SHARE PURCHASE AGREEMENT
This
SHARE
PURCHASE AGREEMENT,
dated
February 22, 2006, is by and among SUPERIOR
CABLES LTD.,
a
public company incorporated and registered in Israel registration number
00-000000-0 (the “Company”),
ALPINE
HOLDCO INC.,
a
corporation organized under the laws of Delaware and a wholly owned subsidiary
of The Alpine Group, Inc. ("Alpine
HoldCo"),
SUPERIOR
CABLES HOLDING (1997) LTD.,
a
company incorporated and registered in Israel registration number 00-000000-0,
and a wholly-owned subsidiary of The Alpine Group, Inc. ("SCH"),
(Alpine HoldCo and SCH collectively “Alpine”),
and
Shrem, Fudim, Xxxxxx Technologies Ltd. ("SFKT"),
a
company organized under the laws of the State of Israel registration number
00-000000-0, in the name of and on behalf of ART P.E., a limited partnership,
to
be established and registered in Israel, , the general partners of which will
be
SFKT, Darid Holdings Ltd. and Danitan Management Ltd. or
a
limited partnership the sole general partners of which will be SFKT, Darid
Holdings Ltd. and Danitan Management Ltd ("Art
P.E. (under construction)");
(Alpine HoldCo, ART P.E and SFKT,
each an
"Investor",
and
collectively the “Investors”);
(the
Company, Alpine HoldCo, and SFKT shall be referred to hereinafter, each a
“Party”
and
collectively the “Parties”).
RECITALS:
WHEREAS The
Company received, and will receive from Bank Hapoalim Ltd. (the "Bank")
a line
of credit and other financial services of various types; and
WHEREAS The
Company wishes to restructure and refinance its current and future indebtedness
and obligations to the Bank, including, among other things, the repayment to
the
Bank of part of the Company's outstanding long-term loans, and the conversion
of
US $15,000,000 of the Company’s debt to the Bank into subordinated debt, payable
only upon the liquidation of the Company (the “Subordinated Debt”), all subject
to and as set forth in the terms and conditions of a refinancing agreement
entered between the Company and the Bank attached hereto as integral part hereof
and marked "Exhibit
A"
(the
"Bank
Agreement"),
and
as further described in the Cap Table (as defined herein); and
WHEREAS On
the
date of execution of the Bank Agreement, and as an integral part thereof, the
Bank will receive from the Company an option to purchase shares from the Company
as more fully described in Exhibit A, in consideration for the Subordinated
Debt
the "Bank's
Option")
and as
further described in the Cap Table (as defined herein); and
WHEREAS The Bank
Agreement is conditioned, inter alia, upon the Closing (as defined in Section
5.1 hereof) taking place not later than June 30, 2006; and
WHEREAS Immediately
prior to or at the Closing, SCH
will
sell, in a private sale, 8,400,000 Ordinary Shares to unrelated third parties;
and
WHEREAS Except
for the Ordinary Shares held by SCH as of the date hereof, neither
Alpine nor SFKT nor any partner therein or Affiliate thereof currently is not
and until the Closing will not be a shareholder of the Company; and
1
WHEREAS, On
the
basis of the Company’s representations expressly stipulated herein the Investors
desire to purchase and acquire from the Company, and on the basis of the
Investors’ representations expressly stipulated herein, the Company desires to
sell and issue to the Investors, Ordinary Shares of the Company, all upon the
terms and subject to the conditions set forth hereunder and subject to obtaining
the Approvals (as defined herein in Section 5.1); and
WHEREAS The
Company wishes to receive certain management services from The Alpine Group,
Inc., and The Alpine Group, Inc. wishes to provide those management services
to
the Company, all pursuant to and subject to the terms and conditions of the
First Amendment to the Deed of Amendment substantially in the form attached
hereto as integral part hereof and marked as "Exhibit
B"
(the
"Management
Agreement");
and
WHEREAS the
Parties desire to enter into this Agreement;
NOW,
THEREFORE, in
consideration of the foregoing, and the mutual representations, warranties,
covenants, undertakings and agreements contained herein, subject to the terms
and conditions set forth herein, the parties hereby represent, warrant,
undertake and agree as follows:
SECTION
1. DEFINITIONS
Article
1.1 As
used
in this Agreement, the following terms shall have the following respective
meanings (such meanings being equally applicable to both the singular and plural
form of the terms defined):
"Affiliate”
means,
with respect to any Person, any other Person that directly or indirectly through
one or more intermediaries controls, is controlled by or is under common control
with such Person.
This
"Agreement"
means
this Share
Purchase Agreement, including all amendments, modifications and supplements
hereto and any exhibits or schedules to any of the foregoing, and shall refer
to
this Agreement as the same may be in force and effect at the time such reference
becomes operative.
"Cap
Table"
means a
capitalization table describing the shareholdings in the Company prior to and
after the Closing, and following the exercise of the Bank's Option and SFKT's
Option and any and all other Convertible Securities existing as of the Closing
Date, which is attached hereto as integral part hereof and marked "Exhibit
C".
"Convertible
Securities"
means
any evidences of indebtedness, options, warrants or other securities convertible
into or exercisable or exchangeable for Ordinary Shares of the Company,
including, but not limited to, the Bank's Option and SFKT's Option and options
granted to certain employees of the Company.
2
"Material
Adverse Conditions"
means
any fact, change, event, development or circumstance which, individually or
in
the aggregate, has had or would be reasonably expected to have a material
adverse effect on the business, condition (financial or otherwise), results
of
operations, assets or liabilities of the Company as a whole.
"Ordinary
Shares"
means
ordinary shares, par value NIS 1.00, of the Company. In the event the Company
reorganizes its share capital to no par value shares, or to shares of NIS 0.01,
any reference to Ordinary Shares shall mean no par value shares of the Company
or shares of NIS 0.01, as the case may be.
