Exhibit 10.21
Put Option Agreement, dated as of June 15, 2000, by and among Manfred Xxxxx,
Xxxxxx Rort Xxxxx, Xxxxxxx Xxxxxxx Xxxxx,
a civil partnership and the Registrant.
Notar
Xx. Xxxx Xxxxx
[LOGO]
Beglaubigte Abschrift
Die Ubereinstimmung nachstehender Abschrift mit der Urschrift
wird beglaubigt.
Stuttgart, den 21.Juni 2000
Notar
- Xx. Xxxxx -
Deed Roll No. 960 /2000J
STUTTGART
done this 15th day of June 2000
(in words: fifteenth day of June two thousand)
Before me,
Notary Xx. Xxxx Xxxxx with offices at XxxxxxxxxxxxxXx 0X, 00000 Xxxxxxxxx,
is appearing today at XxxxxxxxxxxXx 0, 00000 Xxxxxxxxx, whence I was
summoned:
1. Mr. Xxxxxxx Xxxxx, managing director, born on 11 September 1941, resident
at Xxxxxxxxx 0, 00000 Xxxxxxxxxxxx, who proved his identity by means of his
German passport.
Mr. Xxxxxxx Xxxxx declares that he is acting
a) in his own name,
b) as shareholder of the civil partnership under the German Civil Code
(GbR) consisting of Xxxxxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx and Xxxxxxx
Xxxxxxx Xxxxx (hereinafter referred to as the "Civil Partnership").
2. Mr. Xxxxxx Xxxxxx Xxxxx, student, born on 26 June 1973, resident at
Xxxxxxxxx 0, 00000 Xxxxxxxx, who proved his identity by means of his German
passport.
Mr. Xxxxxx Xxxxxx Xxxxx declares that he is acting
a) in his own name,
b) as shareholder of the Civil Partnership.
3. Mr. Xxxxxxx Xxxxxxx Xxxxx, student, born on 4 July 1974, resident at
Xxxxxxx-xxx-Xxxxx-Xxx 0,00000 Xxxxxxxxx, who proved his identity by means
of his German passport.
Mr. Xxxxxxx Xxxxxxx Xxxxx declares that he is acting
a) in his own name,
b) as shareholder of the Civil Partnership.
4. Mr. Xxxx Xxxxxx, businessman, born on 16 November 1946, who proved his
identity by means of his Israeli passport card.
Mr.Xxxx Xxxxxx declares that he is acting not on his own behalf but as
President and CEO with power of sole representation of On Track Innovations
Ltd., a public company duly organized and existing under the laws of the
State of Israel (Reg. No.: 52-004268-2), whose ordinary shares are admitted
for trading in the Neuer Markt of the Frankfurt Stock Exchange (Frankfurter
Wertpapierborse) (hereinafter referred to as "Neuer Markt"), having its
principle place of business at Z.H.R. I.Z., Xxxx Xxxx 00000, Xxxxxx
(hereinafter referred to as "OTI"). As proof of his power of sole
representation, Mr. Bashan presents a legal opinion issued by the law
offices of Bach, Arad, Scharf & Co. which was presented at the notarisation
in the original and will be submitted, in certified copy, to the protocol.
The persons appearing deny on question any prior involvement in the sense of ss.
3 para.1 sentence 1 no. 7 BeurkG (law pertaining to notarial authentications).
The persons appearing hereby request this Notarial Deed to be executed in the
English language for the convenience of the party represented by the person
appearing at 4. and waive the presence of an interpreter. The Notary who himself
has a sufficient command of the English language verified that the persons
appearing also have a sufficient command of the English language.
The persons appearing hereby declare for notarisation:
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PUT OPTION AGREEMENT
between
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx,
the Civil Partnership,
-hereinafter referred to as the "Shareholders" or the "Sellers"-
and
OTI,
hereinafter referred to as "OTI" or the "Buyer"
Whereas: The Parties have entered into a Share Purchase Agreement (the "SPA")
with even date hereof, pursuant to which OTI has acquired 51%
ownership of InterCard GmbH Kartensysteme ("InterCard K") and
InterCard GmbH Systemelectronic ("InterCard S") (InterCard K and
InterCard S collectively referred to in this Agreement as "InterCard"
or the "Companies") (the "Sold Interest") from the Shareholders, and;
Whereas: InterCard K has nominal capital of DM 1,100,000 which consists of the
following ownership interests (Geschaftsanteile):
o held by Mr. Xxxxxxx Xxxxx: ownership interests in the nominal
amounts of DM 105,000, DM 50,000, DM 50,000, DM 4,000 and DM 6,000;
o held by Xxxxxx Xxxxxx Xxxxx: ownership interests in the nominal
amounts of DM 8,000 and DM 24,000;
o held by Xxxxxxx Xxxxxxx Xxxxx: ownership interests in the nominal
amounts of DM 8,000 and DM 24,000;
o held by the Civil Partnership: ownership interests in the nominal
amount of DM 100,000;
o held by Xxxxxx Xxxxxxx: ownership interests in the nominal amounts
of DM 94.000 and DM 66.000 which the Civil Partnership is entitled
to acquire by way of Call Options;
o acquired by OTI by the SPA: ownership interests in the nominal
amount of DM 200,000, DM 95,000, DM 32,000, DM 32,000, DM 10,000, DM
10,000 DM 6,000, DM 6,000 and DM 170,000; and
Whereas: InterCard S has a nominal capital of DM 600,000 which consists of the
following ownership interests
o held by Xxxxxxx Xxxxx: ownership interests in the nominal amounts of
DM 72,500, DM 1,500, DM 3,500, DM 10,000 and DM 2,500;
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o held by Xxxxxx Xxxxxx Xxxxx: ownership interests in the nominal
amounts of DM 1,500, DM 5,500 and DM 5,000;
o held by Xxxxxxx Xxxxxxx Xxxxx: ownership interests in the nominal
amounts of DM 1,500, DM 5,500 and DM 5,000;
o held by the Civil Partnership: ownership interest in the nominal
amount of DM 100,000
o held by Xxxxxx Xxxxxxx: ownership interests in the nominal amounts
of DM 16,500 and DM 63,500 which the Civil Partnership is entitled
to acquire by way of Call Options,
o acquired by OTI by the SPA: ownership interests in the nominal
amounts of DM 40,000, DM 108,500, DM 16,500, DM 20,000, DM 20,000,
DM 8,000, DM 8,000 and DM 85,000.
