EXHIBIT 4.28
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of the 22nd day of December, 1999 by and between Smithfield Investments
B.V. (the "PURCHASER"), and e-SIM, an Israeli company, (the "SELLER").
RECITALS:
WHEREAS, the Seller desires to issue and sell to the Purchaser and the
Purchaser desires to purchase from the Seller an aggregate of 250,000 shares
(the "SHARES") of the Seller's Ordinary Shares, par value ten Agorot (NIS 0.1)
per share (the "ORDINARY SHARES").
NOW, THEREFORE, in consideration of the respective covenants,
representations and warranties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE 1
PURCHASE OF SHARES
1.1 COMMITMENTS TO PURCHASE AND SELL. Subject to the terms and conditions
set forth herein and in reliance on the representations and warranties contained
herein, the Purchaser agrees to purchase from the Seller, and the Seller agrees
to sell to the Purchaser, the Shares for purchase price of EIGHT UNITED STATES
DOLLARS (US$8.00) per Share and an aggregate purchase price of TWO MILLION
UNITED STATES DOLLARS (US$2,000,000) (the "SHARE PURCHASE Price").
1.2 CLOSING
1.2.1 The purchase and sale of the Shares shall take place at a
closing (the "CLOSING") at the offices of the Seller at Science Based
Xxxxxxxxxx Xxxxxx, X.X. Xxx 00000, Xxxxxxxxx 00000 Xxxxxx on December 22,
1999 ("CLOSING DATE").
1.2.2 At the Closing, the Seller shall deliver to the Purchaser,
against payment to the Seller of the Share Purchase Price, certificates
representing the Shares, together with duly executed stock powers.
1.2.3 At the Closing, the Purchaser shall pay the Share Purchase Price
in United States Dollars to the Seller by wire transfer of immediately
available funds to such bank account as the Seller may designate in writing
to the Purchaser.
1.2.4 At the Closing, the parties shall also execute and deliver or
cause to be executed and delivered the documents referred to in Article 3
hereof. All actions taken and all transactions occurring at the Closing
shall be deemed to take place simultaneously, and no transactions shall be
deemed to have been completed or any document delivered until all such
transactions have been completed and all required documents delivered.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller makes the
following representations and warranties to the Purchaser, each of which is true
and correct as of the date hereof and shall be true and correct as of the
Closing Date and shall be unaffected by any investigation heretofore or
hereafter made by the Purchaser.
2.1.1 ORGANIZATION AND GOOD STANDING. The Seller is duly organized and
validly existing under the laws of the State of Israel. The Seller has the
requisite power and authority to own, lease or otherwise hold the assets
owned, leased or otherwise held by it and to carry on its business as
presently conducted by it.
2.1.2 AUTHORIZATION AND EFFECT. This Agreement has been duly executed
and delivered by the Seller and, assuming the due execution and delivery of
this Agreement by the Purchaser, this Agreement constitutes the valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2.1.3 CAPITALIZATION. The registered share capital of the Seller is
twenty million (20,000,000) Ordinary Shares, of which ten million four
hundred thirty-two thousand, three hundred forty eight (10,432,348) are
issued and outstanding and one million five hundred seventy-four thousand
nine hundred and fifteen (1,574,915) are reserved for issuance upon the
exercise of options held by employees, directors and others. All of the
issued and outstanding share capital of the Seller is duly authorized and
validly issued and is fully paid and non-assessable. None of the
outstanding share capital of the Seller has been issued in violation of,
and none of such outstanding share capital is subject to, any purchase
option, call, right of first refusal, preemptive, subscription or similar
rights, except as specified in the Seller's Articles of Association.
