E-SIM LTD.
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 13 day of May, 2004 by and between the purchasers identified in
Schedule A attached hereto (each a "Purchaser" and collectively the
"Purchasers"), and e-SIM, Ltd., an Israeli company (the "Company").
RECITALS:
WHEREAS, the Company desires to issue and sell to the Purchasers and the
Purchasers desires to purchase from the Company (severally and not collectively)
Ordinary Shares as indicated in Schedule A hereto, in the aggregate of up to
8,000,000 (eight million) shares (the "Shares") of the Company's Ordinary
Shares, par value ten Agorot (NIS 0.10) per share (the "Ordinary Shares").
NOW, THEREFORE, in consideration of the respective covenants,
representations and warranties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
Article 1
PURCHASE OF SHARES
1.1 Commitments to Purchase and Sell. Subject to the terms and conditions
set forth herein and in reliance on the representations and warranties contained
herein, each Purchaser agrees to purchase from the Company, and the Company
agrees to sell to such Purchaser, the number of Shares set forth opposite the
name of such Purchaser on Schedule A hereto for the purchase price of FIFTY
UNITED STATES CENTS (US$0.50) per Share. The aggregate purchase price to be paid
by each Purchaser is referred to as the "Share Purchase Price" and each
Purchaser shall pay the Share Purchase Price set forth opposite the name of such
Purchaser on Schedule A hereto. The aggregate of the Share Purchase Prices shall
not exceed $4,000,000 (Four Million Dollars) and the Company shall be entitled
to add additional Purchasers to Schedule A until the said aggregate is reached.
No Purchaser shall be liable, committed or required to make any payments on
account of any other Purchaser. Failure of any Purchaser to make any payment
required of it shall not relieve any other Purchaser of its obligations
hereunder.
1.2 At the Closing, the Company shall issue to each Purchaser a warrant
(each a "Warrant") to purchase Ordinary Shares, the number of which is as set
forth opposite the name of each Purchaser on Schedule A hereto (the "Warrant
Shares") as may be amended from time to time in accordance with the terms and
provisions of the Warrant Certificate, at a price per share of Seventy Five U.S.
Cents ($0.75). The Purchase of the Warrant Shares shall be on the terms more
fully set forth in the warrant certificates attached as Schedule B hereto (the
"Warrant Certificates").
1.3 Closing
-------
1.3.1 The purchase and sale of the Shares shall take place at a
closing (the "Closing") at the offices of the Company at 00 Xxxxxx Xxxxxx, X.X.
Xxx 00000, Xxxxxxxxx 00000 Xxxxxx on March ____, 2004 ("Closing Date") provided
however that in respect of any Purchaser whose purchase of shares is subject to
shareholder approval as specified in Section 2.1.5, such Purchaser shall
transfer funds to the Company as specified in Section 1.3.3 on the Closing Date,
and issuance of shares, certificate representing the shares and Warrant
Certificate to such Purchaser shall take place within 7 days of receipt of
shareholder approval. If such approval is not obtained within 6 months of the
Closing Date, the Company shall refund the funds advanced, together with
interest at the six month LIBOR in force on the date of receipt of funds.
1.3.2 At the Closing, the Company shall deliver to each Purchaser,
against payment to the Company of the Share Purchase Price of such Purchaser,
certificates representing the Shares purchased by such Purchaser and the Warrant
Certificate.
1.3.3 At the Closing, each Purchaser shall pay the Share Purchase
Price of such Purchaser in United States Dollars to the Company by wire transfer
of immediately available funds to such bank account as the Company may designate
in writing to the Purchaser.
1.3.4 At the Closing, the parties shall also execute and deliver or
cause to be executed and delivered the documents referred to in Article 3
hereof. All actions taken and all transactions occurring at the Closing in
respect of each Purchaser shall be deemed to take place simultaneously, and in
respect of each Purchaser, no transaction shall be deemed to have been completed
or any document delivered until all such transactions with that Purchaser have
been completed and all required documents delivered.
Article 2
REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 Representations and Warranties of the Company. The Company makes the
following representations and warranties to the Purchasers, each of which is
true and correct as of the date hereof and shall be true and correct as of the
Closing Date and shall be unaffected by any investigation heretofore or
hereafter made by any Purchaser.