Whereas: OTI wishes to receive a Put Option to purchase the remaining
shareholders ownership (49%) in InterCard (the "Put Option Interest"),
subject to the terms and conditions hereinafter set forth in this
Agreement;
NOW THEREFORE, the Parties agree as follows:
1. Definitions
The terms as defined in Section 1 of the SPA shall have the same meaning in
this Agreement.
Unless the context otherwise requires the following terms shall have the
following meanings:
"Pledges" means any pledges, encumbrances, liens or other third party's
rights.
"Ownership Interests" means the ownership interests in InterCard held by
the Sellers or by Mr. Xxxxxx Xxxxxxx totalling in the aggregate 49% of the
shareholding in each of InterCard K and InterCard S as listed in Annex 1.
"Share Pledge Agreement" means an agreement between the Sellers and OTI
pursuant to which the Ownership Interests of InterCard is pledged to the
Sellers, with even date herewith.
2. Waiver Regarding Pre-emption Rights
Mr. Messmer has waived its pre-emption rights with regard to the Option
Interest held as at the date of signing of this Agreement (the "Closing")
in two declarations both dated June 3, 2000, certified copies of which are
attached as Exhibit 2-A and 2-B.
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3. Put Option
Grant
3.1 OTI hereby irrevocably offers to purchase and acquire the Ownership
Interests from the Sellers as set out in Annex 1 (hereinafter referred to
as the "Put Option Interest").
Ancillary Rights
3.2 The sale and transfer of the Put Option Interest shall include all rights
connected therewith, in particular rights to receive dividends. All rights
connected therewith shall pass from the Sellers to OTI on the Option
Effective Date, in particular rights to receive profits. OTI is also
entitled to receive the profits for the fiscal year 2000 with respect to
the Put Option Interest even if the dividends for the fiscal year 2000 have
been paid before the Option Effective Date.
Acceptance
3.3 The Sellers may accept the offer as defined above in clause 3.1 above by
notarial protocol (hereinafter referred to as "Exercise of the Put Option")
at any time between January 1, 2001 and (including) June 30, 2001
(hereinafter referred to as the "Put Option Period"). Subject to clause 3.7
below the Exercise of the Put Option may not include any reservations
and/or conditions and shall include the date on which the sale and transfer
of the Ownership Interests shall become effective (hereinafter referred to
as the "Put Option Effective Date"). For the avoidance of doubt, the
Sellers may only accept the offer to simultaneously sell and transfer the
Put Option Interests and the Put Option Effective Date shall be identical
for both the sale and the transfer of the Put Option Interest.
3.4 The Sellers may accept the offer as defined in clause 3.1 above only for
the entire Put Option Interest. The acceptance of the offer is excluded if
the Sellers do not own the entire Put Option Interest at the Put Option
Effective Date.
Security
3.5 As security for the payment of the Option Price, OTI has pledged the Put
Option Interest to the Sellers under the Share Pledge Agreement.
Declarations
3.6 All declarations under or in conjunction with this section, especially the
Exercise of the Put Option shall be communicated to the officiating notary
and shall be deemed to be
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received by the other Party at the time at which the notary receives such
declaration. The notary shall communicate any declaration to the other
Party and shall inform the Parties of the date of receipt of any
declarations, all without undue delay. The Parties hereby grant power of
attorney to the officiating notary or another notary with whom the
officiating notary is in a partnership to receive such declarations and to
make such communications on their behalf. If the officiating notary is not
available at the time when the Option is to be exercised by one of the
Parties, such Party may choose another notary. In such case, however, the
information is deemed to be received by the other Party if and when a copy
of the respective notarial deed is transmitted by telefax to the other
Party.
