SHARE LENDING AGREEMENT
EXHIBIT
10.1
Dated
as
of November 9, 2006
Between
MEDIS
TECHNOLOGIES LTD. (“Lender”),
and
CITIGROUP
GLOBAL MARKETS LIMITED (“Borrower”),
through CITIGROUP GLOBAL MARKETS INC., as agent for Borrower (“Agent”).
This
AGREEMENT sets forth the terms and conditions under which Borrower may borrow
from Lender shares of Common Stock. Agent is entering into this Agreement solely
in its capacity as Agent for Borrower.
The
parties hereto agree as follows:
Section
1 .
Certain
Definitions.
The
following capitalized terms shall have the following meanings:
“Business
Day”
means
a
day on which regular trading occurs in the principal trading market for the
Common Stock.
“Cash”
means
any coin or currency of the United States as at the time shall be legal tender
for payment of public and private debts.
“Clearing
Organization”
means
The Depository Trust Company, or, if agreed to by Borrower and Lender, such
other Securities Intermediary at which Borrower (or Agent) and Lender maintain
accounts.
“Closing
Price”
on
any
day means, with respect to the Common Stock (i) if the Common Stock is listed
on
a U.S. securities exchange registered under the Exchange Act or is included
in
the OTC Bulletin Board Service (operated by the National Association of
Securities Dealers, Inc.), the last reported sale price, regular way, in the
principal trading session on such day on such market on which the Common Stock
is then listed or is admitted to trading (or, if the day of determination is
not
a Business Day, the last preceding Business Day) and (ii) if the Common Stock
is
not so listed or admitted to trading or if the last reported sale price is
not
obtainable (even if the Common Stock is listed or admitted to trading on such
market), the average of the bid prices for the Common Stock obtained from as
many dealers in the Common Stock (which may include Borrower or its affiliates),
but not exceeding three, as shall furnish bid prices available to the Lender.
1
“Convertible
Shares”
means
the shares of 7.25% Series A Cumulative Convertible Perpetual Preferred Stock
issued by Lender.
“Common
Stock”
means
shares of Common Stock, par value $.01, of Lender, or any other security, assets
or other consideration (including cash) into which the Common Stock shall be
exchanged or converted as the result of any merger, consolidation, other
business combination, reorganization, reclassification, recapitalization or
other corporate action (including, without limitation, a reorganization in
bankruptcy).
“Cutoff
Time”
shall
mean 10:00 a.m. in the jurisdiction of the Clearing Organization, or such other
time on a Business Day by which a transfer of Loaned Shares must be made by
Borrower or Lender to the other, as shall be determined in accordance with
market practice.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Facility
Termination Date”
means
the earlier to occur of (i) the first date as of which all of the Convertible
Shares have been converted, repaid, repurchased, redeemed or are otherwise
no
longer outstanding and (ii) November 20, 2011.
“Lender’s
Designated Account”
means
the securities account of the Lender maintained on the books of Citigroup Global
Markets Limited, as securities intermediary, and designated “Medis Technologies
Limited”(account number LDD81088), established simultaneously with the execution
of this Agreement.
“Loaned
Shares”
means
shares of Common Stock transferred to the Borrower in the Loan hereunder until
such Loan or portion thereof is terminated and a corresponding number of Loaned
Shares is transferred to Lender pursuant to Section
4
hereof;
provided that in respect of any such share of Common Stock initially transferred
to the Borrower by Lender and subsequently transferred by the Borrower to
another transferee, “Loaned Share” means an equivalent number of shares of
identical Common Stock. If, as the result of a stock dividend, stock split
or
reverse stock split, the number of outstanding shares of Common Stock is
increased or decreased, then the number of outstanding Loaned Shares shall
be
proportionately increased or decreased, as the case may be. If any new or
different security (or two or more securities) shall be exchanged for the
outstanding shares of Common Stock as the result of any reorganization, merger,
consolidation, other business combination, reclassification, recapitalization
or
other corporate action (including, without limitation, a reorganization in
bankruptcy), such new or different security (or such two or more securities
collectively) shall, effective upon such exchange, be deemed to become a Loaned
Share in substitution for the former Loaned Share for which such exchange is
made and in the same proportion for which such exchange was made. For purposes
of return of Loaned Shares by the Borrower or purchase or sale of
2
securities
pursuant to Section
4
or
Section
10,
such
term shall include securities of the same issuer, class and quantity as the
Loaned Shares as adjusted pursuant to the two preceding sentences.
