EXHIBIT 3
SHARE PURCHASE AND SALE AGREEMENT
THIS SHARE PURCHASE AND SALE AGREEMENT (the "AGREEMENT") is entered into on
this 3rd day of September, 2009 by and among MR. XXXXX XXXXXX ("SELLER") and
RONEX HOLDINGS L.P., a limited liability partnership incorporated under the laws
of the State of Israel, ("RONEX" or "PURCHASER").
WITNESSETH:
WHEREAS, Seller is the sole owner, beneficial and of record, of 751,485
Ordinary Shares, par value NIS 1.00 each, of Retalix Ltd., a company
incorporated under the laws of the State of Israel (the "PURCHASED SHARES", the
"ORDINARY SHARES" and the "COMPANY", respectively);
WHEREAS, concurrently with the execution of this Agreement, (i) the Company
and certain investors (collectively, "ALPHA") are entering into that certain
Share Purchase Agreement, providing for the purchase by Alpha of Ordinary Shares
and certain warrants to purchase Ordinary Shares from the Company (the "PIPE
AGREEMENT"), (ii) Alpha, Ronex and Xx. Xxxxx Xxxxxx are entering into that
certain Share Purchase and Sale Agreement providing for the purchase by Alpha
and Ronex of the entire issued and outstanding Ordinary Shares held by Xx.
Xxxxxx (the "SHAKED SPA"); (iii) Alpha and Ronex are entering into that certain
Shareholders Agreement (the "SHAREHOLDERS AGREEMENT"); and (iv) Xx. Xxxxx
Xxxxxx, in his capacity as the Chief Executive Officer of the Company, and the
Company are entering into that certain Separation Agreement, upon which such
parties shall separate (the "SEPARATION AGREEMENT", and together with the
agreements indicated above and this Agreement, the "SERIES AGREEMENTS"); all of
which agreements and transactions contemplated hereby and thereby being
conditional upon each other and, subject to their terms, shall be consummated if
all are consummated simultaneously;
WHEREAS, the Seller wishes to sell, transfer and assign to the Purchaser,
and the Purchaser wishes to purchase, assume and receive from Seller, the
Purchased Shares for the consideration set forth herein, subject to the terms
and conditions set forth in this Agreement; and
WHEREAS, as a material inducement to the willingness of Purchaser to enter
into this Agreement and the Series Agreements to which it is a party, and
consummate the transactions hereby and thereby, the Seller has agreed to
undertake certain non-competition and non-solicitation obligations and other
restrictions on the holding and voting of securities of the Company, all as
further set forth herein; and
WHEREAS, to secure the actions to be taken by the parties at the Closing,
concurrently with the execution of this Agreement, the parties are entering into
an Escrow Agreement (the "ESCROW AGREEMENT") providing for the deposit by each
party no later than the Pre-Closing (as defined below) its respective
deliverables, as set forth herein, with Clal Finance Trusts 2007 Ltd. (together
with its successors and assigns, the "ESCROW AGENT"), to be held pursuant to the
Escrow Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. PURCHASE AND SALE OF THE PURCHASED SHARES.
1.1. At the Closing (as defined below) and subject to the terms and
conditions of this Agreement, the Seller shall sell, convey, transfer,
assign and deliver to the Purchaser, and the Purchaser shall purchase
and acquire from the Seller, free and clear of any Encumbrance, all
the Purchased Shares in consideration for a gross price per Purchased
Share of $12.00, less applicable deductions and withholding as set
forth in Section 1.2. The gross aggregate purchase price is $9,017,820
(the "AGGREGATE PURCHASE PRICE").
1.2. All capital gain taxes due as a result of the sale and purchase of the
Purchased Shares hereunder shall be the sole liability of the Seller.
Unless the Seller provides to the Purchaser a valid certificate from
the Israeli Tax Authorities providing full exemption from withholding
tax (or a lower rate of withholding) or a tax determination from the
Israeli Tax Authorities indicating otherwise prior to the Closing
Date, then the Purchaser shall be entitled to deduct and withhold from
such payment such amount as required to be deducted and withheld under
any applicable law (which is 20% of the gross consideration in
reliance on the representations and warranties of the Seller contained
herein). To the extent that amounts are so withheld, such withheld
amounts shall be treated for all purposes of this Agreement as having
been delivered and paid to the Seller in respect of which such
deduction and withholding was made.
1.3. In the event of any stock split (bonus shares), consolidation, share
dividend (including any dividend or distribution of securities
convertible into share capital), reorganization, reclassification,
combination, recapitalization or other like change with respect to the
Purchased Shares occurring after the date hereof and prior to the
Closing, all references in this Agreement to specified price per
share, numbers of shares and all calculations provided for that are
based upon numbers affected thereby, shall be equitably adjusted to
the extent necessary to provide the parties the same economic effect
as contemplated by this Agreement prior to such event.
2. PRE-CLOSING.
2.1. Unless this Agreement is earlier terminated pursuant to Section 8
hereof, as promptly as practicable, but in no event later than the
Pre-Closing Date under the PIPE Agreement, and subject to the
satisfaction of the conditions set forth in Section 2.2 (other than
the condition set forth in Section 2.2.3 that by its nature may be
satisfied at the Pre-Closing, but subject to the fulfillment or waiver
of that conditions), any of which may be waived by the party(ies) for
which benefit they are provided, the parties shall deliver to the
Escrow Agent the following deliverables to be held according to the
terms of the Escrow Agreement (the "PRE-CLOSING" and the date upon
which the Pre-Closing actually occurs shall be referred to herein as
the "PRE-CLOSING DATE"). All actions at the Pre-Closing and all
transactions occurring at the Pre-Closing shall be deemed to take
place simultaneously and no action shall be deemed to have been taken,
no transactions shall be deemed to have been completed and no document
delivered until all such actions, transactions and documents have been
taken, completed and all required documents delivered.
2.1.1. The Seller shall deposit the deliverables set forth in Sections
3.2.1 (SHARE TRANSFER DEED), 3.2.2 (IRREVOCABLE TRANSFER
INSTRUCTIONS) and 3.2.3 (SELLER'S CERTIFICATE) (in each case, if
relevant, with the date left blank); and
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2.1.2. The Purchaser shall deposit the deliverable set forth in
Section 3.3.1 (PURCHASE PRICE).
2.2. The respective obligations of the Seller and the Purchaser to effect
the Pre-Closing are subject to the satisfaction at or prior to the
Pre-Closing Date of each of the following conditions:
2.2.1. (i) The representations and warranties of the Seller in this
Agreement shall have been true and correct in all material
respects on the date hereof and as of the Pre-Closing Date with
the same effect as if made at and as of the Pre-Closing Date, and
(ii) the Seller shall have performed and complied in all material
respects with all covenants and obligations under this Agreement
required to be performed and complied with by the Seller at or
prior to the Pre-Closing Date.
