
Selling Party shall vote FOR the adoption of any such takeover defense
measures and shall take such other reasonable actions as it shall be
required in order to cooperate with the Offeree(s) in causing the Company
to implement such defense measures prior to the consummation of the
Qualified Sale. |
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3.1. |
Without
derogating from Section 2 above, if the Offeree(s) decline(s) to purchase
the Offered Shares in their entirety upon the terms specified in the Offer
or do(es) not respond to the Offer within the 3 business-days period
mentioned in Section 2.3, a Selling Party who wishes to Transfer a block
of Ordinary Shares that represents in the aggregate 5% (five percent) or
more of the issued and outstanding share capital of the Company on the
date of the Tag Along Offer (as defined below) to a proposed third party
purchaser (the “Proposed Purchaser”), shall send
the other Shareholder(s) (each, a “Tag Along Shareholder”)
a written notice in which the Selling Party shall specify the following
information (the “Tag Along Offer”): (i) the number of shares that the
Selling Party proposes to sell or transfer (the “Tag Along Shares”);
and (ii) the price that the Selling Party will receive in respect of the
Tag Along Shares, which shall be stated in cash, and the requested terms
of payment thereof; (iii) the proposed date for sale of the Tag Along
Shares; and (iv) the identity of the proposed third party purchaser. For
the purpose of this Section 3, (i) a proposed Transfer of Ordinary Shares
to any person or group of persons (other than to Permitted Transferees) of
an aggregate of 5% (five percent) or more of the issued and outstanding
share capital of the Company during any six months period shall be subject
to this Section; (ii) unless expressly stated otherwise, any reference in
this Section to “Shareholder” shall also include its Permitted
Transferees which become the holders or owners of Ordinary Shares, whether
directly or beneficially following a Permitted Transfer, and (iv) any
Permitted Transferees of the Selling Party, which are or become the
holders or owners of Ordinary Shares, whether directly or beneficially,
shall not be deemed a Tag Along Shareholder in a Transfer by such Selling
Party. |
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3.2. |
Each
Tag Along Shareholder shall have the right to notify the Selling Party in
writing, within three (3) business days after it is informed of the Tag
Along Offer of its intention to exercise its tag along right pursuant to
this Section 3 (the “Tag Along Exercise Notice”), in an
amount of Ordinary Shares of up to the Tag Along Shareholder’s
Pro-Rata Portion (as defined below), as the Tag Along Shareholder shall
specify in the Tag Along Exercise Notice, and on the same terms and
conditions to the Tag Along Shareholder as set forth in the Tag Along
Offer. |
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3.3. |
A
Tag Along Shareholder’s “Pro-Rata Portion” shall mean
the number of Tag Along Shares multiplied by a fraction, (i) the numerator
of which shall be the number of Ordinary Shares held by such Tag Along
Shareholder and (ii) the denominator of which shall be the total number of
Ordinary Shares held by all Tag Along Shareholder(s) as of such date, plus
the total number of Ordinary Shares held by the Selling Party as of such
date. Without derogating from the above, it is clarified that the pro-rata
portion of any single member comprising of Alpha of the Tag Along
Shareholder’s Pro-Rata Portion need not necessarily reflect such
member’s pro-rata portion holdings vis-à-vis the other members
of Alpha. |
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3.4. |
In
the event that any Tag Along Shareholder exercises its right hereunder, the
Selling Party shall use commercially reasonable efforts to cause the
Proposed Purchaser to add such number of Ordinary Shares indicated in the
Tag Along Exercise Notice(s), in addition to the Tag Along Shares to be
purchased by the Proposed Purchaser from the Selling Party, as part of the
sale agreement; or, in the event that the Proposed Purchaser declines to
purchase the total number of Ordinary Shares that the parties wish to
sell, then the number of Tag Along Shares proposed to be sold by the
Selling Party shall be accordingly reduced to the extent necessary to
provide for the Transfer by the Tag Along Shareholder(s) of its/their
Ordinary Shares as indicated in its Tag Along Exercise Notice(s); provided
however, that a Tag-Along Shareholder exercising its tag along right
pursuant to this Section in respect of less than its Pro-Rata Portion
shall sell such lower amount, with the balance thereof to be allocated
pro-rata among the other Tag-Along Shareholder(s) and the Selling Party,
and either complete the transaction in accordance with such revised
