SHARE SALE AGREEMENT Made and entered into in Tel-Aviv on 30 March 2008 By and between:
Made
and
entered into in Tel-Aviv on 30 March 2008
By
and between:
| DCI
USA, Inc.
A
corporation registered in Delaware, United States
(hereinafter:
the "Vendor")
|
||
|
of
the first part;
|
||
|
and:
|
||
| Tobias
Jewelry Ltd.
Company
No. 00-0000000
(hereinafter:
the "Purchaser")
|
||
|
of
the second part;
|
||
|
add:
|
||
| Xxxxxxx
Wind Energy, Ltd.
Company
No. 00-0000000
(hereinafter:
the "Company")
|
||
|
of
the second part
|
|
Whereas
|
Xxxxxxx
Wind Energy Ltd. is a private company duly registered in Israel
(hereinafter: the "Company"),
whose issued and paid-up share capital is comprised of 100,000
ordinary
shares of NIS 1 par value each; and
|
|
|
|
|
Whereas
|
the
Vendor owns 100,000 ordinary shares of the Company, of NIS 1
par value
each, constituting 100% of the Company's issued and paid-up share
capital
and of the voting power therein (hereinafter: the "Shares
for Sale");
and
|
|
|
|
|
Whereas
|
the
Vendor is interested in selling and transferring the Shares for
Sale to
the Purchaser and the Purchaser is interested in and agreeable
to
purchasing the Shares for Sale from the Vendor, all in accordance
with the
arrangements and subject to the conditions set forth hereinbelow;
and
|
|
|
|
|
Whereas
|
the
parties wish to enter into an agreement for arranging the legal
relations
between them relating to sale of the Shares for Sale, in the
framework of
the provisions hereof;
|
Now
therefore, it has been warranted, agreed and stipulated by the parties as
follows:
|
1.
|
Preamble,
meanings and
appendices
|
|
1.1
|
The
preamble, appendices and warranties of the parties to this Agreement,
constitute an integral part hereof.
|
|
1.2
|
The
headings of the sections in this Agreement were designed purely
for the
sake of convenience and no meaning should be ascribed to them for
purposes
of interpreting this Agreement or any of its
clauses.
|
|
1.3
|
In
this Agreement, the following terms shall have the meaning recorded
alongside them, unless the context requires
otherwise:
|
|
"Business
Day"
|
A
day on which the two largest banks in Israel are open for
transacting business, other than Fridays and the eves of
holidays, which shall not be considered a business day.
|
|
|
"Companies
Law"
|
The
Companies Law, 5759-1999.
|
|
|
|
||
|
"Consideration"
|
The
amount of the consideration which the Purchaser is to
pay the Vendor for the purchase and transfer of the Shares
to the Purchaser for Sale, in accordance with section
5 below.
|
|
|
|
||
|
"Consideration
Payment
Date"
|
1,935,000
US dollars, within 2 Business Days of the date
of the transaction's approval by the general meeting of
the purchaser and 672,000 US dollars, to be paid within
12 months of the date of the transaction's approval
by the general meeting of the Purchaser.
|
|
|
|
||
|
"Free
and Clear"
|
Free
and clear of any encumbrance, pledge, attachment, levy,
debt, lien, claim, or any third party right of whatsoever
kind.
|
|
|
|
||
|
"GWE"
|
Green
Wind Energy Ltd.
|
|
|
|
||
|
"Xxx
Xxxxx"
|
Xxx
Xxxxx Wind Energy Ltd.
|
|
|
|
||
|
"Nimrod"
|
Nimrod
Wind Energy Ltd.
|
|
|
|
||
|
"Securities
Law"
|
The
Securities Law, 5728-1968.
|
|
|
|
|
2.
|
Warranties
and obligations of the
Vendor
|
|
The
Vendor hereby warrants and undertakes to the Purchaser as
follows:
|
|
2.1
|
That
subject to the receipt of approval of the board of directors of
the Vendor
of its execution of this Agreement, the Vendor has lawfully passed
all the
resolutions and received all the approvals which are required
thereby pursuant to law and under its documents of incorporation,
for
purposes of its execution of this Agreement and the performance
of all its
obligations hereunder and that it does not require the consent
or approval
of any other third party regarding its execution of this Agreement
and
performance of all its obligations set out
herein.