Exercise Conditions
3.7 The Exercise of the Put Option shall be subject to the following
provisions of the SPA:
Sale and Transfer Agreement
4. Purchase Price and Shareholders Price Protection
4.1 As purchase price
4.1.1 for the InterCard K Put Option Interest OTI shall pay a total amount of DM
5,250,000.00 (in words: Deutsche Mark five million two hundred and fifty
thousand) (hereinafter referred to as the "InterCard K Option Price"), and
4.1.2 for the InterCard S Put Option Interest OTI shall pay a total amount of DM
1,750,000.00 (in words: Deutsche Mark one million seven hundred and fifty
thousand (hereinafter referred to as the "InterCard S Option Price", the
InterCard S Basic Price and the InterCard K Basic Price collectively
hereinafter referred to as "InterCard Basic Price" or "Shareholders
Amount"),
i.e. a total of DM 7,000,000 (seven million Deutsche Mark) for the Option
Interest (referred to as "Shareholders Amount"). The whole Shareholders
Amount shall be paid in ordinary shares of NIS 0.01 n.v. each of OTI
(hereinafter referred to as the "OTI Shares"), subject to the terms and
conditions hereinafter set forth in this Agreement. Xxxxxxx Xxxxx is
irrevocably authorized by the other shareholders (the "Other
Shareholders") to receive the entire Shareholders Amount whereas the Other
Shareholders are not entitled to claim the Shareholders Amount. Payment to
Xxxxxxx Xxxxx or any third party designated by Xxxxxxx Xxxxx is deemed to
be payment to all Shareholders. The distribution of the Shareholders
Amount among the Shareholders pursuant to their respective portions in the
Shareholding in the Companies shall be the internal responsibility of the
Shareholders alone.
4.2 The Shareholders Amount shall be paid in 7 (seven) equal instalments (the
"Instalments"), each totalling DM 1,000,000 (one million Deutsche Mark).
These are payable on OTI Shares subject to the provisions of Clauses 5.3
and 5.4 below, as follows:
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4.2.1 The first Instalment (the "First Option Instalment") shall be paid on the
first or the fifteenth day of the month following the exercise of the
Option, whichever day is earlier (the "First Option Instalment Date"),
4.2.2 The second Instalment (the "Second Instalment") shall be paid one month
after the First Option Instalment Date (the "Second Instalment Date"),
4.2.3 the third Instalment (the "Third Option Instalment") shall be paid two
months after the First Option Instalment Date (the "Third Option
Instalment Date"),
4.2.4 The fourth Instalment (the "Fourth Option Instalment") shall be paid three
months after the First Option Instalment Date (the "Fourth Option
Instalment Date"),
4.2.5 The fifth Instalment (the "Fifth Option Instalment") shall be paid four
months after the First Option Instalment Date (the "Fifth Option
Instalment Date");
4.2.6 The sixth Instalment (the "Sixth Option Instalment") shall be paid five
months after the First Option Instalment Date (the "Sixth Option
Instalment Date");
4.2.7 The seventh Instalment (the "Seventh Option Instalment") shall be paid six
months after the First Option Instalment Date (the "Seventh Option
Instalment Date");
(and the First until the Sixth Option Instalments shall be referred to
collectively as the "First Option Instalments"; and the First until the
Seventh Instalment Dates shall be referred to collectively as the
"Instalment Option Dates").
4.3 It is agreed that the number of OTI Shares transferred to the Shareholders
as payment of the Shareholders Amount for each of the Instalments shall be
determined in accordance with the average closing price of an OTI Share in
the Neuer Markt, Frankfurt at the Xetra system (the "Closing Price") in
the 3 (three) trading days prior to the relevant Instalment Date. In the
event that these instalments as calculated above do not result in a whole
number of OTI Shares, then these shall be rounded up accordingly.
4.4 Prior to the Seventh Instalment the Bank shall make a calculation of the
aggregate Deutsche Mark value of each of the First Instalments according
to 20 (twenty) trading days Closing Price following the relevant
Instalment Date of each of them (the "Aggregate Option Value"). The
Deutsche Mark amount of the Seventh Instalment shall be calculated as the
difference between the Shareholders Amount (i.e. DM 7 million) less the
Aggregate Option Value, and shall be paid in OTI Shares in accordance with
the provisions of Section 4.3 above.
4.5 Seven months after the First Option Instalment Date (the "Eighth Option
Instalment Date"), the Bank shall make a calculation to the effect that
the amount of the Aggregate Value and the value of the Seventh Instalment
according to 20 trading days average market price following the Seventh
Instalment Date shall be added together (the "Final Value"). If the Final
Value amounts to less than the Shareholders Amount, the amount of
difference shall be paid to OTI to Xxxxxxx Xxxxx in OTI shares in
accordance with the provisions of Section 4.3 above. If the Final Value
amounts to more than the Shareholders Amount, the amount of difference
shall be paid by Xxxxxxx Xxxxx to OTI in cash within 20 business days into
an account to be specified by OTI.
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4.6 If the OTI Trust Shares are not transferred to the Bank in accordance with
Section 5.2 on or before the First Instalment Date, the First Instalment
Date is moved to the business day following the date of transfer of the
OTI Trust Shares to the Bank; the other Instalment Dates and Sixth
Instalment Date are moved correspondingly. In the event that any of the
Instalments has not been paid by the 15th of the calendar month following
the month in which the respective Instalment Date was due then such
instalment shall bear interest at a rate of 6% p.a. from the first of the
calendar month following the respective Instalment Date until payment in
accordance with this Agreement is effected.
4.7 The entirety of the OTI Shares to be transferred to the Shareholders in
compliance with this Agreement (hereinafter the "Allotted Shares")
constitute the full, final and absolute consideration for the Put Option
Interest.