structure or withdraw from completing the transaction. |
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3.5. |
To
the extent the Tag Along Shareholder exercised its right under this Section
3, its Transfer of Ordinary Shares to the Proposed Purchaser shall be made
on the same terms and conditions to the Tag Along Shareholder as those on
which the Selling Party is transferring its Tag Along Shares. |
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3.6. |
In
the event the transactions contemplated by a Tag Along Offer shall not be
consummated by the Selling Party for any reason, the Tag Along
Shareholder(s) shall not be required to sell any Ordinary Shares to the
Proposed Purchaser. The Selling Party shall have sole discretion in
deciding whether or not to consummate the transaction contemplated by the
Tag Along Offer (regardless of the exercise by the Tag Along Shareholder
of its rights), and shall have no liability towards the Tag Along
Shareholders if such transactions are not consummated. |
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3.7. |
In
the event that the Selling Party proposes to effect a Transfer on terms and
conditions less favorable than as set forth in the Tag Along Offer or in
the event that the transaction thereunder is not consummated within 90
days after the lapse of the 3 businesses-day period set forth in Section
3.1 above, then the Selling Party shall not proceed with any Transfer
without the Selling Party again complying with the terms and conditions of
this Section 3. |
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3.8. |
The
proceeds of any Transfer made by a Selling Party not in compliance with the
provisions of this Section 3 shall be deemed to be held by the Selling
Party in constructive trust for each of the Tag-Along Shareholder(s) in an
amount representing each such Tag-Along Shareholder(s) Pro Rata Portion. |
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3.9. |
Notwithstanding
the foregoing, a Tag Along Shareholder shall not be entitled to exercise
the tag along rights pursuant to this Section 3 until the third
anniversary of the Closing if as a result of the exercise thereof (i) the
Proposed Purchaser will hold 25% or more of the then issued and
outstanding share capital of the Company and (ii) Alpha and Ronex (and
their respective Permitted Transferees) will jointly hold less than 25% of
the then issued and outstanding share capital of the Company; in which
case the Selling Party and each Tag Along Shareholder shall only be
entitled to sell to the Proposed Purchaser such number of shares equal to
their respective pro-rata portions of the total number of shares permitted
to be sold while complying with the above (the “Permitted Shares”)
(but in no event shall the Tag Along Shareholder be required to sell more
shares than as stated in its Tag Along Exercise Notice).Each party’s
pro-rata portion shall be equal to the number of shares held by such party
divided by the total number of shares held by all parties participating in
such sale. Without derogating from the above, it is clarified that the
pro-rata portion of any single member comprising of Alpha of Alpha’s
pro-rata portion of the Permitted Shares need not necessarily reflect such
member’s pro-rata portion holdings vis-à-vis the other members
of Alpha. For the purpose of this Section 3.9, “holding” shall
have the meaning ascribed to it in the Companies Law, except that it shall
include the holding of any convertible securities as if exercised or
converted into Ordinary Shares of the Company. |
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| 4. |
Exceptions
and Permitted Transferees. |
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4.1. |
Notwithstanding
anything to the contrary in this Agreement, the provisions of Sections 2
and 3 above shall not apply to (i) any Transfer of Ordinary Shares of the
Company by a Shareholder to its Permitted Transferees (as defined and
subject to the conditions set forth below); (ii) the Transfer by a
Shareholder of Ordinary Shares on a stock exchange in open market
transactions; (iii) Transfers pursuant to a registration statement
effected consistent with the Registration Rights Agreement dated as of the
date hereof between the Company and Alpha, as amended; and (iv) Transfer
pursuant to a tender offer. |
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4.2. |
For
purposes of this Agreement, “Permitted Transferee” means
(i) with respect to Alpha: (a) each member comprising Alpha, its
controlling holder (in case of a corporate entity) or its beneficiary (in
case of a trust) (the “Alpha Promoters”) (b) any
grandparents, parents, siblings, children, lineal descendant of such
persons (including step and adopted children), and any spouse (including,