|
2
|
2.2
|
Xxx
Xxxxx is a duly incorporated private company and is in possession
of the
essential licenses, approvals and permits necessitated under
any law for
conducting its business activity and to the Vendor's best knowledge,
it
operates in accordance with the
above.
|
|
2.3
|
GWE
is a duly incorporated private company, which on 13.9.2006 executed
an
agreement to purchase all the assets of Xxx Xxxxx, a copy of
which is
attached hereto as Appendix
2.3 of
this Agreement and it is in possession of the essential licenses,
approvals and permits necessitated under any law for conducting
its
business activity and to the Vendor's best knowledge, it operates
in
accordance with the above. The
closing of the contract for the acquisition of Xxx Xxxxx is subject
to
execution of the payments stipulated
herein.
|
|
2.4
|
Nimrod
is a duly incorporated private company and it is acting towards
obtaining
the various permits and approvals necessary in accordance with
any law,
for purposes of the construction and operation of a wind turbine
station
for electricity production, in a scope of approx. 22.5 mega
xxxxx.
|
|
2.5
|
That
the Vendor is not subject to any prohibition and/or restriction
and/or
impediment, whether in accordance with law or under any agreement
regarding the performance of its obligations under the provisions
hereof
and that its execution and implementation of this Agreement does
not
constitute a breach of any obligation of the Vendor and/or of
any contract
to which the Vendor is a party.
|
|
2.6
|
That
the Vendor's execution of this Agreement is being carried out
in reliance
on the Purchaser's warranties and obligations, pursuant to section
3
hereof.
|
|
2.7
|
That
the Vendor is aware that the Purchaser is executing this Agreement
in
reliance on the warranties and representations as provided in
this section
2 and in the appendices referring thereto. Nothing
in the foregoing shall serve to prejudice and/or derogate from
the
validity and/or generality of the Purchaser's representations,
as provided
in section 3 below.
|
|
2.8
|
That
the Shares for Sale are held by the Vendor, that they are Free
and Clear
and that they constitute, as at the date of signing this Agreement,
100%
of the Company's issued and paid-up share capital, fully diluted
and that
they are fully paid-up. Similarly, all the ordinary shares in
the issued
and paid-up share capital of the Company, rank equal and hold
equal
rights.
|
3
|
2.9
|
|
|
2.9.1
|
That
subject to what is stated below, the Company is the lawful owner
of 334
preference shares of NIS 1 par value each of GWE, constituting
25% of
GWE's issued and paid-up share capital, fully diluted (hereinafter:
the
"GWE
Shares").
As at the date of signing this Agreement, the Company's investment
in GWE
has yet to be completed, although transfer of the shares to the
Vendor has
been competed and consequently, transfer of the shares to the
Vendor
should be regarded as having been completed only on the date
on which the
Vendor completes the investment in GWE. The outstanding balance
of the
investment in GWE, is in a sum of approx. 335,000 US
dollars.
|
|
2.9.2
|
Save
as set forth in Appendix
12.9.2 (a) below,
the GWE Shares are Free and Clear and vest in their holder (subject
to
completing execution of the investment, as provided in section
2.9.1
above), all the rights specified in the GWE Investment Agreement,
of
13.9.2006, a copy of which is attached hereto as Appendix
2.9.2 (b) of
this Agreement.
|
|
2.10
|
The
Company has an option of purchasing such number of preference
shares in
Nimrod, constituting 25% of Nimrod's issued and paid-up share
capital,
fully diluted (hereinafter: the "Nimrod
Shares").
The purchase price of the option is 2.75 million dollars and
is
exercisable no later than 60 days from fulfillment of all the
conditions
precedent, as provided in the investment agreement, allowing
for
construction of the station. The preference shares in respect
of which the
options may be exercised shall be, on the date of exercise, Free
and Clear
and shall have all the rights, as set out in the Option Agreement
dated 5
December 2006, attached hereto as Appendix
2.10 of
this Agreement,
|
|
2.11
|
Intentionally
omitted.
|
|
2.12
|
That
the Company is a private company duly registered in Israel at
the
Registrar of Companies, bearing the number 00-0000000, it is
authorized to
execute this Agreement and there is no statutory and/or contractual
impediment to the execution and/or fulfillment of its obligations
hereunder.
|
|
2.13
|
That
there are no winding-up and/or receivership proceedings against
the
Company. To the best of the Vendor's knowledge, the Company has
not
received any notice or warning of an intention to initiate such
proceedings and neither is the Vendor aware of any cause for
the
initiation of winding-up and/or receivership proceedings against
the
Company. Equally, the Vendor is not aware of any existing and/or
planned
stay of proceedings against the
Company.