5. Provisions to secure the completion of the transactions.
5.1 Following the signing of this Agreement OTI shall, at its own expenses:
(i) apply for admission to trading (Zulassung zum Borsenhandel) of OTI
Shares at an aggregate value of DM 7,700,000 (seven million and seven
hundred thousand Deutsche Mark) at Deutsche Borse AG in the Neuer Markt
according to the average price of an OTI Share in the Neuer Markt in the 3
(three) trade days May 29 to 31, 2000 (the "OTI Trust Shares"), (ii) apply
for quotation of the OTI Trust Shares at Deutsche Borse AG (Antrag auf
Notierungsaufnahme) and (iii) deposit a global certificate with regard to
the OTI Trust Shares at Clearstream Banking AG ("Clearstream", the
procedure (i) - (iii) hereinafter referred to as "Registration").
5.2 Once Registration is effected, OTI shall instruct Clearstream to transfer
the OTI Trust Shares to the Bank, which shall hold the OTI Trust Shares in
a special escrow account in the name of OTI (the "Escrow Account"). As
long as any OTI Trust Shares are held by the Bank they shall be "frozen"
(as understood in accordance with the Israeli Companies Law), i.e., the
OTI Trust Shares shall not have any of the rights attached to an OTI Share
under OTI's Articles of Association, in particular the right to vote and
the right to receive profits. For the avoidance of doubt it is understood
that any OTI Trust Shares to be transferred from the Bank to Xxxxxxx Xxxxx
shall not be frozen.
5.3 Subject to the above provisions, at each of the Instalment Dates, the Bank
shall transfer to Xxxxxxx Xxxxx the amount of the OTI Trust Shares which
is required to be transferred in accordance with the above provisions. If
the Bank does not have enough OTI Shares to transfer to the Shareholders
pursuant to the provisions hereof then OTI shall either allot to the
Shareholders the additional shares required or pay the Shareholders the
difference in cash.
5.4 The remainder, if any, of the OTI Trust Shares once all transfers of the
Allotted Shares from the Escrow Account to the Shareholders have been
carried out in accordance with this Agreement, shall be held by the Bank
in trust for OTI, and the Bank shall act with respect to such remainder in
accordance with OTI's instructions.
6. Authorization/Indemnity
In order to ensure that the Put Option Interest and the rights and claims
connected therewith are transferred free of encumbrances, as required by this
Agreement, the Shareholders hereby waive all rights and claims and give all
consents necessary to ensure that OTI obtains
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unencumbered sole ownership of the Put Option Interest including the rights and
claims referred to in Clause 3.2.
7. Representations, Warranties and Indemnification of the Sellers
7.1 Sections 9, 10, 11.1 - 11.3, 11.6, 11.7, 11.8 of the SPA shall apply
accordingly with regard to the Put Option Interest, as of the date of the
closing of this Agreement (hereinafter referred to as "Closing").
7.2 Section 11.4 of the SPA shall apply accordingly provided that such claims
may already be asserted if and to the extent the aggregate amount of the
claims arising from the SPA together with this Agreement exceed a
threshold of DM 50,000.
7.3 Section 11.5 of the SPA shall apply provided that such claims shall be
limited to a payment of a sum in the amount of 50% of the Option Price.
7.4 Section 15.1 of the SPA shall apply accordingly provided that it is
referred to the Instalments made to the Bank in accordance with this
Agreement. The Special Account shall be pledged to OTI for the period
ending on September 30, 2001. Thereafter, the number of OTI Shares or the
sums deposited in the Special Account subject to the pledge shall be
reduced by 17% and the remainder shall be pledged until 31.12.2002,
subject to the terms and conditions set forth basically in the form of the
Escrow Agreement as attached in Annex 7.4.
8. Representations and Warranties of OTI
8.1 Section 16.1 of the SPA applies accordingly provided that with regard to
(2) and (3) it is referred to the relevant Instalment Date as set out in
this Agreement.
8.2 Sections 16.2 - 16.5 of the SPA apply accordingly.
9. Miscellaneous
Section 17 of the SPA applies accordingly provided that according to Section
17.3 no party to this Agreement shall be entitled to transfer or assign to other
or others its rights or obligations under this Agreement or arising therefrom,
unless with the prior written consent of the other party.
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10. Costs
10.1 The costs of this Agreement are borne by the Shareholders 50% and OTI 50%
equally.
10.2 Each Party shall pay half of the real estate transfer tax
(Grunderwerbsteuer) triggered by this Agreement.
11. Other Liabilities
The Sellers shall ensure that - with the exception of all agreements relating to
Xxxxxxx Xxxxx'x position as managing director and member of the advisory board
(Beirat) of the Companies - any liabilities of the Companies vis-a-vis the
Sellers shall have been completely fulfilled by the Put Option Effective Date at
the latest. The Sellers hereby waive in advance (by way of genuine contract for
the benefit of the Companies) all claims which they may have against the
Companies on or after the Put Option Effective Date; this shall not, however,
apply to claims and liabilities under all agreements relating to Xxxxxxx Xxxxx'x
position as managing director and member of the advisory board (Beirat) of the
Companies.
II. Real Property
InterCard K owns a piece of real property at Xxxxxxxxx. 0, 00000 Xxx Xxxxxxxx,
registered in the Land Registry office of Bad Durrheim (Grundbuchamt Bad
Durrheim, Amtgerichtsbezirk Villingen-Schwenningen) land registry of Biesingen
(Grundbuch von Biesingen) under No. 20006 (Blatt).
III.
With respect to the aforementioned Sale and Purchase Agreement, the persons
appearing refer to the deed of today's date, of notary Xx. Xxxxx, UR 856 /2000J.