former spouse, widow or widower) of the Alpha Promoters or any of the
foregoing, or trust of which at least one of the foregoing is the
beneficiary thereof; (c) any affiliate of the Alpha Promoters or the
persons indicated in (b) above; (ii) with respect to Ronex – any
limited partnership that is an investor in Ronex, the partners of any such
limited partnership and any entity controlled by, controlling or under
common control with any such partnership; provided that in each case in
(i) and (ii), the Permitted Transferee has agreed in writing to assume and
be bound by all of a Shareholder’s obligations hereunder as if it
were an original party hereto by delivering a counterpart of this
Agreement to the other parties hereto (a “Permitted Transfer”). |
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4.3. |
For
all purposes under this Agreement, including for the provisions of Sections
2 and 3, each party and its Permitted Transferees which become the holders
or owners of Ordinary Shares, whether directly or beneficially, as a
consequence of a Permitted Transfer, shall be considered as one party,
enjoying jointly (and only jointly) all the rights and jointly and
severally assuming all of the obligations pursuant to the terms of this
Agreement. To the extent requested by Alpha or Ronex, the Permitted
Transferee shall be required to provide to the requesting party
instruments that may be required under applicable law to ensure the
binding effect of this Section 4.3. |
| 5. |
Discussions
prior to Shareholder Meetings. The Shareholders agree
to cooperate on Company matters and to make reasonable efforts to meet
regularly, and in any event prior to each general meeting of the
shareholders of the Company, in order to review, discuss and, subject to
the provisions of applicable law, to attempt to reach a unified position
with respect to principal issues on the agenda of each such shareholders’ meeting
(which, for the avoidance of doubt, shall be subject to and shall not
derogate from the provisions of Section 1 or any other section in this
Agreement). The Shareholders agree to vote AGAINST any proposed change to
the Company’s articles of association and/or any other resolution at
any shareholder meeting, which will conflict or otherwise contravene with
the provisions of this Agreement. |
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| 6. |
Joint
Shareholders Committee. The Shareholders shall appoint a joint
shareholders Committee (the “Joint Committee”) for
consultation purposes, which shall comprise of four members, two of which
shall be designated by each of Alpha and Ronex. For the avoidance of
doubt, the Joint Committee is not a committee of the Company and/or the
Board and shall not bind the Company in any way. |
| 7. |
Share
Adjustments. In the event of any share split (bonus shares), share
dividend (including any dividend or distribution of securities convertible
into share capital), recapitalization, reorganization, combination or
other like change with respect to the Company’s shares, or the
acquisition or receipt by any Shareholder of additional Ordinary Shares,
the provisions of this Agreement shall apply also to any such Ordinary
Shares issued to, purchased or otherwise held by the Shareholders. |
| 8. |
Standstill.
During the period commencing on the date hereof and until the Closing
or the earlier termination of this Agreement in accordance with its terms,
Ronex shall not, and shall cause its affiliates not to, directly or
indirectly, (i) offer for sale (including short sale), sell, transfer,
exchange, tender, create any Encumbrance, assign, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase otherwise dispose of, or enter into
any contract or arrangement with respect to, or consent to, or offer any,
of the foregoing, any of the Ordinary Shares owned or controlled by them,
whether beneficially or otherwise held by them or their affiliates, or any
interest therein, to any person; and (ii) except as contemplated by
or permitted by this Agreement, grant any proxies or powers of attorney,
deposit any Ordinary Shares into a voting trust or enter into a voting
agreement with respect to any Ordinary Shares owned or controlled by them,
whether beneficially or otherwise held by them or their affiliates. “Encumbrance” shall
mean any lien, pledge, hypothecation, charge, equities, claims,
restrictions, options, proxies, security interest, encumbrance, or any
other rights of third parties that would impose any restriction on the
exercise of sole voting power over any security, provided however that
with respect to Ronex, the pledge of shares by Ronex for the benefit of a
banking institution or the transfer of shares in connection with the
realization of a pledge, if any, created by Ronex for the benefit of a
banking institution on the Company’s shares held by Ronex, shall not