"Public
Company"
means a
public company within its meaning in the Companies Law-1999.
"Person"
shall
be
construed as broadly as possible and shall include an
individual or natural person, a partnership (including a limited liability
partnership), a corporation, a company, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, a business, and any other entity.
"
Rate
of Exchange"
means
the representative rate of exchange of the US$ to the NIS most recently
published by the Bank of Israel prior to the applicable date mentioned
herein.
"Shareholders
Agreement"
means
the Shareholders Agreement effective as of the Closing Date, by and between
the
Investors.
1.2
The
following capitalized terms not defined in Sub-Section 1.1 are defined in the
following Sections of or other locations in this Agreement:
|
Term
|
Section/Location
|
|
Alpine
|
Recitals
|
|
Alpine
HoldCo's Investment
|
4.1
|
|
Alpine
HoldCo’s Investment Amount
|
4.1
|
|
Alpine
HoldCo
|
Preamble
|
|
Approvals
|
5.1
|
|
Articles
|
7.1.5
|
|
Bank
|
Recitals
|
|
Bank
Agreement
|
Recitals
|
|
Bank's
Option
|
Recitals
|
|
Business
Days
|
10.3.2
|
|
Closing
|
5.1
|
|
Closing
Date
|
5.1
|
|
Company
|
Preamble
|
|
Conversion
|
Recitals
|
|
Force
Majeure Events
|
10.12.1
|
|
Investment
Amounts
|
5.1
|
|
Investor
and Investors
|
Preamble
|
|
Legal
Opinion
|
5.2.4(h)
|
|
Management
Agreement
|
Recitals
|
|
Officer’s
Compliance Certificate
|
5.2.4(c)
|
|
Party
and Parties
|
Preamble
|
|
SCH
|
Recitals
|
|
SFKT
|
Preamble
|
|
SFKT's
Option
|
4.2.2
|
|
SFKT's
Original Holdings
|
4.2.1
|
|
SFKT's
Original Investment
|
4.2
|
|
SFKT's
Original Investment Amount
|
4.2
|
3
SECTION
2. PREAMBLE
AND APPENDICES
The
preamble, recitals, schedules, annexes and exhibits attached to this Agreement
form an integral and binding part hereof.
SECTION
3. INTERPRETATION
The
clause headings, captions and clause numbers in this Agreement are inserted
only
as a matter of convenience of reference and in no way shall control, define,
limit, affect or construe the scope of intent, meaning or construction of such
clauses, nor in any way affect the interpretation of this
Agreement.
SECTION
4. SALE, PURCHASE
AND ISSUANCE OF SHARES AND OPTION
4.1 Sale
and Purchase of the Ordinary Shares by Alpine HoldCo "As Is".
At the
Closing, Alpine HoldCo agrees to invest a total amount of US$ 10,000,000 in
the
Company ("Alpine
HoldCo's Investment"
and
"Alpine
HoldCo's Investment Amount")
in
order to purchase from the Company, on
an
"As
Is"
basis including on the basis of all representations as set forth in Section
8herein and on the basis of the representations made by the Company as specified
in Section 7 hereof, and the Company agrees to issue and allot to the Alpine
HoldCo, on
the
basis of all representations as set forth in Section 8 herein, as part of a
private placement to be made by the Company, 75,000,000 Ordinary Shares, at
a
price of US$ 0.1333 per share (price in NIS per share will be determined on
the
Closing Date using the Rate of Exchange immediately prior to that date) on
an
“As Is” basis.
4.2 Sale
and Purchase of the Ordinary Shares and of an Option to Purchase Ordinary Shares
by SFKT "As Is". At
the
Closing SFKT agrees to invest or to cause Art P.E. to invest a total amount
of
US$ 5,000,000 in the Company ("SFKT's
Original Investment")
in
order to:
4.2.1 Purchase
from the Company, on an "As Is" basis including on the basis of all
representations as set forth in Section 8herein, and on the basis of the
representations made by the Company as specified in Section 7 hereof, and the
Company agrees to issue and allot to SFKT, or- upon SFKT’s written request - to
Art P.E. as part of a private placement to be made by the Company,
on
the
basis
of all representations as set forth in Section 8 herein, 46,192,664 Ordinary
Shares at a price of US$ 0.1082 per share payable in NIS (price in NIS per
share
will be determined on the Closing Date using the Rate of Exchange immediately
prior to that date) ("SFKT's
Original Holdings")
on an
“As Is” basis; and
4
4.2.2 Receive
from the Company, and the Company agrees to grant SFKT or- upon SFKT’s written
request - to grant Art P.E., a transferable option, in the form attached hereto
as Exhibit
4.2.2 (a),
to
purchase from the Company an additional 4,619,266 Ordinary Shares, exercisable,
all or nothing, by submitting a written notice to the Company in the form
attached hereto as Exhibit
4.2.2 (b),
not
later then within thirty (30) months from the Closing Date together with cash
payment of a purchase price of US$ 0.1333 per share (price in NIS per share
will
be determined on the option's exercise date using the Rate of Exchange
immediately prior to the exercise date ) ("SFKT's
Option").
The
amount of Ordinary Shares underlying SFKT's Option, and the exercise price
of
SFKT's Option, will be adjusted as provided in Exhibit
4.2.2 (a)
hereof.
4.3 Several
Obligations.