2.2.2. (i) The representations and warranties of the Purchaser in this
Agreement shall have been true and correct in all material
respects as of the date hereof and on and as of the Pre-Closing
Date with the same effect as if made at and as of the Pre-Closing
Date, and (ii) the Purchaser shall have performed and complied in
all material respects with all covenants and obligations under
this Agreement required to be performed and complied with by the
Purchaser at or prior to the Pre-Closing Date.
2.2.3. All conditions set forth in Sections 6.1, 6.2 and 6.3 hereof
are satisfied or waived (to the extent permitted hereunder), as
if the Closing would have occurred on such date, except that (a)
the deliverables set forth in Sections 3.2.1 (SHARE TRANSFER
DEED), 3.2.2 (IRREVOCABLE TRANSFER INSTRUCTIONS), 3.2.3 (SELLER'S
CERTIFICATE) and 3.3.1 (PURCHASE PRICE), shall be deposited with
and held in escrow by the Escrow Agent as set forth in Section
2.1.
2.2.4. The PIPE Agreement shall be in full force and effect, shall not
have been terminated, revoked or amended and all actions required
to be taken or satisfied at the Pre-Closing thereunder in order
to effect it simultaneously with the Pre-Closing hereunder shall
have been duly taken, satisfied or waived in accordance with
their respective terms.
2.2.5. The Shaked SPA and the Separation Agreement shall be in full
force and effect, shall not have been terminated or revoked and
all actions required to be taken or satisfied at the Pre-Closing
thereunder in order to effect it simultaneously with the
Pre-Closing hereunder shall have been duly taken, satisfied or
waived in accordance with their respective terms.
2.2.6. The spousal consent to entering into this Agreement and
consummating the transactions contemplated hereby, including,
without limitation, the transfer and sale of Purchased Shares to
the Purchaser pursuant to the terms hereof, validly executed by
the spouse of the Seller, and delivered by the Seller to the
Purchaser concurrently with the signing of this Agreement, shall
be in full force and effect.
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3. CLOSING.
3.1. CLOSING; CLOSING DATE. Unless this Agreement is earlier terminated
pursuant to Section 8 hereof, the consummation of the sale by the
Seller and purchase by the Purchaser of the Purchased Shares free and
clear of any Encumbrances (the "CLOSING") will take place at the
offices of Meitar, Liquornik, Geva & Leshem, Brandwein, Law Offices,
16 Abba Hillel Road, Ramat Gan, Israel, at such time designated as the
"Closing Date" under the PIPE Agreement, which in any event shall not
occur prior to the satisfaction (or waiver) of the conditions set
forth in Section 6 herein and subject to the satisfaction (or waiver)
of such conditions. The date upon which the Closing hereunder actually
occurs shall be referred to herein as the "CLOSING DATE". All actions
at the Closing and all transactions occurring at the Closing shall be
deemed to take place simultaneously and no transactions shall be
deemed to have been completed or any document delivered until all such
transactions have been completed and all required documents delivered.
3.2. SELLER'S DELIVERIES AT THE CLOSING. At or prior to the Closing, the
Seller shall deliver, or cause to be delivered or released from
escrow, as the case may be, to the Purchaser the following documents:
3.2.1. Share transfer deed, duly executed by the Seller, transferring
to the Purchaser the Purchased Shares, in the form attached
hereto as EXHIBIT 3.2.1;
3.2.2. Duly executed irrevocable letter of instructions from the
Seller to the broker holding the Purchased Shares or to the
holder registered as holding the Purchased Shares with any
registration company or otherwise, instructing the transfer of
the Purchased Shares to the Purchaser at the Closing;
3.2.3. A certificate executed by the Seller certifying that: (i) the
representations and warranties of the Seller hereunder are true
and correct as of the date hereof and as of the Closing Date as
if made on such date; and (ii) all covenants required by the
terms hereof to be performed by the Seller on or prior to the
Closing Date have been so performed; and
3.2.4. Spousal consent to entering into this Agreement and
consummating the transactions contemplated hereby, including,
without limitation, the transfer and sale of Purchased Shares to
the Purchaser pursuant to the terms hereof, validly executed by
the spouse of the Seller.
3.3. PURCHASER'S DELIVERIES AT THE CLOSING. At or prior to the Closing, the
Purchaser shall deliver, or cause to be delivered or released from
escrow, as the case may be, to the Seller the following:
3.3.1. The Aggregate Purchase Price set forth in Section 1.1. above,
less applicable deductions and withholding as set forth in
Section 1.2, by wire transfer based on written wire instructions
provided by the Seller prior to the Closing Date.
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4. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller hereby represents and
warrants to each the Purchaser as follows:
4.1. Seller has the full legal capacity, power and authority to execute and
deliver this Agreement and any agreement, document and instrument
provided for or contemplated herein (collectively, the "TRANSACTION
DOCUMENTS") and to perform the transaction contemplated hereby and
thereby. The execution, delivery and performance by the Seller of each
of the Transaction Documents has been, or shall be when entered into,
duly executed and delivered by Seller. The Transaction Documents
constitute or will, when executed and delivered by all parties
thereto, constitute Seller's valid and legally binding obligation
enforceable against him in accordance with its respective terms,
except as such enforceability may be limited by principles of public
policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors.
4.2. The Seller has good and valid title to, and is the sole lawful owner,
beneficially and of record, of all of the Purchased Shares, which
constitute the entire issued and outstanding Ordinary Shares held by
the Seller, free and clear of any and all Encumbrances. The Seller has
sole voting power and sole power to issue instructions with respect to
the matters set forth in this Agreement, sole power of disposition and
sole power to agree to all of the matters set forth in this Agreement.
The Purchased Shares are not "ordinary income" of the Seller. Upon the
sale, delivery and assignment of, and payment for, the Purchased
Shares, as provided herein, Seller shall convey to the Purchaser, and
the Purchaser shall acquire, good and marketable title to the
Purchased Shares purchased by the Purchaser, free and clear of any and
all Encumbrances, except for any Encumbrances created by the Purchaser
with respect to the Purchased Shares. "ENCUMBRANCE" shall mean any
lien, pledge, hypothecation, charge, options, proxies (other than
pursuant to this Agreement), security interest, encumbrance, right of
first refusal, preemptive right or restriction or rights of third
parties of any nature (including any spousal community property
rights, any restriction on the voting, transfer, receipt of any income
derived from, the possession of any security, or the exercise or
transfer of any other attribute of ownership of a security), except
for restrictions under applicable law. The Seller has not sold,
pledged or otherwise transferred (whether by operation of law or
otherwise, including, without limitation, transfers pursuant to any
decree of divorce or separate maintenance, any property settlement,
any separation agreement or any other agreement with a spouse) any
interests in the Purchased Shares to any person.