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2.1.4 NO RESTRICTIONS; REQUIRED CONSENTS. The execution and delivery
of this Agreement by the Seller does not, and the performance by the Seller
of the transactions contemplated hereby will not, (i) conflict with the
Seller's Memorandum of Association or Articles of Association, (ii)
conflict with, or result in any violation of, or constitute a default (with
or without notice or lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of any debt or obligation or
constitute a breach of, create a loss of a material benefit under, any
contract, mortgage, indenture, lease, agreement or other instrument or any
permit, order, judgment or decree to which the Seller is a party or by
which any is bound, or (iii) constitute a violation of any domestic or
foreign statute, law, ordinance, rule or regulation (the "LAW") applicable
to the Seller, in each case which would result in a material adverse effect
on the Seller and its Subsidiaries taken as a whole. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
domestic or foreign court, government, governmental agency, authority,
entity or instrumentality (a "GOVERNMENTAL ENTITY") or other party is
required to be obtained or made by or with respect to the Seller in
connection with the Seller's execution and delivery of this Agreement or
the consummation by the Seller of the transactions contemplated hereby.
2.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser makes
the following representations and warranties to the Seller, each of which is
true and correct as of the date hereof and shall be true and correct as of the
Closing Date and shall be unaffected by any investigation heretofore or
hereafter made by the Seller.
2.2.1 CORPORATE ORGANIZATION. If a corporation, the Purchaser is duly
organized and validly existing and in good standing under the laws of The
Netherlands and has the requisite corporate power and authority to own,
lease or otherwise hold its properties and assets and to carry on its
business as presently conducted.
2.2.2 AUTHORIZATION AND EFFECT. If a corporation, the Purchaser has
the requisite corporate power to execute and deliver this Agreement, and to
consummate the transactions contemplated hereby. If a corporation, the
execution and delivery by the Purchaser of this Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action by the Purchaser. This
Agreement has been duly executed and delivered by the Purchaser and,
assuming the due execution and delivery of this Agreement by the Seller,
this Agreement constitutes the valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights in general and subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law).
2.2.3 NO RESTRICTIONS; REQUIRED CONSENTS. The execution and delivery
of this Agreement by the Purchaser does not, and the performance by the
Purchaser of the transactions contemplated hereby will not, (i) in the case
of a corporate Purchaser, conflict with the Purchaser's certificate of
incorporation or by-laws, (ii) conflict with, or result in any violation
of, or constitute a default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any debt or obligation or constitute a breach of, create a
loss of a material benefit under, any contract, mortgage, indenture, lease,
agreement or other instrument or any permit, order, judgment or decree to
which the Purchaser is a party or by which it is bound, or (iii) constitute
a violation of any Law applicable to the Purchaser. No consent, approval,
order or authorization of, or registration, declaration or filing with any
Governmental Entity or other party is required to be obtained or made by or
with respect to the Purchaser in connection with the execution and delivery
of this Agreement by the Purchaser or the consummation by the Purchaser of
the transactions contemplated hereby.
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2.2.4 PURCHASE OF SHARES. (a) The Shares are being acquired for the
Purchaser's own account, not as a nominee or agent for any other Person,
and without a view to the distribution of such securities or any interest
therein in violation of the Securities Act.
(b) The Purchaser (i) is an "accredited investor" within the meaning
of Rule 501(a) under Regulation D promulgated under the Securities Act,
(ii) has such knowledge and experience in financial and business matters so
as to be capable of evaluating the merits and risks of its investment in
the Shares, and (iii) is capable of bearing the economic risks of such
investment (including the risk of the complete loss of its investment in
the Shares); and
(c) The Purchaser acknowledges that the Shares have not been
registered under the Securities Act and understands that the Shares must be
held indefinitely unless they are subsequently registered under the
Securities Act or such sale is permitted pursuant to an available exemption
from such registration requirement.
2.2.5 DUE DILIGENCE REVIEW. The Purchaser has received all of the
documents and other information that it has requested from the Seller, and
the Purchaser has conducted such legal and financial due diligence of the
Seller as it deems appropriate and is entering into this Agreement based
upon its own due diligence review.
ARTICLE 3
CLOSING CONDITIONS
3.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER. The obligations
of the Purchaser under this Agreement to consummate the transactions
contemplated hereby will be subject to the satisfaction, at or prior to Closing,
of all of the following conditions, any one or more of which may be waived at
the option of the Purchaser:
3.1.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) All representations and warranties of the Seller made in this
Agreement shall be true, correct and complete in all material respects as
of the date hereof and on and as of the Closing Date as if made on and as
of that date and the Seller shall have delivered to the Purchaser a
certificate dated the Closing Date, certifying that all representations and
warranties of the Seller made in this Agreement are true, correct and
complete in all material respects as of the date thereof.