2.1.1 Organization and Good Standing. The Company is duly organized
and validly existing under the laws of the State of Israel. The Company has the
requisite power and authority to own, lease or otherwise hold the assets owned,
leased or otherwise held by it and to carry on its business as presently
conducted by it.
2.1.2 Authorization and Effect. This Agreement has been duly executed
and delivered by the Company and, assuming the due execution and delivery of
this Agreement by each Purchaser, this Agreement constitutes the valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.1.3 Capitalization. The registered share capital of the Company is
seventy million (70,000,000) Ordinary Shares, of which nineteen million, eight
hundred and twenty three thousand, five hundred and ninety five (19,823,595) are
issued and outstanding and ten million, one hundred and ten thousand, two
hundred and thirty (10,110,230) are reserved for issuance upon the exercise of
options held by employees, directors and others. All of the issued and
outstanding share capital of the Company is duly authorized and validly issued
and is fully paid and non-assessable. None of the outstanding share capital of
the Company has been issued in violation of, and none of such outstanding share
capital is subject to, any purchase option, call, right of first refusal,
preemptive, subscription or similar rights, except as specified in the Company's
Articles of Association and Schedule 2.1.3.
2.1.4 No Restrictions; Required Consents. Following the receipt by the
Company of the shareholders' approval referenced below, the execution and
delivery of this Agreement by the Company does not, and the performance by the
Company of the transactions contemplated hereby will not, (i) conflict with the
Company's Memorandum of Association or Articles of Association, (ii) conflict
with, or result in any violation of, or constitute a default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any debt or obligation or constitute a breach
of, create a loss of a material benefit under, any contract, mortgage,
indenture, lease, agreement or other instrument or any permit, order, judgment
or decree to which the Company is a party or by which any
2
is bound, or (iii) constitute a violation of any domestic or foreign statute,
law, ordinance, rule or regulation (the "Law") applicable to the Company, in
each case which would result in a material adverse effect on the Company and its
Subsidiaries taken as a whole. No consent, approval, order or authorization of,
or registration, declaration or filing with, any domestic or foreign court,
government, governmental agency, authority, entity or instrumentality (a
"Governmental Entity") or other party (other than the shareholders of the
Company) is required to be obtained or made by or with respect to the Company in
connection with the Company's execution and delivery of this Agreement or the
consummation by the Company of the transactions contemplated hereby.
2.1.5 Shareholder Approval. The validity, enforceability and binding
nature of this Agreement and of the issuance of certain shares and other
securities hereunder, with respect to certain Purchasers, as specified in
Schedule A, is subject to the approval and consent of the shareholders of the
Company which the Company shall attempt to obtain and to solicit by way of
extraordinary general meeting. The Company makes no representation and makes no
guarantee that such approval shall be obtained. In the event that the
shareholders of the Company fail to consent to and approve the terms and
conditions of this Agreement or the issuance of certain securities hereunder,
with respect to such certain Purchasers, within 6 months of the Closing Date,
the Agreement shall be null and void, of no bearing and of no force and effect
with respect to such Purchasers alone.
2.2 Representations and Warranties of the Purchasers. Each Purchaser makes
the following representations and warranties to the Company, each of which is
true and correct as of the date hereof and shall be true and correct as of the
Closing Date and shall be unaffected by any investigation heretofore or
hereafter made by the Company.
2.2.1 Corporate Organization. If a corporation, such Purchaser is duly
organized and validly existing and in good standing under the laws of the state
in which it is registered and has the requisite corporate power and authority to
own, lease or otherwise hold its properties and assets and to carry on its
business as presently conducted.
2.2.2 Authorization and Effect. If a corporation, such Purchaser has
the requisite corporate power to execute and deliver this Agreement, and to
consummate the transactions contemplated hereby. If a corporation, the execution
and delivery by such Purchaser of this Agreement, and the consummation by it of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action by such Purchaser. This Agreement has been duly executed and
delivered by such Purchaser and, assuming the due execution and delivery of this
Agreement by the Company, this Agreement constitutes the valid and binding
obligation of such Purchaser enforceable against such Purchaser in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.2.3 No Restrictions; Required Consents. The execution and delivery
of this Agreement by such Purchaser does not, and the performance by such
Purchaser of the transactions contemplated hereby will not, (i) in the case of a
corporate Purchaser, conflict with such Purchaser's certificate of incorporation
or by-laws, (ii) conflict with, or result in any violation of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any debt or
obligation or constitute a breach of, create a loss of a material benefit under,
any contract, mortgage, indenture, lease, agreement or other instrument or any
permit, order, judgment or decree to which such Purchaser is a party or by which
it is bound, or (iii) constitute a violation of any Law applicable to such
Purchaser. No consent, approval, order or authorization of, or registration,
declaration or filing with any Governmental Entity or other party is required to
be obtained or made by or with respect to such Purchaser in connection with the
execution and delivery of this Agreement by such Purchaser or the consummation
by such Purchaser of the transactions contemplated hereby.