The contents is know to the persons appearing. The original is present at the
notarisation. The persons appearing waive the right to have the Sale and
Purchase Agreement read aloud again and to have the Sale and Purchase Agreement
attached to this deed.
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This record including the Annexes has been read aloud in the
presence of the persons appearing and the Notary, approved
by the persons appearing and signed by the persons appearing
and the Notary in their own handwriting as follows:
/s/ XXXXXXX XXXXX
/s/ XXXXXX XXXXX
/s/ XXXXXXX XXXXX
ON TRACK INNOVATIONS LTD.
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Annex 1
Ownership Interests in InterCard held by the Shareholders and covered by the
Put Option (Put Option Interest)
1. Ownership interests in InterCard K.
1.1 Ownership interest held by Xxxxxxx Xxxxx:
one ownership interest in the nominal amount of DM 105,000;
one ownership interest in the nominal amount of DM 50,000;
one ownership interest in the nominal amount of DM 50,000;
one ownership interest in the nominal amount of DM 4,000;
one ownership interest in the nominal amount of DM 6,000; and
1.2 Ownership interests held by Xxxxxx Xxxxxx Xxxxx:
o one ownership interest in the nominal amount of DM 8,000;
o one ownership interest in the nominal amount of DM 24,000; and
1.3 Ownership interests held by Xxxxxxx Xxxxxxx Xxxxx
o one ownership interest in the nominal amount of DM 8,000;
o one ownership interest in the nominal amount of DM 24,000; and
1.4 Ownership interests held by the Civil Partnership
o one ownership interest in the nominal amount of DM 100,000;
o one ownership interest in the nominal amount of DM 94,000;
o one ownership interest in the nominal amount of DM 66,000;
2.2 Ownership interests in InterCard S:
2.2.1 Ownership interest held by Xxxxxxx Xxxxx:
o one ownership interest in the nominal amount of DM 72,500;
o one ownership interest in the nominal amount of DM 1,500;
o one ownership interest in the nominal amount of DM 3,500;
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o one ownership interest in the nominal amount of DM 10,000;
o one ownership interest in the nominal amount of DM 2,500; and
2.2.2 Ownership interest held by Xxxxxx Xxxxxx Xxxxx
o one ownership interest in the nominal amount of DM 1,500;
o one ownership interest in the nominal amount of DM 5,500;
o one ownership interest in the nominal amount of DM 5,000; and
2.2.3 Ownership interest held by Xxxxxxx Xxxxxxx Xxxxx
o one ownership interest in the nominal amount of DM 1,500;
o one ownership interest in the nominal amount of DM 5,500;
o one ownership interest in the nominal amount of DM 5,000; and
2.1.4 Ownership interest held by the Civil Partnership
o one ownership interest in the nominal amount of DM 100,000;
o one ownership interest in the nominal amount of DM 63,500;
o one ownership interest in the nominal amount of DM 16,500.
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Annex 7.4
Escrow Agreement
between
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx
(the "Shareholders" or the "Sellers")
and
On Track Innovations Ltd.
("OTI")
and
M.M. Warburg & Co. KGaA
(or any other bank the parties agree on in writing, latest June 30, 2000;
if the parties do not agree on another bank,
M.M. Warburg & Co. KGaA will be party to this Agreement)
(the "Bank")
(the Shareholders, OTI and the Bank are hereinafter referred to
as the "Parties")
Whereas: The Parties have entered into a Share Purchase Agreement (the "SPA")
with the date hereof, pursuant to which OTI has acquired 51% ownership of (i)
InterCard GmbH Kartensysteme, registered in the Commercial Register of the local
court Villingen-Schwenningen under No. HRB 603 and having its offices at Xxx xxx
Xxxxx 0, 00000 Xxxxxxxxx-Xxxxxxxxxxxx ("InterCard K"), and (ii) InterCard GmbH
Systemelectronic, registered in the Commercial Register of the local court
Villingen-Schwenningen under No. HRB 532 and having its offices at
XxxxxxxxxxXx 0, 00000 Xxx Xxxxxxxx ("InterCard S", collectively referred to
in this Agreement as "InterCard" or the "Companies") (hereinafter referred to as
the "Sold Interest") from the Shareholders, and;
Whereas: The Sellers own the remaining 49% ownership interest in InterCard
(hereinafter the "Remaining Interest" or "Option Interest") or are entitled by
way of call options granted by Mr. Xxxxxx Xxxxxxx to acquire the Remaining
Interest (the "Messmer Options");
Whereas: The Sellers and OTI have agreed in the SPA to pay the purchase price
for the Sold Interest (as defined in the SPA) (the "Interest Price") by way of
transferring ordinary shares of NIS 0.01 n.v. each of OTI (hereinafter referred
to as "OTI Shares") to the Shareholders and have agreed on a mechanism by way of
which the Bank is instructed to act as a trustee in relation to the transfer of
the OTI Shares to the Shareholders.
NOW, THEREFORE, the Parties agree as follows:
1. Escrow Account
1.1 The Bank shall establish an escrow account (the "Escrow Account") in the
name of OTI to which OTI is obliged and entitled to transfer OTI Shares as
purchase price for the Sold Interest.
1.2 OTI shall irrevocably transfer to the Bank (without any right to recall
except for OTI's right to the remainder according to Section 5 and free of
any third party rights) OTI Shares in an aggregate value of DM 5,500,000
according to the official average closing price of an OTI Share in the
Neuer Markt, traded in Frankfurt at the Xetra system (the "Closing
Price"), in the 3 (three) trading days of May 29 to May 31, 2000 (the "OTI
Trust Shares").
