Exhibit 10.1
This Share Transfer Agreement (the
“Agreement”) is entered into as of the 13th day of
June 2008, by and among:
| 1. |
– Xx.
Xxxxxxx Baup, a French citizen, born on August 5, 1951 in Sannois,
French citizenship, residing at 0 xxx xx xx Xxxxxxx Xxxxxx, 00000 Forges
xxx Xxxxx, |
| |
– Mrs. Xxxxxxx Xxxxxx Baup, a French citizen, born on November 11, 1951 in
Pré Saint Gervais, French citizenship, residing at 0 xxx xx xx Xxxxxxx Xxxxxx,
00000 Forges xxx Xxxxx, |
(each
individually, a “Seller” and together, the “Sellers”);
ON ONE HAND
| 2. |
PARX
Ltd., a company organised under the laws of the State of Israel, having its
principal place of business at ZHR Industrial Zone, XX Xxx 00 Xxxx Xxxx 00000,
Israel, duly represented by its chief executive officer, Xx. Xxxx Xxxxxx, which
is a 100% held subsidiary of OTI (defined hereafter); |
(the
“Purchaser”)
ON THE SECOND HAND
| 3. |
On Track Innovations Ltd., a company organised under the laws of the
State of Israel, having its principal place of business at ZHR Industrial Zone,
XX Xxx 00 Xxxx Xxxx 00000, Israel on behalf of itself and/or any Affiliate
thereof, duly represented by its chief executive officer, Xx. Xxxx Xxxxxx; |
(“OTI”)
ON THE THIRD HAND
| 4. |
ID Parking, a company organised under the laws of France, registered with
the Registry of Commerce and Companies of Nanterre under the process of being
registered having its registered office located at 00 xxx Xx Xxxxxxxxx, 00000
Xxxxxxxx Xxxxxxxxxxx Xxxxxx, duly represented by its President, Xx. Xxxxxxx
Baup] |
(the
“Company”)
ON THE FOURTH HAND
| 5. |
DXP, a company organised under the laws of France, which registered office is
located at 000 xxxxxx Xxxxxx Xxxx, 00000 Xxxxx, registered with the Registry of
Commerce and Companies of Paris under the number 414 725 606 |
(“DXP”)
ON THE FIFTH HAND
(each
individually a “Party” and together the “Parties”)
WHEREAS:
| (A) |
DXP,
was in particular the owner of an on going concern named parking – PIAF
which covers the development, manufacture and marketing of a payment system of
rights due for the parking of any vehicle on the public roads or elsewhere and
composed of: (i) personalised microcircuit cards pursuant to the applicable
local regulation and containing prepaid parking time units, (ii) a portable
individual “parking meter”, which may get on the vehicle and which
enables to manage the debit of the units contained in the said cards pursuant
to the parking policy of the concerned municipality and, (iii) related
equipment and services (the “Business” or the “Going
Concern”), which it has transferred to the Company prior to the date
hereof, it is being precised that the Purchaser had knowledge of the transfer
of Business agreement prior to its signature. |
| (B) |
Each Seller is the sole owner of the Seller’s Shares (as defined below); |
| (C) |
Immediately following the effective transfer of the Business by DXP to the
Company, each Seller wishes to transfer the Seller’s Shares held by him to
the Purchaser, free and clear of all Security Interests (as defined below), in
consideration for cash payment and issuance of ordinary shares of OTI, all in
accordance with the terms of this Agreement; OTI substituting itself to the
Purchaser in the payment of the price of the Shares of the Sellers as indicated
hereafter; and therefore |
| (D) |
OTI wishes to issue ordinary shares to each Seller and pay such cash payment in
consideration of the Seller’s Shares transferred to the Purchaser in
accordance with the terms of this Agreement; and |
| (E) |
The Purchaser, OTI, the Sellers and the Company have agreed to enter into this
Agreement (including all other agreements attached hereto). |
NOW THEREFORE, the parties to
this Agreement agree as follows:
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1.1 |
The
following terms shall have the following meanings: |
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(a) |
Affiliate
– An entity controlling, controlled by or under common
control with a person and if such entity is a person, then the immediate
family of such person. For the purpose of this definition of Affiliate,
“control” shall mean the ability to direct the activities of the
relevant entity and shall include the holding of 50% or more of the issued
and outstanding share capital, voting rights or other ownership interests
of such entity or the right to appoint 50% or more of the directors (or
the equivalent thereof) in such entity; |
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(b) |
Aggregate
Cash Consideration – € 250,000; |
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(c) |
Aggregate
Share Consideration – € 500,000 to be paid byordinary
shares to be issued by OTI, with a par value NIS 0.1 each, for a value
calculated on the basis of the average quotation of the said shares during
the five trading days preceding May 30, 2008 using the exchange rate at
the closing of the Paris stock exchange on the date of May 29, 2008 which
are restricted and will be registered with the U.S. Securities and
Exchange Commission (“SEC”) and will be listed for
trading on the NASDAQ stock exchange, together with all existing and
future rights attached thereto. The share certificate covering the said
shares shall bear appropriate legend to reflect the same and the fact that
the shares are not fully paid until released from lock up. |
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(d) |
Contract
– All contracts, including any note, indenture, lease, purchase
orders, letters of intent, memorandum of understanding, confidentiality
agreements, covenants or other agreements whether executed or which are
being negotiated; |
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(e) |
Fully
Diluted Basis – The issued and outstanding share capital of the
Company assuming the exercise and conversion of all warrants, options,
convertible securities, convertible debts and all other securities and
rights; |
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(f) |
Intellectual
Property – All intellectual and industrial property rights
including in particular software, designs and models, trademarks, domain
names, know-how; |
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(g) |
Regulation
S – Regulation S under the United States Securities Act (as
defined below); |
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(h) |
Securities
Act – United States Securities Act of 1933, as amended; |
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(i) |
Security
Interest – Any interest or equity of any person (including any
right to acquire, option, or right of pre-emption, right of first offer or
right of first refusal) or any mortgage, charge, pledge, lien, attachment,
assignment or any other encumbrance or security interest or arrangement of
whatsoever nature over or in the relevant property; |
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(j) |
Seller’s
Shares – Such number of ordinary shares of the Company
owned by each of the Sellers as set forth in Annex 1 hereto; |
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1.2 |
Words
and defined terms denoting the singular number include the plural and vice versa and the
use of any gender shall be applicable to all genders. |
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1.3 |
The
paragraph headings are for the sake of convenience only and shall not affect the
interpretation of this Agreement. |
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1.4 |
The
recitals, schedules, appendices, annexes and exhibits hereto form an integral part of
this Agreement. |
| 2. |
TRANSFER
OF THE SHARES |
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2.1 |
Transfer
of the shares. |
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2.1.1 |
Subject
