AGREEMENT Made and signed in Tel-Aviv on July 19, 2007 Between:
AGREEMENT
Made
and signed in Tel-Aviv on July 19, 2007
Between:
Kidron
Industrial Holdings, Ltd.
Company
No.: 520040486
Jabutinsky
Road 7, Ramat Gan
(Hereinafter,
the “Company”)
On
the one side;
And:
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1.
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AP
Holdings, Ltd.
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By:
Xxxxxx Xxxxx
_______________________
_______________________
By:
Xxxxx
Xxxxx
_______________________
________________________
(Hereinafter,
jointly and severally the “Investor”)
On
the other side;
WHEREAS,
the
Company is a public company that its securities are registered for trade at
the
Tel-Aviv Stock Exchange, Ltd. (the “exchange”);
however, as of the date of this agreement, the securities’ trade is
suspended;
WHEREAS,
Appswing, Ltd (“Appswing”)
is in
actual control of the Company, which control was obtained by a share purchase
agreement of the Company’s shares from the previous controlling
entities/persons;
WHEREAS,
the
Company is empty from any business activity and assets, and that because of
creditors’ arrangement that was conducted for the Company, that was approved by
the Mehozi Court in Nazareth on June 10, 2007 (“creditors
arrangement”);
1
WHEREAS,
the
parties wish that the investor will sell the Company the transferred asset
as
defined below, against a private placement of 907,934,502 shares of the Company
which will constitute, immediately after their placement, 72.11% of the issued
capital stock of the Company and voting powers in it (hereinafter the
“private
placement to investor”),
pursuant to the performance of the conditions stated in Section 6 below;
WHEREAS,
parallel to the private placement to investor, the company will issue to
Appswing Ltd., 172,034,669 shares that will constitute after their issuance
and
after the issuance to the investor pursuant to this agreement 13.66% of the
issued capital stock of the Company and voting powers in it, and that according
to an agreement dated July 19, 2007 between the Company and Appswing, which
its
copy is attached as Exhibit
1
to this
agreement (hereinafter, the “private
placement to Appswing”);
WHEREAS,
the
Investor entered with Appswing into an agreement for consulting services to
the
Investor as defined below;
WHEREAS,
the
Parties wish to put in writing the agreed principals between them in connection
with the dealings related to this agreement;
Accordantly,
it is declared, conditioned, and agreed between the parties as
follows:
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1.
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General
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1.1
|
The
introduction to this agreement and its exhibits are inseparable parts
of
it.
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1.2
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The
sections’ titles in this agreement were stated only for convenience and
reference purposes and should not be used to clarify the meaning
of this
agreement.
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2.
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Definitions
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All
the
terms in this agreement shall have the meanings which appears next to it:
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2.1
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“The
court”
-
The Mehozi Court in Haifa.
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2.2
|
The
“general
meeting”
-
The
general meeting of the Company’s shareholders.
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2.3
|
“2006
report”
-
The
periodical report for the Company for the year 2006, as will appear,
in
the MAGNA-Distribution
Site
after its publishing.
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2.4
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“March
2007 report”-
The report dated 3.31.2007 that the Company will publish, as will
appear
in the MAGNA-Distribution
Site.
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2.5
|
“Dollar”-
USA Dollar, according to the Prime
Rate
of
the USA dollar published by Bank Israel which will be known at the
time of
payment, but in any case not less than an exchange rate of 4.268
New
Shekels to a dollar.
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2.6
|
“Consulting
fees from investor”- An
amount of 1,000,000
dollars, in addition to MA”AM (sales tax) that will be paid to Appswing by
Investor for
consultation to the investor including in connection with re-organization
of the transferred asset and the transfer of the transferred asset
to
company and the actions that will be taken by the companies that
are
included in the transferred asset which are accompanied to this transfer
(hereinafter, “consulting
services to investor”).
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2
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2.7
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“The
stock exchange”-
The Tel-Aviv Stock Exchange Ltd.
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2.8
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“The
private placements”-
the private placement to investor.
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2.9
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“The
issued shares to investor”- 907,934,502
shares of the company that will be issued to the investor as part
of the
private placement to investor.
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2.10
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“The
issued shares to Appswing”
-
172,034,669 shares of company that will be issued to Appswing as
part of
the private placement to Appswing.