No
Investor shall be liable for the obligations to be performed by any other
Investor and the liability of each of the Investors in respect of the
obligations imposed on such Investor under this Agreement, shall be several
and
not joint, as if each of the Investors had entered into a separate agreement
with the Company. Notwithstanding the above, the Company shall not be obliged
to
close the transactions contemplated hereby unless the Investors have each
transferred to the Company their respective Investment Amounts, as set forth
above, and have each fulfilled their respective obligations pursuant to this
Agreement; and neither Investor shall be obliged to close the transactions
contemplated hereby with respect thereto unless the other Investor has
transferred to the Company his respective Investment Amount, as set forth above,
and has fulfilled his respective obligations pursuant to this Agreement, the
conditions specified in Section 5.1 hereof were met, and the company submitted
the documents specified in Section 5.2.4 hereof.
4.4
At
the Closing, the Ordinary Shares to be issued pursuant to this Agreement, when
issued and allotted and fully paid for in accordance herewith: (i) will be
duly authorized, validly issued, fully paid, non-assessable, and subject to
anything to the contrary in this Agreement or any exhibit hereof, will not
trigger any anti-dilution rights; and (ii) will be free and clear of any
liens, security interests or third party rights created by the Company, and
duly
registered in the respective names of each of the Investors in the Company’s
Shareholders’ Register and in the Company’s Substantial Shareholders’
Register.
4.5
Prior
to or at the Closing SCH will sell 8,400,000 Ordinary Shares to unrelated third
parties.
SECTION 5. THE
CLOSING
5.1 Closing.
The
purchase, sale and issuance of the Ordinary Shares and of the SFKT's Option,
and
the consummation of the transactions contemplated herein, shall take place
at a
closing (the “Closing”)
to be
held at the offices of Xxx Xxxxx, Adv., 85 Medinat Xxxxxxxxx Street, Herzliah,
at 10 a.m. on the first Business Day falling five (5) Business Days after the
first date on which the Company and/or the Investors, as applicable, shall
have
secured and obtained the due execution or approval, as the case may be, of
all
of the following: (a) The approval of this Agreement and the Management
Agreement by (i) the Company's Audit Committee; (ii) the Company's Board of
Directors; and (iii) the Company's Shareholders General Meeting (including
adopting a resolution to increase the registered share capital of the Company
to
a number that will allow for issuance of shares to the Investors and the Bank
as
contemplated hereunder); (b) The approval of the Tel Aviv Stock Exchange
("TASE")
to the
listing of the Company's Ordinary Shares that will be issued to the Investors,
and the Ordinary Shares undelying SFKT's Option and the Bank's Option; (c)
The
approval of the Antitrust Commissioner to this Agreement, (d) the Company shall
have filed a private placement report and a report with respect to a transaction
with a control person as may be required under any applicable law, regulation,
directive or rule, all for the purpose of consummation of the transactions
contemplated herein at the Closing (all the approvals referred to in
sub-sections (a) thourgh (d) above shall be reffered to herein, collectively,
as
the "Approvals"),
and
in addition (e) the sale of 8,400,000 Ordinary Shares by SCH to unrelated third
parties. The Company and/or Investors, as the case may be, shall endevour as
aforesaid to obtain such Approvals in any event not later than five (5) Business
Days prior to June 30, 2006 (the “Closing
Date”),
or
such other date, time and place as the Parties shall agree upon in writing.
Should all such Approvals not be obtained and/or should all the conditions
precedent to Closing not occur persuant to Section 6 below prior to the Closing
Date, this Agreement shall be deemed cancelled, and no party shall have any
claim against the other.
5
5.2 Transactions
at Closing.
At the
Closing, the following transactions and actions shall be taken, and all such
transactions and actions shall be deemed to take place simultaneously, and,
with
respect to each of the Company and each Investor unless specifically waived
by
the Company or such Investor, as the case may be, in writing, in its sole
discretion and then only as to such respective Party, no transaction or action
shall be deemed to have been completed or taken and no document or instrument
shall be deemed delivered, until all such transactions and actions have been
completed and taken and all required documents and instruments
delivered:
5.2.1 Each
Investor shall pay to the Company its respective Investment Amount set forth
in
Sections 4.1 and 4.2 respectively ("Investment
Amounts"),
by
way of wire or electronic transfer of immediately available funds, by Alpine
HoldCo, its Investment Amount in US Dollars, and by SFKT or ART P.E., its
Investment Amount either in US Dollars or in NIS at the Rate of Exchange
immediately prior to the Closing, to the Company’s account number, details of
which shall be provided by the Company prior to the Closing, or by such other
form of payment accepted by the Company;
5.2.2 The
Company shall (i) issue to each Investor its respective number of Ordinary
Shares set forth in Sections 4.1 and 4.2 respectively, and
register the issuance and allotment of the shares in the Shareholders Register
and in the Substantial Shareholders Register of the Company, and
(ii)
grant SFKT’s Option to SFKT (or at its written request to ART
P.E.);
5.2.3 The
Company and The Alpine Group, Inc., shall execute the Management
Agreement.
6
5.2.4 The
Company shall further deliver to each Investor the following documents:
(a) Share
certificates.
Validly
executed share certificates, in the form attached hereto as Exhibit 5.2.
4(a),
issued
in the name of the respective Investors (or, at the request of either of the
Investors with respect to its’ shares - issue the Ordinary Shares in the name of
the nominee company) dated
as
of the Closing
and
representing the Ordinary Shares issued to such Investor at the Closing;
(b) Corporate
Documents.