3
2.2.4 Purchase of Shares. (a) The Shares are being acquired for such
Purchaser's own account, not as a nominee or agent for any other Person, and
without a view to the distribution of such securities or any interest therein in
violation of the Securities Act.
(b) Such Purchaser (i) is an "accredited investor" within the meaning
of Rule 501(a) under Regulation D promulgated under the Securities Act, (ii) has
such knowledge and experience in financial and business matters so as to be
capable of evaluating the merits and risks of its investment in the Shares, and
(iii) is capable of bearing the economic risks of such investment (including the
risk of the complete loss of its investment in the Shares); and
(c) Such Purchaser (i) acknowledges that the Shares have not been
registered under the Securities Act and understands that the Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
such sale is permitted pursuant to an available exemption from such registration
requirement and (ii) acknowledges and agrees that a legend, stating such
restrictions on transferability, will be placed by the Company on the
certificate or other document that evidences such Purchasers Shares.
(d) Such Purchaser hereby agrees that such Purchaser will not resell
the Shares in whole or in part, other than pursuant to a registration under the
Securities Act or pursuant to an available exemption from registration under the
Securities Act and applicable United States state securities laws exemptions.
2.2.5 Due Diligence Review. Such Purchaser has received all of the
documents and other information that it has requested from the Company, and such
Purchaser has conducted such legal and financial due diligence of the Company as
it deems appropriate and is entering into this Agreement based upon its own due
diligence review.
Article 3
CLOSING CONDITIONS
------------------
3.1 Conditions Precedent to Obligations of the Purchasers. The obligations
of each Purchaser under this Agreement to consummate the transactions
contemplated hereby will be subject to the satisfaction, at or prior to Closing,
of all of the following conditions, any one or more of which may be waived at
the option of such Purchaser:
3.1.1 Representations, Warranties and Covenants. All representations
and warranties of the Company made in this Agreement shall be true, correct and
complete in all material respects as of the date hereof and on and as of the
Closing Date as if made on and as of that date and the Company shall have
delivered to the Purchaser a certificate dated the Closing Date, certifying that
all representations and warranties of the Company made in this Agreement are
true, correct and complete in all material respects as of the date thereof.
3.1.2 Banking Documents. The Company shall have entered into
agreements with Israel Discount Bank and the Industrial Development Bank of
Israel substantially in the forms attached hereto as Schedule 3.1.2.
3.1.3 Certified Resolutions. The Company shall have delivered to the
Purchaser certified resolutions of the Board of Directors of the Company
approving the execution and delivery of this Agreement and the consummation by
the Company of the transactions contemplated hereby.
3.1.4 Share Certificate. The Company shall have delivered to each
Purchaser a share certificate with respect to the Shares issued in the name of
each of Purchaser pursuant hereto.
4
3.2 Conditions Precedent to Obligations of the Company. The obligations of
the Company under this Agreement to consummate the transactions contemplated
hereby will be subject to the satisfaction, at or prior to the Closing, of all
the following conditions, any one or more of which may be waived at the option
of the Company:
3.2.1 Representations, Warranties and Covenants. All representations
and warranties of such Purchaser made in this Agreement shall be true and
complete in all material respects as of the date hereof and on and as of the
Closing Date as if made on and as of that date and the Purchaser shall have
delivered to the Company a certificate dated the Closing Date, certifying that
all representations and warranties of such Purchaser made in this Agreement are
true, correct and complete in all material respects as of the date thereof.
3.2.2 Certified Resolutions. If a corporate Purchaser, such Purchaser
shall have delivered to the Company certified resolutions of the board of
directors of such Purchaser approving the execution and delivery of this
Agreement, and authorizing the consummation of the transactions contemplated
hereby.