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2.11
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“Appswing
agreement”
- a
placement agreement dated July 19, 2007 between the company to Appswing
which is attached as Exhibit
2
to
this agreement.
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2.12
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“The
transferred asset” - 75,000
shares of Verge Living Corporation (“Verge”),
which constitute 100% of the issued capital stock of Verge, and also
20,000 shares of Sitnica d.o.o. (“Sitnica”),
which constitute 100% of the issued capital stock of Sitnica, which
they
and their assets are described in the attached valuation as Exhibit
2.12
to
this agreement.
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2.13
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“Creditors
arrangement”
-
the creditors arrangement of the company dated June 10, 2007, as
was
approved by the Company’s creditors meeting and by the court, and that,
and which copy ____
and by power of a court order that approves it are attached to this
agreement as Exhibit
2.13.
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2.14
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“The
preliminary conditions” - the
conditions detailed in Section 6 below.
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2.15
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“The
companies act” - The
Companies Act, HATASHNA”T - 1999
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2.16
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“The
securities act”
-
The Securities Act, HATASHCA”CH -
1968.
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2.17
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“Business
day”
-
A day in which most banks in Israel are open to the public for conducting
of deals.
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2.18
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“The
completion date”
-
a date that will be agreed to by the parties and that will begin
not later
than 3 business days from the performance of the last of the preliminary
conditions, but in any case not later than September 3, 2007.
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2.19
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“The
middle period”
-
the period between the date of signing of the agreement to the completion
date.
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2.20
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“Controlling
persons regulations”
-
regulations of securities (a deal between a company and its controlling
persons), HATASHS”A - 2001.
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2.21
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“Private
placement regulations”-
regulations of securities (private placement of securities in a registered
company), HATASHA”S- 2000.
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| 3. |
The
Deal
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3.1
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At
the completion date, the company will purchase from the investor,
and the
investor will transfer to the company the transferred asset, in
consideration for the issuance of the issued shares to investor,
when they
are free (excluding limitations pursuant to Section 15(c) to the
securities act). The issued shares to investor will be divided between
the
individuals of the investor in a manner which 544,760,702 shares
will be
issued to Emvelco RE Corporation and the balance of 363,173,801 shares
will be issued to AP Holdings.
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3
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3.2
|
The
investor acknowledges that it is known to it ___
to
the completion date the company intends to issue to Appswing, the
issued
shares to Appswing, when they are free (excluding limitations pursuant
to
Section 15(c) to the securities
act).
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3.3
|
It
is known to company, that the investor entered into agreement with
Appswing pursuant to which it will purchase from it, according to
the
completion of issuance to the investor pursuant to this agreement,
49,032,
256 of the issued shares to Appswing, in consideration for the amount
of
13,926,250 New Shekels, attached to the increase in the prime rate
of the
USA dollar.
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3.4
|
It
is known to the company that in the completion date of the public
issuance
of the company, Appswing will pay the investor the consulting fees
from
investor, and deduct the amount of 250,000 dollars which were paid
to
Appswing by the investor ____
to
the signing of this agreement, as an advance on account of the amount
mentioned above, and all according to an agreement signed between
Appswing
and the investor.
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| 4. |
Company’s
Representations and
Warranties
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The
company represents and warrants as follows:
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4.1
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The
company is a public company that was incorporated and registered
pursuant
to Israeli law on 07/06/1958, which its shares are registered for
trade in
the exchange, but their trade is suspended. The company has not received
any message from the registrar of companies that it was about to
be erased
from the books of the registrar of companies and it declares that
to best
of its knowledge there is no reason to erase it from the registrations
of
the registrar of companies.
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4.2
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The
company’s registered capital stock is divided to 450,000,000 common
shares.
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4.3
|
The
company’s issued and outstanding capital stock, as of the date of this
agreement, is composed of 179,197,599 common shares. Beyond that,
in the
capital stock of the company there are no other securities of any
kind
(including convertible securities) and excluding as explicitly stated
in
this agreement, the company has not been obligated to issue to any
person
and/or entity shares and/or securities of any kind and/or rights
to shares
and/or other rights and has not received any payment on account of
the
shares and/or other securities and/or rights as stated, excluding
as
stated in this agreement. The company does not know of any claim
according
to which the company’s capital stock was not fully paid for and/or has not
been issued in conformity with the law and pursuant to the instructions
in
the company’s incorporation documents.