4.3. The Purchased Shares constitute all of the shares or other securities
over which any voting or dispositive power is held by the Seller and
Seller does not own, beneficially or otherwise, directly or
indirectly, any other share capital of, or other securities, equity or
ownership interest in the Company (including, without limitation, (i)
any outstanding options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights or other securities of the
Company, or (ii) outstanding stock appreciation rights, phantom stock
or similar rights). The Purchased Shares are not subject to any
shareholders agreement, voting agreements, proxies, trusts or other
agreement or understandings relating to the voting or disposition
thereof, which would continue to be binding upon the Purchaser after
the Closing. Any proxies heretofore given in respect of the Purchased
Shares are not irrevocable, and any such proxies are or shall be
revoked by the Closing. There are no transfer restrictions with
respect to the Purchased Shares, except transfer restrictions under
applicable law.
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4.4. The execution and delivery by the Seller of the Transaction Documents
do not, and the consummation of the transactions contemplated hereby
and thereby will not, require Seller to obtain or deliver any notice,
consent, waiver, approval, order or authorization or permit of, or
registration, declaration or filing with, or notification to, any
court, administrative agency, commission, governmental or regulatory
authority or any other person, except as set forth in Schedule 6.1.2.
4.5. The execution and delivery by the Seller of the Transaction Documents
do not, and the consummation of the transactions contemplated hereby
and thereby will not, conflict with, or result in any violation of, or
default under (with or without notice or lapse of time, or both) or
give rise to a right of termination, cancellation, modification or
acceleration of any obligation or loss of any benefit, under any
agreement, law, rule, regulation, order, judgment or decree applicable
to the Seller or that apply to the Purchased Shares or by which the
Purchased Shares are bound.
4.6. There is no suit, action, decrees, orders, judgments, legal proceeding
of any nature or, to Seller's knowledge, governmental investigation,
pending, or, to Seller's knowledge, threatened against him, that seeks
to prevent Seller from executing or delivering the Transaction
Documents or from performing the transactions contemplated hereby and
thereby, or that apply to the Purchased Shares or by which the
Purchased Shares are bound.
4.7. No agent, broker, finder, investment banker, person or firm acting in
a similar capacity on Seller's behalf or under his authority is, nor
will it be, entitled to any brokerage or finder's fee or any other
commission or similar fee, directly or indirectly, in connection with
the origin, negotiation or execution of this Agreement or in
connection with any of the transactions contemplated hereby, which
would be required to be paid by any of the Purchaser or the Company.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants as follows:
5.1. The Purchaser is duly incorporated and validly existing under the laws
of the State of Israel.
5.2. The Purchaser has the requisite corporate power and authority to enter
into the Transaction Documents to which the Purchaser is a party and
to consummate the transactions contemplated hereby and thereby. The
execution and delivery of each of the Transaction Documents to which
the Purchaser is a party and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Purchaser. The
Transaction Documents and Series Agreements to which the Purchaser is
a party have been duly executed and delivered by the Purchaser and,
when executed and delivered by all parties thereto, constitute its
valid and binding obligations, enforceable against the Purchaser in
accordance with their terms, except as such enforceability may be
limited by principles of public policy and subject to the laws of
general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
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5.3. The execution and delivery by the Purchaser of the Transaction
Documents do not, and the consummation of the transactions
contemplated hereby and thereby will not, require the Purchaser to
obtain or deliver any notice, consent, waiver, approval, order or
authorization or permit of, or registration, declaration or filing
with, or notification to any court, administrative agency, commission,
governmental or regulatory authority or any other person, that has not
been, or will not be, obtained by the Closing.
5.4. The execution and delivery of the Transaction Documents do not, and
the consummation of the transactions contemplated hereby and thereby
will not, conflict with, or result in any violation of or default
under (with or without notice or lapse of time, or both) or give rise
to a right of termination, cancellation, modification or acceleration
of any obligation or loss of any benefit under any provision of the
Purchaser's incorporation or formation documents; or any agreement,
law, rule, regulation, order, judgment or decree applicable to the
Purchaser.
5.5. There is no suit, action, decrees, orders, judgments, legal proceeding
of any nature or, to the Purchaser's knowledge, governmental
investigation, pending, or, to the Purchaser's knowledge, threatened
against the Purchaser, that seeks to prevent the Purchaser from
executing, delivering or performing the Transaction Documents and the
transactions contemplated hereby and thereby.
5.6. No agent, broker, finder, investment banker, person or firm acting in
a similar capacity on the Purchaser's behalf or under the Purchaser's
authority is, nor will it be, entitled to any brokerage or finder's
fee or any other commission or similar fee, directly or indirectly, in
connection with the origin, negotiation or execution of this Agreement
or in connection with any of the transactions contemplated hereby,
which would be required to be paid by the Seller.
5.7. The Purchaser has and will have as of the Closing sufficient funds
available to it to pay the Aggregate Purchase Price.
5.8. It is acknowledging that except for the representations specifically
set forth in Section 3, the Purchased Shares are sold "AS IS".
5.9. The Purchaser is acquiring the Purchased Shares for its own account
with no present intention of distributing any of such Purchased Shares
and does not have any current arrangement or understanding with any
other persons regarding the distribution of such securities (this
representation and warranty not limiting the Purchaser's right to sell
or distribute in compliance with the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "SECURITIES
ACT")).
5.10. The Purchaser understands that the Purchased Shares are "restricted
securities" or "control securities" under applicable U.S. federal and
state securities laws and that, pursuant to these laws, the Purchaser
must hold the Purchased Shares indefinitely unless they are registered
with the Securities and Exchange Commission or an exemption from such
registration and qualification requirements is available. The
Purchaser further acknowledges that if an exemption from registration
or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of
sale, the holding period for the Purchased Shares, and on requirements
relating to the Company which are outside of the Purchaser's control.
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6. CONDITIONS TO CLOSING.
6.1. CONDITIONS TO CLOSING OF EACH PARTY. The respective obligations of the
Seller and the Purchaser to effect the Closing are subject to the
satisfaction at or prior to the Closing Date of each of the following
conditions, any of which may be waived, in writing, by mutual written
instrument of the Seller and the Purchaser:
6.1.1. NO ORDER. No court or other governmental authority shall have
enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, executive order, decree, judgment, injunction
or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of preventing,
enjoining, restraining, prohibiting or otherwise making this
Agreement, the consummation of the Closing or the transactions
contemplated hereby illegal.
6.1.2. REGULATORY CONSENTS. All approvals set forth in SCHEDULE 6.1.2
required pursuant to any applicable law or under the authority of
any administrative agency, commission, regulatory or governmental
entity for the consummation of the transactions contemplated
hereby shall have been obtained.
6.2. CONDITIONS TO CLOSING OF THE PURCHASER. The respective obligations of
the Purchaser to effect the Closing are subject to the satisfaction,
at or prior to the Closing Date, of each of the following conditions,
any of which may be waived, in writing, by the Purchaser:
6.2.1. REPRESENTATIONS. The representations and warranties of the
Seller in this Agreement shall have been true and correct in all
material respects on the date hereof and as of the Closing Date
with the same effect as if made at and as of the Closing Date.
6.2.2. RECEIPT OF CLOSING DELIVERIES. Each of the agreements,
instruments and other documents required to be delivered by the
Seller under Section 3.2 shall be delivered by Seller at the
Pre-Closing and released from escrow and delivered to the
Purchaser, and shall have been received by the Purchaser.