be deemed an “Encumbrance”. |
| 9. |
No
– Solicitation. During the period commencing on the
date hereof and until the Closing or the earlier termination of this
Agreement in accordance with its terms: |
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9.1. |
Ronex
shall not, and shall cause its affiliates and their respective employees,
officers, directors, agents and other advisors and representatives not to,
whether directly or indirectly (i) solicit, initiate, encourage or induce
the making, submission or announcement of any Other Proposal (as defined
below); (ii) make, or in any way participate, directly or indirectly, in
any Other Proposal or Other Transaction, (iii) engage or otherwise
participate in any discussions or negotiations regarding, or furnish to
any person any non-public information with respect to, or take any other
action to facilitate any inquiries or the making of any proposal that
constitutes or may reasonably be expected to lead to, any Other Proposal;
(iii) respond to or engage in discussions with any person with respect to
any Other Proposal, except as to the existence of these provisions; (iv)
approve, endorse or recommend any Other Proposal; or (v) enter into any
letter of intent or similar document or any agreement or commitment
contemplating or otherwise relating to any Other Transaction (as defined
below). Ronex shall, and shall cause its affiliates and their respective
employees, officers, directors, agents and other advisors and
representatives to, immediately cease all existing activities, discussions
and negotiations with any person conducted heretofore with respect to any
Other Proposal and request the return of all confidential information
regarding the Company and its affiliates or pertaining to any Other
Proposal provided to any such person prior to the date hereof pursuant to
the terms of any confidentiality agreement or otherwise. |
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9.2. |
Ronex
shall promptly advise Alpha orally and in writing of any request,
statement of intent, inquiry, referral or offer received by Ronex or its
affiliates that could lead to an Other Proposal, the material terms and
conditions thereof, and the identity of the person or group making any
such request, statement of intent, inquiry, referral, offer or Other
Proposal. Ronex will keep Alpha informed in all respects of the status and
details (including material amendments or proposed amendments) thereof. |
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9.3. |
For
the purpose of this Section 9, the following terms shall have the following
meanings: |
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9.3.1. |
“Other
Proposal” shall mean any inquiry, offer or proposal (other than
an inquiry, offer or proposal by Alpha or its affiliates), oral or
written, relating to any Other Transaction. |
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9.3.2. |
“Other
Transaction” shall mean any transaction or series of
transactions, other than the transactions contemplated by this Agreement,
the Purchase Agreement and the Related Agreements thereunder (as defined
therein), involving: (i) any merger, exchange, consolidation, business
combination, plan of arrangement, issuance of securities, acquisition of
securities, reorganization, recapitalization, takeover offer, tender
offer, exchange offer, purchase, sale (including short sale), transfer,
option, proxies or other transaction (A) in which a person or group of
persons directly or indirectly acquires beneficial or record ownership of
securities representing 5% or more of the outstanding securities of any
class of voting securities or debt securities of the Company or any
material subsidiary thereof; or (B) in which the Company or any material
subsidiary thereof issues securities representing 5% or more of the
outstanding securities of any class of voting securities of the Company or
any material subsidiary thereof or debt securities; (ii) any sale, lease,
exchange, transfer, license, acquisition or disposition of any business or
businesses or assets that constitute or account for 5% or more of the
consolidated net revenues, consolidated net income or consolidated assets
(including for this purpose the outstanding equity securities of the
Company’s subsidiaries) of the Company or any material subsidiary
thereof (but other than in the ordinary course of business consistent with
past practice); (iii) “solicitation” of “proxies” to
vote (as such terms are used under the Exchange Act) with respect to any
Ordinary Shares, calling or seeking to have called a meeting of
shareholders of the Company or execution of any written consent in lieu of
such a meeting, submitting a shareholder proposal to the Company or a
demand that the Company convene a shareholders meeting, or seeking to