|
4
|
2.14
|
That
no undistributed dividend has been declared by the Company and
no
resolution has been adopted thereby regarding the distribution
of bonus
shares which have not been distributed, nor any other distribution,
within
the meaning thereof in the Companies
Law.
|
|
2.15
|
To
the best of the Vendor's knowledge, there is no undertaking and/or
other
understanding, whether written or verbal, of the Company to issue
any
shares and/or other securities of the Company. Likewise, to the
best of
the Vendor's knowledge, the Company has not granted an option
and/or
options and/or any other convertible security, which are in force
at the
time of signing this Agreement, for the purchase and/or receipt
of shares
of the Company.
|
|
21.6
|
Audited
financial statements of the Company, GWE and Nimrod, as at 31.12.2006
and
reviewed financial statements of the Company, as at 31.12.2007
are
attached to this Agreement, as Appendices
2.16 (1) and 2.16 (2) (hereinafter:
the "Financial
Statements").
To the best of the Vendor's knowledge, the Financial Statements
were drawn
up according to generally accepted accounting principles and
they
accurately reflect the Company's financial situation, operations
and
liabilities, as at 31.12.2007. To the best of the Company's knowledge,
since the Financial Statements and up until the date of signing
this
Agreement, the Company has not executed any transaction and has
not
assumed any obligation not in the ordinary course of its business,
which
has or might have a material adverse affect thereon and/or on
its equity
and/or on its Financial Statements. A trial balance which, to
the Vendor's
best knowledge, accurately reflects the Company's situation as
at 31
January 2008, as well as details of activities that have been
adopted
henceforth, is attached hereto as Appendix
2.16 (3) of
this Agreement.
|
|
2.17
|
That
to the Vendor's best knowledge, the Company does not have any
tax debts in
respect of 2006 and 2007.
|
|
2.18
|
That
the Company does not engage any employees and/or
consultants.
|
|
2.19
|
|
2.19.1
|
To
the Vendor's best knowledge, the Company has not given and has
not
undertaken to give, any guarantee to secure any debts and/or
liabilities,
save as specified in Appendix
2.19 (1) hereof.
|
|
2.19.2
|
To
the Vendor's best knowledge, there is no agreement or arrangement
between
the Company and the Vendor and there is no transaction of the
Company in
which the Vendor has any personal interest and neither is there
any
guarantee, undertaking of indemnity or loan which the Vendor
has provided
to the Company, save as specified in Appendix
2.19(2) hereof.
|
5
|
2.20
|
|
2.20.1
|
to
the Vendor's best knowledge, other than the Company's execution
of
agreements with GWE
and Nimrod,
copies of which are attached hereto, the Company shall not be
party to any
valid substantial contract and/or agreement and/or understanding
and shall
not be liable for any substantial obligation and/or liability
of
whatsoever nature, whether in writing or orally and there shall
not be any
negotiations and/or discussions conducted by the Company towards
any
substantial contract. An evaluation of the operations being purchased
in
GWE and in Nimrod, as provided in the above- mentioned agreements,
is
attached as Appendix
2.20 hereof.
|
|
2.20.2
|
To
the best of the Vendor's knowledge, all the substantial data
and
information set out in section 2.20.2 hereof, are true and
accurate.
|
|
2.21
|
To
the best of the Vendor's knowledge, no legal proceeding and/or
investigation is being conducted against the Company and/or its
officers.
Similarly, as at the date of signing this Agreement, the Vendor
is not
aware of any notice from any party regarding an intention to
file a claim
or to adopt legal proceedings against the Company, which has
been received
thereat. In addition, to the best of the Vendor's knowledge,
there is no
judgment, arbitration award or any judicial decision against
the Company
and/or its officers by virtue of their position therein, as at
the date of
signing this Agreement, which have not been fully
satisfied.
|
|
2.22
|
The
Vendor is aware the Purchaser is entering into this Agreement
in reliance
on the warranties and representations given by the Vendor, as
incorporated
herein and that in the event of it transpiring that (all or any
of) these
warranties and representations are incorrect, inaccurate or partial,
same
shall constitute a fundamental breach of this
Agreement.
|
|
To
the best of the Vendor's knowledge, there is no substantial information
in
connection with the operations of the Company, GWE and Nimrod
which has
not been included herein.