Article 4
REGISTRATION
------------
4.1 Definitions. As used in this Article 4, the following terms shall have
the following meanings:
"Register," "registered" and "registration" refer to a
registration effected by filing a registration statement on
Form F-3 in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), and the declaration or
ordering by the Securities and Exchange SEC (the "SEC") of
effectiveness of such registration statement, or the
equivalent actions under the laws of another jurisdiction.
"Registrable Shares" refers to all Ordinary Shares issued
pursuant to this Agreement and any Ordinary Shares purchased
pursuant to the exercise of the Warrant Certificate or any
part thereof, to the extent held by any Purchaser or any
permitted transferee thereof in accordance herewith;
provided, however, that Registrable Shares shall not include
any shares (i) the sale of which has been registered
pursuant to the Securities Act and which shares have been
sold pursuant to such registration or (ii) which have been
or may be sold pursuant to Rule 144 promulgated under the
Securities Act.
4.2 F-3 Registration
----------------
4.2.1 Subject to all of the provisions contained in this Agreement,
together with the filing by the Company of its Annual Report on Form 20-F for
the fiscal year ended January 31, 2004, which the Company hereby undertakes
shall take place no later than July 31, 2004 (the "Filing Date"), the Company
shall prepare and file with the SEC a single registration statement covering the
resale of all Registrable Shares. The Registration Statement shall be on Form
F-3 to the extent that the resale of the Registrable Shares for the account of
any Purchaser is permitted pursuant to General Instruction I.B>3. of Form F-3
and is not objected to by the SEC because of the status of, or any action taken
by, such Purchaser.
5
Notwithstanding the foregoing, if the Company is not eligible, at any relevant
time, to register any or all of the Registerable Shares of an Purchaser on Form
F-3 because of the SEC's objection relating to the status of, or any action
taken by, such Purchaser ("Non F-3 Eligible Registrable Shares"), the Company
shall be exempt from performing such registration of such Non F-3 Eligible
Registrable Shares at that time.
4.2.2 The Company shall use its reasonable best efforts to cause the
Registration Statement to be declared effective by the SEC as promptly as
reasonably possible after the filing thereof, and shall use reasonable
commercial efforts to keep the Registration Statement continuously effective
under the Securities Act until the earlier of the date that all Registrable
Shares covered by such Registration Statement have been sold or can be sold
publicly under Rule 144(k) (the "Effectiveness Period").
4.2.3 The Company shall notify the Purchasers in writing promptly
after receiving notification from the SEC that the Registration Statement has
been declared effective.
4.2.4 Notwithstanding anything in this Agreement to the contrary, the
Company may, by written notice to the Purchasers, suspend sales under a
Registration Statement after the Effective Date thereof and/or require that the
Purchasers immediately cease the sale of Ordinary Shares pursuant thereto and/or
defer the filing of any subsequent Registration Statement if the Company is
engaged in a merger, acquisition, or sale, private or public offering or similar
events and the Board of Directors of the Company determines in good faith, by
appropriate resolutions, that, as a result of such activity, (A) it would be
materially detrimental to the Company to maintain a Registration Statement at
such time or (B) it is in the best interests of the Company to defer proceeding
with such registration at such time. Upon receipt of such notice, each Purchaser
shall immediately discontinue any sales of Registrable Shares pursuant to such
registration until such Purchaser has received copies of a supplemented or until
such Purchaser. In no event, however, shall this right be exercised to suspend
sales beyond the period during which (in the good faith determination of the
Company's Board of Directors) the failure to require such suspension would be
materially detrimental to the Company. Immediately after the end of any
suspension period under this Section 4.1.4 the Company shall take all necessary
actions to restore the effectiveness of the applicable Registration Statement
and the ability of the Purchasers to publicly resell their Registrable Shares
pursuant to such effective Registration Statement.
4.3 Registration Procedures.
-----------------------
4.3.1 In connection with the Company's registration obligations
hereunder, the Company shall:
4.3.1.1 Prior to the filing of a Registration Statement, (i)
furnish to the Purchasers copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such Purchasers, and (ii) cause the
Company's officers and directors, counsel and independent certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of Company counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
4.3.1.2 Subject to Section 4.1.4., prepare and file with the SEC
such amendments, including post-effective amendments, to the Registration
Statement and the prospectus used in connection therewith as may be necessary to
keep the Registration Statement continuously effective, as to the applicable
Registrable Shares for the Effectiveness Period and prepare and file with the
SEC such additional Registration Statements in order to register for resale
under the Securities Act all of the Registrable Shares.
