Exhibit 4(a)(3)
THIS REORGANIZATION AGREEMENT
(“Agreement”) is made and entered into as of August 4, 2006, by and among
Scailex Corporation Ltd. (formerly Scitex Corporation Ltd.) (“Scailex”)
and Avi Xxxx and Xxxxxxxx Xxxxxxxx (together, the “Management”). Each of
Scailex and the Management shall be referred to herein individually as a
“Party” and collectively, as the “Parties”.
RECITALS
| A. |
Scailex
previously purchased from Jemtex Ink Jet Printing Ltd. (the “Company”)
shares that currently represent 31,000 Ordinary Shares, NIS 0.01 par value
each, (“Ordinary Shares”), 1,510,800 Series A
Preferred Shares (“Series A Preferred Shares”), NIS 0.01
par value each, and 954,388 Series B Preferred Shares, NIS 0.01 par value
each, of the Company (collectively, the “Purchased Shares”); |
| B. |
Scailex
has loaned to the Company the aggregate of $7,124,917 (Seven Million One
Hundred and Twenty Five Thousand US Dollars) under certain promissory
notes pursuant to that certain Agreement dated August 31, 2003, Series C
Investment Agreement dated as of February 5, 2004, Series D Investment
Agreement dated as of September 1, 2004, Series E Investment Agreement
dated as of November 25, 2004, and Series F Investment Agreement dated as
of February 13, 2005, as amended (collectively, the “Promissory
Notes” and “Promissory Notes Agreements”, respectively); |
| C. |
Scailex
has loaned to the Company the aggregate of $2,000,000 (Two Million US
Dollars) pursuant to those certain Bridge Loan Letter Agreements dated as
of January 31, 2006, February 28, 2006, March 29, 2006, Apr 27, 2006, May
29, 2006, July 10, 2006, and July 31, 2006 (collectively, the “Bridge
Loan Agreements”); |
| D. |
The
Parties wish to (i) convert certain of the Promissory Notes pursuant to
their terms and pursuant to the Amended Articles of Association (as
defined below) into Series A Preferred Shares and Ordinary Shares; (ii)
convert certain amounts owed by the Company to Scailex under the
Promissory Notes Agreements and the Bridge Loan Agreements into a loan
under different terms, which will be secured by a fixed charge on the
intellectual property of the Company; (iii) convert certain of the
Preferred Shares of the Company held by Scailex on the date hereof (after
giving effect to the conversion of the Promissory Notes in D(i) above)
into Ordinary Shares and to transfer, for no consideration to Scailex,
9,495,814 Ordinary Share, constituting all Ordinary Shares held by Scailex
following such conversion, to the Management; and (v) prescribe various
other terms, conditions, rights and obligations between the Parties, all
as more fully set forth herein. |
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AGREEMENT
In consideration of the
representations, warranties, covenants and agreements contained in this Agreement, the
parties to this Agreement, intending to be legally bound, agree as follows:
1. Reorganization
1.1 Closing;
Effective Time. The consummation of the transactions contemplated by this Agreement
(the “Reorganization” and the “Closing”respectively)
shall take place at the offices of Xxxxxx, Horn & Co. 1 Azrieli Center, Round Tower,
Tel Aviv, at 10:00 a.m. on a date to be designated by the Parties (the “Closing
Date”), which shall be as soon as practicable, but in no event later than the
second business day after the satisfaction or waiver of the last to be satisfied or
waived of the conditions set forth in Sections 4 (other than those conditions that
by their nature are to be satisfied at the Closing, but subject to the satisfaction or
waiver of such conditions) unless another time or date is agreed to by the Parties.
1.2 Transactions. Unless
otherwise jointly determined by the Parties, at the Closing the following transactions
shall occur, which transactions shall be deemed to take place simultaneously and no
transaction shall be deemed to have been completed or any document delivered until all
such transactions have been completed and all required documents delivered:
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(a) the
amended and restated Articles of Association of the Company in the form set
forth on Exhibit A (“Amended Articles of
Association”) shall have been adopted by the unanimous consent of the
shareholders of the Company to come into effect upon the Closing, and shall
replace the current articles of association of the Company; |
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(b) Scailex
and the Company shall enter into that certain Agreement in the form attached
hereto as Exhibit B; |
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(c) each
of the Management shall execute that certain Letter of Undertaking in the form
attached hereto as Exhibit C; |
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(d) the
share transfer deeds attached hereto as Exhibit D,
pursuant to which Ordinary Shares in the Company held by Scailex will be
transferred to the Management and certain other parties as detailed therein as
set forth therein will be duly executed and delivered by the parties thereto
and will come into effect; and |
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(e) the
capitalization of the Company, will reflect the capitalization table attached
hereto as Exhibit E; and |
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(f) Yahel
Schachar and Xxxxxx Xxxxx shall provide a notice of resignation from the Board
of Directors of the Company in a form reasonably satisfactory to the Management. |
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2. Representations
and Warranties of Scailex and Management
Each
of Scailex and Management represents and warrants to the other Parties, severally and not
jointly and severally, that such Party is either (i) an individual, or (ii) a corporation
duly incorporated and validly existing under the laws of the State of Israel. Such Party
has the requisite right, power and authority to perform its obligations under this
Agreement; and the execution, delivery and performance by such Party of this Agreement
have been duly authorized by all necessary action on the part of such Party. This
Agreement constitutes the legal, valid and binding obligation of such Party, enforceable
against it in accordance with its terms. The execution, delivery and performance of this
Agreement by such Party will not (a) contravene, conflict with or result in a
violation of any breach of any provisions of its corporate documents (if applicable),
(b) result in a default by such Party under any material contract to which such Party
is a party, or (c) contravene, conflict with or result in a material violation by such
Party of any legal requirement, order, writ, injunction, judgment or decree to which such
Party is subject.
3.
Covenants of the Parties
Each
Party shall use all reasonable efforts to take, or cause to be taken, all actions
necessary to consummate the transactions contemplated by this Agreement. Without limiting
the generality of the foregoing, each Party (i) shall make all filings (if any) and
give all notices (if any) required to be made and given by such Party in connection with
the transactions contemplated by this Agreement, and (ii) shall use all reasonable
efforts to obtain each consent (if any) required to be obtained by such Party in
connection with the transactions contemplated by this Agreement.
4. Conditions
Precedent to Closing
The
obligations of the Parties to effect the transactions contemplated by this Agreement are
subject to the satisfaction, at or prior to the Closing, of each of the following
conditions:
4.1 Accuracy
of Representations. The representations and warranties of the other Parties in this
Agreement shall be accurate in all respects as of the Closing Date as if made on and as
of the Closing Date.
4.2 Performance
of Covenants. Each covenant or obligation that the other Parties are required to
comply with or to perform at or prior to the Closing (including those set forth in
Section 2) shall have been complied with and performed in all material respects.
4.3 Corporate
Approval. The Agreement attached hereto as Exhibit B shall have
been duly adopted by the Board of Directors and by unanimous consent of all Shareholders
of the Company, and the Amended Articles of Association shall have been duly adopted by
unanimous consent of all Shareholders of the Company, and true copies of such consents
shall have been submitted to the parties hereto.
4.4 Consents.
All material consents required to be obtained in connection with the transactions
contemplated by this Agreement shall have been obtained and shall be in full force and
effect.
- 3 -
5.