1.3 As long as any OTI Trust Shares are held by the Bank they shall be
"frozen" (as understood in accordance with the Israeli Companies Law),
i.e. the OTI Trust Shares shall not have any of the rights attached to an
OTI Share under OTI's Articles of Association, in particular the right to
vote and the right to receive profits.
2. Interest Price
2.1 As Interest Price for the Sold Interest in InterCard OTI, the Shareholders
agreed on a total amount of DM 5,000,000, payable in OTI Shares. Mr.
Xxxxxxx Xxxxx is irrevocably authorized by the other Shareholders to
receive the entire Interest Price.
2.2 The Bank shall transfer the amount of the OTI Trust Shares which is
required to be transferred for the payment of the Interest Price to the
following account:
Xxxxxxx Xxxxx, Baden-Wurttembergische Bank AG Donaueschingen, account no.
6208275540, bank sort code 694 210 20, S.W.I.F.T. BWBK DE 6S 694.
2.3 The Bank shall pay the Interest Price from the Escrow Account in 5 (five)
equal instalments (the "Instalments"), each totalling DM 1,000,000 (one
million Deutsche Mark). The Bank shall transfer the Instalment in OTI
Shares as follows:
2.3.1 The first instalment (the "First Instalment") shall be paid on July
15, 2000 (the "First Instalment Date").
2.3.2 The second instalment (the "Second Instalment") shall be paid on
August 15, 2000 (the "Second Instalment Date"),
2.3.3 The third instalment (the "Third Instalment") shall be paid on
September 15, 2000 (the "Third Instalment Date"),
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2.3.4 The fourth instalment (the "Fourth Instalment") shall be paid on
October 15, 2000 (the "Fourth Instalment Date"),
2.3.5 The fifth instalment (the "Fifth Instalment") shall be paid on
November 15, 2000 (the "Fifth Instalment Date"),
(and the First, Second, Third and Fourth Instalments shall be referred to
collectively as the "First Instalments"; and the First, Second, Third,
Fourth and Fifth Instalment Dates shall be referred to collectively as the
"Instalment Dates").
2.4 The Bank shall determine the number of OTI Trust Shares to be transferred
to the Shareholders as payment of the Interest Price for each of the
Instalments in accordance with the Closing Price in the 3 (three) trading
days prior to the relevant Instalment Date. In the event that these
instalments as calculated above do not result in a whole number of OTI
Shares, then these shall be rounded up by the Bank accordingly.
2.5 Prior to the Fifth Instalment the Bank shall make a calculation of the
aggregate Deutsche Mark value of each of the First Instalments according
to 20 (twenty) trading days Closing Price following the relevant
Instalment Date of each of them (the "Aggregate Value"). The Deutsche Mark
amount of the Fifth Instalment shall be calculated as the difference
between the Interest Price less the Aggregate Value, and shall be
transferred in OTI Shares in accordance with the provisions of Section 2.4
above.
2.6 On December 15, 2000 (the "Sixth Instalment Date"), the Bank shall make a
calculation to the effect that the amount of the Aggregate Value and the
value of the Fifth Instalment according to 20 trading days Closing Price
following the Fifth Instalment Date shall be added together (the "Final
Value"). If the Final Value amounts to less than DM 5 million, the amount
of difference shall be transferred by the Bank to Xxxxxxx Xxxxx in OTI
Shares in accordance with the provisions of Section 2.4 above. If the
final value amounts to more than DM 5 million, the amount of difference
shall be paid by Xxxxxxx Xxxxx to OTI in cash within 20 business days into
an account to be specified by OTI.
2.7 If the OTI Trust Shares are not transferred to the Bank on or before the
First Instalment Date, the First Instalment Date is moved to the business
day following the date of transfer of the OTI Trust Shares to the Bank;
the other Instalment Dates and the Sixth Instalment Date are moved
correspondingly.
2.8 If the Bank does not have enough OTI Shares to transfer to the
Shareholders for the payment of the Interest Price the Bank shall inform
OTI and the Shareholders immediately; no further action of the Bank is
required.
3. Confirmation of Receipt of the OTI Trust Shares
The Bank shall immediately after the irrevocable receipt of the OTI Trust Shares
(without any right of recall of OTI whatsoever except for OTI's right to the
remainder according to Section 5) confirm in writing to Xxxxxxx Xxxxx (on behalf
of the Shareholders) and to OTI the irrevocable receipt of the OTI Trust Shares
(without any right of recall of OTI whatsoever
-3-
except for OTI's right to the remainder according to Section 5) (the
"Confirmation"). The Confirmation shall basically be in the form of Exhibit A.
4. Special Account
4.1 The Bank shall establish a special account (the "Special Account") in the
name of Mr. Xxxxxxx Xxxxx, which Mr. Xxxxxxx Xxxxx may only dispose of
(verfugen uber) according to the following provisions or the written prior
consent of OTI.
4.2 The Bank shall deduct an equivalent amount of DM 800,000 in OTI Trust
Shares (the "Secured Amount") from the Fifth Instalment or, if the Fifth
Instalment is not effected in the year 2000, the last Instalment effected
in the year 2000. Mr. Xxxxxxx Xxxxx herewith instructs the Bank to sell
these OTI Shares in portions of 1/20 of the number of shares each trading
day following the relevant Instalment Date.