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4
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4.4
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The
issued shares to investor will be issued when they are free (excluding
limitations pursuant to Section 15(c) to the securities act) and
will
constitute, after their issuance and taking into consideration the
execution of the private placement to Appswing, 72% of the company’s
capital stock and voting rights in it (including in a full dilution).
After the completion of the purchasing of the shares from Appswing
as
stated in Section 3.3 above the investor will hold 76% of the company’s
issued capital stock and the voting rights in it (including in full
dilution).
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4.5
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According
to interested parties reports which were given to the company, the
only
interested parties in the company are as follows:
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Name
Of Shareholder
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Amount
Of Shares
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Percentage
Of Company’s Capital Stock
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||
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Kidron
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65,694,103
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36.66%
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Xxxxxxx
Zuz
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60,491,039
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33.76%
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Orlight
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9,681,878
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5.40%
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It
is not
known to the company of any agreement of any kind between any of the interested
parties stated above. Between them, and themselves and/or between them and
any
other interested parties in the company and/or an agreement of any kind between
the other shareholders in the company between themselves, in connection with
their holdings in the company, and that excluding an agreement between Appswing
and the trustee of the creditors arrangement of the company, pursuant to which
Appswing will purchase the controlling shares in the company (134,398,190
shares). The agreement will be approved by the Mehozi Court in Nazareth on
June
10, 2007, as part of the approval of the creditors arrangement of the company.
As of the date of this agreement the execution of the share purchase agreement
has not been completed and it is expected to be completed during the following
weeks. In spite of the stated above, the company considers Appswing and Xx.
Xxxxx Xxxxx, the controlling person in Appswing, as actually having the
controlling interests in the company, and that stems from the stated agreement.
| 4.6. |
It
is not known to the company of any pending criminal proceeding
against
the company or of an intention to open any kind of criminal proceeding
against the company.
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4.7.
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The
company will act, in conformity with the instructions of any law,
for the
purpose
of conducting the general meeting to the completion period or to
a period
close to it, which will be agreed by the investor, that its daily
agenda,
among other subjects, will include the following
subjects:
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a.
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The
change of the company’s name to the name of Xxxxx Group Ltd. or to another
similar name that will be approved by the Registrar of the Companies.
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5
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b.
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Change
of the company’s regulations to the form attached to this agreement as
Exhibit
4.7(b).
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c.
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The
increase of the registered capital of the company to an amount of
5,000,000,000 shares.
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d.
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The
appointment of new directors on behalf oh the investor, as stated
in
section 6.1.1 as follows.
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e.
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The
approval of entering into this agreement, execution of the private
placement to the investor and the private issuance to Appswing, and
the
approval of the Appswing agreement.
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f.
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Approval
of the deal agreement between the company and Xx. Xxxxx Xxxxx, that
begins
at the completion date, according to which Xx. Xxxxx Xxxxx will serve
as
the company’s CEO in consideration for the cost
of wages
to
the company in an amount equal to 10,000 USA Dollars, and also
reimbursement of expenses in connection with the company’s dealings,
according to company policy as will be determined from time to time.
Also,
Xx. Xxxxx Xxxxx will be entitled to an annual grant in the amount
of 2.5 %
of the net annual revenue before tax on the company above 8 million
New
Shekels.
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g.
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The
approval of the deal agreement between the company to Xx. Xxxxxx
Xxxxx,
that begins at the time of completion, according to which Xx. Xxxxxx
Xxxxx
will serve as vice president to the company’s operations in Europe in
consideration for the cost of wages to the company in an amount equal
to
10,000 USA dollars and also reimbursement of expenses in connection
with
the company’s dealings, according to the company’s policy as will be
determined from time to time. Also, Xx. Xxxxxx Xxxxx will be entitled
to
an annual grant in the amount of 2.5 % of the net annual revenue
before
tax on the company above 8 million New
Shekels.
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4.8.
As
of the date of the signing of this agreement, no business activity is being
managed in the company and the company is not obligated by any agreements or
obligations or guarantees of any kind, which can influence the company’s future
activity, excluding as stated in Exhibit
4.8
in this
agreement.
4.9.
The
company has no obligations and/or any assets of any kind, excluding as stated
in
Exhibit
4.9 to
this
agreement, and the self
capital
of the
company as of March 31, 2007, is a deficit in the amount of 44,450 thousand
New
Shekels.