to and in accordance with the terms and conditions of this Agreement, each Seller
transfers, assigns, conveys and delivers to the Purchaser, and the Purchaser acquires and
accepts for delivery from each Seller the Seller’s Shares, constituting together
100% of the issued share capital of the Company on a Fully Diluted Basis as of the
Closing Date, as represented in the Capitalization Table set forth in Annex 1 hereto. |
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2.1.2 |
In
consideration for the sale of all Sellers’ Shares and all other covenants made under
this Agreement, OTI will finance the price of the Sellers’ Shares on behalf of the
Purchaser by the issuance to the benefit of each Seller of its respective portion of the
Aggregate Share Consideration and the Aggregate Cash Consideration, as set opposite to
such Seller’s name inAnnex 1 hereto. |
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The
closing of the transfer of the Sellers’ Shares and the issuance of the Aggregate
Share Consideration and the payment of the Aggregate Cash Consideration (the “Closing”)
shall take place with the satisfaction of all the conditions to Closing as set out herein
in Sections 2.2 and 2.3 and at the latest on June 23, 2008 unless agreed differently by
the Parties (the date of the Closing being herein referred to as the “Closing Date”).
In the event the Closing does not take place on June 23, 2008 at the latest, this
Agreement and any related transactions shall become void without any indemnity from
either Parties. |
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(a) |
Prior
to the Closing Date, the following actions and occurrences shall take place,: |
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(i) |
The
Sellers shall convene a Shareholders’ meeting at the Closing Date to
appoint the new president. |
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(ii) |
OTI
will provide the Sellers with the wording of the restrictive legend which will
appear on the certificates representing the Shares as precised in article
3.4.1. hereafter. |
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(iii) |
The
Sellers will provide the Purchaser with the main terms and conditions under
which DXP will distribute the products “Easy Park” under the
trademark “PIAF” in the Golf countries, which terms and conditions
will have to be approved by the Purchaser. |
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(iv) |
The
Sellers undertake that DXP will have notified under terms approved by the
Purchaser to all the clients listed in Annex 3.23.4 as well as all
prospects of the transfer of the Business to the Company and the change of
shareholder (the “Notification Letters”). |
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(v) |
Any
agreement with the municipalities concluded between the date hereof and Closing
shall be entered into with the Company and notified to Purchaser. |
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(b) |
The
Sellers and/or each Seller (as indicated below) shall deliver to the
Purchaser or OTI at the Closing Date: |
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(i) |
The
Share transfer order forms duly signed by the Sellers in order to vest the
Purchaser with good and marketable title to the Sellers’ Shares free and
clear of any Security Interest. |
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(ii) |
The
complete, up-to-date and signed Company’s books and registries (decisions
registry, share transfer registry (“registre des mouvements de titres”)
and individual shareholders’ accounts (“comptes individuels des
actionnaires”), including check books, books of accounts, records, and
other data relating to the Company’s operations, and documents required to
be kept by the Company under French law. |
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(iii) |
Each
Seller (in his capacity as a shareholder or president of the Company) shall
deliver to the Purchaser a written acknowledgment that he or anyone on his
behalf has no claim whatever against the Company. |
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(iv) |
An
original version of any power of attorney under which this Agreement or any
other related documents is executed. |
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(v) |
The
Seller who serves as a president of the Company shall deliver to the Company
(with a copy to the Purchaser) a resignation letter effective as of the Closing
Date. |
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(vi) |
Each
Seller delivers to OTI an executed lock up agreement in accordance with the
agreement attached hereto as Annex 2.2(b)(vi) (the “Lock Up
Agreement”). |
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(vii) |
A
service agreement duly executed between the Company and DXP which draft is
attached in Annex 2.2(b)(vii) (the “Service Agreement”). |
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(viii) |
The
Sellers shall deliver to the Purchaser a copy of the agreement transferring the
Business from DXP to the Company duly registered with the competent tax
authorities and a copy of the announcement in the legal announcement newspaper
and in the BODACC as provided for under Article L.141-12 of the Commercial
Code. |
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(ix) |
The
Sellers shall deliver to the Purchaser a copy of all the Notification Letters
as well as a list of the contacts for each municipality client and for each
prospect. |
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(c) |
At
the Closing Date, OTI shall issue to each of the Sellers his respective
portion of the Aggregate Share Consideration and the Aggregate Cash
Consideration as set opposite to such Seller’s name in Annex
1 and register each Seller as the holder of his respective
portion of the Aggregate Share Consideration in the OTI’s
shareholders register. Without derogating from the foregoing, OTI will
deliver to each of the Sellers at Closing, a copy of the respective share
certificates in their names corresponding to their respective portion of
the Aggregate Share Consideration as set forth in Annex 1,
the originals being sent by express mail on the same day. |
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(d) |
Immediately
following the transfer of the Sellers’ Shares to the Purchaser: |
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(i) |
The
Service Agreement shall be duly executed. |
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(ii) |
A
purchase agreement shall be executed between the Company and DXP concerning
1,700 “PIAF” units for no more than 30 euros per unit for up to 1,700
units and approximately 230,000 electronic chips ST 1200 for 0.5 euro per
chip, which form is attached in Annex 2.2 (d)(ii) (the
“Purchase Agreement”). |
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(iii) |
The
Purchaser shall make the appropriate entries in the registre des mouvementsde
titres and the comptes individuels d’actionnaires of the
Company to register the consummation of the transactions contemplated by this
Agreement. |
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(iv) |
The
Purchaser with the cooperation of the Sellers shall notify the Company’s
banks of the end of their powers and the name of the new legal representative
of the Company and as the case may be of any beneficiary of a delegation of
powers. |
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2.3 |
Conditions
to Closing |
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The
obligations of the Purchaser and OTI and the obligations of the Sellers to consummate the
transactions set forth herein is subject to the fulfillment, at the latest at the Closing
Date, of each of the following conditions (any or all of which may be waived by the