Termination
This
Agreement may be terminated prior to the Effective Time (a) by mutual written consent of
Management and Scailex; or (b) by either Management or Scailex if the Closing Date
shall not have occurred by the date which is seven (7) days from the date hereof. In
the event of the termination of this Agreement as provided in this Section 5, this
Agreement shall be of no further force or effect with no surviving liabilities of any
Party to any other Party.
6.
Termination of Outstanding Agreements.
To
the extent not already terminated hereby, at the Closing the following documents will be
deemed terminated and of no further force and effect: (i) that certain Investors Rights
Agreement between the Company and Scailex; (ii) that certain Option to Purchase Securities
Agreement; (iii) the Promissory Notes Agreements; (iv) the Promissory Notes; and (v) that
certain Shareholders Agreement between the Company, Scailex and certain other parties.
7. Miscellaneous
Provisions
7.1 Amendment.
This Agreement may not be amended except by an instrument in writing signed on behalf of
each of the Parties hereto.
7.2 Waiver.
(a)
No failure on the part of any Party to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any Party
in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
(b)
No Party shall be deemed to have waived any claim arising out of this Agreement,
or any power, right, privilege or remedy under this Agreement, unless the waiver
of such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such Party; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.3 Survival
of Representations and Warranties. The representations and warranties contained in
this Agreement or in any certificate delivered pursuant to this Agreement shall survive
the Closing Date for a period of two (2) years thereafter.
7.4 Entire
Agreement; Counterparts. This Agreement and the other agreements referred to herein
constitute the entire agreement and supersede all prior agreements and understandings,
both written and oral, among or between any of the Parties with respect to the subject
matter hereof and thereof.
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7.5 Applicable
Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Israel, regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws thereof. In any action between any of
the parties arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement each of the parties irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the courts located in the
Tel Aviv-Jaffa district.
7.6 Assignability.
This Agreement shall be binding upon, and shall be enforceable by and inure solely to the
benefit of, the parties hereto and their respective successors and assigns; provided,
however, that neither this Agreement nor any of the rights or obligations hereunder may
be assigned by a Party hereto without the prior written consent of other Parties, and any
attempted assignment of this Agreement or any of such rights or obligations by such Party
without such consent shall be void and of no effect. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any person (other than the Parties
hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
7.7 Notices.
Any notice or other communication required or permitted to be delivered to any Party
under this Agreement shall be in writing and shall be deemed properly delivered, given
and received (a) upon receipt when delivered by hand, (b) one business day
after sent by courier or express delivery service or by facsimile, or (c) two
business days after sent by registered mail, provided that in each case the notice or
other communication is sent to the address or facsimile telephone number set forth
beneath the name of such Party below (or to such other address or facsimile telephone
number as such Party shall have specified in a written notice given to the other parties
hereto):
if to Scailex:
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3
Azrieli Center
Xxxxxxxxxx Xxxxx 00xx Xxxxx
Xxx Xxxx
00000, Xxxxxx
Attention: Yahel
Shachar, CEO
Telephone: 000-0-000-0000
Fax: 000-0-000-0000 |
With a copy to:
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Xxxxxxx
Xxxx, Adv.
Xxxx Xxxxx, Adv.
Goldfarb, Levy, Eran, Meiri & Co. Law Offices
Europe-Israel Tower
0 Xxxxxxxx
Xxxxxx,
Xxx Xxxx 00000, Xxxxxx.
Tel. x000 0 000-0000
Fax x000 0
000-0000 |
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| if to Management: |
Avi Xxxx |
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Xxxxxxxx Xxxxxxxx |
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| with a copy to: |
Xxxxx Xxxx, Adv. |
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Xxxxxx, Xxxx & Xx. |
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0 Xxxxxxx Xxxxxx, |
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Xxxxx Xxxxx, Xxx Xxxx |
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Telephone: 000-0-000-0000 |
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Facsimile: 972-3-696-0986 |
7.8 Severability.
In the event that any provision of this Agreement, or the application of any such
provision to any Party or set of circumstances, shall be determined to be invalid,
unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to such Party or circumstances other than those as to which
it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or
otherwise affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
[Signature page
follows]
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IN WITNESS WHEREOF, the parties have
caused this Reorganization Agreement to be executed as of the date first above written.
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SCAILEX CORPORATION LTD.
By: /s/ Shachar Rachim, /s/ Yahel Shachar
Title: ________________________
/s/ Avi Rabi
——————————————
AVI XXXX
/s/ Xxxxxxxx Xxxxxxxx
XXXXXXXX XXXXXXXX |
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Exhibit A
THE COMPANIES LAW,
1999
A PRIVATE COMPANY
LIMITED BY SHARES
FIFTH AMENDED AND
RESTATED ARTICLES OF ASSOCIATION
OF
Jemtex Ink Jet
Printing Ltd.
PRELIMINARY
| 1 |
Interpretation,
General |
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In
these Articles, unless the context otherwise requires: |
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1.1 |
“Affiliate” shall
mean with respect to any Person, any other Person, directly or indirectly, through one or
more intermediary Persons, affiliated with such Person, or controlling, controlled by, or
under common control with such Person. |
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1.2 |
"Articles"
shall mean the Articles of Association of the Company, as shall be in force from
time to time. |
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1.3 |
“Board” shall
mean the Board of Directors of the Company duly appointed in accordance with the Articles
hereby. |
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1.4 |
"control"
or variations thereof, shall mean have the meaning set out in the Securities Law,
(5728-1968). |
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1.5 |
"Company"
shall mean the company whose name is set forth above. |
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1.6 |
"Companies
Law" shall mean the Israeli Companies Law, 5759-1999. |
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1.7 |
“Deferred
Shares” shall mean Deferred Shares of the Company NIS 0.01 nominal value each,
having all rights and obligations set forth in these Articles. |
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1.8 |
“Fully
Diluted Basis” shall mean all issued and outstanding shares of the Company,
including all options and warrants outstanding, after conversion of all shareholders’ loans
to equity (to the extent there are any) and all shares reserved for the approved employee
share option plans, to the exclusion of the Deferred Shares, but assuming the full
conversion of all Preferred Shares to Ordinary Shares. |
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1.9 |
"General
Meeting" shall mean annual or special general meeting of the Shareholders. |
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1.10 |
“Interested
Party” shall mean any “interested party”, as such term is defined in
the Israeli Securities Law, 5728-1968, any shareholder of the Company, or any member of
the immediate family or Affiliate of such Person. |
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1.11 |
“Law” shall
mean the Companies Law and any other law that shall be in effect from time to time with
respect to companies and that shall apply to the Company. |
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1.12 |
"Memorandum"
shall mean the Memorandum of Association of the Company. |
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1.13 |
"Office"
shall mean the registered office of the Company. |
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1.14 |
"Office
Holders" shall have the meaning ascribed to such term in the Companies Law. |
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1.15 |
“Ordinary
Shares” shall mean Ordinary Shares of the Company NIS 0.01 nominal value each,
having all rights and obligations set forth in these Articles. |
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1.16 |
“Person” shall
