Exhibit 10.5
SHARE SUBSCRIPTION AGREEMENT
THIS SHARE SUBSCRIPTION AGREEMENT is made as of May 30, 1999
(the "Agreement"), by and among (i) GIVEN IMAGING LTD., an Israeli private
company (the "Company"), on the first part, (ii) DISCOUNT INVESTMENT CORPORATION
LTD., an Israeli public company ("DIC"), on the second part, (iii) PEC ISRAEL
ECONOMIC CORPORATION, a Maine corporation ("PEC"), on the third part, and (iv)
DIC Finance and Management Ltd., a wholly-owned subsidiary of DIC (the "Escrow
Agent"), as escrow agent either for DIC and PEC in equal shares, or for Elron
Electronic Industries Ltd. ("Elron"), as the Escrow Agent shall notify the
Company. Each of the Company, DIC, PEC and the Escrow Agent are referred to in
this Agreement as a "Party", and collectively as the "Parties", and DIC, PEC and
the Escrow Agent are sometimes referred to as the "Purchasers".
Recitals:
A. Each of DIC, PEC and Elron is a shareholder of the Company;
and
B. The Company wishes to issue and sell to the Purchasers, and
the Purchasers agree, severally and not jointly, to purchase, additional
Ordinary Shares of the Company for an aggregate purchase price of $2,000,000
(two million United States Dollars);
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the Parties agree as follows:
1. DEFINITIONS.
"Articles" means the Articles of Association of the Company as
currently in force and as may, from time to time, be amended.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
other security interest.
"Ordinary Shares" means Ordinary Shares of the Company's share
capital, each of NIS 0.01 par value, bearing the rights, privileges and
restrictions as set forth in the Articles.
"Representative Rate" means the representative rate of exchange of
one United States Dollar into New Israeli Shekels, as last published by the Bank
of Israel prior to the date
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of actual payment of or time of reference to any amount quoted herein in United
States Dollars.
2. SUBSCRIPTION FOR SHARES.
2.1 SUBSCRIPTION FOR SHARES. On the terms and subject to the
conditions set forth in this Agreement, each Purchaser hereby subscribes for and
agrees, severally and not jointly with the other Purchasers, to purchase and
accept from the Company, and the Company hereby agrees with each Purchaser, to
issue, sell and deliver to such Purchaser, 87,599 (eighty-seven thousand five
hundred and ninety-nine) Ordinary Shares (the "Purchased Shares"), free and
clear of all Liens and other rights of third parties, subject to the provisions
of this Agreement and of the Articles. The Purchased Shares shall be issued and
delivered to each Purchaser within 7 (seven) days from the receipt by the
Company of the Purchase Price payable by such Purchaser, in accordance with
Section 2.2 below.
2.2 PURCHASE PRICE. The Purchase Price payable to the Company by
each Purchaser shall be US$7.6104 per share, and an aggregate of US$666,667 (six
hundred and sixty-six thousand six hundred and sixty-seven U.S. Dollars) for all
the Purchased Shares purchased by such Purchaser (the "Purchase Price"). The
Purchase Price shall be paid on May 31, 1999, in US$, or the equivalent thereof
in NIS calculated according to the Representative Rate, and in the manner
provided in Section 2.4 below.
2.3 [Deleted.]
2.4 DELIVERABLES.
(i) Each Purchaser shall pay to the Company the Purchase Price
payable thereby, in cash, by a bank transfer of immediately available funds to
the Company's bank account No. 74600/44 with Bank Leumi Le'Israel B.M., Yoqneam
Branch #729.
(ii) Within 7 (seven) days from receipt by the Company of the
Purchase Price from each Purchaser, the Company shall deliver to such Purchaser
a duly issued and executed share certificate, representing the Purchased Shares
purchased thereby, and a copy of a resolution of the Company's Board of
Directors authorizing the issue and sale of such Purchased Shares as fully-paid
to such Purchaser in consideration for the Purchase Price therefor.
2.5 CONFIRMATION OF CERTAIN CONDITIONS. The Company hereby represents
and warrants to each Purchaser that it has received the waiver by each
shareholder of the Company (except for the Purchasers and Elron) which has
preemptive rights with respect to the issuance and sale by the Company of the
Purchased Shares to the Purchasers pursuant to this Agreement, waiving its
rights with respect to such issuance.
3. ANTI-DILUTION. In the event that any capital investments in the
Company, other than the capital investments by the Purchasers contemplated by
this
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Agreement, shall take place at any time before March 16, 2000, at price per
share which is lower than the price at which the Purchased Shares are issued and
sold to the Purchasers hereunder (the "Lower Price"), each Purchaser shall be
entitled to receive additional Ordinary Shares in the Company in consideration
for their par value of 0.01 NIS only, so that together with the Purchased Shares
purchased by such Purchaser, when multiplied by the Lower Price, shall equal to
the Purchase Price paid by such Purchaser.
4. MISCELLANEOUS.
4.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Parties and cancels any prior understandings or agreements
between the Parties with respect to the subject matter hereof, written or oral,
to the extent they related to the subject matter hereof.
4.2 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns.
4.3 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
4.4 HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
4.5 GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Israel, without giving effect to any choice or conflict of law provision or
rule. Any suit, action or proceeding arising out of or relating to this
Agreement shall be instituted exclusively in the competent courts situated in
the Tel-Aviv District.
4.6 AMENDMENT AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
the Parties. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to be a waiver of any other default, misrepresentation or breach of warranty or
covenant hereunder.
4.7 EXPENSES. Each of the Parties shall bear its own costs and
expenses (including legal and investment advisory fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby. The
Company shall pay the stamp duty applicable to the issue of the Purchased Shares
hereunder.
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4.8 WAIVER OF PREEMPTIVE RIGHTS. DIC and PEC hereby waive
their rights to participate in the issue of Ordinary Shares by the Company to
Xx. Xxxxxxxx Xxxxx for a total consideration of $35,000, at business terms
substantially similar to those in this Agreement.
4.9 NOTICES. All notices and other communications shall be in
writing and shall be given or delivered to the respective addresses detailed in
Exhibit A hereto until a different address is provided by a notice as aforesaid.
A notice sent by registered mail to the address of a Party shall be deemed to
have been received by such party on the third business day following the date on
which it was mailed, or, if delivered by hand or by fax, shall be deemed to have
been received on the first business day following the time of actual receipt
thereof.
* * * *
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the date first above written.
GIVEN IMAGING LTD.
By: /s/ Z. Xxx-Xxxxx X. Krupik
--------------------------------
Name: Z. Xxx-Xxxxx X. Krupik
Title: Director Director
DISCOUNT INVESTMENT CORPORATION LTD.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
PEC ISRAEL ECONOMIC CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
DIC FINANCE AND MANAGEMENT LTD.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
Title:
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EXHIBIT A
ADDRESSES
GIven Imaging Ltd.:
Xxxxxxxx 0X
Xxx Xxxxxxxxxx Xxxx
Xxxxxxx 00000
Fax: x000-0-000-0000
Attention: Xxxxxxx Xxxxx, President and CEO
Discount Investment Corporation Ltd.:
00 Xxxx Xxxxxxxx Xxxx
Xxx Xxxx
Fax: x000-0-0000000
Attention: Xxxxxx Xxxxx, General Counsel
PEC Israel Economic Corporation:
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000- 000-0000
Attention: Xxxxx Xxxxx, President
DIC Finance and Management Ltd.
00 Xxxx Xxxxxxxx Xxxx
Xxx Xxxx
Fax: x000-0-0000000
Attention: Xxxxxx Xxxxx, General Counsel