4.10.
To
the best of the company’s knowledge the reports, its releases to the public
reflect accurately the company’s legal and fiscal position, according to
accepted accounting rules and according to the duties of
disclosure.
4.11.
That there is no cash in the company’s account. At the time of the completion of
the private issuance to investor, pursuant to this agreement, the company will
have cash in the amount of 8.5 million New Shekels as a result of the execution
of the private issuance to Appswing.
6
4.12.
The
document attached to this agreement as Exhibit
4.12
details
all the bank accounts that the company manages in banks and/or in any other
financial institution and all the other balances in these accounts, including
checking balances re-valued loan balances, re-valued deposits balances and
securities, as of the date of signing of this agreement (Hereinafter
“the
balances”).
With
the exception of the accounts and balances as stated above, it is not known
to
the company of any accounts and balances in any financial institution.
4.13.
To
the best of the company’s knowledge the company, its managers, and shareholders
have not received a written notice regarding an intention to serve a lawsuit
or
to take legal proceedings against them in connection with the company and or
its
activity. Also, there are no pending lawsuits or legal proceedings (including
arbitration) that were opened against others, stemming from their position
as
managers and/or shareholders and it is not known to it of any intention to
serve
a lawsuit and or open in the above stated proceedings. In any manner, to the
best of the company’s knowledge, according to the creditors arrangement, the
company has no material exposure arising out of lawsuits, which their causes
arose before the time of the approval of the creditors arrangement.
4.14.
To
the best of the company’s knowledge, between the shareholders in the company
there are no, at the time of the signing of this agreement, any valid agreements
either written or oral, regarding their rights and the shares of the
company.
4.15.
Pursuant to the performance of the preliminary conditions, it is not known
to
the company of any limitation and/or prohibition and/or bar pursuant to the
terms of the company’s regulations and/or the terms of any agreement, either
written or oral, and it is not known to it of any legal prohibition in
connection with its entering into this agreement and to the execution of its
obligations according to it, fully and on time, that entering into this
agreement and its execution by it does not constitute and will not constitute
a
breach of any obligation of any of them to any third party, including financial
institutions.
4.16.
The
results of the creditors arrangements are detailed in the arrangement itself
and
in the courts decision on June 10, 2007.
4.17.
As
of the date of this agreement, the company has not employed employees or other
employed people/entities which may be considered as its employees or as having
any obligation to employ other employees.
4.18.
The
company represents that it is known to it that for the purpose of the completion
of this deal, the investor intends to conduct due diligence on the company,
and
the company shall be obligated to transfer to the investor’s hands and/or
investor’s representative any information and document in the company’s
possession which is relevant to the company that will be demanded by the
investor and/or the investor’s representative and to assist the investor as will
be requested, included through the company’s executives.
7
4.19.
There are no attached mortgages, encumbrances, delays, levies, enforcement
procedures and/or any other leans or encumbrances, registered or unregistered,
on the company’s assets and rights and/or its registered or issued capital,
fully or partially, excluding as detailed in Exhibit
4.19
attached
to this agreement (“the
encumbrances”).
4.20.
The
company has not given loans and has not been obligated to give loans, to any
of
its shareholders or to any third party (excluding suppliers’ credit in
immaterial scopes) and has not received any loan from any third party or from
its shareholders and it is not obligated in any payment or benefit or right
of
any kind to any of its shareholders or its directors.
4.21.
The
company has not declared a dividend distribution or fringe benefit shares and/or
any payments to its shareholders that have not been declared, and will not
declare any distribution as stated in the middle period.
4.22.
It
is known to the company that the investor will enter with it into this
agreement, among other reasons, in reliance on the representations stated in
Section 4 above, and in reliance on its obligations stated in this agreement.
4.23.
It
is known to the company that The Law Office of Xxxx
Xxxxx Xxxxxx Xxxxx-Xxxx Lebron,
which
represents the company in this deal, also represents Appswing and the investor
in all that relates to the deals that are described in this agreement and
related agreements, and also will represent Appswing in the purchasing of the
controlling interest in the company, and the company agrees to the stated
representation and waves any claim and/or lawsuit against the stated law office
arising out of a claim of conflict of interest.
4.24.