Purchaser, OTI or the Sellers if provided for his benefit): |
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(a) |
the
Company and DXP have entered into an agreement under which the Business was
transferred to the Company which has been duly authorised and executed by
the Company and DXP. DXP and the Company have performed and complied with
all obligations and covenants required pursuant to the said agreement to
be performed or complied with by them and all the assets related to the
Business have been effectively transferred to the Company; |
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(b) |
the
representations and warranties of the DXP as provided for in the transfer of
business agreement were true and correct when made and shall be true and
correct in all material respects at the Closing as though made again at
the Closing Date; |
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(c) |
the
Company and the Sellers shall have performed and complied with all
obligations and covenants required by this Agreement to be performed or
complied with by them at the latest at the Closing; |
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(d) |
the
Purchaser and OTI shall have performed and complied with all obligations and
covenants required by this Agreement to be performed or complied with by
them at the latest at the Closing; |
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(e) |
between
the date of this Agreement and the Closing Date, there shall have been no
material adverse change in the financial conditions of the Business or
clients and prospects of the Business; and any event or material change
has been notified to the Purchaser or OTI and any decision which may
affect the Business has been taken with the prior approval of the
Purchaser or OTI; |
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(f) |
all
corporate authorisations on the part of the Purchaser or OTI necessary for
the execution of this Agreement have been granted; |
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(g) |
DXP
shall deliver to the Company a certificate under which DXP shall certify the
absence of claims from auditors within the legal time period of Article
L.141-14 and seq. of the Commercial Code and in case of claims, shall
justify the payment of the corresponding claim whatever its amount is, in
order that the Company may not be troubled. |
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2.4 |
Post
Closing obligations |
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DXP
will deliver to the Company at the latest 5 months following the Closing Date a
certificate under which DXP shall certify the absence of creditors’ claims within
the legal period provided by article L.1684 of the French tax code or in the event of a
claim, DXP takes the irrevocable commitment to pay the corresponding claim in order that
the Company may never be troubled and in the hypothesis where the Company or the
purchaser shall be compelled to pay a creditor or to bear expenses in this respect, then
the Sellers guarantee that DXP shall reimburse and DXP undertakes to reimburse the
Company or the Purchaser from the total amount of the costs and expenses born in this
respect (the “Costs Born”) within fifteen (15) days form the request of
the Company or the Purchaser justifying such costs (the “Request for Reimbursement”).
In the case where DXP would not reimburse within fifteen (15) days the Company or the
Purchaser from the Costs Born, the Parties agree to offset by right and without any
formalities the claim of the amount of the Costs Born with any claim due by the Company
to DXP with respect to the Service Agreement or the Purchase Agreement. |
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More
generally, the Parties agree that all payment obligations between the Parties resulting
from the implementation of this Agreement, the Service Agreement and the Purchase
Agreement shall offset against each others by right and without any formalities whether
the conditions for the legal offsetting are or not met. |
| 3. |
REPRESENTATIONS
AND WARRANTIES OF EACH SELLER |
| |
Each
Seller provides to the Purchaser as of the Closing Date, the representations and
warranties set forth herein and acknowledges that the Purchaser is entering into this
Agreement in reliance thereon: |
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3.1 |
Authority
to Transact |
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(a) |
The
Sellers have the capacity and authority to execute and deliver this
Agreement, to perform hereunder and to consummate the transactions
contemplated hereby. Subject to the execution by each of the parties
thereto, this Agreement constitutes and, when signed by them, all other
documents contemplated hereby will constitute, valid and legally binding
obligations of the Sellers, enforceable in accordance with their terms. |
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(b) |
No
action, proceeding or governmental inquiry or investigation is pending, or to
the Sellers’ best knowledge threatened, against the Sellers or
against the Sellers’ assets, before any court, arbitration board or
tribunal or administrative or other governmental agency, which questions
the validity or hinders the enforceability of this Agreement and/or the
transactions contemplated hereby, nor to the knowledge of the Sellers is
there any basis for the foregoing. |
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3.2 |
Execution
of this Agreement |
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Except
as set forth under any of the terms and provisions of this Agreement and of any of the
documents, exhibits or annexes attached hereto, the execution and delivery of this
Agreement (and the other documents contemplated hereby) by the Sellers does not, and the
consummation of the transactions contemplated hereby and thereby will not: |
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(a) |
constitute
a breach of any law, rule or regulation of any government applicable to
the Sellers; |
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(b) |
require
the consent or agreement of any court, governmental body or entity; |
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(c) |
violate
any provisions of any Contract of the Company or the Sellers; or |
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(d) |
violate
of, or conflict with or constitute a default under any term of, or result
in the creation or enforcement of any Security Interest upon any of the
Seller’s Shares |
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(a) |
The
Seller is the sole owner of the Sellers Shares as indicated in Annex 1,
free and clear of any Security Interest. Except for the Seller’s
Shares, the Seller has no and is not entitled to any other shares,
options, warrants or securities in the Company. There are no outstanding
debts owed by the Company to the Sellers or by the Sellers to the Company
and following the Closing the Seller (in their capacity as shareholders,
directors or president of the Company) or anyone on his behalf has no
claims whatsoever towards the Company. |
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(b) |
The
Seller is entitled to sell the full legal and beneficial interest in the
Seller’s Shares, free of any Security Interest, to the Purchaser on
the terms set out in this Agreement. The Seller has the unrestricted power
and authority to transfer the Seller’s Shares to the Purchaser. |
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(i) |
are
duly authorised, validly issued, paid up to 50% in compliance with law and have
the rights, preferences, privileges, and restrictions set forth in the Company’s
Articles of Association in effect immediately prior to the Closing (“Articles”).