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3.1.2 CERTIFIED RESOLUTIONS. The Seller shall have delivered to the
Purchaser certified resolutions of the Board of Directors of the Seller
approving the execution and delivery of this Agreement and the consummation
by the Seller of the transactions contemplated hereby.
3.1.3 SHARE CERTIFICATE. The Seller shall have delivered to the
Purchaser a share certificate with respect to the Shares issued in the name
of the Purchaser pursuant hereto.
3.1.4 DELIVERY OF FUNDS. All of the funds to be delivered by the
Purchaser pursuant to Section 1.1 hereof shall have been delivered to the
Seller's bank account.
3.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. The obligations of
the Seller under this Agreement to consummate the transactions contemplated
hereby will be subject to the satisfaction, at or prior to the Closing, of all
the following conditions, any one or more of which may be waived at the option
of the Seller:
3.2.1 REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) All representations and warranties of the Purchaser made in this
Agreement shall be true and complete in all material respects as of the
date hereof and on and as of the Closing Date as if made on and as of that
date and the Purchaser shall have delivered to the Seller a certificate
dated the Closing Date, certifying that all representations and warranties
of the Purchaser made in this Agreement are true, correct and complete in
all material respects as of the date thereof.
3.2.2 CERTIFIED RESOLUTIONS. If a corporate Purchaser, the Purchaser
shall have delivered to the Seller certified resolutions of the board of
directors of the Purchaser approving the execution and delivery of this
Agreement, and authorizing the consummation of the transactions
contemplated hereby.
ARTICLE 4
REGISTRATION
4.1 DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration
effected by filing a registration statement in compliance with the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and the
declaration or ordering by the Securities and Exchange Commission (the
"SEC") of effectiveness of such registration statement, or the
equivalent actions under the laws of another jurisdiction.
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"REGISTRABLE SHARES" refers to all Ordinary Shares issued pursuant to
this Agreement and held by the Purchaser.
4.2 REGISTRATION.
4.2.1 If, following the Closing Date, the Seller at any time proposes
to register any of its securities (other than securities registered on Form
S-4 or S-8 or any similar successor form), it shall give notice to the
Purchaser of such intention not less than thirty (30) days prior to the
filing of a registration statement in connection therewith. Upon the
written request of the Purchaser given within twenty (20) days after
receipt of any such notice, the Seller shall include in such registration
all of the Registrable Shares indicated in such request, so as to permit
the disposition of the shares so registered, PROVIDED, that, in the event
the underwriter advises the Purchaser and the Seller that in its opinion
all the shares sought to be sold by the Purchaser in connection with the
Seller's offering (together with any other shares to be sold by other
shareholders in such offering) cannot be sold without adversely impacting
the Seller's offering, the number of shares to be sold by the Purchaser and
any other selling shareholders (but not Wind River, Inc. or Bank Leumi
LeIsrael B.M., or their transferees or successors (which shall have
priority in registration over the Purchaser and all other selling
shareholders) and not the Seller (which shall have priority over all
selling shareholders) shall be reduced pro rata to the extent deemed
advisable by the underwriter.
4.2.2 The Purchaser shall pay the SEC registration fee, the
underwriting discount or commission and the cost of any legal opinions
required by the underwriters with respect to any Registrable Shares to be
sold by the Purchaser hereunder, and the Seller shall bear all other costs.
4.2.3 The Purchaser will enter into an underwriting agreement with the
underwriter, in such form as may be required by the underwriter, and the
Purchaser will indemnify the Seller and its officers, directors and control
persons for any liabilities arising in connection with the incidental
registration based on information provided by the Purchaser to the Seller
for use in such offering.