6.2.3. EFFECTIVENESS AND SIMULTANEOUS CLOSING OF SERIES TRANSACTIONS.
Each of the Series Agreements and the transactions contemplated
thereby, shall be in full force and effect, shall not have been
terminated, revoked or amended and all actions or conditions
required to be taken or satisfied thereunder in order to effect
the closing thereof simultaneously with the Closing shall have
been duly taken, satisfied or waived in accordance with their
respective terms.
Notwithstanding the aforesaid, if Alpha consummates the PIPE
Agreement, the conditions set forth in this Section 6.2.3 shall
be deemed to have been waived, except if an event giving rise to
termination in accordance with Section 8.1.3.2 or 8.1.3.3 has
occurred.
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6.3. CONDITIONS TO CLOSING OF THE SELLER. The obligations of the Seller to
effect the Closing are subject to the satisfaction, at or prior to the
Closing Date, of each of the following conditions, any of which may be
waived, in writing, by Seller:
6.3.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser in this Agreement shall have been
true and correct in all material respects as of the date hereof
and on and as of the Closing Date with the same effect as if made
at and as of the Closing Date.
6.3.2. RECEIPT OF CLOSING DELIVERIES. The deliveries to be delivered
by the Purchaser pursuant to Section 3.3 hereof shall have been
delivered by the Purchaser at the Pre-Closing and released from
escrow and delivered to the Seller, and Seller shall have
received the Aggregate Purchase Price from all Purchaser, less
applicable deductions and withholding as set forth in Section
1.2.
7. COVENANTS.
7.1. ADDITIONAL DOCUMENTS AND FURTHER ASSURANCE. Subject to the terms and
conditions of this Agreement and any applicable law, each party
hereto, at the reasonable request of another party hereto, shall
execute and deliver, or cause to be executed and delivered, such other
documents and instruments and do and perform such other actions as may
be necessary or desirable for effecting completely the consummation of
the Transaction Agreements and the transactions contemplated hereby
and thereby.
7.2. REGULATORY APPROVALS. The Seller and the Purchaser shall use best
efforts to deliver and file, as promptly as practicable after the date
of this Agreement, each notice, report or other document required to
be delivered by such party to, or filed by such party with, any
governmental or regulatory authority, with respect to this Agreement
and the Series Agreements and the transactions contemplated hereby and
thereby. The parties hereto shall use best efforts to obtain, as
promptly as practicable after the date of this Agreement, all consents
and approvals that may be required pursuant to any applicable law
(including under antitrust laws), in connection with the consummation
of the transactions contemplated by this Agreement and the Series
Agreements. Each of the Seller and the Purchaser shall cause all
documents that it is responsible for filing with any governmental or
regulatory authority under this Section 7.2 to comply as to form and
substance in all material respects with the applicable legal
requirements and shall keep each other apprised of the status of any
communications with, and any inquiries or requests for additional
information from, any governmental or regulatory authority and shall
comply promptly with any such inquiry or request.
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7.3. NO SALE. Unless this Agreement is terminated pursuant to Section 8
hereof or the PIPE Agreement is terminated in accordance with its
terms, Seller shall not, directly or indirectly, (i) offer for sale
(including short sale), sell, transfer, exchange, tender, pledge,
create any Encumbrance, assign, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, transfer the economic risk of ownership
of, loan or otherwise dispose of, or enter into any contract or
arrangement with respect to, or consent to, or offer any, of the
foregoing, any of the Purchased Shares or any right or interest
therein, to any person, other than pursuant to this Agreement; (ii)
except as contemplated by or permitted by this Agreement, grant any
proxies or powers of attorney, deposit any Purchased Shares into a
voting trust or enter into a voting agreement with respect to any
Purchased Shares; and (iii) take any action that is reasonably
expected to make any representation or warranty of the Seller
contained herein untrue or incorrect or have the effect of preventing
or disabling the Seller from performing the Seller's obligations under
the Transaction Documents. Unless this Agreement is terminated
pursuant to Section 8 hereof, the Seller shall not request that the
Company (or any agent thereof) register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing
any of the Purchased Shares, unless such transfer is permitted by and
made in compliance with this Agreement.
7.4. NO-SOLICITATION; STANDSTILL.
7.4.1. Unless this Agreement or the PIPE Agreement is terminated in
accordance with its respective terms, and other than the Series
Agreements and as contemplated thereby, until the expiration of
four (4) years from the Closing, Seller shall not, and shall
cause persons controlled by him and their respective employees,
officers, directors, agents and other advisors and
representatives in their capacities as such not to, whether
directly or indirectly (whether alone or as part of a group of
persons) (i) solicit, initiate, encourage or induce the making,
submission or announcement of any Other Proposal (as defined
below); (ii) make, or in any way participate, directly or
indirectly, in any Other Proposal or Other Transaction (including
by acquiring beneficial ownership of Ordinary Shares or
securities which are convertible into, exchangeable for or
otherwise exercisable to acquire Ordinary Shares of the Company,
or authorizing or making a tender offer, exchange offer or other
offer or proposal, whether oral or written, to acquire the
beneficial ownership of Ordinary Shares of the Company) (other
than the Purchased Shares if this Agreement is terminated in
accordance with Sections 8.1.3.2 or 8.1.3.2 and the PIPE
Agreement is consummated), (iii) engage or otherwise participate
in any discussions or negotiations regarding, or furnish to any
person any non-public information with respect to, or take any
other action to facilitate any inquiries or the making of any
proposal that constitutes or may reasonably be expected to lead
to, any Other Proposal; (iv) respond to or engage in discussions
with any person with respect to any Other Proposal, except as to
the existence of these provisions; or (v) enter into any letter
of intent or similar document or any agreement or commitment
contemplating or otherwise relating to any Other Transaction (as
defined below). The Seller shall, and shall cause affiliates
controlled by him and their respective employees, officers,
directors, agents and other advisors and representatives in their
capacities as such to, immediately cease all existing activities,
discussions and negotiations with any person conducted heretofore
with respect to any Other Proposal and request the return or
destruction of all confidential information regarding the Company
and its affiliates or pertaining to any Other Proposal provided
to any such person prior to the date hereof pursuant to the terms
of any confidentiality agreement or otherwise. Without limiting
the foregoing, it is understood that any violation of the
restrictions set forth in this Section 7.4 by any affiliates
controlled by Seller, or any of their respective employees,
officers, directors, agents and other advisors and
representatives in their capacities as such shall be deemed to be
a breach of this Section 7.4 by the Seller.
- 10 -
7.4.2. Prior to the Closing and unless this Agreement is terminated in
accordance with its terms, the Seller shall promptly advise the
Purchaser orally and in writing of the receipt by Seller (except
in his capacity as an officer and/or director of the Company) of
an Other Proposal, the material terms and conditions thereof, and
the identity of the person or group making the Other Proposal.
The Seller will keep Purchaser informed in all respects of the
status and details (including material amendments or proposed
amendments) thereof.