“Maximum
Number of Shares”
means
1,500,000 shares of Common Stock, subject to the following
adjustments:
(a) If,
as
the result of a stock dividend, stock split or reverse stock split, the number
of outstanding shares of Common Stock is increased or decreased, the Maximum
Number of Shares shall, effective as of the payment or delivery date of any
such
event, be proportionally increased or decreased, as the case may
be.
(b) If,
pursuant to a merger, consolidation, other business combination, reorganization,
reclassification, recapitalization or other corporate action (including, without
limitation, a reorganization in bankruptcy), the Common Stock is exchanged
for
or converted into cash, securities or other property, the Maximum Number of
Shares shall, effective upon such exchange, be adjusted by multiplying the
Maximum Number of Shares at such time by the number of securities, the amount
of
cash or the fair market value of any other property exchanged for one share
of
Common Stock in such event.
(c) Upon
the
termination of the Loan pursuant to Section
4(a),
the
Maximum Number of Shares shall be reduced by the number of Loaned Shares
surrendered by Borrower to Lender.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Securities
Intermediary”
means
a
“securities intermediary” as defined by Section 8-102(a)(14) of the UCC.
“UCC”
means
the Uniform Commercial Code as in effect in the State of New York on the date
hereof and as it may be amended from time to time.
Section
2.
Loan
Of Shares; Transfers of Loaned Shares
(a) Subject
to the terms and conditions of this Agreement, Lender hereby agrees to make
available for borrowing by Borrower, on or prior to November 15, 2006, shares
of
Common Stock up to, in the aggregate, the Maximum Number of Shares.
(b) Subject
to the terms and conditions of this Agreement, Borrower may, by written notice
to Lender (a “Borrowing
Notice”)
seek
to initiate a transaction in which Lender will lend Loaned Shares to Borrower
through the issuance by Lender of such Loaned Shares to Borrower upon the terms,
and subject to the conditions, set forth in this Agreement ( the “Loan”).
Such
Loan shall be confirmed by a schedule delivered by the Borrower and receipt
listing the Loaned Shares provided by Lender to Borrower (the “Confirmation”).
Such
Confirmation shall constitute
3
conclusive
evidence with respect to the Loan, including the number of shares of Common
Stock that are the subject of the Loan to which the Confirmation relates, unless
Lender provides a written objection to the Confirmation specifying the reasons
for the objection to Borrower within five Business Days after the delivery
of
the Confirmation to Lender; provided
that in
no event shall the delivery of the Confirmation or any such objection thereto
delay the transfer of Loaned Shares to which a Borrowing Notice relates pursuant
to clause (d)
below.
(c) Notwithstanding
anything to the contrary in this Agreement, Borrower shall not be permitted
to
borrow, and may not initiate the Loan hereunder with respect to, any shares
of
Common Stock to the extent that Borrower determines (in its sole discretion)
that the Loan of such shares of Common Stock shall cause Borrower to become,
directly or indirectly, a “beneficial owner” (within the meaning of Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder)
of more than 9.9% of the shares of Common Stock outstanding at such time.
Under
no
circumstances shall Lender be liable to Borrower for any Loan in contravention
of this Section
2(c).
(d) Lender
shall transfer Loaned Shares to Borrower on or before the Cutoff Time on the
date specified in the Borrowing Notice for the commencement of the Loan, which
date shall not be earlier than the third Business Day following the receipt
by
Lender of the Borrowing Notice. Delivery of the Loaned Shares to Borrower shall
be made in the manner set forth under Section
11
below.