(x) A
copy of the resolution of the Audit Committee of the Company, (y) a copy of
the
resolution of the Board of Directors of the Company and (z) a copy of the
resolution of the Shareholders Meeting of the Company, all approving:
(i) the private placement for the execution, delivery and performance of
this Agreement, and the execution, delivery and performance of this Agreement
and any and all filings and notices with any Person, entity or authority, and
have made any and all applicable public or other announcements, all as may
be
required under any applicable law, regulation, directive or rule, and shall
have
received any and all other consents and approvals as may be required under
any
applicable law, regulation, directive or rule, all for the purpose of
consummation of the transactions contemplated herein and at the Shareholders
Agreement at the Closing; (ii) the issuance of the Ordinary Shares to be
issued pursuant to this Agreement to the Investors, and the issuance of SFKT's
Option to SFKT (or at its written request to ART P.E.) at the Closing, against
and subject to payment of the Investors’ respective Investment Amounts; (iii)
the execution, delivery and performance of the Bank Agreement; (iv) the
execution, delivery and performance of the Management Agreement; (v) the listing
for trading on the TASE of the Ordinary Shares to be issued pursuant to this
Agreement including the Ordinary Shares underlying SFKT's Option and the Bank's
Option; and (vi) any change in the share capital of the Company;
(c) Officer’s
Compliance Certificate.
A duly
executed Officer’s Compliance Certificate dated as of the Closing Date in the
form that will be attached hereto as Exhibit
5.2. 4(c)
("Officer’s
Compliance Certificate"),
confirming
on behalf of the Company that (i) the Company has performed in all material
respects each of its obligations under this Agreement required to be performed
by it on or prior to the Closing and (ii) the representations and warranties
of
the Company contained in this Agreement;
(d) TASE
Approval.
The
TASE shall have agreed to list the Ordinary Shares to be issued pursuant to
this
Agreement including the Ordinary Shares underlying SFKT's Option and the Bank's
Option on the TASE.
(e) A
copy of
the validly executed Bank Agreement;
(f) The
Company shall deliver to SFKT (or at its written request to ART P.E.) the letter
of allotment of SFKT's Option;
7
(g)
A
copy of
the validly executed Management Agreement;
(h)
Legal
Opinion.
The
Company shall have delivered to each of the Investors a legal opinion of
Xxx
Xxxxx, Adv., counsel to the Company, in form and substance reasonably acceptable
to the Investors.
The form
of the legal opinion will be attached hereto as Exhibit 5.2.4(h)("Legal
Opinion"),
confirming, that (i) that true, complete and correct copies of the Company’s
Articles as in effect on the Closing Date are attached thereto, (ii) as
to the
incumbency and genuineness of the signatures and the authority of each
officer
of the Company executing this Agreement, the Management Agreement on its
behalf
and (iii) that the resolutions of the Audit Committee, the Board of Directors
and the Shareholders Meeting of the Company
have
been duly adopted in accordance with the Articles of the Company in order
to
authorize the execution, delivery and performance of the this Agreement,
including, but not limited to, the issuance and sale of the Ordinary Shares,
and
the execution and delivery of certificates for the Ordinary Shares, as
may be
required in connection with this Agreement and the consummation of the
other
transactions contemplated to be consummated at the Closing, (iv) that all
Approvals have been obtained and secured, (v) that upon issuance and sale
of the
Ordinary Shares at the Closing in accordance with the provisions of this
Agreement, the Ordinary Shares will be duly authorized, validly issued,
fully
paid and non-assessable, and free of any preemptive rights or other encumbrances
under the Articles, and (vi) that the execution, delivery and performance
by the
Company of the this Agreement and the Management Agreement do not violate
any
provision of the Articles.
(i) Any
other
document or instrument to be provided by the Company or by any Investor
reasonably necessary or expedient to give full effect to the sale and purchase
of the Ordinary Shares and SFKT's Option and the Management Agreement and
otherwise to the consummation of all the transactions contemplated herein.
5.2.5 The
Company represents that the Bank Agreement shall become effective at the
Closing.
5.2.6 SCH
shall
have sold 8,400,000 Ordinary Shares of the Company held by SCH to unrelated
third parties in a private transaction and the Company shall have received
from
SCH and made and given any and all filings, notifications and public
announcements required as a result of such sale under any applicable law,
regulation, rule or directive.
5.2.7 The
Company shall have received an opinion from counsels to each Investor counsel
to
the Company in a form acceptable to the Company. This legal opinion will be
attached hereto as Exhibit 5.2.7
("Investors'
Legal Opinion"),
confirming (i) as to the incumbency and genuineness of the signatures and the
authority of each officer of the Investor executing this Agreement, and the
Management Agreement and (ii) that the execution, delivery and consummation
of
the transactions contemplated herein at the Closing do not violate any provision
of Investor's governing documents.
8
SECTION 6. CONDITIONS
TO CLOSING
6.1 Conditions
to Closing by the Investors.
The
obligations of each Investor to take any action required of it hereunder to
be
taken at the Closing are subject to the fulfillment at or before the Closing
of
all the following conditions, any one or more of which may be waived in whole
or
in part by such Investor in its sole discretion, solely with respect to itself,
if such waiver is permitted under any applicable law:
6.1.1 Representations
and Warranties.
The
representations and warranties made by the Company in this Agreement shall
have
been true and correct in all material respects when made, and shall be true
and
correct in all material respects as of the Closing as if made on the date of
the
Closing.
6.1.2 Performance.
All
covenants, agreements, obligations and conditions contained in this Agreement
to
be performed or complied with by the Company prior to or at the Closing shall
have been performed or complied with in all material respects, prior to or
at
the Closing.
6.1.3 Consents,
Notifications etc.
The
Company and/or the Investors, as the case may be, shall have duly obtained
and
secured all Approvals, and the Company has made or given any and all applicable
filings and notices with, any person, entity or authority, and has made or
given
any and all applicable public or other announcements, all as may be required
under any applicable law for the purpose of consummating the transactions
contemplated herein at the Closing.
6.1.4 Delivery
of Documents.
All the
documents to be delivered by the Company to the Investors at the Closing shall
be in form and substance reasonably satisfactory to the Investors.
6.1.5 Proceedings
and Documents.
All
corporate and other proceedings in connection with the transactions contemplated
by this Agreement and the Management Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory in substance
and
form to the Investors, and the Investors shall have received all such
counterpart originals or certified or other copies of such documents as the
Investors may reasonably request.