mean an individual, corporation, partnership, joint venture, trust, any other corporate
entity and any unincorporated corporation or organization. |
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1.17 |
"Preferred
Shares" shall mean the Series A Preferred Shares. |
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1.18 |
"Preferred
Shareholders" shall mean the holders of Preferred Shares. |
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1.19 |
“Protected
Shares”- shall mean the 2,221,944 Preferred Shares outstanding on the date these
Articles are adopted. |
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1.20 |
“Register” shall
mean the Register of Shareholders that is to be kept pursuant to Section 127 of the
Companies Law. |
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1.21 |
"Scailex"
shall mean Scailex Corporation Ltd., an Israeli company no. 00-000000-0, and its Permitted Transferees. |
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1.22 |
“Series
A Preferred Shares” shall mean the Series A Preferred Shares of the Company NIS
0.01 nominal value each, having all rights and obligations set forth in these Articles. |
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1.23 |
"Shareholder"/"Shareholders"
shall mean the holders of the Ordinary Shares and the holders of the
Preferred Shares. |
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1.24 |
“Writing” or
any term of like import includes words typewritten, printed, painted, engraved,
lithographed, photographed or represented or reproduced by any mode of reproducing words
in a visible form, including telex, facsimile, telegram, cable or other form of writing
produced by electronic communication. |
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2.1 |
Unless
the subject or the context otherwise requires: words and expressions defined in the
Companies Law in force on the date when these Articles or any amendment thereto, as the
case may be, first became effective shall have the same meanings herein; words and
expressions importing the singular shall include the plural and vice versa; words and
expressions importing the masculine gender shall include the feminine gender; and words
and expressions importing persons shall include bodies corporate. |
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2.2 |
The
captions in these Articles are for convenience only and shall not be deemed a part hereof
or affect the construction of any provision hereof. |
A - 2
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The
liability of each shareholder of the Company is limited to the payment of the unpaid sum,
if any, owing to the Company in consideration for the issuance of the shares held by such
shareholder, unless otherwise provided in the Companies Law. |
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The
number of shareholders, the transfers of shares and the invitation to the public to
subscribe for the Company’s securities, shall be restricted as follows in this
Article 3 and in these Articles: |
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3A.1 |
The
number of shareholders for the time being of the Company (exclusive of persons who are in
the employment of the Company and of persons who having been formerly in the employment
of the Company were, while in such employment, and have continued after termination of
such employment to be, shareholders of the Company), shall not exceed fifty (50), but
where two or more persons jointly own one or more shares in the Company, they shall, for
the purposes of this Article, be treated as a single shareholder; |
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3A.2 |
Any
invitation to the public to subscribe for any shares or debentures or debenture stock of
the Company is hereby prohibited; and |
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3A.3 |
The
right to transfer shares in the Company shall be restricted as hereinafter provided. |
SHARE CAPITAL
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4.1 |
The
registered share capital of the Company is three hundred and seventy thousand New Israeli
Shekels (NIS 370,000) divided into Thirty Three Million, Nine Hundred and Thirty Two
Thousand Five Hundred (33,932,500) Ordinary Shares, nominal value NIS 0.01 each, Three
Million (3,000,000) Series A Preferred Shares, nominal value NIS 0.01 each, and Sixty
Seven Thousand Five Hundred (67,500) Deferred Shares nominal value NIS 0.01 each. |
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4.2 |
Upon
the adoption of these Articles of Association, each outstanding preferred share of the
Company (other than Series A Preferred Shares) (“Old Preferred Shares”)
shall be automatically converted into, at the election of the holder thereof: (i) one (1)
Series A Preferred Share for each Old Preferred Share held by such holder; or (ii) one
(1) Ordinary Share for each Old Preferred Share held by such holder. Similarly, the
holder of any rights to purchase Old Preferred Shares, shall entitle such holder to
purchase at the election of such holder, either one (1) Series A Preferred Share, or one
(1) Ordinary Share with respect to each Old Preferred Share that may be purchased by such
holder. |
A - 3
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The
Preferred Shares confer on the holders thereof all rights accruing to holders of Ordinary
Shares in the Company and, in addition, all rights as set forth in these Articles and, in
addition, bear all the following rights: |
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5.1 |
Subject
to any provision hereof conferring special rights as to voting, or restricting the right
to vote, and subject to any provisions of the Companies Law requiring certain matters to
be subject to a class vote, every holder of Preferred Shares shall have one vote for each
Ordinary Share into which the Preferred Shares held by it of record could be converted
(as provided in this Article), on every resolution, without regard to whether the vote
thereon is conducted by a show of hands, by written ballot or by any other means. |
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5.2 |
Each
Preferred Share shall be convertible at the option of the holder thereof, at any time
after the date of issuance of such share, at the office of the Company, into such number
of fully paid and non-assessable Ordinary Shares as determined by dividing the number one
(1) by the then applicable Conversion Price (as defined in and subject to adjustment
under Article 5.4 below) at the time in effect for such share. |
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5.3 |
Before
any holder of Preferred Shares shall be entitled to convert the same into Ordinary
Shares, it shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Company, and shall give written notice by mail, postage prepaid, to the
Company at its principal corporate office, of the election to convert the same and shall
state therein the name or names of any nominee for such holder in which the certificate
or certificates for Ordinary Shares are to be issued. Such conversion shall be deemed to
have been made immediately prior to the closing of business on the date of such surrender
of the certificate representing the Preferred Shares to be converted, and the person or
persons entitled to receive the Ordinary Shares issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such Ordinary Shares as of
such time. The Company shall, as soon as practicable after the conversion and tender of
the certificate for the Preferred Shares, issue and deliver at such office to such holder
of Preferred Shares, or to the nominee or nominees of such holder of Preferred Shares, or
to the nominee or nominees of such holder, a certificate or certificates for the number
of Ordinary Shares to which such holder shall be entitled as aforesaid. |
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5.4 |
The
initial Conversion Price of the Preferred A Shares shall be one (1) (the term “Conversion
Price” shall mean the Conversion Price in effect for the Preferred Shares from
time to time). Should the 10% Early Repayment Right (as defined below) be exercised by
the Company, the Conversion Price will be automatically increased such that the Protected
Shares shall be convertible into a number of Ordinary Shares representing, upon such
conversion, ten percent (10%) of the issued and outstanding share capital of the Company,
on a Fully Diluted Basis at that time (“10% Price Protection”). The
Conversion Price shall be further adjusted from time to time as follows: |
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(i)
At
any time prior to the Anti Dilution Expiration Date (as defined below), upon
each issuance (or deemed issuance, as described below) by the Company of any
Additional Shares (as defined below), the Conversion Price of the Preferred
Shares shall be reduced in a manner to provide that upon conversion thereof,
the Protected Shares shall be convertible into a number of Ordinary Shares
representing, upon such conversion, (i) fifteen percent (15%) of the issued and
outstanding share capital of the Company, on a Fully Diluted Basis, or (ii) ten
percent (10%) of the issued and outstanding share capital of the Company, on a
Fully Diluted Basis if the Company exercises the 10% Early Payment Right. For