Except for the Articles, there are no contracts, agreements, commitments or
instruments, whether written or oral, providing for any rights, preferences,
privileges and restrictions granted to and/or imposed on the Seller’s
Shares and any holder thereof; |
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(ii) |
are
free of any Security Interests, proxies, voting trusts and other voting
agreements, calls or commitments of any kind, other than as explicitly
contemplated by the Articles; and |
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(iii) |
were
issued in compliance with all laws, rules and regulations, including applicable
securities laws. |
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3.4 |
Restrictions
on Transferability of OTI Shares |
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3.4.1 |
The
Seller understands that (i) his respective portion of the Aggregate Share Consideration
as set opposite to such Seller’s name in Annex 1 (hereinafter, the “Shares”),
have not yet been registered under the Securities Act, or under the laws of any other
jurisdiction; (ii) such Shares cannot be sold, transferred or otherwise disposed of
unless they are subsequently registered under the Securities Act and, where required,
under the laws of other jurisdictions, in accordance with Regulation S, or unless another
exemption from registration is then available; (iii) there is now no registration
statement on file with the SEC with respect to the Shares. |
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The
Seller acknowledges and agrees that the certificates representing the Shares shall bear a
restrictive legend as counsel to OTI may determine are necessary or appropriate under
applicable securities laws, substantially to the effect of the following: |
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“The
securities represented by this certificate have not been registered under the Securities
Act of 1933 and may not be transferred, sold or otherwise disposed of in the absence of
an effective registration statement with respect to the shares evidenced by this
certificate, filed and made effective under the Securities Act of 1933, or an opinion of
counsel satisfactory to On Track Innovations Ltd. to the effect that registration under
such Act is not required. The securities represented by this certificate may not be paid
in full and therefore may not be transferred, sold or otherwise disposed of in the
absence of an opinion of counsel satisfactory to On Track Innovations Ltd. to the effect
that they are paid in full and are not further subject to forfeiture right of On Track
Innovations Ltd.” |
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3.4.2 |
OTI
will not register any transfer of Shares not made in accordance with the provisions of
Regulation S, pursuant to registration under the Securities Act, or pursuant to an
available exemption from registration. |
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3.5 |
Offshore
Transaction and Investment Purposes |
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The
Seller is not a “U.S. person”, as such term is defined in Regulation S, his
principal address is outside the United States, and it was located outside the United
States at the time any offer to buy the Shares was made to the Seller and at the time
that the buy order was originated by the Seller, and the Shares are being acquired solely
for such Seller’s own account (and in no event and without derogating from the
foregoing, for the account or the benefit of a U.S. person) for investment and are not
being purchased with a view to or for resale, distribution or other disposition, and the
Seller has no present plans to enter into any contract, undertaking, agreement or
arrangement for any such resale, distribution or other disposition, except as set forth
in the Agreement. |
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3.6 |
Information
and Advice |
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The
Seller has carefully reviewed and understands the risks of a purchase of the Shares. In
connection with such Seller’s investment in the Purchaser, it has obtained the
advice of his own investment advisors, counsel and accountants. The Seller and his
advisors have been afforded the opportunity to ask Purchaser questions concerning the
terms and conditions of the Shares and to obtain any additional information necessary to
verify the accuracy of any representations or information set forth about the Shares. |
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3.7 |
Sophistication
and Risk |
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3.7.1 |
The
Seller has such knowledge and experience in financial and business matters that it is
capable of evaluating, and has evaluated, the merits and risks in receipt of the Shares
as a partial consideration for the Seller’s Shares. However, as precised hereafter,
the delivery of shares issued by OTI in consideration of the payment of part of the price
constitute only a mode of payment and may not be construed as an acceptance under any
form whatsoever, from the Sellers of the risk of non payment of the price. |
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3.7.2 |
The
Seller understands that no federal or state agency has passed upon the Shares or made any
finding or determination as to the fairness of the transactions contemplated in this
Agreement. |
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The
jurisdiction in which an offer to sell, and any other action in connection with such
offer and sale of the Shares to the Seller was outside the United States. The Seller has
no present intention of becoming a resident of (or moving his principal place of business
to) the United States. |
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At
no time was the Seller presented with or solicited by any leaflet, public promotional
meeting, newspaper or magazine article, radio or television advertisement or any other
form of general advertising or general solicitation concerning the Shares. |
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The
Seller represents that it is not a broker or dealer, nor is it an affiliate of any broker
or dealer. For the purpose of this Sub-Section, the term “dealer” means any
person who engages either for all or part of his time, directly or indirectly, as agent,
broker, or principal, in the business of offering, buying, selling, or otherwise dealing
or trading in securities issued by another person; and the term “broker” means
any person engaged in the business of effecting transactions in securities for the
account of others. Each Seller further represents that it is acquiring the Shares in the
ordinary course of business, and at the time of this Agreement it has no agreements or
understandings, directly or indirectly, with any person to distribute the Shares. |
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Each
Seller hereby confirms that he shall be solely responsible and liable for any taxes
levied against the Seller arising out of or in connection with the receipt and sale of