7.4.3. "OTHER PROPOSAL" shall mean any inquiry, offer or proposal
(other than an inquiry, offer or proposal by Alpha or its
affiliates), oral or written, relating to any Other Transaction.
7.4.4. "OTHER TRANSACTION" shall mean any transaction or series of
transactions, other than the transactions contemplated by the
Series Agreements, involving: (i) any merger, exchange,
consolidation, business combination, plan of arrangement,
issuance of securities, acquisition of securities,
reorganization, recapitalization, takeover offer, tender offer,
exchange offer, purchase, sale (including short sale), transfer,
option, proxies or other transaction (A) in which a person
(including the Seller) or group of persons directly or indirectly
acquires beneficial or record ownership of securities resulting
in beneficially owning 4.0% or more of the outstanding securities
of any class of voting securities or debt securities of the
Company or any material subsidiary thereof (other than the
Purchased Shares if this Agreement is terminated accordance with
Sections 8.1.3.2 or 8.1.3.2 and the PIPE Agreement is
consummated); or (B) in which the Company or any material
subsidiary thereof issues securities resulting in a person or a
group of persons beneficially owning 4% or more of the
outstanding securities of any class of voting securities of the
Company or any material subsidiary thereof or debt securities;
(ii) any sale, lease, exchange, transfer, license, acquisition or
disposition of any business or businesses or assets that
constitute or account for 5% or more of the consolidated net
revenues, consolidated net income or consolidated assets
(including for this purpose the outstanding equity securities of
the Company's subsidiaries) of the Company or any material
subsidiary thereof (but other than in the ordinary course of
business consistent with past practice); (iii) "solicitation" of
"proxies" to vote (as such terms are used in the rules under the
Securities Exchange Act of 1934 (collectively, as amended, the
"EXCHANGE ACT")) with respect to any Ordinary Shares, calling or
seeking to have called a meeting of shareholders of the Company
or execution of any written consent in lieu of such a meeting,
submitting a shareholder proposal to the Company or a demand that
the Company convene a shareholders meeting, or seeking to advise
or influencing any person or entity with respect to the voting of
any voting securities of the Company; or (iv) seeking control of
the management or the Board of Directors of the Company or
policies of the Company, or any change which results or is
reasonably likely to result in a change in the majority of the
persons who constitute the board of directors of the Company as
of the Closing.
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7.5. VOTING UNDERTAKING.
7.5.1. Prior to the Closing and unless this Agreement is terminated in
accordance with its terms, the Seller hereby agrees, at any
annual, extraordinary, or special meeting of the shareholders of
the Company (including without limitation the meeting called to
approve the Series Agreements), and at any postponement(s) or
adjournment(s) thereof, or pursuant to any consent in lieu of a
meeting or otherwise, to vote (or cause to be voted) all
Purchased Shares and all of the Ordinary Shares the Seller now or
hereafter owns or controls, whether beneficially or otherwise
held by him (including as a result of exercise of the options or
other securities or rights convertible, exercisable or
exchangeable into Ordinary Shares or otherwise) (collectively,
the "SHARES") in the following manner: (i) in favor of the Series
Agreements and the approval of the terms thereof and each of the
transactions contemplated thereby, and any actions required in
furtherance thereof; (ii) against any action or agreement that
would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement
of the Company or the Seller hereunder or under the Series
Agreements; (iii) except as otherwise expressly agreed to in
writing in advance by Alpha, against any Acquisition Proposal or
Acquisition Transaction (as defined in the PIPE Agreement) and
any Other Proposal or Other Transaction; and (v) any other action
involving the Company or its subsidiaries which is intended, or
could in any manner be expected, to impede, interfere with,
delay, postpone, or adversely affect the Series Agreements and
the transactions contemplated thereby or hereby. Prior to the
Closing and unless this Agreement is terminated in accordance
with its terms, the Seller shall not enter into any agreement or
understanding with any person the effect of which would be
inconsistent with or violative of the provisions and undertakings
referred to in this Section 7.
7.5.2. The Seller shall deliver a proxy to the Purchasers under the
PIPE Agreement in accordance with the terms of the Voting
Undertaking and Irrevocably Proxy dated of even date.
7.5.3. The Seller understands and acknowledges that the Purchaser is
entering into the Series Agreements in reliance upon the Seller's
execution and delivery of this Agreement.
7.5.4. The Purchaser understands and acknowledges that the
transactions contemplated herein are an integral part of the
transactions contemplated under the Series Agreements and the
performance by Seller of his obligations hereunder prior to the
Closing Date, including pursuant to Section 7.5, provides the
Purchaser with a significant benefit. Accordingly, the Purchaser
undertakes not to consummate the transactions under any of the
Series Agreements unless the Closing for the sale of all
Purchased Shares and the closing under the Shaked SPA are
consummated concurrently, but subject to the next sentence.
- 12 -
7.5.5. Without derogating from the provisions of Section 7.3 and to
the extent permitted under applicable law, the provisions of this
Section 7.5 and the obligations hereunder shall attach to the
Purchased Shares and shall be binding upon any person to which
legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation,
the Seller's heirs, guardians, administrators or successors, and
notwithstanding any transfer of the Shares, the transferor shall
remain liable for the performance of all obligations of the
transferor hereunder.
7.6. NON-COMPETE; NON-SOLICITATION OF EMPLOYEES, CUSTOMERS AND SUPPLIERS.
7.6.1. In order to induce Purchaser to purchase the Purchased Shares
hereunder and consummate the transactions under the Series
Agreements, and to protect the Company's sensitive and valuable
proprietary information, property (including, intellectual
property) and technologies, as well as its goodwill and business
plans (the "COMPANY'S MAJOR ASSETS"), to which Seller has been
exposed prior to the date hereof as a result of his involvement
in the Company's business, whether in his capacity as a
shareholder, director, employee or service provider of the
Company, until the earlier of: (i) termination of this Agreement,
or (ii) expiration of four (4) years from the Closing (the "NON
COMPETE PERIOD"), and except for the existing engagements of
Seller described in Schedule 7.6.1, Seller shall not, and shall
cause affiliates controlled by him not to, directly or
indirectly:
7.6.1.1. engage, promote, establish, market, become or be
financially interested in, consult with or for, or associate
in a business relationship with, or in any manner become
involved, in any other person, business (or any component
thereof), occupation, work, operation or any other activity,
anywhere in the world, which engages or intends to engage in
the developing, producing, offering, distributing,
licensing, selling or supporting of products or services
similar to, or that competes with the business (or any
component thereof), products and services of the Company and
any of its affiliates, as currently conducted and as
currently proposed by the Company to be conducted by the
Company (a "COMPETING BUSINESS"). Notwithstanding the
foregoing, Seller may own up to one percent (1%) of the
outstanding stock of a company or business which constitutes
or is affiliated with a Competing Business;
- 13 -
7.6.1.2. solicit the services, hire or retain any person employed
or engaged by the Company and/or any of its affiliates as
employees or contractors during the Non-Compete Period, or
otherwise encourage or induce any such employee or
contractor to terminate their engagement with the Company
and/or any of its affiliates by their resignation,
retirement or otherwise or to become an employee,
contractor, consultant or service provider of any person
other than the Company and/or its affiliates. The foregoing
shall not apply to approaches initiated by persons employed
or engaged by the Company and/or any of its affiliates,
including as a response to general solicitation of
employment at any time after the lapse of 18 months from the
Closing or if Seller was not aware that such persons were
employed or engaged by the Company and had no active
involvement in their hiring;
7.6.1.3. solicit or otherwise encourage or call on any actual or
prospective customer, supplier, distributor, vendor, service
provider or agent of the Company and/or any of its
affiliates prior to the Closing for any Competing Business
or influence, induce or attempt to influence or induce any
customer, supplier, distributor, vendor, service provider or
agent to terminate, reduce or adversely modify any written
or oral agreement, relationship, or course of dealing with
the Company and/or any of its affiliates; and
7.6.1.4. Without limiting the generality of the foregoing,
register or challenge any intellectual property rights
owned, used or otherwise licensed by the Company and/or any
of its subsidiaries.