6.1.6 No
Judgment or Order.
There
shall not be on the date of the Closing any judgment or order of a court of
competent jurisdiction or any ruling, regulation or order of any authority
which
would prohibit or have the effect of preventing consummation of the transactions
contemplated by this Agreement and the Management Agreement.
6.1.7 No
Force Majeure Events.
With
respect to Alpine only, there shall not be or occurred any Force Majeure Event
(as this term is defined in Sub-Section 10.12.1 herein) between the date of
execution of this Agreement and until the Closing Date
9
6.1.8 The
Bank
Agreement remains in full force and effect in accordance with its terms, the
Company is not in default or violation of any term or provision of the Bank
Agreement and there is no material impediment to the implementation of the
Bank
Agreement including the conversion of US $15,000,000 of the Company’s debt to
the Bank into the Subordinated Debt immediately after the closing.
6.1.9 SCH
shall
have sold 8,400,000 Ordinary Shares of the Company held by SCH to unrelated
third parties in a private transaction.
6.1.10 The
Company shall have duly executed the Management Agreement.
6.1.11 Each
of
the Investors shall have received a duly executed Officer’s Compliance
Certificate from the Company dated as of the Closing Date.
6.1.12 Each
of
the Investors shall have received the Legal Opinion from Xxx Xxxxx, Adv. dated
as of the Closing Date.
6.1.13 No
Material
Adverse Condition.
There
shall have not occurred a
Material Adverse Condition with respect to the Company
between
the date of execution of this Agreement and until the Closing Date.
6.2 Conditions
to Closing by the Company.
The
obligations of the Company, towards each Investor, to take any action required
of the Company hereunder to be taken at the Closing are subject to the
fulfillment at or before the Closing of all the following conditions, which
conditions may be waived in whole or in part by the Company, and which waiver
shall be at the sole discretion of the Company:
6.2.1 Representations
and Warranties.
The
representations and warranties made by such Investor in this Agreement shall
have been true and correct when made, and shall be true and correct as of the
date of the Closing.
6.2.2 Performance.
All
covenants, agreements and conditions contained in this Agreement to be
performed, or complied with, by such Investor prior to or at the Closing shall
have been performed or complied with by such Investor prior to or at the
Closing.
6.2.3 Consents,
Notifications etc.
The
Company and/or the Investors, as the case may be, shall have duly obtained
and
secured all Approvals, and shall have made or given any and all applicable
filings and notices with, any person, entity or authority, and has made or
given
any and all applicable public or other announcements, all as may be required
under any applicable law, for the purpose of consummating the transactions
contemplated herein and in the Shareholders Agreement at the Closing.
6.2.4 No
Judgment or Order.
There
shall not be on the date of the Closing any judgment or order of a court of
competent jurisdiction or any ruling, regulation or order of any authority
which
would prohibit or have the effect of preventing consummation of the transactions
contemplated by this Agreement.
10
6.2.5 SCH
shall
have sold 8,400,000 Ordinary Shares of the Company held by SCH to unrelated
third parties in a private transaction.
SECTION 7. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby declares, confirms, represents and warrants and undertakes to
the
Investors as follows:
7.1 Organization.
The
Company is a Public Company duly registered and validly existing under the
laws
of the State of Israel.
No
proceeding or resolution for the bankruptcy, dissolution, liquidation,
winding-up, appointment of receiver and/or similar proceeding has been
instituted or taken by the Company, and to the best of its knowledge, no such
proceeding has been instituted or threatened against the Company.
The
Company is not in default or violation of any material term or provision of
its
Articles of Association of the Company (the “Articles”),
or to
the Company’s best knowledge of any material order, law, statute, rule,
regulation or directive to which it is subject so as to result in a Material
Adverse Condition.
7.2 Capitalization.
7.2.1 The
authorized share capital of the Company as of the Closing shall be reorganized
into Ordinary Shares of which as at the date of signature of this Agreement,
35,862,393 Ordinary Shares have been issued and are fully paid-up. The Cap
Table
attached hereto sets forth the Company’s issued and paid-up share capital, the
holders thereof, and their respective percentage of shareholdings in the
Company, immediately prior to and immediately following the Closing and on
a
fully-diluted basis.
7.2.2 The
Company shall have reserved Ordinary Shares of
the
Company for issuance to (i) SFKT (or at its written request to ART P.E.) in
the
event of exercise of the SFKT Option and (ii) the Bank, upon the exercise of
the
Bank Option. As of the Closing Date, the Company granted options to purchase
up
to 702,667 Ordinary Shares of the Company to its employees, all as detailed
in
the Cap Table, and the Company has reserved that number of Ordinary Shares
with
respect thereto. Additional options included in the existing employee stock
option plan and a newly contemplated employee stock option plan are expressed
on
the Cap Table. The Company will reserve a sufficient number of Ordinary Shares
with respect thereto.
7.2.3 Except:
(i) as detailed in this Agreement and in the Cap Table; (ii) as provided in
Section 7.2.2 herein; (iii) as provided in the Bank Agreement; and (iv) for
the
transactions contemplated in this Agreement; there are no other share capital,
Convertible Securities, or other rights to subscribe for, purchase or acquire
from the Company any share capital of the Company, and there are no contracts
or
binding commitments providing for the issuance of, or the granting of rights
to
acquire, any share capital of the Company, or under which the Company is, or
may
become obligated to issue any of its securities.