|
|
3.
|
Warranties
and obligations of the
Purchaser
|
|
The
Purchaser hereby warrants and undertakes to the Vendor, as
follows:
|
|
3.1
|
That
subject to the receipt of approval of the board of directors
of the
Company which has yet to have been received as at the date if
signing this
Agreement, it has lawfully passed all the resolutions and received
all the
approvals which are required thereby pursuant to law and under
its
documents of incorporation, for purposes of the execution of
this
Agreement thereby and the performance of all its obligations
hereunder and
that it does not require the consent or approval of any other
third party
regarding its execution of this Agreement and performance of
all its
obligations set out herein.
|
6
|
3.2
|
That
it is not subject to any prohibition and/or restriction and/or
impediment,
whether in accordance with law or under any agreement regarding
the
performance of its obligations under the provisions hereof and
that its
execution and implementation of this Agreement does not constitute
a
breach of any obligation of the Purchaser and/or of any contract
to which
the Purchaser is a party.
|
|
3.3
|
That
it has the ability and means to fulfill all its obligations hereunder
in a
full and timely manner and possesses the financial resources
for payment
of the full Consideration amount and on the dates set forth
herein.
|
|
3.4
|
The
Purchaser warrants that it is a public company duly registered
in Israel
at the Registrar of Companies, Company No. 00-0000000, whose
shares are
traded on the stock exchange in Tel-Aviv and that no steps or
proceedings
for its striking off, dissolution, winding-up, receivership or
such other
actions, have been adopted or are threatened against
it
|
|
3.5
|
That
the signatories of this Agreement and the related documents on
behalf of
the Purchaser, are the persons authorized to sign, on the Purchaser's
behalf, this Agreement and the related documents and/or those
which are
necessary for its implementation and to bind the Purchaser by
their
signature and this Agreement, together with all terms thereof,
is binding
on the Purchaser for all intents and
purposes.
|
|
3.6
|
That
for a period of 30 days, commencing from the date of signing
this
Agreement, it shall conduct independent due diligence in connection
with
the equal ranking of the Shares for Sale, the rights and obligations
of
the Company, its legal, financial and accounting situation (hereinafter:
"Due
Diligence").
|
|
3.7
|
In
the framework of performing Due Diligence, it shall consult with
lawyers,
accountants, investment advisors and any other professional with
whom it
wishes to confer, in all respects of purchasing the Shares for
Sale
pursuant hereto and the risks involved therein, including: (a)
examination
and performance of comprehensive due diligence of all aspects
pertaining
to the Company, its activity, business, assets and the financial
statements and any other particular required thereby for purposes
of
taking the decision on execution of this Agreement; (b) that
prior to the
date of the closing, it shall confirm to the Vendor that it was
afforded
access to the assets, books, reports and accounts of the Company;
and that
(c) inasmuch as it elects to consummate the transaction following
its
completion of Due Diligence, then subject to the accuracy of
the Vendor's
warranties in section 2 above, it hereby releases the Vendor
or any party
on its behalf from any damage which it may incur in relation
to
acquisition of the Shares for Sale hereunder and
it assumes responsibility for all the risks involved in such
acquisition.
|
7
|
3.8
|
Apart
from the Vendor's warranties and representations in section 2
above, it
has not been given any warranties and representations by the
Vendor,
Company, their employees, managers, consultants and/or any party
on their
behalf, whether explicitly or implicitly, directly or indirectly,
in
relation to the Company, including in all respects of their legal,
economic, business and financial situation and/or to any projections
in
connection with the above.
|
|
3.9
|
There
is no legal or other impediment to execution of this Agreement
by the
Purchaser and to the performance of what is stated herein and
this
Agreement and the fulfillment of the Purchaser's obligations
hereunder are
not in opposition to or in contradiction of any judgment, order
or
directive of a court, any agreement, contract or understanding
to which
the Purchaser is party, its documents of incorporation or any
other
undertaking of the Purchaser, whether by virtue of an agreement
(oral, by
way of conduct or in writing) or by operation of
law.
|
|
3.10
|
That
it is aware the execution of this Agreement must be reported
to the
Securities Authority and to the Stock Exchange, pursuant to the
securities
laws.
|
|
3.11
|
That
it is aware the Vendor is entering into this Agreement in reliance
on its
warranties as provided in this section 3. The foregoing shall
not serve to
prejudice and/or derogate from the validity and/or generality
of the
Vendor's representations as provided in section 2
above.