advise or influencing any person or entity with respect to the voting of
any voting securities of the Company; or (iv) seeking control of the
management or the Board of Directors of the Company or policies of the
Company, or any change which results or is reasonably likely to result in
a change in the majority of the persons who constitute the board of
directors of the Company as of the Closing. |
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| 10. |
Voting
Undertaking and Proxy. |
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10.1. |
Ronex
hereby agrees, at any annual, extraordinary, or special meeting of the
shareholders of the Company called to approve the Series Agreements (as
defined below), and at any postponement(s) or adjournment(s) thereof, or
pursuant to any consent in lieu of a meeting or otherwise (the “Meeting”),
to vote (or cause to be voted) all Ordinary Shares that Ronex now or
hereafter owns or controls, whether beneficially or otherwise held by it
or its affiliates (including as a result of exercise of the options or
other securities or rights convertible, exercisable or exchangeable into
Ordinary Shares or otherwise) (collectively, the “Shares”)
in the following manner: (i) in favor of the Purchase Agreement, the
Related Agreements (as defined thereunder) and the Separation Agreement
between the Company and its Chief Executive Officer, each of the
transactions contemplated thereby, and any actions required in furtherance
thereof or matter related thereto (collectively, together with this
Agreement, the “Series Agreements”); (ii) against
any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or
agreement of the Company or Ronex hereunder or under the Series
Agreements; (iii) except as otherwise expressly agreed to in writing
in advance by Alpha, against any Acquisition Proposal or Acquisition
Transaction (as defined in the Purchase Agreement) and any Other Proposal
or Other Transaction; and (v) any other action involving the Company or
its subsidiaries which is intended, or could in any manner be expected, to
impede, interfere with, delay, postpone, or adversely affect the Series
Agreements. Ronex shall not enter into any agreement or understanding with
any person the effect of which would be inconsistent with or violative of
the provisions and undertakings referred to in this Section 10 and any
proxies heretofore given by Ronex in respect of the Shares are hereby
revoked. |
| |
10.2. |
As
promptly as possible, but in no event later than 14 days prior to the date
scheduled for the Meeting, Ronex and each of its affiliates shall deliver
to Alpha a validly executed irrevocable proxy, in a form reasonably
requested by Alpha and shall cause any record holder(s) of the Shares to
grant proxy(ies) in substantially similar form, accompanied by
confirmation of ownership for the Meeting from the bank or other holder
with which the Shares are deposited. |
| |
10.3. |
Ronex
understands and acknowledges that Alpha is entering into the Series
Agreements in reliance upon Ronex’s execution, delivery and
performance of this Agreement. The irrevocable proxy set forth in Section 10.2
is given in connection with the execution of the Series Agreements to
secure the performance of the duties of Ronex thereunder. Ronex hereby
further affirms that unless this Agreement is terminated in accordance
with its terms, the irrevocable proxy(ies) pursuant to Section 10.2
may under no circumstances be revoked. |
| |
10.4. |
Without
derogating from the provisions of Section 8, the provisions of this
Section 10 and the obligations hereunder shall attach to the Shares and
shall be binding upon any person to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise,
including, without limitation, Ronex’s successors and assigns, and
notwithstanding any transfer of the Shares, the transferor shall remain
liable for the performance of all obligations of the transferor hereunder. |
| |
11.1. |
The
grant of the approval under the Israeli Restrictive Trade Practices Law,
1988 and the regulations promulgated thereunder, or the expiration or
waiver of the applicable waiting period thereunder, shall be a condition
precedent to the effectiveness of Sections 1.1, 1.5, 5 and 6. |
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11.2. |
This
Agreement shall terminate on the earlier to occur of (i) the fifth
anniversary of the Closing, (ii) the termination of the Purchase
Agreement, for any reason, pursuant to its terms, and (iii) the first date
on which either party holds less than 1,100,000 Ordinary Shares of the
Company (as adjusted pursuant to Section 7). |
| |
12.1. |
Alpha. Members
comprising Alpha and their respective Permitted Transferees shall be
treated as one group (and accordingly as a single Shareholder) for
purposes of this Agreement. |
| |
12.2. |
Interpretation.