the purposes hereof: (A) “Anti Dilution Expiration Date” shall
mean (i) if either of the Early Repayment Right or the 10% Early Repayment
Right is exercised, August 3, 2009; or (ii) if either of the Early Repayment
Right or the 10% Early Repayment Right is not exercised, at such time as
Company has repaid all sums due or that become due, in respect of the amounts
due under Section 2 of that certain Agreement between Scailex and the Company,
dated August 4, 2006 (the “Scailex Agreement”); (B) “Early
Repayment Right” shall mean the exercise by the Company of its
right to repay all sums due under the Scailex Agreement on or prior to December
31, 2006 pursuant to Section 2.1 (a) thereof; and (C) “10%Early
Repayment Right” shall mean the exercise by the Company of its right to
repay all sums due under the Scailex Agreement on or prior to September 14,
2006 pursuant to Section 2.1 (a) thereof. |
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(ii)
In the event of the issuance of options to purchase or rights to subscribe for
Ordinary Shares, or securities convertible into or exchangeable for Ordinary
Shares or options to purchase or rights to subscribe for such convertible or
exchangeable securities, the aggregate maximum number of Ordinary Shares
deliverable upon exercise (assuming the satisfaction of any conditions to
exerciseability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Ordinary Shares, or upon the exchange or
conversion of such security, shall be deemed to have been issued at the time of
the issuance of such options, rights or securities; provided,
however, that if any options as to which an adjustment to the Conversion
Price has been made pursuant to this Article 5.4.1 (ii) expire without having
been exercised, then the Conversion Price shall be readjusted as if such options
had not been issued (without any effect, however, on adjustments to the
Conversion Price as a result of other events described in this Article). |
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5.4.2 |
“Additional
Shares” shall mean any Ordinary Shares or preferred shares of any kind of the
Company, and securities of any type whatsoever that are, or may become, convertible into
said Ordinary Shares or preferred shares (“Shares”) issued, or deemed to
have been issued pursuant to Sub-Article 5.4.1(ii), by the Company. |
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5.4.3 |
If
the Company subdivides or combines its Ordinary Shares, the Conversion Price shall be
proportionately reduced, in case of subdivision of shares, as at the effective date of
such subdivision, or if the Company fixes a record date for the purpose of so
subdividing, as at such record date, whichever is earlier, or shall be proportionately
increased, in the case of combination of shares, as the effective date of such
combination, or, if the Company fixes a record date for the purpose of so combining, as
at such record date, whichever is earlier. |
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5.5 |
In
the event the Company declares a distribution payable in securities of other persons,
evidences of indebtedness issued by the Company or other persons, assets (excluding cash
dividends) or options or rights, then, in each such case, the holders of the Preferred
Shares shall be entitled to receive such distribution, in respect of their holdings on an
as-converted basis as of the record date for such distribution. |
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5.6 |
If
at any time or from time to time there shall be a recapitalization of the Ordinary Shares
(other than a subdivision, combination or merger or sale of assets transaction provided
for elsewhere in this Article), provision shall be made so that the holders of the
Preferred Shares shall thereafter be entitled to receive upon conversion of the Preferred
Shares the number of Ordinary Shares or other securities or property of the Company or
otherwise, to which a holder of Ordinary Shares deliverable upon conversion of the
Preferred Shares would have been entitled immediately prior to such recapitalization. In
any such case, appropriate adjustments shall be made in the application of the provisions
of this Article 5 with respect to the rights of the holders of the Preferred Shares after
the recapitalization to the end that the provisions of this Article 5 (including
adjustments of the Conversion Price then in effect and the number of shares issuable upon
conversion of the Preferred Shares) shall be applicable after that event as nearly
equivalent as may be practicable. |
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5.7 |
The
Company will not, by amendment of these Articles or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder in this Article 5
by this Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Article 5 and in taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the holders of the Preferred
Shares against impairment. |
| |
5.8 |
No
fractional shares shall be issued upon conversion of the Preferred Shares, and the number
of shares of Ordinary Shares to be issued shall be rounded to the nearest whole share. |
| |
5.9 |
Upon
the occurrence of each adjustment or readjustment of the Conversion Price, pursuant to
this Article 5, the Company, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each holder
of Preferred Shares a certificate setting forth each adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based. The
Company shall furnish or cause to be furnished to such holder a like certificate setting
forth (A) such adjustment or readjustment, (B) the Conversion Price at the time in
effect, and (C) the number of shares of Ordinary Shares and the amount, if any, of other
property which at the time would be received upon the conversion of a Preferred Share. |
| |
5.10 |
In
the event of any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled to receive
any dividend (including a cash dividend) or other distribution, any right to subscribe
for, purchase or otherwise acquire any shares of any class or any other securities or
property, or to receive any other right, the Company shall mail to each holder of
Preferred Shares, at least seven (7) days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and the amount and character of such dividend,
distribution or right. |
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| |
5.11 |
The
Company shall at all times reserve and keep available out of its authorized but unissued
Ordinary Shares, solely for the purpose of effecting the conversion of the Preferred
Shares, such number of its Ordinary Shares as shall from time to time be sufficient to
effect the conversion of all issued and outstanding Preferred Shares; and if at any time
the number of authorized but unissued Ordinary Shares shall not be sufficient to effect
the conversion of all then outstanding Preferred Shares, in addition to such other
remedies as shall be available to the holders of such Preferred Shares, the Company will
take such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued Ordinary Share capital to such number of shares as
shall be sufficient for such purposes. |
| |
The
Ordinary Shares confer on the holders thereof voting rights, rights to receive dividends,
rights to receive a distribution of assets upon liquidation and certain other rights all
as specified in these Articles. |
| |
6A.1 |
The
Deferred Shares shall not entitle their owners to vote at, participate in or receive
notice of meetings of Shareholders or participate in any manner or form in the profits of
the Company, to any information or reports from the Company, to any pre-emptive rights in
respect of new shares issued by the Company, to any right of first refusal in respect of
shares transferred by other Shareholders, to any portion for the Company’s assets in
the event of winding up, dissolution or liquidation, except for the receipt of their
nominal value at liquidation of the Company, and they shall not entitle their owners to
any right attached to the Ordinary Shares or the Preferred Shares or to any other rights
of Shareholders whether granted by these Articles or otherwise. |
| |
6A.2 |
For
the avoidance of doubt, the Deferred Shares shall not be considered or included in any
calculation regarding the share capital of the Company under these Articles. |
| 7 |
Increase
of Share Capital |
| |
7.1 |
Subject
to Article 77, the Company may, from time to time, by resolution of the General Meeting,
whether or not all the shares then authorized have been issued, and whether or not all
the shares theretofore issued have been called up for payment, increase its share capital
by the creation of new shares. Any such increase shall be in such amount and shall be
divided into shares of such nominal amounts, and such shares shall confer such rights and
preferences, and shall be subject to such restrictions, as such Resolution shall provide. |
| |
7.2 |
Except
to the extent otherwise provided in such resolution, such new shares shall be subject to
all the provisions of these Articles applicable to the shares of the existing original
share capital without regard to class (and, if such new shares are of the same class as a