the Shares. Seller hereby declares that he will make sure that his sale of the Shares,
are performed strictly in accordance with and under the terms and conditions of OTI’s
Xxxxxxx Xxxxxxx Policy, as available from time to time, if applicable. |
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The
purpose of the partial payment of the sale price by issuance of OTI Shares constitutes by
the will of the parties, a simple mode of payment of the sale price up to the value of
500,000 Euros. The essential obligation of the Purchaser resides in the payment in OTI
Shares with a value of 500,000 Euros hereabove. |
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Therefore,
subject to the condition of receiving the payment in OTI Shares of the value of 500,000
Euros, by the Purchaser, OTI or by the implementation of the bank guarantee delivered to
the benefit of the Sellers, the Sellers, hereby, without prejudice of the representations
and warranties of the Purchaser and OTI set forth in Section 4and subject to the
fulfilment of all of the Purchaser’s and OTI undertakings and obligations pursuant
to this Agreement, irrevocably waive, relinquishe and release the Purchaser and OTI from
any and all claims, rights, demands or causes of action asserted or non-asserted which
Sellers may have had, now has or hereafter may have against the Purchaser, OTI, their
directors, officers, employees, agents and/or consultants, in connection with the issuing
and/or sale of the Shares, including without limitation, any fluctuations in the Shares
price. |
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Neither
the Seller, nor any of his employees has employed or made any agreement with any broker,
finder or similar agent or any person or firm, which will result in the obligation of the
Seller, the Company, OTI or the Purchaser to pay any finder’s fee, brokerage fees or
commission or similar payment in connection with the transactions contemplated hereby. |
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The
Company is duly organized and validly existing under the laws of France, and has full
corporate power and authority to own, lease and operate its properties and assets and to
conduct its business as now being conducted. |
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Immediately
before Closing the issued and outstanding share capital of the Company on a Fully Diluted
Basis shall be as set forth in Annex 1 hereto. Other than the transactions
contemplated by this Agreement and in the Articles, there are no other share capital,
preemptive rights, convertible securities, outstanding warrants, options or other rights
to subscribe for, purchase or acquire from the Company any share capital of the Company
and there are no contracts or binding commitments providing for the issuance of, or the
granting of rights to acquire, any share capital of the Company or under which the
Company is, or may become, obligated to issue any of its securities. All issued and
outstanding share capital of the Company has been duly authorized, and is validly issued
and paid according to law and non assessable. The Sellers’ Shares, when transferred
to the Purchaser at the Closing will be duly authorized, validly issued, paid up to 50%
in compliance with law, nonassessable, and free of any Security Interest and will have
the rights, preferences, privileges, and restrictions set forth in this Agreement and in
the Articles. Since its incorporation, there has been no declaration or payment by the
Company of dividends, or any distribution by the Company of any assets of any kind to any
of its shareholders in redemption of or as the purchase price for any of the Company’s
securities. |
- 13 -
| |
The
Company does not presently own or control, directly or indirectly any interest in any
other corporation, partnership, trust, joint venture, association, or other entity. |
| |
The
President and officers of the Company as of the Closing are listed under Annex 3.17.
Other than the transactions contemplated by this Agreement, the Company has no agreement,
obligation or commitment with respect to the election of any individual or individuals to
the board or as president of the Company and there is no voting agreement or other
arrangement among the Company’s shareholders with respect to the election of any
individual or individuals to the board or as president of the Company. |
| |
3.18 |
Authorization;
Approvals |
| |
All
corporate actions on the part of the Company necessary for the authorization, execution,
delivery, and performance of all of the Sellers and Company’s obligations under this
Agreement, and for the authorization of the transfer of the Sellers’ Shares under
this Agreement has been duly and lawfully taken prior to or at the Closing. This
Agreement, when executed and delivered by the Sellers, shall constitute the valid and
legally binding obligations of the Sellers, legally enforceable against the Sellers in
accordance with their respective terms (except as such enforceability may be limited by
applicable law). Except as set forth in this Agreement and the Articles, no consent,
approval, order, license, permit, action by, or authorization of on the part of the
Company is required that has not been, or will not have been, obtained by the Company
prior to the Closing in connection with the valid execution, delivery and performance of
this Agreement. |
| |
3.19 |
Compliance
with Other Instruments |
| |
The
Sellers are not in default under the Articles of the Company. |
| |
The
Company has no employees and no liabilities in this respect. |
- 14 -
| |
3.21 |
Banks,
Powers of Attorney |
| |
Annex
3.21 hereto contains a correct and complete list setting forth the name of each bank
in which the Company has an account or safe deposit box, the names of all persons
authorized to draw thereon or to have access thereto, and the names of each person
holding a power of attorney from the Company and there are no outstanding powers of
attorneys or delegations of power which have been granted by the Company to any person or
entity. |
| |
3.22 |
Corporate
books and Records |
| |
The
minutes and related books of resolutions of the Company and the stock registers (the « registre
des mouvements de titres »and the« comptes d’actionnaires »)
of the Company required by French Law are up-to-date, have been fully maintained and
contain true and accurate records in all material respect. |
| |
3.23 |
Representations
about the Business |
| |
3.23.1 |
All
the assets and contracts related and necessary to conduct the business have been duly
transferred to the Company through the transfer of Business agreement between DXP and the
Company. |
| |
The
Business as well as the assets composing it are not subject to any Security Interest
whatsoever and therefore may be freely dispose of. |
| |
3.23.3 |
Intellectual
and Industrial Property Rights |
| |
There
is no intellectual property other than the Intellectual Property rights transferred by
DXP to the Company within the scope of the transfer of Business agreement, necessary to
the operation of the Business. |
| |
The