The words “include,” “includes” and “including” when
used herein shall be deemed in each case to be followed by the words “without
limitation”. The words “herein,” “hereof,” “hereto” and
“hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; the word “person(s)” shall
include an individual, corporation, partnership, association, trust,
enterprise or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof; the phrase or
words “beneficial ownership” of any securities or
“own” (and words and phrases of similar import) shall mean
beneficial ownership for purposes of Rule 13d-3 under the Exchange Act
(and for the purposes of Rule 13d-3(d)(1)(i) as if the right to acquire
beneficial ownership of such security would have been within 60 days); the
word “affiliate(s)” (and words of similar import) shall mean as
set forth in Rule 405 promulgated under the Securities Act of 1933, as
amended, and with respect to any natural person, also, (i) grandparents,
parents, siblings, lineal descendant of such person or their spouse
(including step and adopted children), and any spouse (including, former
spouse, widow or widower) of such person or any of the foregoing, (ii) any
trust established for the benefit of such natural person or any affiliate
of such natural person, or (iii) any executor or administrator of the
estate of such natural person; the word “group” shall mean any
group of persons acting together in the manner described in Rule
13d-5(b)(1) under the Exchange Act; and the term “business day” shall
mean normal business hours on a business day in the place of recipient. |
| |
12.3. |
Fees
and Expenses. Each Shareholder shall bear its own legal fees and all
related expenses in connection with this Agreement. |
| |
12.4. |
Notices.
All notices to be given to a party pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given to the addressee
thereof (i) if hand delivered, upon delivery, (ii) if given by email or
facsimile transmission, upon transmission and electronic confirmation of
receipt (or recipient’s electronic “read receipt” in case
of email) or (if transmitted and received on a non-Business Day) on the
first business day following transmission and electronic confirmation of
receipt (or recipient’s electronic “read receipt” in case
of email, (iii) if given by air courier, two business days following the
delivery to the courier service, or (iv) if mailed by registered mail,
return receipt requested, seven days following the date it was mailed, to
such party’s address as set forth below or at such other address as
such party shall have furnished to the other party in writing in
accordance with this provision (provided, however, that any notice of
change of address shall only be valid upon receipt): |
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|
|
|
|
Xx.
Xxx Xxxxxx |
|
00 Xxxx Xxxxxx, Xxx
Xxxx 00000, Xxxxxx |
|
Facsimile No.: |
000-(0)-0000000 |
|
Email: |
xxxxxxxxx@xxxxx.xxx |
| |
|
|
|
And to: |
|
Xx. Xxxxxxx Xxxx |
|
Xxxxxxxx 0, Xxxxxx
00000, Xxxxxx |
|
Tel: |
(972)-(3)-7371111 |
|
Fax: |
(972)-(3)-7371110 |
|
Email: |
xxxx@xxxxx.xxx |
| |
With
a copy to (which shall not constitute notice): |
|
|
|
|
Meitar
Liquornik Geva & Leshem Xxxxxxxxx |
|
00 Xxxx Xxxxxx Xx. Xxxxx Xxx 00000, Israel |
|
Tel: |
(972)-(3)-610-3100 |
|
Fax: |
(972)-(3)-6103-111 |
|
Attention: |
Xxx Xxxx, Advocate |
|
|
Xxxxx Xxxxx, Advocate |
|
Email: |
xxx@xxxxxx.xxx |
|
|
xxxxxx@xxxxxx.xxx |
|
|
|
|
c/o FIMI IV 2007 Ltd. |
|
“Xxxxxxxxxx Xxxxx” |
|
00 Xxxxx Xxxx, Xxx-Xxxx, Xxxxxx |
|
Tel: |
(972)-(3)-5652244 |
|
Fax: |
(972)-(3)-5652245 |
|
Attention: |
Xxxxx Xxxxxx |
|
Email: |
Xxxxx@xxxx.xx.xx |
| |
With
a copy to (which shall not constitute notice): |
|
|
|
|
Xxxxxxxx, Xxxxxxx & Xx. |
|
0 Xxxxx Xxxxxx,
Xxx-Xxxx 00000 Xxxxxx |
|
Tel: |
(972)-(3)-6235022 |
|
Fax: |
(972)-(3)-6235106 |
|
Attention: |
Xxxxxx X. Amir, Advocate |
|
Email: |
xxxxx@xxxxx.xxx |
| |
or
to such other address as the parties may from time to time designate in writing. |
| |
12.5. |
Waiver.