class of shares in the existing share capital, to all the provisions applicable to shares
of such class). |
A - 7
| 8 |
Special
Rights; Modifications of Rights |
| |
8.1 |
Subject
to these Articles and without prejudice to any special rights previously conferred upon
the holders of existing shares in the Company, the Company may, from time to time, by
resolution of the General Meeting, provide for shares with such preferred or deferred
rights or rights of redemption or other special rights and/or such restrictions, whether
in regard to dividends, voting, repayment of share capital or otherwise, as may be
stipulated in such resolution. |
| |
8.2.1 |
If
at any time the share capital is divided into different classes of shares, the rights
attached to any class, unless otherwise provided by these Articles, may be modified or
abrogated by the Company, by resolution of the General Meeting, subject to the consent in
writing of the holders of more than fifty percent (50%) of the issued shares of such
class or the sanction of a resolution passed at a separate General Meeting of the holders
of the shares of such class and subject to the provisions of Article 77. |
| |
8.2.2 |
The
provisions of these Articles relating to General Meetings shall, mutatis mutandis, apply
to any separate General Meeting of the holders of the shares of a particular class. |
| |
8.2.3 |
Unless
otherwise provided by these Articles, the enlargement of an existing class of shares, or
the issuance of additional shares thereof, shall not be deemed, for purposes of the
Articles, to modify or abrogate the rights attached to the previously issued shares of
such class or of any other class. |
| 9 |
Consolidation,
Subdivision, Cancellation and Reduction of Share Capital |
| |
9.1 |
The
Company may, from time to time, by resolution of the General Meeting (subject, however,
to the provisions of Articles 8.2 and 77 hereof and to applicable law): |
| |
9.1.1 |
consolidate
and divide all or any of its issued or unissued share capital into shares of larger
nominal value than its existing shares; |
| |
9.1.2 |
subdivide
its shares (issued or unissued) or any of them, into shares of smaller nominal value than
is fixed by the Memorandum of Association (subject, however, to the provisions of the
Companies Law), and the resolution whereby any share is subdivided may determine that, as
among the holders of the shares resulting from such subdivision, one or more of the
shares may, as compared with the others, have any such preferred or deferred rights or
rights of redemption or other special rights, or be subject to any such restrictions, as
the Company has power to attach to unissued or new shares; |
A - 8
| |
9.1.3 |
cancel
any shares which, at the date of the adoption of such resolution, have not been taken or
agreed to be taken by any person, and diminish the amount of its share capital by the
amount of the shares so cancelled; or |
| |
9.1.4 |
reduce
its share capital in any manner, and with and subject to any incident authorized, and
consent required, by law. |
| |
9.2 |
With
respect to any consolidation of issued shares into shares of larger nominal value, and
with respect to any other action which may result in fractional shares, the Board of
Directors may settle any difficulty which may arise with regard thereto, as it deems fit,
including, inter alia, resort to one or more of the following actions: |
| |
9.2.1 |
determine,
as to the holder of shares so consolidated, which issued shares shall be consolidated
into each share of larger nominal value; |
| |
9.2.2 |
allot,
in contemplation of or subsequent to such consolidation or other action, such shares or
fractional shares sufficient to preclude or remove fractional share holdings; |
| |
9.2.3 |
redeem,
in the case of redeemable preference shares, and subject to applicable law, such shares
or fractional shares sufficient to preclude or remove fractional share holdings; |
| |
9.2.4 |
cause
the transfer of fractional shares by certain shareholders of the Company to other
shareholders thereof so as to most expediently preclude or remove any fractional
shareholdings, and cause the transferees to pay the transferors the fair value of
fractional shares so transferred, and the Board of Directors is hereby authorized to act
as agent for the transferors and transferees with power of substitution for purposes of
implementing the provisions of this Sub-Article 9.2.4. |
SHARES
| 10 |
Issuance
of Share Certificates; Replacement of Lost Certificates |
| |
10.1 |
Share
certificates shall be issued under the seal or the rubber stamp of the Company and shall
bear the signatures of two Directors (or if there be only one Director, the signature of
such Director), or of any other person or persons authorized thereto by the Board of
Directors. |
| |
10.2 |
Each
Shareholder shall be entitled to one numbered certificate for all the shares of any class
registered in his name, and if the Board of Directors so approves, to several
certificates, each for one or more of such shares. |
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| |
10.3 |
A
share certificate registered in the names of two or more persons shall be delivered to
the person first named in the Register in respect of such co-ownership. |
| |
10.4 |
If
a share certificate is defaced, lost or destroyed, it may be replaced, upon payment of
such fee, and upon the furnishing of such evidence of ownership and such indemnity, as
the Board of Directors may think fit. |
| |
Except
as otherwise provided in these Articles, the Company shall be entitled to treat the
registered holder of any share as the absolute owner thereof, and, accordingly, shall not,
except as ordered by a court of competent jurisdiction, or as required by statute, be
bound to recognize any equitable or other claim to, or interest in such share on the part
of any other person. In the case that two or more persons are registered as joint holders
of any share(s), the Company may treat the holder whose name appears first in the Register
as senior to the others; provided, however, that such joint holders may request the order
in which their name shall appear in the Register. |
| 12 |
Allotment
of Shares; Pre-emptive Rights |
| |
12.1 |
Subject
to the provisions of Articles 12.2 and 77, the shares shall be under the control of the
Board of Directors, who shall have the power to allot shares or otherwise dispose of them
to such persons, on such terms and conditions (including, inter alia, terms relating to
calls as set forth in Article 14 hereof), and either at par or at a premium, or,
subject to the provisions of the Companies Law, at a discount, and at such times, as the
Board of Directors may think fit, and the power to give to any person the option to
acquire from the Company any shares, either at par or at a premium, or, subject as
aforesaid, at a discount, during such time and for such consideration as the Board of
Directors may think fit. |
| |
12.2 |
If
the Company proposes to issue and sell New Securities as defined below, it shall enable
each holder of three percent (3%) or more of the Ordinary Shares (excluding the Ordinary
Shares or options to purchase Ordinary Shares issued pursuant to the Company’s
employee and consultant stock option plan(s)) and each holder of the Preferred Shares or
any Ordinary Shares issued upon conversion of the Preferred Shares (for the purpose of
this Article 12, a “Holder”) to maintain its Pro Rata Share of the share
capital of the Company. A Holder’s Pro Rata Share, for purposes of this preemptive
right, is the ratio of the number of Ordinary Shares owned by such Holder as of the date
of the Rights Notice (as defined below), assuming full conversion of the Preferred
Shares, to the total number of Ordinary Shares outstanding as of the date of the Rights
Notice, assuming full conversion of the Preferred Shares. The preemptive right set forth
in this Sub-Article 12.2 shall be subject to the following provisions: |
A - 10
| |
12.2.1 |
“New
Securities” shall mean any Ordinary Shares or Preferred Shares of any kind of
the Company, whether authorized as of the Effective Date or thereafter, and rights,
options, or warrants to purchase said Ordinary Shares or preferred shares, and securities
of any type whatsoever that are, or may become, convertible into said Ordinary Shares or
Preferred Shares; provided, however, that “New Securities”shall not
include (i) securities issuable upon conversion of the Preferred Shares; (ii) securities
offered to the public in an IPO; (iii) securities issued in connection with the
acquisition of another corporation, business entity or line of business of another
business entity by the Company by merger, consolidation, purchase of all or substantially
all of the assets, or other reorganization as a result of which the Company owns not less
than fifty percent (50%) of the voting power of such corporation; (iv) the Company’s
Ordinary Shares or Preferred Shares issued in connection with any share split, share
dividend, recapitalization, reclassification or similar event by the Company or issued
pursuant to a transaction described in Sub-Articles 5.5 or 5.6 hereof; (v) Ordinary
Shares or options to purchase Ordinary Shares, issued pursuant to an employee, consultant
or director incentive share option plan or agreement approved by the Company’s Board
