Exhibit 5
This
Share Purchase Agreement is made and entered into effective as of March 3, 2004 by and
among BVR Systems (1998) Ltd. (“BVR”), a company organized under the laws
of the State of Israel, with offices at 00 Xxxxxxxxx Xxxxxx, Xxxx Ha’ayin, Israel,
and the purchasers as listed in Schedule A (each a “Purchaser” and
together the “Purchasers”).
| WHEREAS |
The Purchasers desire to acquire Shares in BVR, and BVR wishes to issue and sell to the
Purchasers shares in BVR on the terms as set forth herein. |
Accordingly, in consideration of the
covenants and conditions hereinafter set forth, the parties hereto agree as follows:
| 1. |
Agreement
to Purchase and Sell |
| |
Subject
to and in accordance with the terms and conditions of this Agreement, BVR shall issue, and
the Purchasers shall purchase Ordinary Shares of BVR, nominal value NIS 1.00 each, at a
price per share of $0.18 (eighteen cents). Each Purchaser shall purchase such number of
shares as detailed opposite such Purchaser’s name on Schedule A and pay the
applicable purchase price as detailed therein (the “Purchase Price”). |
| 2.1 |
Closing
Date. The Closing of the transaction contemplated hereby (the "Closing") shall take
place on March ___, 2004 at 14:00 o'clock, at the offices of Xxxxx Xxxxx & Co.,
0 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxxxxx. |
| 2.2 |
Transfer
of Funds and Issuance of Certificates. At the Closing, each Purchaser shall transfer
to BVR the Purchase Price, by wire transfer into the account of BVR, Bank Hapoalim,
Branch 615, Account #330330. |
| 2.3 |
BVR
hereby agrees, undertakes and covenants that it shall promptly after the Closing, but in
no event later than within 15 days thereafter, (i) record such issuance of the Shares in
the name of the Purchasers on the records of BVR; and (ii) issue the Share Certificates
and deliver it to the Purchasers. |
| 3. |
Representations
and Warranties of BVR. |
| |
BVR
hereby represents and warrants to the Purchasers as follows: |
| 3.1 |
Organization;
Power; etc. |
| (a) |
BVR
is a company duly organized and validly existing under the laws of the State of
Israel. |
| (b) |
BVR
has the requisite power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by BVR of this Agreement and consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate actions of BVR. Following the execution of this Agreement,
this Agreement will constitute a valid and binding obligation of BVR,
enforceable in accordance with its terms. Except for the approvals of the
Office of the Chief Scientist and the Investment Center no consent or other
approval is necessary for the consummation of the transactions contemplated
hereby or the implementation thereof. |
| 3.2 |
Capitalization.
The authorized capitalization of BVR on the date of the Closing shall be 200,000,000 New
Israeli Shekel divided to 200,000,000 Ordinary Shares, par value NIS 1.00 each.
10,660,874 Ordinary Shares are outstanding on the date hereof. All of the outstanding
Ordinary Shares have been validly issued and are fully paid and non-assessable with no
personal liability attaching to the ownership thereof. |
| 3.3 |
Title
of Shares. Each of the Shares of BVR which will be issued to the Purchasers according
to this Agreement, will be duly authorized, validly issued, fully paid, and non
assessable, and free and clear of liens, security interests, pledges, charges, claims,
encumbrances, pre-emptive rights or any other third party rights. |
| 4. |
Representations
and Warranties of the Purchasers. |
| |
Each
of the Purchasers, severally as to itself and not jointly, hereby represents and warrants
to BVR as follows: |
| 4.1 |
Organizations;
Power. |
| |
(a) |
Each of the corporate Purchasers is a duly organized, validly existing and in
good standing under the laws of their state of incorporation. |
| |
(b) |
Each of the Purchasers has the requisite power and authority to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereby. Following the execution of this Agreement, this Agreement will
constitute a valid and binding obligation of the Purchasers, enforceable in
accordance with its terms. No consent or other approval is necessary for the
consummation of the transaction contemplated hereby or the implementation
thereof. The performance by the Purchasers of their obligations under this
Agreement will not constitute, or result in, a breach of any undertaking of the
Purchasers. |
| 4.2 |
Purchase
for Investment. The Purchasers are acquiring all of the Shares to be acquired by it
hereunder for their own account for investment and without a view to the distribution or
resale of such Shares, it being understood that this Section 4.2 shall not prevent the
Purchasers from selling or otherwise disposing of any of the Shares in any transaction
which does not violate the Securities Act of 1933, as amended (the “1933 Act”). |
| 4.3 |
U.S.