4.3 Mr. Xxxxxxx Xxxxx herewith irrevocably authorizes OTI, to instruct the
Bank to dispose of the Secured Amount in favour of Mr. Werner Messmer's
bank account, the bank account number of which will be provided by Mr.
Xxxxxxx Xxxxx, with the aim of paying the purchase price for the Messmer
Option. In the event that OTI does not instruct the Bank to dispose of the
Secured Amount until 1 April, 2001, the Secured Amount shall be released
to Mr. Weise.
5. Remainder of OTI Trust Shares
The Bank shall hold the remainder, if any, of the OTI Trust Shares for OTI once
all transfers of OTI Shares from the Escrow Account to the Shareholders have
been carried out in accordance with Section 2 of this Agreement and the Bank
shall act with respect to such remainder in accordance with OTI's instructions.
6. Costs
The costs incurred by the Bank shall be borne by OTI 50% and the Shareholders
50% equally.
7. Addresses
The Parties' addresses for the purpose of this Agreement are as set forth below,
unless otherwise notified in writing to all parties:
Shareholders:
Address: Xxxxxxx Xxxxx, Xxxxxxxxx 0, X-00000 Xxxxxxxxxxxx
Tel: xx00-0000-000000
Fax: xx00-0000-000000
Copy to Gleiss Xxxx Xxxxx Hirsch:
Attention: Xx. Xxxxxxx Xxxxxx
-4-
Address: XxxxxxxxxxxXx 0, X-00000 Xxxxxxxxx
Tel: xx00-000-00000
Fax: xx00-000-000000
OTI
Address: Z.H.R. I.Z., Xxxx Xxxx 00000, Xxxxxx
Tel: xx000-0-0000000
Fax: xx000-0-0000000
Copy to White & Case
Attention: Xx. Xxxxxxxx Xxxxxxx
Address: Xxxxxxxxxxxx XxxxxxxxXx 00-00, X-00000 Xxxxxxxxx xx Xxxx
Tel: xx00-00-000 770
Fax: xx00-00-000 77 100
8. Miscellaneous
8.1 Governing Law. This Agreement shall be governed by the laws of the Federal
Republic of Germany without regard to its conflict of law provisions.
8.2 Partial Invalidity. If one or more provisions of this Agreement should be
or become wholly or partially invalid, void or impracticable, the validity
of the other provisions of this Agreement shall not be affected thereby.
The same shall apply if it should transpire that this Agreement contains a
gap. In place of the invalid, void or impracticable provision (or, as the
case my be, in order to fill the gap) the parties to this Agreement shall
agree on an appropriate provision which comes as close as legally possible
to what the parties were trying to achieve with the invalid, void or
impracticable provision (or, as the case may be, the invalid, void or
impracticable part thereof). In the event that a gap in this Agreement
needs to be filled, a provision shall be agreed upon which, in view of the
purpose and intent of this Agreement, comes as close as possible to what
the parties would have agreed if they had been aware of the gap at the
time that this Agreement was concluded.
8.3 Liability of the Bank. The Bank is only liable for the care it employs in
its own affairs.
Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxx
On Track Innovations Ltd.
M.M. Warburg & Co. KGaA
-5-
Exhibit A
[Letterhead of M. M. Warburg & Co. KGaA]
Xxxxxxx Xxxxx
Xxxxxxxxx 0
X-00000 Xxxxxxxxxxxx
Fax: xx00-0000-000000
On Track Innovations Ltd.
Z.H.R. I.Z.
Xxxx Xxxx 00000
Xxxxxx
Fax: xx000-0-0000000
cc: Gleiss Xxxx Xxxxx Hirsch
Attention: Xx. Xxxxxxx Xxxxxx
Xxxxxxxxxx. 0
X-00000 Xxxxxxxxx
Fax: xx00-000-000000
White & Case
Attention: Xx. Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx XxxxxxxxXx 00-00
X-00000 Xxxxxxxxx xx Xxxx
Fax: xx00-00-000 77 100
Confirmation of Receipt of the OTI Trust Shares
Gentlemen,
In accordance with Section 3 of the Escrow Agreement of June 15, 2000 by and
between Xxxxxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx (the
"Shareholders"), On Track Innovations Ltd. ("OTI") and M. M. Warburg & Co. KGaA
("Escrow Agreement") we hereby confirm the irrevocable receipt of the OTI Trust
Shares without any recall of OTI whatsoever except for OTI's right to the
Remainder according to Section 5 of the Escrow Agreement.
Sincerely yours,
M.M. Warburg & Co. KGaA
(or any other bank according to this escrow agreement)
-6-
BACH, ARAD, SCHARF & CO.
LAW OFFICES
Xxxxxxxx Xxxxx, 0 Xxxxxxxx xxxx, Xxx-Xxxx 00000, Xxxxxx
Fax. (000)0-0000000 Tel. (000)0-0000000
xxxxxxxx@xxxxxxxx.xxx
June 13th, 2000
635/95
Mssrs. Xxxxxxx Xxxxx
Xxxxxx Xxxxx Hand Delivery
Xxxxxxx Xxxxx
Dear Sirs,
Purchase of 51% interest in InterCard GmbH Kartensysteme and InterCard GmbH
Systemelectronic (collectively "InterCard") by On Track Innovations Ltd. ("OTI")
(the "SPA") and Options to sell and purchase the remaining ownership interest of
49% of InterCard (the "OA") (collectively the "Transaction")
As OTI's legal counsels, we hereby certify that Mr. Xxxx Xxxxxx, holder of
Israeli Passport No. 9008439, is duly authorized by OTI to negotiate and
conclude detailed agreements regarding the Transaction and to sign all
agreements in connection with the Transaction and all ancillary documents
(including, inter alia, a share pledge agreement and an escrow agreement) on
OTI's behalf. The signature of Xxxx Xxxxxx together with the stamp or printed
name of OTI, is binding upon OTI.