7.6.2. The Seller acknowledges that the consideration received by him
under this Agreement is paid in consideration, in part, for the
obligations and undertakings under this Section 7.6 and that in
light of the nature of the transactions contemplated hereunder
and under the Series Agreements, the interest that the Purchaser
have in the success of the Company and the critical significance
of the covenants under this Section 7.6 to the Company's business
and to Purchaser's willingness to enter into this Agreement and
the Series Agreements, the covenants under this Section 7.6 are
reasonable and fair under the circumstances.
- 14 -
7.7. CONFIDENTIALITY. The Seller acknowledges that he has had access to,
and became familiar with, certain confidential, non-public,
proprietary information of the Company and its affiliates, including
such documents and information, in any form whatsoever, concerning the
business, operations, financial condition, shareholders, customers,
suppliers and intellectual property of the Company and/or its
affiliates (collectively, "CONFIDENTIAL INFORMATION"), and that such
Confidential Information is a valuable and unique asset of the Company
and is and will remain the exclusive property of the Company.
Therefore, the Seller and any successor or assignee thereof, agrees
and undertakes, and shall cause his affiliates (i) to maintain
securely and hold in strict confidence all Confidential Information
received, acquired or developed by him whether following or prior to
the Closing, (ii) not to disclose to any Person, nor use, whether in
whole or in part, any Confidential Information for any purpose (other
than for and as authorized in writing by the Company). The obligation
of non-disclosure and non-use imposed on Seller hereunder shall not
apply to information that is or becomes generally known to the public
through no wrongful act or breach of Seller or any of his affiliates
and representatives and shall not apply to disclosure to legal
counsels, accountants and other advisors of the Seller and to the
extent required to enforce the provisions of this Agreement.
Notwithstanding the foregoing, the Seller shall not be prohibited from
disclosing such Confidential Information to the extent required by a
court order or applicable law, provided that in either event, the
Seller shall first give prompt prior written notice to the Purchaser
and shall use reasonable efforts to (and cooperate with the Company in
seeking to) seal, redact, or otherwise minimize such disclosure and to
protect the confidentiality of any Confidential Information eventually
disclosed.
7.8. WAIVER AND RELEASE.
7.8.1. In consideration for the amounts payable to the Seller under
this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged,
effective as of and subject to the Closing, the Seller hereby
irrevocably and unconditionally waives, releases, acquits,
indemnifies, holds harmless and forever discharges the Purchaser,
the Company and their respective affiliates, shareholders,
officers, directors, employees and agents, and each of their
respective heirs, executors, administrators, successors and
assigns (collectively, the "PURCHASER RELEASED ENTITIES"), of and
from any and all Claims (as defined below) that the Seller, or
his heirs, executors, administrators, successors or assigns ever
had, now has, or may have against any of the Purchaser Released
Entities, provided, however, that if the Purchaser shall be in
breach of this Agreement in any material respect, the Seller
shall be entitled to rescind the foregoing release.
7.8.2. In consideration for Seller's representations, warranties and
undertaking hereunder, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
effective as of and subject to the Closing, the Purchaser, solely
in its capacity as shareholder, hereby irrevocably and
unconditionally waives, releases, acquits, indemnifies, holds
harmless and forever discharges the Seller and his respective
affiliates, and each of their respective heirs, executors,
administrators, successors and assigns (collectively, the "SELLER
RELEASED ENTITIES"), of and from any and all Claims that the
Purchaser, or its heirs, executors, administrators, successors or
assigns ever had, now has, or may have against any of the Seller
Released Entities, provided, however, that if the Seller shall be
in breach of this Agreement in any material respect, the
Purchaser shall be entitled to rescind the foregoing release.
7.8.3. For purposes of this Section 7.8, "CLAIMS" shall mean any and
all actions or causes of action, suits, claims, liabilities,
losses, obligations, agreements, promises, debts, damages,
diminutions in value, costs and expenses, judgments, rights and
demands, whether fixed or contingent, known or unknown, in law or
in equity, in each case arising out of or in connection with (i)
any engagement of Seller and/or its affiliates (as the case may
be) with the Company and/or its affiliates, whether as an
employee, consultant and/or director (in the case of Seller
Released Entities, other than claims under directors and officers
insurance policy, indemnification under agreements existing prior
to the Closing or under the Company's Articles of Association),
or (ii) any other matters, causes, acts, conduct, claims,
circumstances or events occurring or failing to occur or
conditions existing at or prior to the Closing. "Claims" shall
not include actions or causes of action, suits, claims,
liabilities, losses, obligations, agreements, promises, debts,
damages, diminutions in value, costs and expenses, judgments,
rights and demands under this Agreement.
- 15 -
7.8.4. Without derogating from the generality of the foregoing, the
parties acknowledge that the Seller has acted as an officer and
director of the Company for an extended period of time and that
he possess significant information regarding the Company, its
affairs, business, prospects and financial conditions, all of
which may provide Seller with a different knowledge and view of
the prospects and potential, relative to the Purchaser. Thus, the
Purchaser acknowledge that it has agreed to purchase the
Purchased Shares from the Seller at the purchase price provided
for herein notwithstanding any such possible knowledge
differential or any potential or prospects they may view for the
Company, and the Purchaser hereby waives any right, claim or
demand that may arise as a result thereof against the Seller
Released Parties.
7.9. SHAREHOLDERS AGREEMENT. The parties acknowledge that with no further
action required by any party, that certain Shareholders Agreement by
and between the Seller, Ronex and Xx. Xxxxx Xxxxxx, dated March 3,
2008, and any rights, entitlements or obligation thereunder, shall
terminate and be of no further effect effective as of the date hereof,
unless (and only if) this Agreement is terminated in accordance with
its terms in which case such Shareholders Agreement shall remain in
effect, provided that members of the Board of Directors of the Company
serving during the period ending at the Closing shall be elected in
accordance with such Shareholders Agreement. The parties further
acknowledge that as part of the Series Agreements, the Purchaser and
Alpha are entering into that certain Shareholders Agreement, providing
for, inter alia, a voting agreement with respect to the designation by
the Purchaser and Alpha of the entire board of directors of the
Company, and pursuant to which the persons proposed to be elected at
the meeting of the shareholders of the Company called to approve the
Series Agreements shall be nominated.