Federal Securities Laws. None of the Shares acquired hereunder may be sold,
transferred or otherwise disposed of (any such sale, transfer or other disposition, a
“sale”), except in compliance with (i) United States Federal Securities laws
(which generally provide for a 12 month waiting period before resale of restricted
securities), (ii) state blue sky laws. |
| 4.4 |
Legend
on Shares. Each certificate representing the Shares shall be stamped or otherwise
imprinted on its face with a legend in the following form: |
| |
“The
shares represented by this certificate have not been registered under the Securities Act
of 1933 (the “Securities Act”) and may not be sold, transferred, pledged,
hypothecated or otherwise disposed of in the absence of (1) an effective Registration
Statement under the securities act, (2) to the extent applicable, an exemption pursuant to
Rule 144 under Securities Act (or similar rule under the Securities Act relating to the
disposition of securities) or (3) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel for issuer, that an exemption from registration under
the Securities Act is available. The Shares have been acquired for investment and may not
be sold, transferred or otherwise disposed of except in compliance with the Securities
Act.” |
| 5.1. |
Definitions.
As used in this Agreement, the term (A) “Registrable Securities” means
(i) the Ordinary Shares of the Company issued hereunder (the “Shares”);
and (ii) any securities issued or issuable with respect to shares
acquired or exercised by the Purchasers by way of bonus shares, share
splits or share conversions on account of the Shares; the term “Securities
Act” means the U.S. Securities Act of 1933, as amended; the term
“registration” means registration under the Securities Act;
and the term “Commission” means the U.S. Securities and
Exchange Commission; and (B) “Underwritten Offering” means
a registration in connection with which securities are sold to an
underwriter for re-offering to the public pursuant to an effective
Registration Statement. |
| 5.2. |
Registrable Securities. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been
effectively registered under the Securities Act and/or any other applicable
securities law, although they will again become Registrable Securities if later
deregistered. |
| 5.3. |
Demand Registration. Immediately after the Closing of the Stock Purchase
Agreement, the Purchaser(s) holding a majority of the Shares may on one instance
request that BVR shall file a registration statement (the “Registration
Statement’) registering the Registrable Securities and will endeavor to
have such Registration Statement declared effective by the Commission as soon as
practicable thereafter. BVR agrees to use its best efforts to keep the
Registration Statement continuously effective for a period of at least one
hundred and eighty (180) days following the date on which the Registration
Statement is initially declared effective or such shorter period as will
terminate when all of the shares covered by the Registration Statement have been
sold pursuant to the Registration Statement. BVR further agrees, if necessary,
to supplement or amend the Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by BVR for
such Registration Statement or by the Securities Act or by any other rules and
regulations there under for shelf registration. |
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No
Purchaser may participate in any Underwritten Offering hereunder unless such Purchaser (i)
agrees to sell its Registrable Securities on the basis provided in any underwriting
agreements entered into in connection therewith and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such agreements. |
| 5.4. |
Right to Piggyback. Whenever BVR proposes to register any of its
securities under the Securities Act (other than pursuant to a registration
primarily for sales of shares or options to employees of BVR), and the
registration form to be used is suitable for the registration of the Registrable
Securities (a “Piggyback Registration”) (it being understood that Form
S-8 and Form F-4 may not be used for such purposes), BVR will give written
notice to the holders of Registrable Securities of its intention to effect such
a registration and, subject to the priority provisions of Section 5.5 below,
will include in such registration all the Registrable Securities with respect to
which BVR has received written requests for inclusions therein within 30 days
after BVR gives such notice. Such notice shall be delivered to the holders of
Registrable Securities at least thirty (30) days prior to the initial filing of
a Registration Statement with the Commission. |
| 5.5. |
Priority on Primary Registrations. If a Piggyback Registration is an
underwritten offering of BVR’ Securities (“BVR’ Securities”)
and the managing underwriters advise BVR in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering without adversely affecting such
underwriters’ ability to effect an orderly distribution of such securities,
BVR will include in such registration: (i) BVR’ Securities; (ii) the number
of Registrable Securities and unregistered securities held by other shareholders
of BVR (“Unregistered Securities”) requested to be included that, in
the opinion of such underwriters, can be sold pro rata, among the
holders of such securities on the basis of the number of Registrable Securities
or Unregistered Securities then owned by each such holder. |
| 5.6. |
Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, BVR will use its best efforts to effect the registration with the
proper authorities in the United States and Israel and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof and to list such shares on the stock exchange on which BVR’ shares
are then trading. In connection therewith, BVR will make available for
inspection by any seller of Registrable Securities, and any attorney,
accountant, or any other agent retained by such seller, all pertinent financial
and other records, other pertinent corporate documents of BVR, and cause
BVR’ respective officers, directors, and employees to supply all
information reasonably requested by such seller, attorney, accountant, or agent
in connection with such Registration Statement. |
| 5.7 |
Registration
Expenses. BVR shall be responsible for all registration expenses incurred in
connection with the transactions described in Sections 5.3 and 5.4. Registration expenses
include all expenses incident to BVR’ performance of or compliance with this
Agreement, including without limitation expenses incurred in connection with the
preparation of a prospectus. Notwithstanding the foregoing, however, all underwriters’ discounts
and commissions in respect of the sale of Registrable Securities shall be paid by the