It
is known to the company that the full consideration for the purchase of
Sitnica’s real estate by the company has not been paid, that there is a payment
balance of 55,737,061 HRK (Croatian currency) to the sellers of the land, and
that the value of Sitnica for the purpose of entering into this agreement was
taken into consideration in that additional cost.
| 5. |
The
Investor’s Representations and
Warranties
|
The
investor represents and warrants as follows:
5.1.
As
of the date of signing of this agreement, he does not hold the securities of
the
company, either directly or indirectly, and between him and another holder
of
the securities of the company there is no agreement of a any kind, in connection
with company, and/or in connection with his holdings in the shares of the
company and/or in connection with his future rights in the shares of the
company, if such will exist. The investor warrants that until the time of
execution of the private issuance to the investor, he will not purchase and/or
will hold the securities of the company and/or will reach an agreement and/or
an
arrangement of any kind with the holder of the shares of the company.
8
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5.2.
|
He
has and he will have at the time that determines the ability and
all the
required financial means
for the purpose of full execution of the full obligations pursuant
to this
agreement.
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5.3.
|
The
investor has full rights in the transferred asset, and there is no
prohibition on the full transfer of the rights in the transferred
asset to
the company pursuant to the terms of this
agreement.
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5.4.
|
To
the best of his knowledge, the facts, the factors, and the detailed
preparation in the valuation of the transferred assets which is attached
as Exhibit
2.12
of
this agreement are true and truly reflect the rights in the transferred
asset and its physical and economic condition, as of this date. Whereas
Sitnica has a balance due for the land in the amount of 55,737, 061
HRK to
the sellers of the land, if for any reason the stated balance is
not paid
until 4.4.2008 or it will be found out that there is another debt
related
to the land of Sitnica, the investor shall be obligated to indemnify
the
company for any damage and/or expense that will be caused to the
company
as a result.
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5.6
|
He
will purchase the issued shares to investor according to their being
free,
excluding the limitations pursuant to section 15(c) to the securities
act.
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5.7
|
He
declares and warrants to the company to handle the issued shares
to the
investor in a manner that is not inconsistent with the terms of section
15(c) to the securities act, thus in a manner that will not breach
the
blocking
terms.
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5.8
|
The
investor represents that, subject to the performance of the preliminary
conditions in section 6 below, there is no prohibition and/or bar
to
transfer the transferred asset to the
company.
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5.9
|
Subject
to the performance of the preliminary conditions there is no limitation
and/or prohibition and/or bar pursuant to this agreement, either
written
or oral, and there is no prohibition by law or agreement in connection
with the investor to his entering into this agreement and to the
execution
of its obligations according to it, fully and on time, that entering
into
this agreement and its execution by it does not constitute and will
not
constitute a breach of any obligation of any of them to any third
party.
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5.10
|
That
he will act to the best of his ability and will cooperate with the
company
to bring about the completion of the deals subject to this agreement
as
early as possible, and in any case, not later than the determining
time.
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5.11
|
That
it is known to him that the company beginning on the day of approval
of
the creditors arrangement, carries ongoing costs which are incurred
by law
and from being a public company, and also the related costs to this
agreement and the deals mentioned in it and that the payment of these
costs will decrease the self capital of the company, as stated in
the
March 2007 report.
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9
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5.12
|
That
he received all information he requested from the company based on
the
documents that were produced to him by the company in which he did
not
need to reach the decision to enter into the deals which are the
subject
to this agreement.
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5.13
|
It
is known to him that the company enters into this agreement with
him in
reliance on the detailed representations in this section
above.
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5.14
|
It
is known to him that the issuance to Appswing requires the payment
of
sales tax in cash, and that the amount of the sales tax will be paid
by
the company out of the monies of the issuance to
investors.
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5.15
|
It
is known to the company that The Law Office of Xxxx
Xxxxx Xxxxxx Xxxxx-Xxxx Lebron,
which represents the company in this deal, also represents Appswing
and
the company in all that relates to the deals that are described in
this
agreement and related agreements, and also will represent Appswing
in the
purchasing of the controlling interest in the company, and the company
agrees to the stated representation and waves any claim and/or lawsuit
against the stated law office arising out of a claim of conflict
of
interest.
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5.16
|
It
is known to the investor and he agrees that ________
to
the completion of the private issuance to investor pursuant to this
agreement, and in any case not later than 3.9.07 the company will
issue to
Appswing 172, 034,669 shares of the company in consideration for
_________
that the companies debts to Appswing and also against cash in the
amount
of 8.57 million New Shekels and the company’s capital, and that for the
purpose of bringing about to renewal of the trade in the company’s shares
in the regular list of the Tel Aviv stock
exchange.