Section
3.
Loan Fee. Borrower
agrees to pay Lender a single loan fee per Loan (a “Loan
Fee”)
equal
to $0.01 per Loaned Share included in such Loan. The Loan Fee shall be paid
by
Borrower on or before the time of transfer of the Loaned Shares pursuant to
Section
2(d)
on a
delivery-versus-payment basis through the facilities of the Clearing
Organization.
Section
4.
Loan Terminations.
(a) Borrower
may terminate all or any portion of the Loan on any Business Day by giving
written notice thereof to Lender and transferring the corresponding number
of
Loaned Shares
to
Lender, without any consideration being payable in respect thereof by Lender
to
Borrower.
(b) The
Loan,
or any portion thereof still outstanding, shall terminate on the Facility
Termination Date and all Loaned Shares then outstanding, if any, shall be
delivered by Borrower to Lender, without any consideration being payable in
respect thereof by Lender to Borrower, no later than the fifth Business Day
following the Facility Termination Date.
(c) If
the
Loan is terminated upon the occurrence of a Default as set forth in Section
9,
the
Loaned Shares shall be delivered by Borrower to Lender, without any
consideration being payable in respect thereof by Lender to Borrower, no later
4
than
the
third Business Day following the termination date of such Loan as provided
in
Section
9.
Section
5.
Distributions.
(a) If
at any
time when the Loan or portion thereof is outstanding under this Agreement,
Lender pays a cash dividend or makes a cash distribution in respect of all
its
outstanding Common Stock, Borrower shall pay to Lender (whether or not Borrower
is a holder of any or all of the Loaned Shares in respect of the Loan or portion
thereof), within three Business Days after the payment of such dividend or
distribution, an amount in cash equal to the product of (i) the amount per
share
of such dividend or distribution and (ii) the number of Loaned Shares
outstanding
at such time.
(b) If
at any
time when the Loan or any portion thereof is outstanding under this Agreement,
Lender makes a distribution in respect of its outstanding Common Stock (other
than a distribution upon liquidation or a reorganization in bankruptcy) in
property or securities, including any options, warrants, rights or privileges
in
respect of securities (other than a distribution of Common Stock, but including
any options, warrants, rights or privileges exercisable for, convertible into
or
exchangeable for Common Stock) to the then holder or holders of such Loaned
Shares (a “Non-Cash
Distribution”),
Borrower shall deliver to Lender (whether or not Borrower is a holder of any
or
all of the Loaned Shares) in kind, within three Business Days after the date
of
such Non-Cash Distribution, the property or securities distributed in an amount
(the “Delivery Amount”) equal to the product of (i) the amount per share of
Common Stock of such Non-Cash Distribution and (ii) the number of Loaned Shares
outstanding at such time; provided
that in
lieu of such delivery, Borrower may deliver to Lender the market value of the
Delivery Amount, as determined by the Agent in accordance with market practice
for the property or securities constituting the Non-Cash
Distribution.
Section
6.
Rights
in
Respect of Loaned Shares. Subject
to the terms of this Agreement, and except as otherwise agreed by Borrower
and
Lender, Borrower, insofar as it is the record owner of Loaned Shares, shall
have
all of the incidents of ownership in respect of any such Loaned Shares,
including the right to transfer the Loaned Shares to others.
Section
7.
Representations and Warranties.
(a) Each
of
Borrower and Lender represent and warrant to the other that:
(i) it
has
full power to execute and deliver this Agreement, to enter into the Loan
contemplated hereby and to perform its obligations hereunder;
5
(ii) it
has
taken all necessary action to authorize such execution, delivery and
performance;
(iii) this
Agreement constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms; and
(iv) the
execution, delivery and performance of this Agreement does not and will not
violate, contravene, or constitute a default under, (A) its certificate of
incorporation, bylaws or other governing documents, (B) any laws, rules or
regulations of any governmental authority to which it is subject, (C) any
contracts, agreements or instrument to which it is a party or (D) any judgment,
injunction, order or decree by which it is bound.