11
7.2.4 All
issued and outstanding share capital of the Company was duly authorized, and
is
validly issued and outstanding and, except as otherwise provided in Cap Table,
is fully paid and non-assessable. The Ordinary Shares, when issued and allotted
and fully paid in accordance with this Agreement at the Closing, will be duly
authorized, validly issued, fully paid, non-assessable, and free and clear
from
all liens, security interests, third party claims or encumbrances of any nature,
and will have the rights set forth in the Company’s Articles, and will be
subject to restrictions set forth in the Company’s Articles and/or in this
Agreement or any exhibit hereof or under any applicable law, regulation, rules
or directive.
7.2.5 The
Ordinary Shares issuable upon the due exercise of the SFKT's Option:
(i) will be duly authorized and reserved in sufficient quantity for
issuance by all necessary corporate action; and (ii) when issued and
allotted in accordance with this Agreement, will be duly and validly issued,
fully paid, non-assessable, and free of any and clear from all liens, security
interests, third party claims or encumbrances of any nature created by the
Company.
7.3 Authorization. The
Company has the full power and authority to execute, enter into and perform
its
obligations under this Agreement, which, subject to obtaining the Approvals,
has
been, or will be prior to the Closing, duly authorized by all of the necessary
corporate and any and all other actions, and the same constitute or will
constitute (as applicable) valid and legally binding obligations of the Company,
enforceable against it in accordance with their respective terms except to
the
extent such enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and/or other similar laws
affecting the rights of creditors generally or by the application of general
equity principles, and/or relating to the Company.
7.4 No
Conflict. Subject
to obtaining the Approvals required by the Company and/or Investors, as the
case
may be, in order to consummate and perform this Agreement, the execution,
delivery, and performance of this Agreement and the Management Agreement by
the
Company, and the consummation of the transactions contemplated hereby by the
Company at the Closing, will not conflict with, give rise to, or result in
any
breach or constitute a default (or an event which, with notice or lapse of
time
or both, would constitute a default), violate the terms of, result in the
acceleration of any obligation, terminate, modify, or cancel, or require any
notice under: (i) any applicable law, regulation, rule, directive, order,
judgment, writ, injunction, decree or award of any governmental authority,
agency or court, or other restriction of any governmental entity, agency or
court, or the TASE; or (ii) any material written and/or oral agreement,
contract, commitment, lease, license, arrangement and/or other instrument to
which such party is bound by or to which any of its assets is subject to; and/or
(iii) any provision of the Company’s Memorandum of Association, Articles, or any
other material applicable document, as the case may be.
12
7.5 Brokers.
The
Company has no contract, arrangement or understanding with any broker, finder
or
similar agent with respect to the transactions contemplated by this Agreement.
The Company agrees to indemnify and hold the Investors harmless, from and
against any claim or liability resulting from any party claiming any such
commission or fee, if such claims shall be contrary to the above
statement.
7.6 To
the
Company’s best knowledge the representations and warranties made in this Section
7 do not contain any untrue statement or omit a material fact that makes the
statements therein misleading.
SECTION 8. REPRESENTATIONS
AND WARRANTIES OF THE INVESTORS
Alpine
HoldCo and SFKT severally, each as to itself, and not jointly, declares,
confirms, represents, warrants and undertakes to the Company that:
8.1 Organization.
It is
duly organized, validly existing, and in good standing under the laws of the
state of its incorporation, and it has all necessary power, authority and
capacity to enter into, execute, deliver and perform this Agreement, and to
consummate the transactions contemplated hereby. No proceeding or resolution
for
the bankruptcy, dissolution, liquidation, winding-up, appointment of receiver
and/or similar proceeding has been instituted or taken thereby, and to the
best
of its knowledge, no such proceeding has been instituted or threatened against
it.
8.2 Authorization.
The
execution, delivery and performance of this Agreement and the Management
Agreement by it has been duly and validly authorized and approved by all
necessary corporate or other applicable action, as the case may be, and
constitutes a valid and legally binding obligation thereof.
This
Agreement has been duly and validly executed and delivered thereby, enforceable
against it in accordance with its terms, except to the extent such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and/or other similar laws affecting the rights
of creditors generally or by the application of general equity principles,
and/or relating thereto.
8.3 No
Conflict. Subject
to obtaining the Approvals required by the Company and/or Investors, as the
case
may be, in order to consummate and perform this Agreement, the execution,
delivery, and performance of this Agreement and the Management Agreement by
such
Investor, and the consummation of the transactions contemplated hereby, does
not
and will not conflict with, result in a breach of, constitute a default (or
an
event which, with notice or lapse of time or both, would constitute a default),
violate the terms of, result in the acceleration of any obligation, terminate,
modify, or cancel, or require any notice under: (i) any applicable law,
regulation, rule, directive, order, judgment, writ, injunction, decree or award
of any governmental authority, agency or court, or other restriction of any
governmental entity, agency or court, or the TASE; or (ii) any written and/or
oral agreement, contract, commitment, lease, license, arrangement and/or other
instrument to which such Investor is bound by or to which any of its assets
is
subject to; and/or (iii) any provision of the Investor's certificate of
incorporation, by-laws, articles of association, memorandum of association
or
certificate of registration, or any other material applicable document, as
the
case may be.
13
8.4 Experience;
Speculative Nature of Investment
It is a
sophisticated investor and has such requisite knowledge and experience in
financial and business matters that it is capable of evaluating the merits
and
risks of its investment in the Company and of
the
transactions contemplated hereunder.
Such
Investor represents that it has the ability to bear the full economic risk
of
its investment pursuant to this Agreement. Such Investor is aware of the risks
therefore associated with its investment in the Company. Such Investor also
warrants and represents that it has not been organized solely for the purpose
of
acquiring the Ordinary Shares.
8.5 Information
Received Before Purchase "As Is" and Waiver of Claims.