of Directors; (viii) shares issued for the purchase of securities or other assets of
other corporations; (ix) shares of the Company issued pursuant to the exercise of options
or warrants of the Company and upon conversion of the ‘convertible notes of the
Company that were issued or granted prior to August 4, 2006 and which were offered to the
shareholders in accordance with Article 12 when issued or granted; and (x) any shares
issued upon exercise by Scailex of the option to purchase shares of the Company granted
to Scailex under the Scailex Agreement. |
| |
12.2.2 |
If
the Company proposes to issue New Securities, it shall give the Holders written notice
(the “Rights Notice”) of its intention, describing the New Securities,
the price, the general terms upon which the Company proposes to issue them, and the
number of shares that each Holder has the right to purchase under this Article 12 (the
“Preemptive Right”). Each Holder shall have fourteen (14) days
from delivery of the Rights Notice to agree to purchase all or any part of its Pro-Rata
Share of such New Securities for the price and upon the general terms specified in the
Rights Notice, by giving written notice to the Company setting forth the quantity of New
Securities to be purchased (the “Exercise Notice”). In the event that
one or more of the Holders shall not fully exercise its Preemptive Right, the Company
shall notify the holders of the Preferred Shares of Holders not fully exercising their
Preemptive Rights not later than three (3) days after the said 14 day period, and the
holders of the Preferred Shares shall have the exclusive right to purchase all or any
part of the Shares underlying such Holders’ non-exercised Preemptive Right, by
indicating its desire to the Company within five (5) business days. Failure by a Holder
to deliver the Exercise Notice to the Company during such 14 day period shall be deemed a
waiver by such Holder to exercise its Preemptive Right. |
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| |
12.2.3 |
The
Company shall have the right to sell the portion of the New Securities which is a-Priori
not subject to the Preemptive Rights commencing upon the date of the Rights Notice and
thereafter within a one hundred and twenty (120) day period, at a price per share and
upon general terms no more favorable to the purchasers thereof than as specified in the
Rights Notice. Moreover, if the Holders fail to exercise in full the Preemptive Right
within the period or periods specified in Article 12.2.2, the Company shall have until
the period ending one hundred and twenty (120) days after delivery of the Rights Notice
to sell the unsold New Securities which are subject to the Preemptive Right, at a price
and upon general terms no more favorable to the purchasers thereof than as specified in
the Rights Notice. If the company has not sold the New Securities within said one hundred
and twenty (120) days period the Company shall not thereafter issue or sell any New
Securities without first offering such securities to the Holders in the manner provided
above. |
| 13 |
Payment
in Installments |
| |
If
by the terms of allotment of any share, the whole or any part of the price thereof shall
be payable in installments, every such installment shall, when due, be paid to the Company
by the then registered holder(s) of the share of the person(s) entitled thereto. |
| |
14.1 |
The
Board of Directors may, from time to time, make such calls as it may think fit upon
Shareholders in respect of any sum unpaid in respect of shares held by such Shareholder
which is not, by the terms of allotment thereof or otherwise, payable at a fixed time,
and each Shareholder shall pay the amount of every call so made upon him (and of each
installment thereof if the same is payable in installments), to the person(s) and at the
time(s) and place(s) designated by the Board of Directors, as any such time(s) may be
thereafter extended and/or such person(s) or place(s) changed. Unless otherwise
stipulated in the resolution of the Board of Directors (and in the notice hereafter
referred to), each payment in response to a call shall be deemed to constitute a pro rata
payment on account of all shares in respect of which such call was made. |
| |
14.2 |
Notice
of any call shall be given in writing to the Shareholder(s) in question not less than
fourteen (14) days prior to the time of payment, specifying the time and place of
payment, and designating the person to whom such payment shall be made, provided,
however, that before the time for any such payment, the Board of Directors may, by notice
in writing to such Shareholder(s), revoke such call in whole or in part, extend such
time, or alter such person and/or place. In the event of a call payable in installments,
only one notice thereof need be given. |
| |
14.3 |
If,
by the terms of allotment of any share or otherwise, any amount is made payable at any
fixed time, every such amount shall be payable at such time as if it were a call duly
made by the Board of Directors and of which due notice had been given, and all the
provisions herein contained with respect to such calls shall apply to each such amount. |
A - 12
| |
14.4 |
The
joint holders of a share shall be jointly and severally liable to pay all calls in
respect thereof and all interest payable thereon. |
| |
14.5 |
Any
amount unpaid in respect of a call shall bear interest from the date on which it is
payable until actual payment thereof, at such rate (not exceeding the then prevailing
debitory rate charged by leading commercial banks in Israel), and at such time(s) as the
Board of Directors may prescribe. |
| |
14.6 |
Upon
the allotment of shares, the Board of Directors may provide for differences among the
allottees of such shares as to the amount of calls and/or the times of payment thereof. |
| |
With
the approval of the Board of Directors, any Shareholder may pay to the Company any amount
not yet payable in respect of his shares, and the Board of Directors may approve the
payment of interest on any such amount until the same would be payable if it had not been
paid in advance, at such rate and time(s) as may be approved by the Board of Directors.
The Board of Directors may at any time cause the Company to repay all or any part of the
money so advanced, without premium or penalty. Nothing in this Article 15 shall
derogate from the right of the Board of Directors to make any call before or after receipt
by the Company of any such advance. |
| 16 |
Forfeiture
and Surrender |
| |
16.1 |
If
any Shareholder fails to pay any amount payable in respect of a call, or interest thereon
as provided for herein, on or before the day fixed for payment of the same, the Company,
by resolution of the Board of Directors, may at any time thereafter, so long as the said
amount or interest remains unpaid, forfeit all or any of the shares in respect of which
said call had been made. Any expense incurred by the Company in attempting to collect any
such amount or interest, including, inter alia, attorneys’ fees and costs of suit,
shall be added to, and shall, for all purposes (including the accrual of interest
thereon), constitute a part of the amount payable to the Company in respect of such call. |
| |
16.2 |
Upon
the adoption of a resolution of forfeiture, the Board of Directors shall cause notice
thereof to be given to such Shareholder, which notice shall state that, in the event of
the failure to pay the entire amount so payable within a period stipulated in the notice
(which period shall not be less than fourteen (14) days and which may be extended by the
Board of Directors), such shares shall be ipso facto forfeited, provided, however, that,
prior to the expiration of such period, the Board of Directors may nullify such
resolution of forfeiture, but no such nullification shall stop the Board of Directors
from adopting a further resolution of forfeiture in respect of the non-payment of the
same amount. |
A - 13
| |
16.3 |
Whenever
shares are forfeited as herein provided, all dividends theretofore declared in respect
thereof and not actually paid shall be deemed to have been forfeited at the same time. |
| |
16.4 |
The
Company, by resolution of the Board of Directors, may accept the voluntary surrender of
any share. |
| |
16.5 |
Any
share forfeited or surrendered as provided herein shall become the property of the
Company, and the same, subject to the provisions of these Articles, may be sold,
re-allotted or otherwise disposed of as the Board of Directors thinks fit. |
| |
16.6 |
Any
Shareholder whose shares have been forfeited or surrendered shall cease to be a
shareholder in respect of the forfeited or surrendered shares, but shall,
notwithstanding, be liable to pay, and shall forthwith pay, to the Company, all calls,
interest and expenses owing upon or in respect of such shares at the time of forfeiture
or surrender, together with interest thereon from the time of forfeiture or surrender
until actual payment, at the rate prescribed in Article 14.5 above, and the Board of
Directors, in its discretion, may enforce the payment of such moneys, or any part
thereof, but shall not be under any obligation to do so. In the event of such forfeiture