|
|
4.
|
The
Agreement
|
|
4.1
|
Subject
to the correctness of the Vendor's and Purchaser's representations
as set
out herein, subject to the completion of Due Diligence by the
Purchaser
and subject to approval of the meeting of shareholders of the
Purchaser,
the Vendor, on the one hand and the Purchaser on the other hand,
mutually
undertake that on the date of signing this Agreement, the Purchaser
shall
purchase the Shares for Sale from the Vendor and the Vendor shall
sell all
the Shares for Sale to the Purchase, against payment of the Consideration
as specified in section 5 hereof and that the Purchaser waives
any claim
in connection with the Shares for Sale and it neither has nor
shall it
have any contention and/or claim and/or demand in connection
with the
Shares for Sale, other than a claim in connection with the representations
which have been made thereto, in accordance
herewith.
|
|
4.2
|
The
Vendor hereby undertakes that the Shares for Sale which are being
hereby
transferred to the Purchaser, are being transferred Free and
Clear of any
pledge, attachment, encumbrance, lien or any third party
right.
|
8
|
5.
|
Consideration
|
|
Subject
to receipt of the full Consideration amount, the Vendor hereby
sells the
Shares for Sale to the Purchaser, for the Consideration detailed
below, on
the Consideration Payment Date, as defined above (hereinafter:
Consideration
Payment Date"):
|
|
5.1
|
To
the Vendor:
against the Shares for Sale, the Purchaser shall pay the Vendor
consideration in the sum of 1,250,350 US dollars, plus VAT, as
may be
required by law, out of which a sum equal to the amount designated
in
section 5.2 shall be paid directly to World Group Capital (58)
Ltd.,
against a)
the
full and final waiver of World Group Capital (58)
Ltd.
of an option to purchase the Shares for Sale; b)
removal
of the lien that was registered in favor of World Group Capital
(58) Ltd.
on the Vendor's real estate property (hereinafter: "Payment
on the Shares for Sale").
|
|
5.2
|
The
amount equal to NIS 1,575,200, plus nominal monthly interest
of 1%, on the
said amount, calculated from 11.12.2007 and together with 8,000
dollars +
VAT.
|
|
5.3
|
To
the Company:
a)
a
sum of 335,000 US dollars, as an owner's loan (hereinafter: the
"Investment
Loan").
The Company shall provide the Investment Loan to GWE, as full
payment of
the full balance of the Company's undertakings to invest in GWE;
b)
a
sum of 1,356,650 US dollars, as an owner's loan (hereinafter:
the
"Payment
Loan").
The Payment Loan shall be paid by the Company to the Vendor,
as full
repayment of the balance of the owner's loans in the Company,
excluding
the owner's loans which are to be provided to the Company by
the Purchaser
pursuant hereto; c)
a
sum of 30,000 US dollars, as an owner's loan which is convertible
into a
capital note (hereinafter: the "Capital
Loan").
The Capital Loan constitutes the balance of the Company's liabilities
to
suppliers.
|
|
Notwithstanding
the foregoing, it is hereby agreed that the Purchaser shall be
required to
provide, on the Consideration Payment Date, an aggregate amount
of not
more than 2.3 million US dollars, the balance of the amount,
i.e., a
further sum of 672,000 US dollars, being provided by the Vendor,
as a
loan, on the following terms:
|
|
5.3.1
|
On
the Consideration Payment Date, the Purchaser shall pay the Company
out of
the sum of 1,356,650 US dollars, as provided in section 5.2(b)
above, a
sum of only 684,650 US dollars.
|
|
5.3.2
|
Within
12 months from the date of the Vendor's general meeting approving
the
execution of this Agreement, the Purchaser shall pay the Company
the
balance of the payment for the Payment Loan (hereinafter: the
Deferred
Date of Payment"
and the "Deferred
Consideration Balance",
respectively).
The Purchaser shall be allowed to advance this payment, by prior
written
notice to the Company. On the date of the Company's receipt of
the said
payment, the Company shall pay the Deferred Consideration Balance
to the
Vendor.
|
9
|
5.3.3
|
As
security for remittance of the said payment, it is agreed that
on the
Consideration Payment Date, 25% of the Shares for Sale shall
be deposited,
in trust, with the Vendor's attorney, Adv. Xxxxx Xxxxxxx (hereinafter:
the
"Trustee"),
as a deposited pledge and insofar as the Purchaser fails to pay
the Vendor
the Deferred Consideration Balance, on the Deferred Date of Payment,
after
the Vendor has furnished written notice of 21 days to the Purchaser,
the
Trustee shall be allowed to sell the Shares for Sale and/or transfer
title
therein and/or to have recourse to any other relief pursuant
to law and/or
this Agreement, all in accordance with the deed of instructions
to the
Trustee, Appendix
5.3.3 hereof.