ARTICLE 5
MISCELLANEOUS PROVISIONS
5.1 NOTICES. All notices and other communications required or permitted
hereunder will be in writing and, unless otherwise provided in this Agreement,
will be deemed to have been duly given when delivered in person or when
dispatched by electronic facsimile transfer or one business day after having
been dispatched by a nationally recognized overnight courier service to the
appropriate party at the address specified below:
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(a) If to the Seller, to:
e-SIM Ltd.
Science Based Industries Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx 00000 Xxxxxx
Attention: Xxx Xxxxxx
Facsimile No.: 972-2-587-0773
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(b) If to the Purchaser, to:
Xxxx Xxxxxxxx
Smithfield Investments X.X.
XXX 00000
Xxxxxxxxx 91450
Facsimile No.: x000-0-000-00000
with a copy to:
Xxx Xxxxx, Adv.
X. Xxxxxx & Co., Adv.
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx
Facsimile No.: x000-0-000-0000
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
5.2 EXPENSES. Each of the parties shall be responsible for its own costs
and expenses related to the negotiation, preparation, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
5.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
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5.4 ENTIRE AGREEMENT. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by any party or
any of their respective affiliates (or by any director, officer or
representative thereof) relating to the matters contemplated hereby. This
Agreement constitutes the entire agreement by and among the parties hereto and
there are no agreements or commitments by or among such parties or their
affiliates except as expressly set forth herein.
5.5 AMENDMENTS AND SUPPLEMENTS. This Agreement may be amended or
supplemented at any time by additional written agreements signed by the parties
hereto.
5.6 RIGHTS OF THE PARTIES. Except as provided in Section 5.3, nothing
expressed or implied in this Agreement is intended or will be construed to
confer upon or give any person or entity other than the parties hereto and their
respective Affiliates any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby.
5.7 BROKERS. The Purchaser hereby agrees to indemnify and hold harmless the
Seller, and the Seller hereby agrees to indemnify and hold harmless the
Purchaser, against any liability, claim, loss, damage or expense incurred by the
Purchaser or by the Seller, respectively, relating to any fees or commissions
owed to any broker, finder, or financial advisor as a result of actions taken by
the Purchaser or by the Seller, respectively.
5.8 FURTHER ASSURANCES. From time to time, as and when requested by either
party, the other party shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments as may be reasonably necessary to
consummate the transactions contemplated by this Agreement.
5.9 TITLES AND HEADINGS. Titles and headings to sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
5.10 SEVERABILITY. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable Law, then this Agreement shall
be construed with the invalid, illegal or unenforceable provision deleted, and
the validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
5.11 GOVERNING LAW. This Agreement, including, without limitation, the
interpretation, construction and validity hereof, shall be governed by the Laws
of the State of Israel without regard to the conflicts of laws principles
thereof.
5.12 EXECUTION IN COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
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5.13 PRESS RELEASE. Following the Closing, the parties hereby agree that
the Seller may publicly disclose the transactions contemplated herein (including
the identity of the Purchaser and the terms thereof), PROVIDED, that the
Purchaser shall have the opportunity to approve the details of such disclosure
in advance, with such approval not to be unreasonably withheld.
5.14 CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS. (a) Unless the context
otherwise requires, (i) all references to Sections are to Sections of or to this
Agreement, (ii) each term defined in this Agreement has the meaning assigned to
it, (iii) "OR" is disjunctive but not necessarily exclusive, (iv) words in the
singular include the plural and VICE VERSA and (vi) "PERSON" or "PERSON" means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof. All references to "$" or dollar amounts
will be to lawful currency of the United States of America.
(b) No provision of this Agreement will be interpreted in favor of, or
against, either of the parties hereto by reason of the extent to which
either such party or its counsel participated in the drafting thereof or by
reason of the extent to which any such provision is inconsistent with any
prior draft hereof or thereof.
5.15 NO RECOURSE. Notwithstanding any of the terms or provisions of this
Agreement, each of the Purchaser and the Seller agrees that neither it nor any
person acting on its behalf may assert any claims or cause of action against any
officer, director, partner or stockholder of the other party in connection with
or arising out of this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE SELLER:
e-SIM LTD.
By: ____________________
Name:
Title:
THE PURCHASER:
Smithfield Investments B.V.:
By: ____________________
Name:
Title:
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