or surrender, the Company, by resolution of the Board of Directors, may accelerate the
date(s) of payment of any or all amounts then owing by the Shareholder in question (but
not yet due) in respect of all shares owned by such Shareholder, solely or jointly with
another, and in respect of any other matter or transaction whatsoever. |
| |
16.7 |
The
Board of Directors may at any time, before any share so forfeited or surrendered shall
have been sold, re-allotted or otherwise disposed of, nullify the forfeiture or surrender
on such conditions as it thinks fit, but no such nullification shall stop the Board of
Directors from re-exercising its powers of forfeiture pursuant to this Article 16. |
| |
17.1 |
Except
to the extent the same may be waived or subordinated in writing, the Company shall have a
first and paramount lien upon all the shares registered in the name of each Shareholder
(without regard to any equitable or other claim or interest in such shares on the part of
any other person), and upon the proceeds of the sale thereof, for his debts, liabilities
and engagements arising from any cause whatsoever, solely or jointly with another, to or
with the Company, whether the period for the payment, fulfillment or discharge thereof
shall have actually arrived or not. Such lien shall extend to all dividends from time to
time declared in respect of such share. Unless otherwise provided, the registration by
the Company of a transfer of shares shall be deemed to be a waiver on the part of the
Company of the lien (if any) existing on such shares immediately prior to such transfer. |
| |
17.2 |
The
Board of Directors may cause the Company to sell any shares subject to such lien when any
such debt, liability or engagement has matured, in such manner as the Board of Directors
may think fit, but no such sale shall be made unless such debt, liability or engagement
has not been satisfied within fourteen (14) days after written notice of the intention to
sell shall have been served on such Shareholder, his executors or administrators. |
A - 14
| |
17.3 |
The
net proceeds of any such sale, after payment of the costs thereof, shall be applied in or
toward satisfaction of the debts, liabilities or engagements of such Shareholder (whether
or not the same have matured), or any specific part of the same (as the Company may
determine), and the residue (if any) shall be paid to the Shareholder, his executors,
administrators or assigns. |
| |
17.4 |
Notwithstanding
the aforesaid, the Company shall have no lien upon the Preferred Shares or upon the
proceeds of sale thereof under this Article 17 or otherwise and it may not sell them as
provided herein. |
| 18 |
Sale
after Forfeiture or Surrender or in Enforcement of Lien |
| |
Upon
any sale of shares after forfeiture or surrender or for enforcing a lien, the Board of
Directors may appoint some person to execute an instrument of transfer of the shares so
sold and cause the purchaser’s name to be entered in the Register in respect of such
shares, and the purchaser shall not be bound to see to the regularity of the proceedings,
or to the application of the purchase money, and after his name has been entered in the
Register in respect of such shares, the validity of the sale shall not be impeached by any
person, and the remedy of any person aggrieved by the sale shall be in damages only and
against the Company exclusively. |
| |
The
Company may, subject to applicable law, issue redeemable shares and redeem the same. |
TRANSFER OF SHARES
| 21 |
Effectiveness
and Registration |
| |
21.1 |
No
transfer of shares in the Company, and no assignment of an option to acquire such shares
from the Company (unless otherwise provided in the terms of such option), shall be
effective unless the transfer or assignment has been approved by the Board of Directors,
but the Board of Directors shall not withhold its approval of any such transfer or
assignment made in accordance with this Article 21. |
| |
21.2 |
No
transfer of shares shall be registered unless a proper instrument of transfer (in form
and substance satisfactory to the Board of Directors) has been submitted to the Company,
together with the share certificate(s) and such other evidence of title as the Board of
Directors may reasonably require. Until the transferee has been registered in the
Register in respect of the shares so transferred, the Company may continue to regard the
transferor as the owner thereof. The Board of Directors, may, from time to time,
prescribe a reasonable fee for the registration of a transfer. |
A - 15
| |
21.3 |
Without
derogating from the provisions of Articles 21.1 or 21.2, the following provisions shall
govern transfers of shares in the Company, except to the extent the right to participate
in the Offer has been waived in writing (before or after the Effective Date) by a
Shareholder who would otherwise be entitled thereto: |
| |
21.3.1 |
Any
Shareholder proposing to sell, assign, transfer, pledge, hypothecate, mortgage, dispose
of, by gift or otherwise, or in any way encumber (each of the foregoing being referred to
as a “Transfer”) all or any of its shares (the “Offeror”)
shall first request the Company, by written notice (which shall contain all the
information necessary to enable the Company to do so), to offer such shares (the “Offered
Shares”), on the terms of the proposed Transfer to all of the Shareholders (the
“Offerees”). The Company shall comply with such request by sending the
Offerees a written notice (the “Offer”), stating therein the identity of
the Offeror and of the proposed transferee(s) and the proposed terms of sale of the
Offered Shares. Any Offeree may accept such offer in respect of all or any of the Offered
Shares by giving the Company written notice to that effect within fourteen (14) days
after being served with the Offer. |
| |
21.3.2 |
If
the acceptances, in the aggregate, are in respect of all of, or more than, the Offered
Shares, then the accepting Offerees shall acquire the Offered Shares, on the terms
aforementioned, in proportion to their respective holdings in the Company on an as
converted basis, provided that no Offerees shall be entitled to acquire under the
provisions of this Article 21.3 more than the number of Offered Shares initially accepted
by such Offeree, and upon the allocation to it of the full number of securities so
accepted, it shall be disregarded in any subsequent computations and allocations
hereunder. Any securities remaining after the computation of such respective entitlements
shall be re-allocated among the accepting Offerees, in the same manner, until one hundred
per cent (100%) of the Offered Shares have been allocated as aforesaid. |
| |
21.3.3 |
If
the acceptances, in the aggregate, after an offer is made pursuant to the above are still
in respect of less than the number of Offered Shares, then the accepting Offerees shall
not be entitled to acquire the Offered Shares, and the Offeror, at the expiration of the
aforementioned fourteen (14) day period, shall be entitled to transfer all (but not less
than all) of the Offered Shares to the proposed transferee(s) identified in the Offer, provided,
however, that in no event shall the Offeror transfer any of the Offered Shares to
any transferee other than such accepting Offerees or such proposed transferee(s) or
transfer the same on terms more favorable to the buyer(s) than those stated in the Offer,
and provided further that any of the Offered Shares not transferred within ninety (90)
days after the expiration of such fourteen (14) day period shall again be subject to the
provisions of this Article 21.3. |
| |
21.3.4 |
For
the purposes of any Offer under this Article 21.3, the respective holdings of any number
of accepting Offerees shall mean the respective proportions of the aggregate number of
Ordinary Shares (including, for purposes of such determination, Ordinary Shares issuable
upon conversion of Preferred Shares) held by such accepting Offerees as determined prior
to such Offer. |
A - 16
| |
21.4 |
Anything
in this Article 21 to the contrary notwithstanding, any Shareholder of the Company may
freely Transfer any of its shares in the Company to his spouse, children, or
grandchildren, parents or siblings, to a trust for their benefit other than to persons
incapacitated as a matter of law or to an entity controlled by, controlling, or under
common control with such shareholder, with respect to a Shareholder which is a limited or
general partnership, its partners and to affiliated partnerships managed by the same
management company or managing (general) partner or by an entity which controls, is
controlled by, or is under common control with, such management company or managing
(general) partner; in all cases provided that such transferee has delivered to the
Company a written document in which such transferee agrees to assume such shares subject
to any and all obligations and restrictions pursuant to which such shareholder held such
shares and, provided generally that in each of the above cases, the transferee agrees in
writing to hold such shares pursuant to the terms and conditions by which the transferor
held such shares. A person or entity which receives shares pursuant to one of the
foregoing permitted transfers shall be referred to as a “Permitted Transferee”.