On the date of receiving the Purchaser's notice of execution
of the
payment by the Company, as detailed in section 5.3.2 above, to
which the
bank's confirmation of such transfer of funds is attached, the
Trustee
shall transfer the Shares for Sale which were deposited with
him, as
provided in this section 5.3.3 above, to the
Purchaser.
|
|
6.
|
Acts
for execution on the Consideration Payment
Date
|
|
6.1
|
On
the Consideration Payment Date, as defined above, the parties
shall
convene, by prior coordination between them, at Xxxxxx, Xxxxxxx
& Co.,
Law Offices or at any other place that has been agreed by them,
for the
sake of closing the transaction and they shall act as detailed
below, all
acts below being carried out at one and the same time and whose
full and
faithful execution by the party responsible, constitutes a condition
precedent for performance of the acts by the other party, as
follows:
|
|
6.2
|
The
Vendor:
|
|
6.2.1
|
Shall
transfer 75% of the Shares for Sale to the Purchaser, by delivering
a
signed share transfer deed to the Purchaser's order and shall
deposit the
remaining 25% of the Shares for Sale with the
Trustee
|
|
6.2.2
|
Shall
furnish to the Purchaser a resolution of the board of directors
of the
Company, nominating directors on the Purchaser's behalf to the
Company's
board of directors, in accordance with a list which the Purchaser
is to
send the Vendor by such date and in accordance with the Company's
articles
of association.
|
|
6.2.3
|
Shall
furnish minutes of the meeting of the Vendor's board of directors
certifying its signature on this Agreement and empowering
the authorized signatories on its behalf to sign this
Agreement.
|
10
|
6.3
|
The
Purchaser:
|
|
6.3.1
|
Shall
remit the payment for the Shares for Sale, by way of wire transfer,
to a
bank account in the Vendor's name, whose details the Vendor shall
give the
Purchaser prior to the Consideration Payment
Date..
|
|
6.3.2
|
Shall
sign the share transfer deeds to transfer the Shares for Sale
into its
name.
|
|
6.1.2
|
Shall
furnish minutes of the meeting of the Purchaser's board of directors
certifying its signature on this Agreement and empowering the
authorized
signatories on its behalf to sign this Agreement, together with
confirmation of a lawyer that the said resolution was duly passed
and that
it is a binding resolution.
|
|
6.4
|
All
acts carried out on the Consideration Payment Date shall be deemed
to have
been carried out simultaneously, no single act being considered
to have
been completed and no single document being considered to have
been
delivered, until all acts on such date have been completed and
all
documents have been delivered.
|
|
7.
|
The
interim phase
|
|
7.1
|
Due
diligence
|
|
7.1.1
|
The
Purchaser shall be entitled, during the period from the date
of signing
this Agreement until the elapse of 30 days from the above-mentioned
date
(hereinafter: the "Examination
Period"),
to conduct due diligence of the Company, in the framework of
which it
shall conduct any legal, accounting, planning and/or other examination,
in
its discretion.