sellers, pro rata in accordance with the number of shares sold in the
offering, and the sellers shall bear the expense of their legal counsel, if separate from
BVR’ legal counsel. |
| 5.8.1 |
BVR
Indemnity. BVR hereby agrees to indemnify and hold harmless the Purchasers, and their
directors, officers, employees, agents and controlling persons (each, an “Indemnified
Person”) (within the meaning of section 15 of the Securities Act or Section 20(a) of
the Exchange Act), from and against any and all claims, liabilities, losses, damages and
expenses (including reasonable attorneys’ fees and disbursements) asserted against
or incurred by any such Indemnified Person which shall be caused by any untrue statement
of a material fact contained in any Registration Statement or prospectus relating to the
Registrable Securities, including any amendment or supplement thereto, or shall be caused
by any omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities and expenses shall be caused by any untrue statement or
omission based upon information furnished in writing to BVR by the Purchasers or on the
Purchaser’s behalf for use therein. |
| 5.8.2 |
Purchasers
Indemnity. Each of the Purchasers participating in registration hereunder will
indemnify and hold harmless BVR, any underwriter of BVR and each person, if any, who
controls BVR or such underwriter, from and against any and all losses, damages, claims,
liabilities, costs or expenses (including any amounts paid in any settlement effected
with the selling shareholder’s consent) to which BVR, any such underwriter or any
such controlling person may become subject under applicable law or otherwise, insofar as
such losses, damages, claims, liabilities (or actions or proceedings in respect thereof),
costs or expenses arise out of or are based on (i) any untrue statement of any material
fact contained in the Registration Statement or included in the prospectus, as amended or
supplemented, or (ii) the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, and each such Purchaser will reimburse BVR, any
such underwriter and each such controlling person of BVR or any such underwriter,
promptly upon demand, for any reasonable legal or other expenses incurred by them in
connection with investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with such loss, claim, damage, liability, action or
proceeding; in each case to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such Purchaser to BVR
specifically for inclusion in the Registration Statement or such Prospectus and that such
information was reasonably relied upon by BVR for use in the Registration Statement, such
Prospectus or such form of prospectus or to the extent that such information related to
such Purchaser or such Purchaser’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Purchaser expressly
for use in the Registration Statement, such Prospectus or such form of prospectus; provided,
however, that the indemnity agreement contained in this Section 5.8.2 shall not
apply to amounts paid in settlement of any losses if such settlement is effected without
the prior written consent of such Purchaser. In no event shall the liability of any
selling Purchaser hereunder be greater in amount than the dollar amount of the net
proceeds received by such Purchaser upon the sale of the Registrable Securities giving
rise to such indemnification obligation. . |
| 6.1 |
Entire
Agreement. This Agreement constitutes the sole understanding of the parties with
respect to the subject matter hereof. No amendment, modification or alteration of the
terms or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto. |
| 6.2 |
Successors
and Assigns. The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors of the parties hereto; provided, however,
that this Agreement may not be assigned by any party without the prior written consent of
the other party hereto, except for assignments by the Purchasers to their wholly-owned
subsidiaries. |
| 6.3 |
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original and all of which shall constitute the same
instrument. |
| 6.4 |
Headings.
The headings of the Sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction hereof. |
| 6.5 |
No
Waiver. No action taken pursuant to this Agreement, including any investigation by or
on behalf of any party hereto, will be deemed to constitute a waiver by the party taking
any action of compliance with any representation, warranty or agreement contained herein.
The waiver by any party hereto of any condition or of a breach of any other provision of
this Agreement will not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party of any of the conditions precedent to its
obligations under the Agreement will not preclude it from seeking redress for breach of
this Agreement other than with respect to the condition so waived. |
| 6.6 |
No
Broker. Each of the Parties represents, as to itself, its subsidiaries and its
affiliates, that no agent, broker, investment banker or other firm or person, is or shall
be entitled to any broker’s or finder’s fee or any other commission or similar
fee in connection with this Agreement. |
| 6.7 |
Notices.
Any notice, request, instruction or other document (each, a “notice”) to be
given hereunder by any party hereto to any other party hereto shall be in writing and
delivered personally, faxed or sent by registered or certified mail, postage prepaid, |
| |
Fax
number: 000-0-0000000 |
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0
Xxxxxxx Xxxxxx, Xxx Xxxx |
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Fax
number: 000-0-0000000 |
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Attention
– Orly Tsioni, Adv. |
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If
to any of the Purchasers in accordance with the address as set forth opposite each
Purchasers name in Schedule A. |
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The
Laws of the State of Israel shall govern the validity, performance and enforcement of this
Agreement. The parties hereto irrevocably submit to the exclusive jurisdiction of the
Courts of Tel-Aviv in respect of any dispute or matter arising out of or connected with
this Agreement. |
WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed on its behalf
as of the date first above written.
BVR SYSTEMS (1998) LTD.
By:_______________
Title:_______________
Name:_______________ |
|
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SCHEDULE A
| Name of Purchaser & Address |
Number of Shares |
Purchase Price |
Signature |
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|
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|
| CHUN Holdings Ltd. |
33,333,333 |
$6,000,000 |
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