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6.
|
Preliminary
Conditions for The Validity of This
Agreement:
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|
6.1.
|
This
agreement is subject to the performance of all the preliminary conditions
detailed as follows until the completion
date:
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6.1.1
|
The
grant of the approval of the general meeting, to the execution of
the
following actions: (a) the increase of the registered capital of
the
company to a capital stock of 5,000,000,000 shares; (b) changing
of the
companies bylaws
in
a new bylaws
as
in the from attached as Exhibit
4.7(b) to
this agreement; (c) the appointment of Xxxxx Xxxxx and Xxxxxx Xxxxx
as
directors in the company, when the appointment of the directors as
stated
will be conditioned by the completion of the deal subject of this
agreement.
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6.1.2
|
The
grant of approval of the audit committee and the board of directors
of the
company and the approval of the general meeting that will be summoned
according to the private placement regulations and the regulations
of the
controlling persons/entities to entering into this agreement, to
the
execution to the deals which are subject to this agreement and overall
to
the execution of the private issuance to investor.
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10
|
6.1.3
|
The
grant of approval of the exchange to the registration for trading
of the
issued shares to the investor.
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6.1.4
|
The
completion of due diligence of the company for the satisfaction of
the
investor. It is agreed that in each mismatching that will be found
by the
investor and/or on its behalf in the company and/or in the representations
that the company provided, the company will be given the opportunity
to
correct the mismatching within 7 days. If the mismatching cannot
be
corrected and/or will not be corrected during the stated period,
the
investor shall be able to cancel this agreement without the investor
and/or the company and/or Appswing and/or on their behalf having
any claim
and/or lawsuit and/or demand pursuant to the agreement, including
arising
out of lack of validity, while it is clarified that the investor
will
incur all the related costs in the execution of this agreement, up
to the
maxim amount of 15 Thousand USA Dollars.
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6.1.5
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The
completion of the private issuance to Appswing and the renewal of
the
trade in the shares of the company as part of the regular list in
the
exchange or the grant of approval of the exchange to the renewal
of the
stated trade not later than 3.9.07.
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6.2
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If
the preliminary conditions are not preformed, fully or partially,
until
September 30, 2007
this agreement will be terminated and none of the parties will have
any
claim and/or lawsuit and/or demand according to it, including for
the
reason of its termination, and that excluding in relation with the
conditions that were in the control of either of the parties and
he did
not act to the best of his ability to the performance in a time as
early
as possible.
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7.
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The
middle period
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Subject
to the stated in Section 5.15 above, beginning at the time of the signing of
this agreement and until the completion date, the company will act, subject
to
all law, to the best of its efforts, so the company will not take actions that
deviate from its ordinary business, including the warranties that during its
ordinary business and including issuance of any securities, material change
in
the structure of its assets, registration of its encumbrances, distribution
of
dividends and/or execution of any payment to interested parties and/or to whom
on their behalf and excluding actions that are explicitly warranted by this
agreement. It is clarified that in the middle period, the company will incur
the
costs that are related to the existence of the public company and also the
costs
that are related to the execution of this agreement, excluding the costs for
which it is determined otherwise in this agreement.
Also,
during the middle period, the parties will mutually act to bring about the
performance of all the preliminary conditions states above.
In
case
that during the middle period, there will be a bad material change in any of
the
representations that were given by either of the parties as part of this
agreement, the same party will give notice about that immediately to the other
party.
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Announcements
and reports to the Securities Authority and to the exchange in all that relates
to the deal, subject of this agreement, and every announcement and report which
are required by law will be drafted by the company after consultation with
the
investor’s representatives.
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8.
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The
Deal Completion-CLOSING
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At
the
time of completion, the parties will convene at the offices of the company,
at
Jabutinsky Street 7, Ramat Gan, or in any other place that will be agreed by
the
parties, and will complete the deal between them as detailed in this section
below, when all the detailed actions below will be executed one by one and
neither of the actions will be valid without the execution of the remaining
actions.