|
|
7.1.2
|
In
the event of it being found that one or more of the Vendor's
warranties
and/or representations, as provided in section 2 of this Agreement
and/or
any of its appendices, is substantially and fundamentally wrong
and/or in
the event of negative material and fundamental information
being
discovered regarding the Shares for Sale and/or the assets
of GWE and/or
Nimrod and which have not been disclosed herein and/or in the
event of
failing to prove, to the Purchaser's satisfaction, that the
validity of
the CDM approval issued to GWE, shall not be adversely affected
as a
result of a change in status of the State of Israel to a developing
country (hereinafter: the "Negative
Finding"),
then the Purchaser may, until the end of the Examination Period,
inform
the Vendor, in writing, of the decision not to consummate the
transaction
hereunder (hereinafter: the "Termination
Notice")
and this Agreement shall be terminated, without either party
having any
claim and/or demand against the other party on account of such
termination. The Termination Notice shall include comprehensive
and
detailed information of the Negative Finding, on account of
which the
Purchaser wishes to terminate the Agreement and the Vendor
shall have the
right to repair any such defect, within 14 days of the date
of the
Termination Notice. Where the defect in the Negative Finding
has been
redressed, the Termination Notice shall be deemed null and
void. Should
the defect not be cured, the Termination Notice shall be regarded
as being
in force. For purposes of this Agreement, negative material
and
fundamental information shall mean - information in respect
of which one
of the following is fulfilled: a) had a reasonable buyer been
aware, on
the date of signing this Agreement, of the information pertaining
to the
Negative Finding, he would not have entered into this Agreement
and b) the
Negative Finding is such that the value of the Shares for Sale
has been
adversely impacted by more than
15%
|
11
|
7.2
|
The
Vendor hereby undertakes that during the period from the date
of signing
this Agreement and until to the Consideration Payment Date (hereinafter:
the "Interim
Period"),
it shall exercise reasonable efforts and in accordance with law,
so
that:
|
|
7.2.1
|
The
Company does not perform any act which is not in the normal and/or
regular
course of business, including a declaration and/or distribution
of
dividends and any other distribution, within the meaning thereof
in the
Companies Law, an issuance of shares or other rights, other than
as
provided in this Agreement and/or with the Purchaser's prior
written
consent;
|
|
7.2.2
|
It
delivers prior notice to the Purchaser immediately upon learning
of any
substantial event in the Company and of any act performed by
the Company
and/or the Vendor, which serve to change the provisions of this
Agreement
and any other reasonable information, as requested by the Purchaser
and
which the Vendor is able to
provide.
|
|
7.2.3
|
Not
to sell and/or transfer all or any of the Shares for Sale, not
to
relinquish any right to which they are entitled in connection
with the
Shares for Sale and not to grant any option and/or other right
in respect
of the Shares for Sale, to any third party and not to execute
any
agreement which shall preclude the implementation of this Agreement
in
relation to the Shares for Sale.
|
|
7.2.4
|
Not
to make any change in the Company's registered and/or issued
capital.
|
|
7.3
|
The
parties undertake to act in good faith towards implementation
of the
provisions of this Agreement and to cooperate in order to present
all the
requisite
documents before any statutory
authority.
|
12
|
8.
|
Safeguarding
of confidentiality
|
|
8.1
|
Each
of the parties undertakes that if the contractual cooperation
contemplated
hereunder is terminated and/or does not enter into effect, it,
its
employees, representatives and all those acting on its behalf,
shall keep
strictly confidential and refrain from disclosing and/or revealing
and/or
transferring, in any way, directly or indirectly, themselves
or through
others, including parties on their behalf, any professional,
commercial or
other information not in the public domain, in connection with
the
activity of the Company and/or the subsidiaries and/or any information
pertaining to the other party (hereinafter: the "Information")
and shall not make any use of the Information, in any form, unless
disclosure of the Information is required by virtue of the provisions
of
any law or on the request of a competent authority. This undertaking
is
not limited in time and shall continue to remain in force also
following
the end of the Term of this Agreement or if this Agreement is
terminated,
for any reason.
|
|
8.2
|
The
Vendor and the Purchase undertake that neither of them shall
adopt any
action constituting a violation of the provisions of the Securities
Law
and in particular, chapter H1 of the Law (Restriction of the
Use of
Insider Information), including a sale and/or purchase of the
Purchaser's
securities, which might be considered as the use of insider information
under the provisions of the Law.
|
|
9.
|
Assignment
of rights
|
|
The
parties' rights hereunder are personal and may not be transferred,
assigned, pledged, placed under a lien, attachment or other charge,
either
voluntarily or by the operation of any law and no deed of transfer
may be
given in respect thereof, whether valid immediately or on a future
date,
excluding a case of an assignment to a wholly owned subsidiary
of the one
of the parties and subject to the furnishing of written notice
of
execution of the assignment, provided the assignor shall continue
to be
liable for its obligations under this Agreement, together with
the
assignee - jointly and severally.
|
|
10.
|
Breaches
and remedies
|
|
Where
a party has breached any term of this Agreement, it shall be
given, by
notice in writing, an extension of 30 (thirty) days to cure the
breach.