6
4.3.1.3 Notify each Purchaser as promptly as reasonably possible,
of any of the following events: (i) the SEC or any other federal or state
governmental authority requests any amendment or supplement to any Registration
Statement or prospectus or requests additional information related thereto; (ii)
the SEC issues any stop order suspending the effectiveness of any Registration
Statement or initiates any proceedings for that purpose; (iii) the Company
receives notice of any suspension of the qualification or exemption from
qualification of any Registrable Shares for sale in any jurisdiction, or the
initiation or threat of any proceeding for such purpose; or (iv) the financial
statements included in any Registration Statement become ineligible for
inclusion therein or any statement made in any Registration Statement or any
document incorporated or deemed to be incorporated therein by reference is
untrue in any material respect or any revision to a Registration Statement, or
other document is required so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
4.3.1.4 Use its reasonable commercial efforts to avoid the
issuance of or, if issued, obtain the withdrawal of (i) any order suspending the
effectiveness of any Registration Statement, or (ii) any suspension of the
qualification of any of the Registrable Shares for sale in any jurisdiction, as
soon as possible.
4.3.1.5 If requested by a Purchaser, provide such Purchaser,
without charge, one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules, and all
exhibits to the extent requested by such Purchaser (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the SEC.
4.3.1.6 Comply, in all material respects, with all rules and
regulations of the SEC applicable to the registration of the Registrable Shares.
4.4 Dispositions. Each Purchaser agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in
connection with sales of Registrable Shares pursuant to the Registration
Statement. Each Purchaser further agrees that, upon receipt of a notice from the
Company of the occurrence of any event of the kind described in Sections
4.2.1.3, such Purchaser will discontinue disposition of such Registrable Shares
under the Registration Statement until such Purchaser is advised in writing by
the Company that the use of the applicable prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
4.5 The Purchaser shall pay the SEC registration fee, the underwriting
discount or commission, if any, and the cost of any legal opinions required by
the underwriters with respect to any Registrable Shares to be sold by the
Purchaser hereunder, and the Company shall bear all other costs.
4.6 Piggyback Registration.
----------------------
If, following the Closing Date, and at any time until the earlier of (i)
registration pursuant to Section 4.2, or (ii) the date that all Registrable
Shares can be sold publicly under Rule 144(k), the Company at any time proposes
to register any of its securities for its own account (other than securities
registered on Form S-4 or S-8 or any similar successor form), it shall give
notice to each Purchaser of such intention not less than thirty (30) days prior
to the filing of a registration statement in connection therewith. Upon the
written request of the Purchaser given within twenty (20) days after receipt of
any such notice, the Company shall include in such registration all of the
Registrable Shares indicated in such request, so as to permit the disposition of
the shares so registered, provided, that, in the event the underwriter advises
the Purchasers that in its opinion all the shares sought to be sold by the
Purchasers
7
in connection with the Company's offering (together with any other shares to be
sold by other shareholders in such offering) cannot be sold without adversely
impacting the Company's offering, the number of shares to be sold by the
Purchasers and any other selling shareholders and not the Company (which shall
have priority over all selling shareholders) shall be reduced pro rata to the
extent deemed advisable by the underwriter.
4.7 In effecting any registration hereunder, the Purchaser will enter into
an underwriting agreement with the underwriter, if applicable, in such form as
may be required by such underwriter, and the Purchaser will indemnify the
Company and its officers, directors and control persons for any liabilities
arising in connection with the registration based on information provided by the
Purchaser to the Company for use in such offering.
Article 5
MISCELLANEOUS PROVISIONS
------------------------
5.1 Notices. All notices and other communications required or permitted
hereunder will be in writing and, unless otherwise provided in this Agreement,
will be deemed to have been duly given when delivered in person or when
dispatched by electronic facsimile transfer or one business day after having
been dispatched by a nationally recognized overnight courier service to the
appropriate party at the address specified below:
(a) If to the Company, to:
e-SIM Ltd.