(b) Lender
represents and warrants to Borrower, as of the date hereof, and as of the date
any Loaned Shares are transferred to Borrower in respect of the Loan hereunder,
that the Loaned Shares and all other outstanding shares of Common Stock of
the
Company have been duly authorized and, upon the issuance and delivery of the
Loaned Shares to Borrower in accordance with the terms and conditions hereof,
and subject to the contemporaneous or prior receipt of the applicable Loan
Fee
by Lender, will be duly authorized, validly issued, fully paid nonassessible
shares of Common Stock;
and the
stockholders of Lender have no preemptive rights with respect to the Loaned
Shares.
(c) Lender
represents and warrants to Borrower, as of the date hereof, and as of the date
any Loaned Shares are transferred to Borrower in respect of the Loan hereunder,
that the outstanding shares of Common Stock are quoted on the NASDAQ National
Market (“NASDAQ”)
and
the Loaned Shares have been approved for quotation on NASDAQ, subject to
official notice of issuance.
(d) The
representations and warranties of Borrower and Lender under this Section 7
shall
remain in full force and effect at all times during the term of this Agreement
and shall survive the termination for any reason of this Agreement.
Section
8.
Covenants.
(a) The
parties hereto acknowledge that Borrower has informed Lender that Borrower
is a
“stockbroker” within the meaning of Section 101(53A) and a “financial
participant” within the meaning of Section 101(22A) of Title 11 of the United
States Code (the "Bankruptcy
Code").
The
parties hereto further acknowledge and agree that the Loan hereunder is intended
to be a “securities contract,” as such term is defined in Section 741(7) of the
Bankruptcy Code entitled to the protections afforded by, among other sections,
Sections 362(b)(6), 362(o), 546(e), 555 and 561 of the Bankruptcy Code; each
and
every transfer of funds, securities and other property under this Agreement
is
intended to be a “settlement payment” or a “margin payment,” as such terms are
used in Sections 362(b)(6) and 546(e) of the Bankruptcy Code; and the rights
given to Lender hereunder upon a Default by Borrower are intended to constitute
the “contractual
6
right”
to
cause the liquidation, termination or acceleration of, and to offset or net
out
termination values or payment amounts and set off mutual debts and claims under
or in connection with, a securities contract, as such terms are used in Sections
555, 561 and 362(b)(6) of the Bankruptcy Code.
(b) Lender
shall, no later than five Business Days prior to any repurchase of Common Stock,
give Borrower a written notice of such repurchase (a “Repurchase
Notice”)
if,
following such repurchase, the Outstanding Borrow Percentage after giving effect
to such repurchase would be greater by 0.5% than the Outstanding Borrow
Percentage included in the immediately preceding Repurchase Notice (or, in
the
case of the first such Repurchase Notice, greater than the Outstanding Borrow
Percentage as of the date hereof). The “Outstanding
Borrow Percentage”
as
of
any day is the fraction (A) the numerator of which is the number of Loaned
Shares outstanding on such day and (B) the denominator of which is the number
of
shares of Common Stock outstanding on such day, including such Loaned Shares.
Section
9.