Sellers and DXP warrant that the Company owns and has full ownership in the Intellectual
Property rights transferred by DXP to the Company, free and clear of all Security
Interest and within the limit of the rights transferred. |
| |
To
the knowledge of the Sellers and DXP, the Intellectual Property rigthts do not infringe
any right of any third party and are not subject to any claim. |
| |
The
Sellers and DXP warrant that DXP and the Company have not remitted or given access to the
source codes of any software part of the Intellectual Property rights to any third party,
except to the company CAMIT. |
- 15 -
| |
The
Sellers and DXP represent that all the Contracts and customers related to the Business
which list is attached in Annex 3.23.4 constitute all the Contracts and clients of
DXP prior to the date of transfer of Business agreement between DXP and the Company. Such
Contracts and clients have been transferred to the Company and each of the Contract is a
legal, valid and binding obligation of the Company and is in full force. The Company and
each other party to each such Contract have performed all obligations required to be
performed by them and are not in breach or default and are not alleged to be in breach or
default in any respect and no event has occurred and no condition or state of facts
exists that would become or cause a breach, default or event of default thereunder, would
give to any person the right to cause such a termination or would cause an acceleration
of any obligation thereunder. The Sellers or DXP have not received any notice of
non-renewal with respect to any Contract. |
| |
3.23.5 |
Taxes
– Liabilities |
| |
The
Sellers and DXPrepresent and warrant that DXP will be solely liable for any taxes and
liabilities which the Company could owe within the scope of the transfer of the Business
from DXP to the Company and in particular in the event of a tax adjustment related to the
transfer of the Business so that the Company shall bear no such tax or other liabilities
related to facts prior to the Closing Date. |
| |
No
representation or warranty of the Company in this Agreement contains or, at the Closing,
will contain any untrue material statement or omits or will, at the Closing, omit to
state a material fact necessary in order to make the statements contained herein or
therein not misleading. The Sellers have provided the Purchaser with all information
necessary for the Purchaser in connection with this transaction. Neither Seller is aware
of any material fact or information relating to the Seller’s Shares or the Company’s
business and financial conditions and prospects that has not been disclosed to the
Purchaser hereunder. |
| |
The
Purchaser recognises, on his side, having knowledge of all the items which were necessary
for him to value the consistence of assets of the Company and the price at which this
transaction is completed. |
- 16 -
| 4. |
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PURCHASER AND OTI |
| |
The
Purchaser and OTI hereby represent and warrant to the Sellers as of the date hereof and as
of the Closing as follows: |
| |
The
Purchaser and OTI are duly organized and validly existing corporation under the laws of
the State of Israel. |
| |
4.2 |
Authority
to Transact |
| |
This
entry, delivery and execution of this Agreement by the Purchaser and OTI is subject to
obtaining the necessary corporate approvals of the Purchaser and OTI and until such time
shall not be enforceable against the Purchaser and OTI. On or prior to the Closing Date: |
| |
4.2.1 |
the
Purchaser and OTI shall have the capacity and authority to execute and deliver this
Agreement, to perform hereunder and to consummate the transactions contemplated hereby. |
| |
4.2.2 |
All
corporate actions on the part of the Purchaser and OTI necessary for the authorization
and execution of this Agreement, the purchase of the Sellers’ Shares and the
performance of all of such Purchaser’s and OTI’s obligations hereunder shall
have been taken. |
| |
4.2.3. |
This
Agreement shall constitute and, when signed by the Purchaser and OTI duly
authorized representatives, as well as all other documents
contemplated hereby, will constitute, valid and legally binding
obligations of the Purchaser and OTI, enforceable in accordance with
their terms. |
| |
Neither
the Purchaser or OTI, nor any of its employees, shareholders or any subsidiary has
employed or made any agreement with any broker, finder or similar agent or any person or
firm, which will result in the obligation of the Sellers or the Company to pay any finder’s
fee, brokerage fees or commission or similar payment in connection with the transactions
contemplated hereby. |
- 17 -
| |
4.4 |
Registration
and Listing of Shares |
| |
4.4.1 |
OTI
shall, at its own expense and cost, file a registration statement covering all the Shares
to be issued to the Sellers under this Agreement, within 90 days from the Closing Date
(the “Registration Statement”), and shall use its commercially
reasonable efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. |
| |
4.4.2 |
As
soon as practicable and subject to the effectiveness of the Registration Statement, OTI
will, at its own expense and cost, complete the necessary actions required to register
and make the Shares tradable in the NASDAQ stock exchange, all in accordance with and
subject to the Securities Act. OTI hereby undertakes to deliver to each Seller a notice
confirming that the Shares have become tradable on NASDAQ. |
| |
The
Shares issued by OTI to the Sellers pursuant to this Agreement at the Closing shall, upon
the transfer against thereof of the Sellers’ Shares, be duly authorized and validly
issued, be deemed as not fully paid until released from lock up as set forth in the lock
up agreement and shall be non-assessable and free of any preemptive rights, liens,
encumbrances or third party rights, and will have the rights, preferences, privileges,
and restrictions set forth in OTI Articles of Association and as set forth in the Lock Up
Agreement. |
| |
OTI
shall deliver to the Sellers a bank guarantee issued by a bank of first rank in France of
an amount of Euros 500,000 in order to guarantee the effective payment or value of the
amount of 500,000 euros subject to the Request for Reimbursement as provided under
Article 2.4 hereabove in which case this amount of 500,000 Euros shall be decreased from
the amount of the Cost Born. The terms of the bank guarantee delivered shall be in
accordance with the form attached hereto in Annex 4.6. |
| |
No
announcement or other disclosure concerning the sale of the Sellers’ Shares to the
Purchaser or any ancillary matter shall be made after Closing by the parties save in a
form agreed between the parties or otherwise as required by law. |
- 18 -
| 6. |
NON-COMPETITION;
NON-SOLLICITATION |
| |
6.1 |
For
a period of thirty-six (36) months from the Closing Date, none of the Sellers shall: |
| |
(a) |
Directly
or indirectly, engage in, own, control, or make a significant
non-controlling investment in, any business (the “Concerned
Entity”) that competes directly with the “Concerned
Business” within the “Restricted Area”.