Any breach which fails to be cured within 30 (thirty) days, shall
become,
from that date, a fundamental breach of this Agreement and shall
vest in
the aggrieved party, a right to all the remedies and relief wich
are
prescribed in this regard in the Contracts Law (Remedies for
Breach of
Contract), 5731-1970, including the right of
enforcement.
|
|
11.
|
Indemnity
|
13
|
Without
derogating from any recourse available to the Purchaser pursuant
to law,
the Purchaser shall be entitled to indemnity from the Vendor,
if and to
the extent of its transpiring that there is any financial liability
which
originated prior to the date of signing this Agreement and was
not
included in the Vendor's representations hereunder or if the
Company is
rendered liable, under a judgment or an arbitrator's award, to
pay for
claims and/or legal proceedings which are brought against the
Company and
the cause of which preceded the date of signing this
Agreement.
|
|
12.
|
Good
faith
|
|
The
parties undertake to act in a reciprocal manner and in good faith
for the
proper, correct and effective implementation of this Agreement
and towards
this end, the parties undertake to sign any document and to appear
before
any authority, as necessitated.
|
|
13.
|
Miscellaneous
|
|
13.1
|
Each
party shall bear its legal costs in connection with the execution
of this
Agreement and the mandatory payments and taxes applying thereto,
if any,
pursuant to any law, in connection with the execution of this
Agreement.
|
|
13.2
|
This
Agreement exhausts the relations of the parties in all respects
of the
subject matter contemplated hereunder. Previous agreements and
understandings, if any, are merged into and incorporated herein.
Any
pledges, sureties, written or oral contracts, undertakings or
representations, estimations and evaluations regarding the subject
matter
hereof, made or given by the parties prior to the execution of
this
Agreement and which were not explicitly expressed herein, shall
be deemed
null and void and shall be lacking in any force and they shall
not
constitute a basis for any claim or demand of either party against
the
other and/or against the employees, managers and/or consultants
of the
other party or any person on its behalf. Without derogating from
the
generality of the foregoing, the exchange of documents between
the parties
prior to the signing of this Agreement, including drafts exchanged
by
them, shall not have any meaning in the interpretation of this
Agreement.
|
|
13.3
|
Any
modification or amendment of this Agreement shall be binding
only
reflected in a document in writing, bearing the signature of
both parties
hereto.
|
|
13.4
|
Remedies
and relief which are available to the parties pursuant to any
law are
cumulative and not on an alternative
basis.
|
|
13.5
|
In
any case in which the closing of this Agreement is delayed, due
to any act
and/or omission of the Vendor and/or the Purchaser, for a period
of time
not exceeding 7 Business Days, same shall not be deemed a breach
of this
Agreement.
|
14
|
13.6
|
The
deferral of or abstention from exercising any right of a party
to the
Agreement, shall not be construed as a waiver on its part vis-à-vis such
matter, unless it waived its rights expressly and in
writing.
|
|
13.7
|
No
conduct by either of the parties shall be deemed a waiver of
any of its
rights hereunder or pursuant to law or as a waiver of or consent
thereby
to any breach or default of any condition, unless the consent,
waiver,
postponement, cancellation or addition were made specifically
and in
writing.
|
|
13.8
|
The
parties to this Agreement shall be allowed to extend or bring
forward any
date stipulated herein and to waive the performance of any of
its
provisions, all whether on a one-time basis or on several occasions
and by
means of written notice to be signed by the Vendor and the
Purchaser.
|
|
13.9
|
The
law of the State of Israel shall govern this Agreement. The competent
court within the jurisdiction of the District Court of Tel- Aviv
shall
have sole and exclusive jurisdiction in all matters arising in
connection
with this Agreement and its implementation and no other court
shall have
authority.
|
|
14.
|
Addresses
and notices
|
|
The
addresses of the parties are as appearing in the preamble hereto.
Any
notice sent by a party hereto to the other party according to
the above
addresses, shall be deemed as notice that was received
at the end of 72
hours from the time of its dispatch by registered mail or on
the first
Business Day following its transmission via
fax.
|
In
witness whereof, the parties set their hands for
signature:
|
Tobias
Jewelry Ltd.
|
Xxxxxxx
Wind Energy, Ltd.
|
||||||
| By: |
/s/
J. Rigbi
|
By: |
/s/
J. Rigbi
|
By: |
/s/
X. Xxxxxxxxx
|
||
| Position: |
CFO
|
Position: |
Director
|
Position: |
Chairman
|
||
| April 23, 2008 | April 23, 2008 |
Xxxx
Xxxxxxxx, CEO
|
|||||
15