Defaults
(a) The
Loan
may, at the option of the Lender by a written notice to Borrower (which option
shall be deemed exercised, even if no notice is given, immediately on the
occurrence of an event specified in either Section
9(a)(iii)
or
(iv)
below),
be terminated (i) immediately on the occurrence of any of the events set forth
in Section
9(a)(iii)
or
(iv)
below
and (ii) two Business Days following such notice on the occurrence of any of
the
other events set forth below, (each, a “Default”):
(i) Borrower
fails to deliver Loaned Shares to Lender as required by Section
4;
(ii) Borrower
fails to deliver or pay to Lender when due any cash, securities or other
property as required by Section
5;
(iii) the
filing by or on behalf of Borrower of a voluntary petition or an answer seeking
reorganization, arrangement, readjustment of its debts or for any other relief
under any bankruptcy, reorganization, receivership, compromise, arrangement,
insolvency, readjustment of debt, dissolution, winding-up or liquidation or
similar act or law, of any state, federal or other applicable foreign
jurisdictions, now or hereafter existing (“Bankruptcy
Law”),
or
any action by Borrower for, or consent or acquiescence to, the appointment
of a
receiver trustee, custodian or similar official of Borrower, or of all or a
substantial part of its property; or the making by Borrower of a general
assignment for the benefit of creditors; or the admission by Borrower in writing
of its inability to pay its debts as they become due;
7
(iv) the
filing of any involuntary petition against Borrower in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts or for any other relief
under any Bankruptcy Law and an order for relief by a court having jurisdiction
in the premises shall have been issued or entered therein; or any other similar
relief shall be granted under any applicable federal or state law or law of
any
other applicable foreign jurisdictions; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee or other officer having similar powers over Borrower
or
over all or a part of its property shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other custodian of Borrower
or of
all or a substantial part of its property or the issuance of a warrant of
attachment, execution or similar process against any substantial part of the
property of Borrower; and continuance of any such event for 15 consecutive
calendar days unless dismissed, bonded to the satisfaction of the court having
jurisdiction in the premises or discharged;
(v) Borrower
fails to provide any indemnity as required by Section
12;
(vi) Borrower
notifies Lender of its inability to or intention not to perform its obligations
hereunder or otherwise disaffirms, rejects or repudiates any of its obligations
hereunder; or
(vii) any
representation made by Borrower in this Agreement or in connection with the
Loan
hereunder shall be incorrect or untrue in any material respect during the term
of the Loan hereunder or Borrower fails to comply in any material respect with
any of its covenants under this Agreement.
Section
10.
Remedies.
(a) Notwithstanding
anything to the contrary herein, if, (x) upon the termination of the Loan by
Lender under Section
9
or (y)
Borrower notifies Lender of a termination of all or any portion of the Loan
pursuant to Section
4(a),
and in
either case, at the time of such termination or notice, the purchase of Common
Stock in an amount equal to all or any portion of the Loaned Shares to be
delivered to Lender in accordance with Section
4(c),
or 4(a)
as applicable, shall (i) be prohibited by any law, rules or regulation of any
governmental authority to which it is or would be subject, (ii) violate, or
would upon such purchase likely violate, any order or prohibition of any court,
tribunal or other governmental authority, (iii) require the prior consent of
any
court, tribunal or governmental authority prior to any such
repurchase,
(iv)
subject Borrower, in the sole reasonable judgment of Borrower, to any liability
or potential liability under any applicable federal securities laws (including,
without limitation, Section 16 of the Exchange Act), or (v) be commercially
impracticable, in the reasonable judgment of Borrower, in the time period
required by Section
4(c)
(each of
(i), (ii), (iii), (iv)
8
and
(v),
a “Legal
Obstacle”),
then,
in each case, Borrower shall immediately notify Lender of the Legal Obstacle
and
the basis therefor, whereupon Borrower's obligations under Section
4(c)
or 4(a)
as applicable shall be suspended until such time as no Legal Obstacle with
respect to such obligations shall exist (a “Repayment
Suspension”).
Following the occurrence of and during the continuation of any Repayment
Suspension, Borrower shall use its reasonable best efforts to remove or cure
the
Legal Obstacle as soon as practicable. If Borrower is unable to remove or cure
the Legal Obstacle within five Business Days of the termination of the Loan
by
Lender under Section 9 or notice under Section 4(a), Borrower shall pay to
Lender, in lieu of the delivery of Loaned Shares in accordance with Section
4(c),
an
amount in immediately available funds (the “Replacement
Cash”)
equal
to the product of the Closing Price as of the Business Day immediately preceding
the date Borrower makes such payment and the number of Loaned Shares otherwise
required to be delivered.