Any waiver hereunder must be in writing, duly authorized and signed by the
party to be bound, and shall be effective only in the specific instance
and for the purpose for which it was given. No failure or delay on the
part of a Shareholder in exercising any right, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. |
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12.6. |
Entire
Agreement. This Agreement, the exhibits and the schedules hereto and
the documents furnished by the parties hereto in connection with the
transactions contemplated herein constitute the entire agreement among the
parties hereto with respect to the matter hereof and supersede any other
agreement, written and oral, that may have been made or entered into by
the Shareholders relating to the transactions contemplated by this
Agreement. |
| |
12.7. |
Amendments.
This Agreement may be amended or modified in whole or in part only by a
duly authorized written agreement that refers to this Agreement and is
signed by the majority of the Alpha Promoters and Ronex. Any amendment
effected in accordance with this Section shall be binding upon all parties
to this Agreement. |
| |
12.8. |
Limitations
on Rights of Third Parties. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon or give any
person, other than the Shareholders, any rights or remedies under this
Agreement, except that the Company is an intended third party beneficiary
of Section 3.9 hereof. |
| |
12.9. |
Captions.
The captions in this Agreement are inserted for convenience of reference
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement. |
| |
12.10. |
Counterparts.
This Agreement may be executed in one or more counterparts and by
facsimile signature, each of which shall be deemed an original and
enforceable against the parties actually executing such counterpart, and
all of which together shall constitute one and the same instrument, it
being understood that all parties need not sign the same counterpart. The
exchange of an executed Agreement (in counterparts or otherwise) by
facsimile transmission or by electronic delivery in .pdf format or the
like shall be sufficient to bind the parties to the terms and conditions
of this Agreement, as an original. |
| |
12.11. |
Governing
Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Israel, regardless of the
laws that might otherwise govern under applicable principles of conflicts
of laws thereof. Any dispute arising under or with respect to this
Agreement shall be resolved exclusively in the appropriate court located
in Tel Aviv, Israel. |
| |
12.12. |
Further
Assurances. The parties hereto shall execute and deliver such
additional documents and shall take such additional actions (including
without limitation procuring such resolutions or regulatory approvals) as
may be reasonably necessary or appropriate to effect the provisions and
purposes of this Agreement and the consummation of the transactions
contemplated hereby. |
| |
12.13. |
Severability.
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected, impaired or invalidated thereby, and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such void or
unenforceable provision. |
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| |
12.14. |
Assignment.
Except as expressly permitted herein, this Agreement is not assignable by
any party hereto, and each of the parties hereto shall not assign or
otherwise transfer, in whole or in part, this Agreement, and/or any of its
rights, interests or obligations hereunder to any third party, without the
prior written consent of the other party hereto, and any such assignment
without such prior written consent shall be null and void. Subject to the
foregoing, this Agreement shall be binding upon, inure to the benefit of,
and be enforceable by, the parties hereto and their respective successors
and assigns. |
[Signature Pages Follow]
- 13 -
IN
WITNESS WHEREOF, the Shareholders have each caused this Shareholders Agreement to be duly
executed as of the date first above written.
|
|
ALPHA:
/s/ Xxxxxxx Xxxx
——————————————
Name: XXXXXXX XXXX
By: XXXXXXX XXXX |
|
|
/s/ Xxxx Xxxxx
——————————————
Name: XXXX XXXXX
By: XXXX XXXXX |
|
|
/s/ Xxxxxxx Xxxxxxxxx
——————————————
Name: XXXXXXX XXXXXXXXX
By: XXXXXXX XXXXXXXXX |
|
|
/s/ Xxx Xxxxxx
——————————————
Name: XXX XXXXXX
By: XXX XXXXXX |
|
|
/s/ Xxxxx Xxxxx
——————————————
Name: M.R.S.G (1999) LTD. AND XXXXX XXXXX
By: XXXXX XXXXX |
- 14 -
IN
WITNESS WHEREOF, the Shareholders have each caused this Shareholders Agreement to be duly
executed as of the date first above written.
Ronex:
Ronex Holdings, Limited Partnership
By: Ronex Holdings Ltd., its General Partner
/s/ Xxxxx Xxxxx
——————————————
Name: Xxxxx Xxxxxx
Title: CEO |
|
|
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