For purposes of this Section 6.1, the term “Restricted Area” shall
mean all of the countries of the European Economic Area (E.E.A.) and
Israel, United States and the Gulf countries (Iran, Iraq, Kuwait,
Saudi Arabia, Qatar, Bahrain, United Arab Emirates and Oman), and the
term “Concerned Business” shall mean the smart cards
industry. |
| |
(b) |
Cause,
authorize or let any Concerned Entity that the Sellers directly or
indirectly control, to enter into, or conduct any business that
competes directly with the Concerned Business of the Company
within the Restricted Area. |
| |
(c) |
Accept
employment with, or act as a contractor, consultant, advisor or agent to
or otherwise assist, a Concerned Entity, any person or entity that
competes directly with the Concerned Business within the
Restricted Area. |
| |
(d) |
Directly or indirectly (other than through general advertisements) solicit or
employ any person who at such time provides services for or is otherwise
employed by the Company, the Purchaser, OTI or any of its Affiliates, or
encourage or induce any employee of the Company, the Purchaser, OTI or any of
its Affiliates to leave such employment. |
| |
(e) |
Directly or indirectly solicit any customer or client of the Company, the
Purchaser, OTI or any of their Affiliates for any activity which competes
directly with the Concerned Business. |
| |
6.2 |
The
obligations of the Sellers pursuant to this Section 6 shall be several but not joint,
each Seller being solely liable of its obligations therein. |
| |
6.3 |
Nothing
in this Section 6 shall be construed as limiting DXP’s obligations pursuant to the
Services Agreement attached hereto as Annex 2.2 (b)(vii). |
| |
Each
party hereto agrees, in addition to any other existing confidentiality obligation, that it
shall at all times keep confidential and not divulge or make accessible or use any
non-public material information concerning or relating to the business, technical or
financial affairs of the other parties to this Agreement, to which such party has been or
will become privy by reasons relating to this Agreement and the schedules and annexes
attached thereto, to anyone, except (i) to its employees and advisors in such
capacity as required to perform its obligations hereunder, (ii) if required by law
(including without limitations applicable securities laws) or regulatory authorities
(including, without limitations, any securities authority), (iii) as required to be
disclosed to the Company’s shareholders pursuant to the terms of the Articles; (iv)
as required to be disclosed by the Purchaser or OTI following the Closing pursuant to its
incorporation documents, subscription agreements, partnership agreements and other
commitments and by law. |
- 19 -
| |
All
notices or other communications hereunder shall be in writing and shall be given in
person, by registered mail (registered international air mail if mailed internationally),
by an overnight courier service which obtains a receipt of the person to evidence
delivery, or by facsimile transmission (provided that written confirmation by registered
mail is provided), addressed as set forth below: |
| |
If to the Purchaser: |
Parx Ltd.
Attention: Xx. Xxxx Xxxxxx
Address: X.X. Xxx 00 XXX
XX, Xxxx Xxxx,
Xxxxxx 00000
Fax: x000 0 0000000 |
| |
If to the OTI: |
On Track Innovations Ltd.
Attention: Xx. Xxxx Xxxxxx
Address: X.X. Xxx 00 XXX
XX, Xxxx Xxxx,
Xxxxxx 00000
Fax: x000 0 0000000 |
| |
With a copy to: |
Xx. Xxxxxx Xx Xxxxxxxx
K&L Xxxxx, Avocat à la Cour - Law Offices
112 avenue Kléber
75116 Xxxxx Xxxxx 00, Xxxxxx
Fax: x00 0 00 00 00 00 |
| |
If to Sellers (and also in his capacity as the Sellers' Representative): |
Xx. Xxxxxxx Baup
0 xxx xx xx xxxxxxx xxxxxx
00000 Forges xxx Xxxxx
Fax: x00 0 00 00 00 00 |
| |
With a copy to: |
Xxxxxxxx
Xxxxxx
Avocat à la Cour
000 xxx xx Xxxxxxxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00 |
| |
or
such other address as any party may designate to the other in accordance with the
aforesaid procedure. All communications delivered in person or by courier service
delivered in person shall be deemed to have been given upon delivery. |
- 20 -
| |
8.2 |
Successors
and Assignees |
| |
(a) |
The
rights or obligations under or pursuant to this Agreement may not be
assigned or transferred to any other person without the written consent of
all the parties, provided however, that the Purchaser may assign the right
to purchase the Seller’s Shares to any Affiliate thereof upon written
notification to the Sellers and without the need to obtain any consent. In
the event of transfer by the Purchaser of its right to acquire the Sellers’ Shares
as indicated hereabove, the Purchaser and OTI shall remain jointly liable
for the compliance with the obligations transferred. |
| |
(b) |
This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties and their respective successors and assigns. |
| |
Subject
to Section 3.23.5 and without derogating thereof, each party shall bear its own costs,
taxes and expenses relating to the transactions contemplated herein. |
| |
8.4 |
Delays
or Omissions; Waiver |
| |
The
rights of a party may be waived by such party only in writing and specifically; the
conduct of any one of the parties shall not be deemed a waiver of any of its rights
pursuant to this Agreement and/or as a waiver or consent on its part as to any breach or
failure to meet any of the terms of this Agreement or as an amendment hereto. A waiver by
a party in respect of a breach by the other party of its obligations shall not be
construed as a justification or excuse for a further breach of its obligations. |