(b) If
Borrower shall fail to deliver Loaned Shares to Lender pursuant to Section
4(c)
when
due, then, in addition to any other remedies available to Lender under this
Agreement or under applicable law, Lender shall have the right (upon prior
written notice to Borrower) to purchase a like amount of Loaned Shares
(“Replacement
Shares”)
in the
principal market for such securities in a commercially reasonable manner;
provided
that if
any Repayment Suspension shall exist and be continuing, Lender may not exercise
its right to purchase Replacement Shares unless Borrower shall fail to pay
the
Replacement Cash to Lender when due in accordance with Section
10
above.
To the extent Lender shall exercise such right, Borrower’s obligation to return
a like amount of Loaned Shares or to pay the Replacement Cash, as applicable,
shall terminate and Borrower shall be liable to Lender for the purchase price
of
Replacement Shares (plus all other amounts, if any, due to Lender hereunder),
all of which shall be due and payable within one Business Day of notice to
Borrower by Lender of the aggregate purchase price of the Replacement Shares.
The purchase price of Replacement Shares purchased under this Section
10
shall
include broker’s fees and commissions and all other reasonable costs, fees and
expenses related to such purchase; provided that Borrower shall not be liable
for any broker’s fees and commissions to the extent that an affiliate of
Borrower offered to act as broker for purchases of Replacement Shares and Lender
elected to use a different broker.
Section
11.
Transfers.
(a) All
transfers of Loaned Shares to Borrower or to Lender hereunder shall be made
by
the crediting by a Clearing Organization of such financial assets to the
transferee’s “securities account” (within the meaning of Section 8-501 of the
UCC) maintained with such Clearing Organization. All transfers of Loaned Shares
to Lender hereunder shall be made by the crediting of such Loaned Shares to
Lender’s Designated Account. In every transfer of “financial assets” (within the
meaning of Section 8-102 of the UCC) hereunder, the transferor shall take all
steps necessary (a) to effect a delivery of such financial assets to the
transferee under Section 8-301 of the UCC, or to cause the creation of a
security entitlement in favor
9
of
the
transferee in such financial assets under Section 8-501 of the UCC, (b) to
enable the transferee to obtain “control” (within the meaning of Section 8-106
of the UCC) of such financial assets, and (c) to provide the transferee with
comparable rights under any corresponding law or regulation of any other
applicable jurisdiction.
(b) All
transfers of cash hereunder to Borrower or Lender shall be by wire transfer
in
immediately available, freely transferable funds.
(c) A
transfer of securities or cash may be effected under this Section
11
on any
day except (i)
a day on
which the transferee is closed for business at its address set forth in
Section
14
or
(ii)
a day on
which a Clearing Organization or wire transfer system is closed, if the
facilities of such Clearing Organization or wire transfer system are required
to
effect such transfer.
Section
12.
Indemnities.
(a) Lender
hereby agrees to indemnify and hold harmless Borrower and its affiliates and
its
former, present and future directors, officers, employees and other agents
and
representatives from and against any and all liabilities, judgments, claims,
settlements, losses, damages, fees, liens, taxes, penalties, obligations and
expenses (and losses relating to Borrower’s market activities as a consequence
of becoming, or of the risk of becoming, subject to Section 16(b) under the
Exchange Act, including without limitation, any forbearance from market
activities or cessation of market activities and any losses in connection
therewith or with respect to this Agreement) incurred or suffered by any such
person or entity directly or indirectly arising from, by reason of, or in
connection with, (i) any breach by Lender of any of its representations or
warranties contained in Section
7or
(ii)
any breach by Lender of any of its covenants or agreements in this
Agreement.
(b) Borrower
hereby agrees to indemnify and hold harmless Lender and its affiliates and
its
former, present and future directors, officers, employees and other agents
and
representatives from and against any and all liabilities, judgments, claims,
settlements, losses, damages, fees, liens, taxes, penalties, obligations and
expenses incurred or suffered by any such person or entity directly or
indirectly arising from, by reason of, or in connection with (i) any breach
by
Borrower of any of its representations or warranties contained in Section
7
or (ii)
any breach by Borrower of any of its covenants or agreements in this
Agreement.