00 Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx 00000 Xxxxxx
Attention: Chief Financial Officer
Facsimile No.: 972-2-587-0773
with a copy to:
X. Xxxxxx Law Xxxxxxx
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx 00000 Israel
Attention: Xx. Xxx Xxxxx
(b) If to the Purchaser, to the address specified next to the name of
each Purchaser identified in Schedule A:
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
5.2 Expenses. Each of the parties shall be responsible for its own costs
and expenses related to the negotiation, preparation, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
5.3 Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
8
5.4 Entire Agreement. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by any party or
any of their respective affiliates (or by any director, officer or
representative thereof) relating to the matters contemplated hereby. This
Agreement constitutes the entire agreement by and among the parties hereto and
there are no agreements or commitments by or among such parties or their
affiliates except as expressly set forth herein.
5.5 Amendments and Supplements. This Agreement may be amended or
supplemented at any time by additional written agreements signed by the parties
hereto.
5.6 Rights of the Parties. Except as provided in Section 5.3, nothing
expressed or implied in this Agreement is intended or will be construed to
confer upon or give any person or entity other than the parties hereto and their
respective Affiliates any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby.
5.7 Brokers. Each Purchaser hereby agrees to indemnify and hold harmless
the Company, and the Company hereby agrees to indemnify and hold harmless such
Purchaser, against any liability, claim, loss, damage or expense incurred by
such Purchaser or by the Company, respectively, relating to any fees or
commissions owed to any broker, finder, or financial advisor as a result of
actions taken by such Purchaser or by the Company, respectively.
5.8 Further Assurances. From time to time, as and when requested by either
party, the other party shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments as may be reasonably necessary to
consummate the transactions contemplated by this Agreement.
5.9 Titles and Headings. Titles and headings to sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
5.10 Severability. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable Law, then this Agreement shall
be construed with the invalid, illegal or unenforceable provision deleted, and
the validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
5.11 Governing Law. This Agreement, including, without limitation, the
interpretation, construction and validity hereof, shall be governed by the Laws
of the State of Israel without regard to the conflicts of laws principles
thereof and the competent courts of Jerusalem shall have exclusive jurisdiction.
5.12 Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
5.13 Press Release. Following the Closing, the parties hereby agree that
the Company may publicly disclose the transactions contemplated herein
(including the identity of the Purchasers and the terms thereof).
5.14 Certain Interpretive Matters and Definitions. (a) Unless the context
otherwise requires, (i) all references to Sections are to Sections of or to this
Agreement, (ii) each term defined in this Agreement has the meaning assigned to
it, (iii) "or" is disjunctive but not necessarily exclusive, (iv) words in the
singular include the plural and vice versa and (vi) "Person" or "person" means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof. All references to "$" or dollar amounts
will be to lawful currency of the United States of America.
9
(b) No provision of this Agreement will be interpreted in favor of, or
against, either of the parties hereto by reason of the extent to which either
such party or its counsel participated in the drafting thereof or by reason of
the extent to which any such provision is inconsistent with any prior draft
hereof or thereof.
5.15 No Recourse. Notwithstanding any of the terms or provisions of this
Agreement, except to the extent expressly permitted by applicable law (including
but not limited to the securities law of the United States) each of the
Purchasers and the Company agrees that neither it nor any person acting on its
behalf may assert any claims or cause of action against any officer, director,
partner or stockholder of the other party in connection with or arising out of
this Agreement or the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
10
IN WITNESS WHEREOF, the parties have executed this Agreement in one or more
counterparts as of the date first above written.
THE COMPANY:
-----------
e-SIM LTD.
By: /s/ Yaron Eldad and /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Yaron Eldad and Xxxx Xxxxxxxx
Title: COO & CFO, Chairman & CEO
11
IN WITNESS WHEREOF, the parties have executed this Agreement in one or more
counterparts as of the date first above written.
THE PURCHASER:
-------------
If an individual Purchaser:
--------------------------------------------
Name:
If a corporate Purchaser:
Gibralt Capital Corporate
--------------------------------------------
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: CFO
12
SCHEDULE A
INVESTORS
---------------------------------------- ------------------- -------------------- -------------------
Name and Address Number of Shares Purchase Price Number of
Warrant Shares
---------------------------------------- ------------------- -------------------- -------------------
Gibralt Capital Corporate (*) 1,000,000 $500,000 250,000
---------------------------------------- ------------------- -------------------- -------------------
---------------------------------------- ------------------- -------------------- -------------------
---------------------------------------- ------------------- -------------------- -------------------
If an asterisk appears next to the name of the Purchaser, such purchase is
subject to approval of the shareholders of the Company.
13