Sincerely yours,
/s/ Nir Ehrlich, Adv.
Nir Ehrlich, Adv.
Bach, Arad Scharf & Co.
Die Ubereinstimmung vorstehender Abschrift mit der mir heute vorliegenden
Urschrift wird beglaubigt.
Stuttgart, den 15. Juni 0000
Xxxxx
/x/ Xx. Xxxxx
- Xx. Xxxxx -
Xxxxxxx 0-X
Xxxxxx Xxxxxxx
Xxxxxxxxxxxx 00
00000 Xxxxxxxxxx
An
1. Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxxxxxx
2. Xxxxx Xxxxxxx Xxxxx
Xxxxxxx-xxx-Xxxxx-Xxx 0
00000 Xxxxxxxxx
3. Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxx
Verzicht auf Vorkaufsrecht fur Geschaftsanteile an
InterCard GmbH Kartensysteme
1. Die Herren Xxxxxxx Xxxxx, Xxxxxxx Xxxxx und Xxxxxx Xxxxx (im folgenden
zusammengefaBe die "Herren Weise") sowie der Unterzeichner sind die
alleinigen Gesellschafter der InterCard GmbH Kartensysteme mit Sitz in
Villingen-Schwenningen (im folgenden "die Gesellschaft").
2. Die Herren Weise beabsichtigen, Geschaftsanteile an der Gesellschaft (im
folgenden "die Geschaftsanteile") an das israelische Unternehmen On Track
Innovations Ltd. oder an einen von diesem Unternehmen bestellten Dritten
(im folgenden "der Kaufer") zu verkaufen und abzutreten. Zur Sicherung der
Kaufpreiszahlung soll ein Pfandrecht an den verkauften und abgerretenen
Geschaftsanteilen zugunsten der Herren Weise bestellt werden.
3. GemaBe ss.9 des Gesellschaftsvertrages der Gesellschaft steht mir ein
Vorkaufsrecht an den Geschaftsanteilen zu. Ebenso bedarf eine Verpfandung
von Geschaftsanteilen gemaBe ss.9 Abs. 5 des Gesellschaftsvertrages der
Zustimmung der ubrigen Gesellschafter.
4. Hiermit verzichte ich unwiderruflich auf mein Vorkaufsrecht an den
Geschaftsanteilen der Herren Weise. Der Verpfandung der verkauften und
abgetretenen Geschaftsanteile durch den Kaufer an die Herren Weise stimme
ich hiermit ebenso unwiderruflich zu.
/s/ Ort, Datum
____________________
Ort, Datum
/s/ Xxxxxx Xxxxxxx
_____________________
Xxxxxx Xxxxxxx
Exhibit 2-B
Xxxxxx Xxxxxxx
Hauslegarten 15
78315 Radolfzell
An
1. Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxxxxxx
2. Xxxxx Xxxxxxx Xxxxx
Xxxxxxx-xxx-Xxxxx-Xxx 0
00000 Xxxxxxxxx
3. Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxx
Verzicht auf Vorkaufsrecht fur Geschaftsanteile an
InterCard GmbH Systemelectronic
1. Die Herren Xxxxxxx Xxxxx, Xxxxxxx Xxxxx und Xxxxxx Xxxxx (im folgenden
zusammengefaBt die "Herren Weise") sowie der Unterzeichner sind die
alleinigen Gesellschafter der InterCard GmbH Systemelectronic mit Sitz in
Bad Durrheim (im folgenden "die Gesellschaft").
2. Die Herren Weise beabsichtigen, Geschaftsanteile an der Gesellschaft (im
folgenden "die Geschaftsanteile") an das israelische Unternehmen On Track
Innovations Ltd. oder an einen von diesem Unternehmen bestellten Dritten
(im folgenden "der Kaufer") zu verkaufen und abzutreten. Zur Sicherung der
Kaufpreiszahlung soll ein Pfandrecht an den verkauften und abgerretenen
Geschaftsanteilen zugunsten der Herren Weise bestellt werden.
3. GemaB ss.9 des Gesellschaftsvertrages der Gesellschaft steht mir ein
Vorkaufsrecht an den Geschaftsanteilen zu. Ebenso bedarf eine Verpfandung
von Geschaftsanteilen gemaB ss.9 Abs. 5 des Gesellschaftsvertrages der
Zustimmung der ubrigen Gesellschafter.
4. Hiermit verzichte ich unwiderruflich auf mein Vorkaufsrecht an den
Geschaftsanteilen der Herren Weise. Der Verpfandung der verkauften und
abgetretenen Geschaftsanteile durch den Kaufer an die Herren Weise stimme
ich hiermit ebenso unwiderruflich zu.
/s/ Ort, Datum
____________________
Ort, Datum
/s/ Xxxxxx Xxxxxxx
_____________________
Xxxxxx Xxxxxxx