(c) In
case
any claim or litigation which might give rise to any obligation of a party
under
this Section
12
(each an
“Indemnifying
Party”)
shall
come to the attention of the party seeking indemnification hereunder (the
“Indemnified
Party”),
the
Indemnified Party shall promptly notify the Indemnifying Party in writing of
the
existence and amount thereof; provided that the failure of the Indemnified
Party
to give such notice shall not adversely affect the right of the Indemnified
Party to indemnification under this Agreement, except to the extent the
Indemnifying Party is materially prejudiced thereby. The Indemnifying Party
shall
10
promptly
notify the Indemnified Party in writing if it accepts such claim or litigation
as being within its indemnification obligations under this Section
12.
Such
response shall be delivered no later than 30 days after the initial notification
from the Indemnified Party; provided that, if the Indemnifying Party reasonably
cannot respond to such notice within 30 days, the Indemnifying Party shall
respond to the Indemnified Party as soon thereafter as reasonably
possible.
(d) An
Indemnifying Party shall be entitled to participate in and, if (i) in the
judgment of the Indemnified Party such claim can properly be resolved by money
damages alone and the Indemnifying Party has the financial resources to pay
such
damages and (ii) the Indemnifying Party admits that this indemnity fully covers
the claim or litigation, the Indemnifying Party shall be entitled to direct
the
defense of any claim at its expense, but such defense shall be conducted by
legal counsel reasonably satisfactory to the Indemnified Party. An Indemnified
Party shall not make any settlement of any claim or litigation under this
Section
12
without
the written consent of the Indemnifying Party.
Section
13.
Termination Of Agreement.
(a) This
Agreement may be terminated (i) at any time by the written agreement of Lender
and Borrower, or (ii) by Lender upon the occurrence of a Default.
(b) Unless
otherwise agreed by Borrower and Lender, the provisions of Section
12
shall
survive the termination of this Agreement.
Section
14.
Notices.
(a) All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given when received.
(b) All
such
notices and other communications shall be directed to the following address:
| (i) |
If
to Borrower or Agent to:
|
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone:
000-000-0000
Telecopier:
000-000-0000
Attention:
Xxxxx Xxxxxxxxx
| (ii) |
If
to Lender to:
|
000
Xxxxx
Xxxxxx
00
Xxx
Xxxx,
XX 00000
Telephone:
000-0-000-0000
Telecopier:
972-8-920-0024
Attention:
Xxxxxx Xxxxxx
(c) In
the
case of any party, at such other address as may be designated by written notice
to the other parties.
Section
15.
Governing Law; Submission To Jurisdiction; Severability.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, but excluding any choice of law provisions that would require
the application of the laws of a jurisdiction other than New York.
(b) EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY SUCH COURT, SOLELY FOR THE PURPOSE
OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS OBLIGATIONS HEREUNDER
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY LOAN HEREUNDER AND (B) WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND
ANY
RIGHT OF JURISDICTION ON ACCOUNT OF ITS PLACE OF RESIDENCE OR
DOMICILE.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d) To
the
extent permitted by law, the unenforceability or invalidity of any provision
or
provisions of this Agreement shall not render any other provision or provisions
herein contained unenforceable or invalid.
Section
16. Counterparts.
This
Agreement may be executed in any number of counterparts, and all such
counterparts taken together shall be deemed to constitute one and the same
agreement.
12
IN
WITNESS WHEREOF, the parties hereto to have executed this Share Lending
Agreement as of the date and year first above written.
|
MEDIS
TECHNOLOGIES LTD. as Lender
|
CITIGROUP
GLOBAL MARKETS LIMITED as Borrower
|
|
|
By:__________________________
Name:
Title:
|
By:_________________________
Name:
Title:
|
|
CITIGROUP
GLOBAL MARKETS INC. as Agent
|
||
|
By:_________________________
Name:
Title:
|
13