8. TERMINATION.
8.1. This Agreement may be terminated at or prior to the Closing, only as
follows:
8.1.1. By written consent of all parties hereto.
8.1.2. By written notice of Purchaser or the Seller to the other
party, if the PIPE Agreement or the Shaked SPA is terminated, for
any reason, pursuant to their respective terms; provided,
however, that the right to terminate this Agreement under this
Section 8.1.2 shall not be available to (i) any party whose
action or failure to act has been a principal cause of or
resulted in termination of PIPE Agreement or the Shaked SPA (as
the case may be), and (ii) the Seller, if the Shaked SPA is
terminated because the shares sold under the Shaked SPA are
subject to an Encumbrance Order (as defined below) or the shares
to be sold under the Shaked SPA cannot be sold to Purchaser and
Alpha free and clear of any Encumbrance.
- 16 -
8.1.3. By written notice of Purchaser to Seller, referring to the
relevant clause of this subsection if:
8.1.3.1. there has been a breach of any representation, warranty,
covenant or agreement of the Seller contained in this
Agreement such that if Closing were to occur on the date of
such termination such breach would result in the failure of
any of the conditions set forth in Section 6 hereof to be
satisfied (when read as required to be satisfied on and as
of the date of such termination) and such breach has not
been cured within ten (10) days after written notice thereof
to the Seller; provided, however, that no cure period shall
be required for a breach which by its nature cannot be
cured.
8.1.3.2. there shall be order decree or judgment issued against
the Seller or applicable to the Purchased Shares by any
governmental or judicial authority creating an Encumbrance
over the Purchased Shares and such Encumbrance has not been
removed or dismissed within thirty (30) days after written
notice thereof to the Seller (an "ENCUMBRANCE ORDER").
8.1.3.3. there has been a breach of the representation set forth
in Section 4.2 such that if Closing were to occur on the
date of such termination such breach would result in the
failure of any of the conditions set forth in Section 6
hereof to be satisfied (when read as required to be
satisfied on and as of the date of such termination) and
such breach has not been cured within thirty (30) days after
written notice thereof to the Seller; provided, however,
that no cure period shall be required for a breach which by
its nature cannot be cured.
8.1.4. By written notice of Seller to the Purchaser if there has been
a breach of any representation, warranty, covenant or agreement
of the Purchaser contained in this Agreement such that if Closing
were to occur on the date of such termination such breach would
result in the failure of any of the conditions set forth in
Section 6 hereof to be satisfied (when read as required to be
satisfied on and as of the date of such termination) and such
breach has not been cured within ten (10) days after written
notice thereof to the Purchaser; provided, however, that no cure
period shall be required for a breach which by its nature cannot
be cured.
8.1.5. By written notice of either Purchaser or Seller, referring to
the relevant clause of this subsection if:
- 17 -
8.1.5.1. there shall be a final non-appealable order of any
governmental authority in effect preventing consummation of
the transactions contemplated hereby; provided, however,
that the right to terminate this Agreement under this
Section 8.1.5.1 shall not be available to any party whose
action or failure to act has been a principal cause of or
resulted in such order preventing the consummation of the
transactions contemplated hereby and such action or failure
to act constitutes a breach of this Agreement.
8.1.5.2. there shall be any statute, rule, regulation, executive
order, decree, judgment, injunction or other order enacted,
issued, promulgated, enforced, entered or deemed applicable
by any governmental authority that would make this Agreement
or the transactions contemplated hereby and thereby illegal.
Notwithstanding anything to the contrary in this Section 8.1, except
in accordance with Sections 8.1.3.2 or 8.1.3.2, the Purchaser may not
terminate the Agreement if the transactions contemplated under the
PIPE Agreement are consummated.
8.2. EFFECT OF TERMINATION. In the event of termination of this Agreement
as provided in Section 8.1 hereof, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part
of the Purchaser or the Seller, or their respective employees, agents
or shareholders, if applicable, except that (i) the provisions of
Section 9 and this Section 8.2 shall remain in full force and effect
and survive any termination of this Agreement pursuant to the terms of
this Section 8, (ii) if this Agreement is terminated in accordance
with Sections 8.1.3.2 or 8.1.3.2 and the PIPE Agreement is
consummated, than notwithstanding anything to the contrary contained
herein, the provisions of Sections 7.4 through 7.9 (inclusive) shall
survive such termination and remain in full force and effect (and any
reference to such Sections being subject to this Agreement not
terminated shall be read to include as an exception "except if this
Agreement is terminated in accordance with Sections 8.1.3.2 or 8.1.3.2
and the PIPE Agreement is consummated"); and (iii) except to the
extent that such termination results from a material breach by the
other party of any representation, warranty or covenant set forth in
this Agreement in which case the breaching party shall not be relieved
of liability or damages to the other parties. Notwithstanding anything
to the contrary herein, in no event shall any party be liable to other
party for indirect or consequential damages.
9. GENERAL PROVISIONS.
9.1. EXPENSES. Each party shall bear its own costs and expenses incurred
with respect to the negotiation, execution, delivery and performance
of this Agreement.
9.2. ENTIRE AGREEMENT. This Agreement and the Series Agreements and their
respective exhibits and schedules attached hereto, and the documents
and instruments and other agreements among the parties hereto
referenced herein, constitute the full and entire understanding and
agreement between the parties with respect to the subject matters
hereof and thereof, and supersedes any prior understandings,
agreements, or representations by or among the parties, written or
oral, to the extent they relate in any way to the subject matter
hereof.
- 18 -
9.3. AMENDMENT. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Seller and the
Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon all parties of this Agreement and their
respective successors and assignees.
9.4. EXTENSION; WAIVER. The Purchaser or the Seller, as the case may be,
may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations of the other party hereto, (ii)
waive any inaccuracies in the representations and warranties made to
such party contained herein or in any document delivered pursuant
hereto, and (iii) waive compliance with any of the covenants,
agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid against such party giving the
waiver or extension and only if set forth in an instrument in writing
signed on behalf of such party.
9.5. PRESS RELEASES. No party shall issue any statement or communication to
any third party (other than their respective agents, partners,
affiliates and representatives that are bound by confidentiality
restrictions) regarding this Agreement, its existence and content, or
the transactions contemplated hereby, including, if applicable, the
termination of this Agreement and the reasons therefor, without the
consent of the other parties hereto, except as required to comply with
applicable legal requirements and the rules of any stock exchange and
except as required in connection with the Series Agreements and the
transactions contemplated thereby.