8.5.1 Each
Investor represents, acknowledges and confirms that it has either received
from
the Company or had the opportunity to receive any and all the materials it
requested and has either conducted or had the opportunity to conduct a full
independent due diligence review of the Company and its business, and that
it
has had the opportunity to discuss the Company’s business and financial affairs
with the officers and the management of the Company and to visit and review
the
Company’s operations and facilities. Such Investor agrees to purchase the
Ordinary Shares, based upon its experience as a sophisticated investor and
the
investigations it has deemed necessary to make prior to the date hereof.
8.5.2 Each
of
the Investors hereby irrevocably and unconditionally confirms, represents and
warrants that it does not have any claims and/or demands and/or allegations
whatsoever against the Company or the other Investor, and, without derogating
from the aforesaid, except in the event of fraud or gross negligence by the
Company - with respect to information made available to the public; or fraud
-
with respect to information not in the public domain, that was provided to
the
Investors prior to the date hereof, hereby irrevocably and unconditionally
releases and discharges each of the Company and the other Investor from and
against any claims and/or demands and/or allegations whatsoever which it may
have or may have had (whether known or unknown), if any, all including, but
not
limited to any claims and/or demands and/or allegations of any “non conformity”
or defect of any kind or any other cause of claim of any kind with respect
to
the Ordinary Shares and its investment in the Company, and that it shall not
raise any such claims and/or demands and/or allegations whatsoever in the
future.
8.5.3 In
addition, and without derogating from the said in sub sections 8.5.1 and 8.5.2
above, SFKT represents, acknowledges and confirms that if and when it will
be
making the decision to exercise SFKT's Option or any part thereof, SFKT shall
rely solely on its own independent examination of the Company, including the
merits and risks involved in investing in the Company. The purchasing of the
underlying Ordinary Shares under SFKT's Option shall be made on an “AS IS”
basis, and SFKT hereby waives any claim whatsoever of any “non conformity” or
defect of any kind or any other cause of claim of any kind with respect to
the
underlying Ordinary Shares and its investment in the Company.
14
8.6
Investment Purpose.
Such
Investor represents and agrees that it is purchasing the Ordinary Shares for
investment for its own account, not as nominee or agent, and not with a current
view to, or for immediate resale or in connection with, any distribution of
any
part thereof, and such Investor has no present intention of selling, granting
any participation in or otherwise distributing the same. For the avoidance
of
doubt it is hereby clarified that the purchase of Ordinary Shares by SFKT on
behalf of ART P. E. is in compliance with this representation.
8.7
Each
Investor represents, warrants and covenants that it has and will continue to
timely provide the Company, it being a publicly listed Company, with any
information required to enable the Company to comply with any applicable legal
requirements in connection therewith.
8.8
Each
Investor is familiar with the provisions of the Bank Agreement and the right
of
the Bank to demand immediate repayment of the loans owing to the Bank in the
event there is a change of control over the Company without the consent of
the
Bank.
SECTION
9. AFFIRMATIVE
COVENANTS
9.1 Use
of
Proceeds.
The
Company will use the proceeds of the issuance and sale of the Ordinary Shares
to
the Investors to repay the Bank part of the Company's long-term outstanding
loans as detailed in the Bank Agreement, all pursuant to and in accordance
with
the terms and conditions of the Bank Agreement, and any applicable law,
regulation, rule or directive.
9.2 Reservation
of Additional Shares for Share Options.
In
addition to the shares reserved by the Company as of the date hereof (as
detailed in Cap Table), the Company shall reserve, out of its authorized but
unissued share capital, an additional amount of [ ] Ordinary Shares; all such
reserved shares shall be available for future allocation under the Bank's Option
and SFKT's Option, and shall be allocated within the framework of the Bank
Agreement and this Agreement to the Bank and SFKT or - at its written request-
to ART P.E, respectively.
9.3 Submission
of Reports and Information.
The
Company confirms that it is aware of the fact that SFKT and The Alpine Group
Inc. are each a publicly traded company that has to comply with the disclosure
duties under the respective Securities Law that applies to them and under any
other foreign securities laws and regulations promulgated thereunder,
respectively. The Company will provide each of the Investors annual and
quarterly financial statements made pursuant to the reporting requirements
applicable to the Company, as well as all other information or materials that
may be required for each of the Investors in order to comply with its reporting
or disclosure duties under the Securities Law or any other applicable law,
order, regulation, rule, directive or other applicable ruling. Annual and
quarterly financial statements will be submitted to the Investors no later
than
10 Business Days before the last day by which the relevant annual and quarterly
financial statements must be published by Public Companies under the Securities
Law.
15
SECTION
10. MISCELLANEOUS
10.1 Waiver
And Forbearance. No
waiver
of any term or provision of this Agreement shall be effective unless in writing
signed by the party to be charged. No rights of any party shall be prejudiced
or
restricted by any indulgence or forbearance to any other party or parties and
no
waiver by any party in respect of any breach of any term or provision of this
Agreement shall operate or construed as a waiver in respect of any subsequent
breach.
10.2 Governing
Law And Competent Courts. The
construction, validity, interpretation, performance and enforcement of this
Agreement and any agreement entered into pursuant hereto, shall be governed
by
the Laws of the State of Israel, and the competent courts of Tel-Aviv shall
have
exclusive jurisdiction in all matters relating to this Agreement, to the
exclusion of any other jurisdiction.
10.3 Periods.
10.3.1 Periods
stated in this Agreement in terms of months shall be calculated on the basis
of
Gregorian calendar months.
10.3.2
All
references in this Agreement to days are references to Business Days both in
Israel and in the U.S.A (Eastern Time). "Business
Days"
means
any day that is not Saturday, Sunday, or a day on which banking institutions
in
New York, NY, or in the State of Israel are authorized or required to be
closed.