8.1
The
company and the investor will produce an approval that all the respective
representations detailed in sections 4 and 5 above (each side in relation to
its
representations) are true also to the completion date or no material change
has
occurred in any of them until the completion date, excluding all that was given
on behalf of it, a written notice to the other party to this agreement and
excluding changes that were executed pursuant to the terms of this
agreement.
8.2
The
investor and the company will issue one to the other the requested approvals
to
the execution of the private placement and on the performance of the preliminary
conditions detailed in section 6 above.
8.3
The
company will execute the private issuance to investor and the private issuance
to Appswing and will issue to the registration company stock certificates for
the issued shares to investor and the issued shares to Appswing.
8.4
Directors will be appointed that were elected on behalf of the investor in
a
general meeting of the company as stated in section 6.1.1 above.
8.5
The
company will transfer to the investor in an organized manner, all the accounting
books and records of the company, including, without damaging the generality
as
stated above, the sales tax file, the income tax and deductions file, and all
the documents which the company must maintain by law, including the shareholders
ledger, the encumbrances ledger, and the directors ledger, to the person who
will be appointed to handle the stated above on behalf of the company, pursuant
to the completion of the deal subject of this agreement.
8.6
The
company will publish all the immediate reports relating to the execution of
the
stated above actions and will submit to the exchange all the documents and/or
approvals that will be required by the exchange for the purpose of approval
of
the private issuance to the investor and private issuance to Appswing. It is
agreed between the parties that, the investor and his and his agents will assist
the company in preparation of the immediate reports and in obtaining the
required approvals as stated.
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9.
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Taxes
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Each
party will incur and pay all the tax payments attached to it, which are related
to the deal, subject to this agreement by law.
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10.
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Miscellaneous
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10.1
In
any case in which any party will not use any right held by it pursuant to this
agreement or by law, it will not be considered as a waiver by it of the same
right and it will be authorized to return and re-use these rights. A claim
of
laches
or
waiver will not stand for the breaching party.
10.2
The
conditions of this agreement fully include the conditioned and agreed between
the parties in relation to the issuance of the shares, and they prevail over
any
agreement, representation and warranty that preceded the signing of this
agreement, and that were entered between the parties either in writing or
orally.
10.3
Any
change and/or cancellation of any term of the terms of this agreement will
be
done only in a written document, which shall be signed by all
parties.
10.4
The
parties will take additional actions that will be required for the application
and execution of this agreement, including signing additional documents that
will be required.
10.5
There is nothing, in all that is stated in this agreement, to grant, explicitly
or inexplicitly, any rights to any third party, and neither of the terms of
this
agreement shall be construed, explicitly or inexplicitly, as granting any rights
to any third party.
10.6
If
it is determined that any term of the terms of this agreement is unenforceable
and/or invalid by any reason it shall not damage the other terms of this
agreement, and the parties will act to apply this agreement according to its
spirit and language, including changing of the unenforceable term and/or invalid
as stated with a substitute term that its result and action are materially
similar.
10.7
Excluding the stated in this agreement, each party will incur its expenses
in
connection with the preparation of this agreement, the entering into it and
the
execution of the applications according to it.
10.8
In
spite of the stated in section 10.7 above, it is agreed that if the deals
pursuant to this agreement will not be completed, the investor will incur all
of
the company’s expenses that are related to this agreement and its execution,
including the attorneys fees, appraisers, payment of fees to the exchange and
to
the Securities Authority, advertising expenses, ads and newspaper
etc.
10.9
The
laws of the state of Israel shall govern this agreement and every matter that
relates and/or connected with and/or arises out of this agreement. The
jurisdiction in any dispute arising out of this agreement, its existence, its
breach or its interpretation, will be subject to the Mehozi Court in Tel Aviv
Yaffo exclusively.
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10.10
Any
announcement that will be sent by certified mail by either of the parties to
the
other party, according to the addresses that are indicated in the introduction
to this agreement, shall be considered as if it was received by the other party,
72 hours after the date of the mailing as stated, if it was sent by fax-within
24 hours after the time of sending and if was personally served-at the time
of
its serving.
As
evidence the parties are hereby signing:
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_____________________
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_____________________________
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Kidron
Industrial Holdings, Ltd.
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By:
Xxxxx Xxxxx, President
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By:
Xxxxx Xxxxx, Chairman of the board
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of
directors
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_______________________
AP
Holdings Ltd.
By:
Xxxxxx Xxxxx, Xxxxxxxxx
00