9.6. REMEDIES. Seller hereby acknowledges that monetary damages may not be
a sufficient or adequate remedy for any breach or violation of any of
its obligations under Section 7 and that, in addition to any other
remedy which may be available to Purchaser hereunder or in law or
equity, and without any waiver or limitation with respect thereto, the
Purchaser shall be entitled to seek injunctive and other equitable
relief, including specific performance, with respect to any such
breach or violation and to enforce specifically the terms and
provisions hereof, in any court of competent jurisdiction. Any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a
party of any one remedy will not preclude the exercise of any other
remedy.
9.7. ASSIGNMENT. Neither this Agreement, nor any rights, interests or
obligations under this Agreement may be assigned or transferred, in
whole or in part, by operation of law or otherwise by any party
hereto, without the prior consent in writing of each the other parties
hereto, and any such assignment without such prior written consent
shall be null and void, except that this Agreement or any of the
rights, interests or obligations under this Agreement may be assigned
by the Purchaser, upon notice to the Seller, to any affiliate thereof,
provided such assignee has agreed in writing to assume and be bound by
all of a the assignor's obligations hereunder as if it were an
original party hereto (it being clarified that, notwithstanding any
assignment, the provisions of Sections 7.8 shall continue to apply to
the original parties hereto). Subject to the foregoing, this Agreement
shall inure to the benefit of, and be binding upon, and be enforceable
by, the parties hereto and their respective successors, assigns,
heirs, executors, and administrators.
- 19 -
9.8. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of any
competent court located in Tel-Aviv-Jaffa, Israel in connection with
any matter based upon or arising out of this Agreement or the matters
contemplated herein, agrees that process may be served upon them in
any manner authorized by the laws of the State of Israel for such
persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction and such process.
9.9. INTERPRETATION. When used herein: the words "include," "includes" and
"including" shall be deemed in each case to be followed by the words
"without limitation"; the words "herein," "hereof," "hereto" and
"hereunder" and words of similar import, shall refer to this Agreement
as a whole and not to any particular provision of this Agreement; the
word "person(s)" shall include an individual, corporation,
partnership, association, trust, enterprise or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof; the phrase "beneficial ownership"
of any securities or "own" (and phrases of similar import) shall mean
beneficial ownership for purposes of Rule 13d-3 under the Exchange Act
(and for the purposes of Rule 13d-3(d)(1)(i) as if the right to
acquire beneficial ownership of such security would have been within
60 days); the word "affiliate(s)" (and words of similar import) shall
mean as set forth in Rule 405 promulgated under the Securities Act of
1933, as amended, and with respect to any natural person, also, (i)
grandparents, parents, siblings, lineal descendant of such person or
their spouse (including step and adopted children), and any spouse (or
widow or widower) of such person or any of the foregoing, (ii) any
trust established for the benefit of such natural person or any
affiliate of such natural person, or (iii) any executor or
administrator of the estate of such natural person; and the word
"group" shall mean any group of persons acting together in the manner
described in Rule 13d-5(b)(1) of the Exchange Act. Unless the context
otherwise requires, words denoting the singular number only shall
include the plural and vice versa. The headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. The recitals, exhibits
and schedules form part of this Agreement and shall have the same
force and effect as if expressly set out in the body of this
Agreement, and any reference to this Agreement shall include the
exhibits and schedules hereto.
9.10. SEVERABILITY. If any provision of this Agreement or the application
thereof becomes or is declared by a court or arbitrator of competent
jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given
the intent of the parties hereto. If such clause or provision cannot
be so enforced, such provision shall be stricken from this Agreement
only with respect to such jurisdiction in which such clause or
provision cannot be enforced, and the remainder of this Agreement
shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained
in this Agreement. In addition, if any particular provision contained
in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing the scope of such provision so that
the provision is enforceable to the fullest extent compatible with
applicable law.
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9.11. RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities
in an agreement or other document will be construed against the party
drafting such agreement or document.
9.12. NOTICES. All notices and other communications hereunder shall be in
writing and shall be shall be emailed, faxed or mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, addressed to the parties at the following addresses (or
at such other address for a party as shall be specified by like
notice):
9.12.1. if to Purchaser, to:
c/o FIMI IV 2007 Ltd.
"Xxxxxxxxxx House"
00 xxxxx Xxxx
Xxx-Xxxx, Xxxxxx
Tel: 00-0000000
Fax: 00-0000000
with a mandatory copy to (which shall not constitute notice):
Naschitz, Xxxxxxx & Co.
0 Xxxxx Xxxxxx, Xxx-Xxxx 00000 Xxxxxx
Attention: Xxxxxx X. Xxxx, Advocate
Telephone No.: (972)-(3)-6235022
Facsimile No.: (972)-(3)-6235106
Email: xxxxx@xxxxx.xxx
9.12.2. if to the Seller, to:
Mr. Xxxxx Xxxxxx
0 Xxxxxxxx xxxxxx,
Xxxxxxx 00000, Xxxxxx
Email: xxxxxxx@xxxxx.xxx.xx
with a mandatory copy to (which shall not constitute notice):
Xxxxxx, Fox & Xxxxxx
Xxxx Xxxxx, 0 Xxxxxxxx Xxxxxx
Xxx-Xxxx 00000 Xxxxxx
Attention: Alon Sahar, Advocate
Telephone No.: (972)-(3)-692-2861
Facsimile No.: (972)-(3)-696-6464
Email: xxxxx@xxx.xx.xx
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Any notice sent in accordance with this Section 9.12 shall be
effective (i) if mailed, three (3) business days after mailing, (ii)
if sent by messenger, upon delivery, and (iii) if sent via email or
facsimile, upon transmission and electronic confirmation of receipt
(or recipient's electronic "read receipt" in case of email) or (if
transmitted and received on a non-business day) on the first business
day following transmission and electronic confirmation of receipt (or
recipient's electronic "read receipt" in case of email (provided,
however, that any notice of change of address shall only be valid upon
receipt).
9.13. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective successors and
permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person, except that the members of
Alpha are an intended third party beneficiary of Sections 6.2.3 and
8.1 hereof to the extent relating to the PIPE Agreement.
9.14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and
enforceable against the parties actually executing such counterpart,
and all of which together shall be considered one and the same
agreement, it being understood that all parties need not sign the same
counterpart. The exchange of an executed Agreement (in counterparts or
otherwise) by facsimile transmission or by electronic delivery in .pdf
format or the like shall be sufficient to bind the parties to the
terms and conditions of this Agreement, as an original.
- SIGNATURE PAGES FOLLOW -
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IN WITNESS WHEREOF, the parties have caused this Share Sale and Purchase
Agreement to be duly executed as of the date first written above.
RONEX HOLDINGS L.P
BY: RONEX HOLDING LTD., ITS GENERAL PARTNER
By:
-------------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties have caused this Share Sale and Purchase
Agreement to be duly executed as of the date first written above.
XXXXX XXXXXX
-------------------------------------------
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SCHEDULE 7.6.1
1. YCD Multimedia Ltd - Seller is a shareholder and serves as a Director
2. Conceptic Ltd. Seller is a shareholder and acts as active advisor
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