10.4 Notices.
All
notices or communications required or permitted hereunder shall be deemed duly
given when received on a Business Day (and if sent on a day which is not a
Business Day, on the next succeeding Business Day), by
any of
the parties hereto to the other parties if such notice or communication is
(i)
dated and in writing and (ii) personally delivered or sent by e-mail, or by
fax,
receipt confirmed, as follows:
If
to the
Company, as follows:
Superior
Cables Ltd.
X.X.Xxx
000
Xxxxxx
Xxxxxx, 00000
Att:
Chief Executive Officer
Fax:
(000)-0-0000000/65
With
a
simultaneous copy to:
Xxx
Xxxxx, Adv.
85
Medinat Xxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx, 00000 Xxxxxx
Fax:
(000)-0-0000000
E-mail:
xxx@xxxxxxxxx.xxx
16
If
to
Alpine HoldCo or to SCH:
C/o
The
Alpine Group, Inc.
Xxx
Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
U.S.A
Attention:
Executive Vice President
Fax:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxx-xxxxx.xxx
With
a
simultaneous copy to:
Shiboleth,
Yisraeli, Roberts, Xxxxxx & Co.
And
Xxxxx
X. Xxxxxx, Xxx-Artzi & Co.
00
Xxxxxxxxxx Xxxxxx,
Xxx
Xxxx,
Xxxxxx 00000
Att.
Xxxxxxx X. Xxxxxxx, Esq.
Fax:
000-0-0000000
Email:
X.Xxxxxxx@xxxxxxxx.xxx
If
to
SFKT, as follows:
C/x
Xxxxx
Xxxxx Xxxxxx Technologies Ltd
Xxxxxxxx
Xxxxx, xx. 00,
00,
Xx'Xxxxx Xx., Xxx Xxxx, 00000
Fax:
972-3- 0000000
Email:
xxxxxx@xxxx.xx.xx
With
a
simultaneous copy to:
Lahav,
Xxxxxx-Xxxxx & Co.
52,Xxxxxxxx
Xxxxx Xxxxxx,
Xxx
Xxxx,
Xxxxxx, 00000
Att:
Xxxx
Xxxxx, Esq.
Fax:
000-0-0000000
Email:
xxxx@xxxxxxxx-xxx.xx.xx
And
to:
Xxxxx@xxxx.xx.xx
The
above
addresses respectively shall also be the addresses of the parties hereto for
service of documents of any kind.
The
above
address or addresses may be changed by the relevant Party by notice in writing
furnished to all persons at their above designated residences, as provided.
Such
notice shall be deemed to have been given as of the date received or as
otherwise set forth herein.
17
10.5 Entire
Agreement and Amendments.
This
Agreement and the Management Agreement constitute the sole understandings
between the Company and any of the Investors with respect to the subject matter
hereof and supercedes any prior understandings, agreements, representation
and/or warranties by or among the parties, written or oral. No modification
or
amendment of this Agreement may be made except by an instrument in writing,
signed by all the Parties hereto.
10.6 Press
Releases and Public Announcements.
Any and
all press releases or public announcements that the Parties are required to
make
under any applicable law or are otherwise proposed to be made in connection
herewith, will be made, to the extent possible and permissible under any
applicable law, following the prior coordination of the contents thereof with
the other Parties.
10.7 No
Third-Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any Person other than
the
Parties and their respective successors and permitted assigns.
10.8 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall,
for
all purposes, be deemed an original but all of which together will constitute
one and the same instrument.
10.9 Further
Assurances.
Each
Party 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 reasonably
may
request in order to carry out the intent and accomplish the purposes of this
Agreement.
10.10 Invalidity
of Provision.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of the remainder of this
Agreement.
10.11 Expenses.
10.11.1
Subject to any applicable law, regulation, rule or directive, the Company will
reimburse Alpine HoldCo's reasonable expenses with respect to arranging,
negotiating and drafting the transactions contemplated under this Agreement
up
to the limit to be approved by the Company's Audit Committee.
10.11.2
Except as provided in sub-section 10.11.1 above, each Party shall pay all costs
and expenses incurred by it or on its behalf in connection with this Agreement
and the transactions contemplated hereby including, inter
alia,
fees
and expenses of its own counsel, financial consultants and
accountants.
10.12 Material
Adverse Conditions and Force Majeure events.
10.12.1
Alpine shall not be liable for failures or delays in the performance of any
of
its respective obligations hereunder, from the date of execution of this
Agreement and until the Closing Date, due to any Material Adverse Condition
or
force majeure events that at the time of execution of this Agreement Alpine
did
not know of or foresee and need not have known or foreseen, and which it could
not have avoided, including but not limited to acts of full scale war, and
acts
of God, or any other cause beyond the reasonable control of Alpine (any Material
Adverse Condition and the force majeure events mentioned herein, collectively,
the "Force
Majeure Events");
provided
however
that the
performance of this Agreement under the circumstances of the Force Majeure
Events is impossible or fundamentally different from what was agreed herein.
18
10.12.2
Without derogating from the above, Alpine agrees that upon the occurrence of
the
Force Majeure Events from the date of execution of this Agreement and until
the
Closing Date, the Closing by it is not required to take place, and if the Force
Majeure Events continue for a period of time greater than seven (7) days, then
either Party may terminate this Agreement and in such case it will not bind
the
Company, Alpine, SFKT and ART P.E. in any respect.
AS
WITNESS WHEREOF
the
Parties hereto have duly executed this Agreement as of the date first above
written.
|
Superior
Cables Ltd.
|
Superior
Cables Holding (1997) Ltd.
|
Xxxxx
Xxxxx Xxxxxx Technologies Ltd.
|
|
By:
/s/ Xxxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxx
|
By:
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
|
By:
/s/
Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx
|
|
Alpine
Holdco Inc.
|
||
|
By:
/s/ X. Xxxxxxxx Posner
X.
Xxxxxxxx Posner
|
19