| |
No
delay or omission to exercise any right, power, or remedy accruing to any party hereto
upon any breach or default by the other under this Agreement shall impair any such right
or remedy nor shall it be construed to be a waiver of any such breach or default, or any
acquiescence therein or in any similar breach or default thereafter occurring. |
| |
This
Agreement may be amended or modified only by a written document signed by all the Parties
and the Sellers. |
- 21 -
| |
This
Agreement (together with the recitals, schedules, appendices, annexes and exhibits
attached hereto) contains the entire understanding of the parties with respect to its
subject matter and all prior negotiations, discussions, agreements, commitments and
understandings between them with respect thereto not expressly contained herein shall be
null and void in their entirety, effective immediately with no further action required. |
| |
8.7 |
Counterparts,
Facsimile Signatures |
| |
This
Agreement may be executed in any number of counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument. A signed
Agreement received by a party hereto via facsimile will be deemed an original, and
binding upon the party who signed it. |
| |
This
Agreement shall be governed by and construed according to the laws of France, except,
that the provisions applicable to the Shares of OTI (Sections 4.4 and 4.5) and the
representations of OTI (Sections 4.1, 4.2 and 4.3 ) shall be governed by and construed
according to the laws of the State of Israel. |
| |
The
parties acknowledge that this Agreement is deemed to be an international agreement and a
commercial agreement which defines the terms and conditions of the transfer to the
Purchaser of 100% of the share capital of the Company. |
| |
Therefore,
the parties acknowledge and expressly agree that all claims, controversies or dispute
arising in connection with this Agreement which are not resolved by mutual agreement of
the parties shall be finally settled by arbitration pursuant to the articles 1492 and
seq. of the New Code of Civil Procedure. The arbitral panel shall consist of one (1)
arbitrator (the “Arbitrator”). The Sellers’ Representative and the
Purchaser shall agree upon the appointment of the Arbitrator. In the event that they are
unable to agree upon the Arbitrator within fifteen (15) days from receiving notice from
the other to so name an arbitrator, the necessary designation shall be made by the
President of the Commercial Court of Paris (Tribunal de Commerce de Paris),
acting in summary proceedings (statuant comme en matière de référé),
at the request of the most diligent party, with each party having the opportunity to be
heard. The Arbitrator shall render its decision within three (3) months of his
appointment and shall provide the reasoning for his decision. The Arbitrator shall fix
its own rules of procedure, but the Arbitrator shall be bound by the applicable law and
not have the power to act as conciliators (amiables compositeurs). The decision of
the Arbitrator shall be final and binding upon the parties, shall not be subject to
appeal or contest and may be enforced in any court of appropriate jurisdiction. The place
of arbitration shall be Paris, France, and the English language shall be used throughout
the proceedings. |
- 22 -
| |
At
any time and from time to time, each party agrees, without further consideration, to take
such actions and to execute and deliver such documents as may be reasonably necessary to
effectuate the purposes of this Agreement. |
| |
8.11 |
No
Third-Party Beneficiaries |
| |
Nothing
in this Agreement shall create or confer upon any person or entity, other than the
parties hereto or their respective successors and permitted assignees, any rights,
remedies, obligations or liabilities. |
| |
8.12 |
Language
of the Agreement |
| |
This
Agreement is executed in the French and English language. In the event of any conflict
between the French version and this English version, the French version shall prevail. |
[Reminder of page intentionally left blank]
- 23 -
IN WITNESS WHEREOF, this
Agreement has been duly executed on the date herein above set forth in six (6) originals.
|
|
|
|
|
|
|
|
|
|
| /s/ Xxxx Xxxxxx |
/s/ Xxxx Xxxxxx |
| ON TRACK INNOVATIONS LTD. |
PARX LTD. |
| By: Xxxx Xxxxxx |
By: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
Title: Chief Executive Officer |
| |
| /s/ Xxxxxxx Baup |
/s/ Xxxxxxx Baup |
| ID PARKING SAS |
Xx. Xxxxxxx Baup |
| By: Xxxxxxx Baup |
| |
| /s/ Xxxxxxx Xxxxxx Baup |
/s/ Xxxxxxx Xxxxxx Baup |
| DXP |
Mrs. Xxxxxxx Xxxxxx Baup |
| By: Xxxxxxx Xxxxxx Baup |
- 24 -
LIST OF ANNEXES
| |
|
| |
|
| |
|
| |
|
| |
|
| Annex 1: |
Allocation of the Sellers' Shares in the Company and Aggregate Share Consideration allocated to each Seller. |
| |
| Annex 2.2(b)(vi): |
Lock-up Agreement. * |
| |
| Annex 2.2(b)(vii): |
Service Agreement. * |
| |
| Annex 2.2(d) (ii): |
Purchase Agreement. * |
| |
| Annex 3.17: |
List of executives of the Company. * |
| |
| Annex 3.21: |
List of banks of the Company and authorised persons with the banks. * |
| |
| Annex 3.23.4: |
List of Contracts, clients and prospects. * |
| |
| Annex 4.6: |
Bank Guarantee. * |
* This annex was omitted as not
material. A copy will be furnished separately to the Securities and Exchange
Commission upon request.
- 25 -
Annex 1
Allocation
of the Sellers’ Shares in the Company and Aggregate Share Consideration allocated to
each Seller
|
Number of Shares
in the Company
|
Number of Shares OTI
|
|
|
|
|
|
|
|
|
|
|
|
|
| Mr. Baup |
1,850 |
150,349 |
| Mrs. Baup |
1,850 |
150,349 |