In addition to the above, the definition of Permitted Transferee of a shareholder shall
include any other Shareholder of the Company. |
| |
For
the purpose of this Sub-Article 21.4, “Control”, “Controlling” and
“Controlled”, shall be an imperative undertaking that the applicable status of
“Control” shall remain during the full period that any of the transfer shares
are held by the Permitted Transferee, provided that such imperative undertaking shall not
apply to a Shareholder and/or to its Permitted Transferee(s) in the event of a
liquidation or winding up of such Shareholder following such transfer to Permitted
Transferee. Upon such imperative undertaking ceasing to exist in respect of a Permitted
Transferee of shares of the Company (other than as a result of a liquidation or winding
up of such Shareholder), the shares held by such Permitted Transferee in its capacity as
such, shall be deemed offered for sale and the provisions of Articles 21 and 24 shall
apply, and the Board of Directors of the Company shall in good faith determine the fair
market value of such shares for the purposes of such procedure. |
| |
Subject
to Article 77, in the event that any person or entity makes an offer to purchase all of
the issued and outstanding share capital of the Company, and shareholders holding more
than eighty-five per cent (85%) of the issued and outstanding share capital of the Company
calculated on an as converted basis (“Requisite Percentage”) indicate
their acceptance of such offer, and such offer is approved by the Company’s Board of
Directors, then, at the closing of such offered purchase of all the issued and outstanding
share capital of the Company, all of the holders of Ordinary Shares in the Company
(assuming the conversion of all of the outstanding Preferred Shares to Ordinary Shares)
will transfer such Ordinary Shares (as converted) to such person or entity. The provisions
of Articles 21.1-21.3 shall not apply to a sale of shares conducted pursuant with this
Article 22. |
A - 17
| 25 |
Suspension
of Registration |
| |
The
Board of Directors may suspend the registration of transfers during the fourteen (14) days
immediately preceding the Annual General Meeting. |
TRANSMISSION OF SHARES
| |
26.1 |
In
case of a share registered in the names of two or more holders, the Company may recognize
the survivor(s) as the sole owner(s) thereof unless and until the provisions of Article 26.2
have been effectively invoked. |
| |
26.2 |
Any
person becoming entitled to a share in consequence of the death of any person, upon
producing evidence of the grant of probate or letters of administration or declaration of
succession (or such other evidence as the Board of Directors may reasonably deem
sufficient that he sustains the character in respect of which he proposes to act under
this Article or of his title), shall be registered as a shareholder in respect of such
share, or may, subject to the regulations as to transfer herein contained, transfer such
share. |
| 27 |
Receivers
and Liquidators |
| |
27.1 |
The
Company may recognize the receiver or liquidator of any corporate Shareholder in
winding-up or dissolution, or the receiver or trustee in bankruptcy of any Shareholder,
as being entitled to the shares registered in the name of such Shareholder. |
| |
27.2 |
The
receiver or liquidator of a corporate Shareholder in winding-up or dissolution, or the
receiver or trustee in bankruptcy of any Shareholder, upon producing such evidence as the
Board of Directors may deem sufficient that he sustains the character in respect of which
he proposes to act under this Article or of his title, shall with the consent of the
Board of Directors (which the Board of Directors may grant or refuse in its absolute
discretion), be registered as a Shareholder in respect of such shares, or may, subject to
the regulations as to transfer herein contained, transfer such shares. |
A - 18
GENERAL MEETINGS
| 28 |
Annual
General Meeting |
| |
An
Annual General Meeting shall be held once in every calendar year at such time (within a
period of not more than fifteen (15) months after the last preceding Annual General
Meeting) and at such place either within or without the State of Israel as may be
determined by the Board of Directors. |
| 29 |
Special
General Meeting |
| |
All
General Meetings other than Annual General Meetings shall be called “Special
General Meetings.” The Board of Directors may, whenever it thinks fit, convene
a Special General Meeting at such time and place, within or without the State of Israel,
as may be determined by the Board of Directors, and shall be obliged to do so upon a
requisition in writing in accordance with Section 63 of the Companies Law. |
| 30 |
Notice
of General Meetings; Omission to Give Notice |
| |
30.1 |
Not
less than seven (7) days’ prior notice shall be given of every General Meeting. Each
such notice shall specify the place and the day and hour of the meeting and the general
nature of each item to be acted upon thereat. Notice shall be given to all Shareholders
who would be entitled to attend and vote at such meeting, if it were held on the date
when such notice is issued. Anything herein to the contrary notwithstanding, with the
consent of all Shareholders entitled to vote thereon, a resolution may be proposed and
passed at such meeting although a lesser notice than hereinabove prescribed has been
given. |
| |
30.2 |
The
accidental omission to give notice of a meeting to any Shareholder, or the non-receipt of
notice sent to such Shareholder, shall not invalidate the proceedings at such meeting. |
PROCEEDINGS AT GENERAL
MEETINGS
| |
31.1 |
Two
or more Shareholders (not in default in payment of any sum referred to in Article 37.1
hereof), holding in the aggregate at least 50% of the Company’s share capital (to
the exclusion of the Deferred Shares), present in person by proxy or by submitting a
proxy card which indicates their vote, shall constitute a quorum at General Meetings. No
business shall be transacted at a General Meeting, or at any adjournment thereof, unless
the requisite quorum is present when the meeting proceeds to business. |
| |
31.2 |
If
within half an hour from the time appointed for the meeting a quorum is not present, the
meeting, if convened upon requisition under Sections 63 or 64 of the Companies Law,
shall be dissolved, but in any other case it shall stand adjourned to the same day in the
next week, at the same time and place, or to such day and at such time and place as the
Chairman, as defined herein below, may determine with the consent of the holders of a
majority of the voting power represented at the meeting in person or by proxy and voting
on the question of adjournment provided that notice in respect of such adjourned meeting
shall be submitted as required under section 74 of the Companies Law. No business shall
be transacted at any adjourned meeting except business which might lawfully have been
transacted at the meeting as originally called. At such adjourned meeting, any
Shareholder (not in default as aforesaid) present in person, by proxy or by submitting a
proxy card which indicates their vote, shall constitute a quorum. |
A - 19
| |
The
Chairman, if any, of the Board of Directors shall preside as Chairman at every General
Meeting of the Company. If there is no such Chairman, or if at any meeting he is not
present within fifteen (15) minutes after the time fixed for holding the meeting or is
unwilling to act as Chairman, the shareholders present shall choose someone of their
number to be Chairman. The office of Chairman shall not, by itself, entitle the holder
thereof to vote at any General Meeting nor shall it entitle such holder to a second or
casting vote (without derogating, however, from the rights of such Chairman to vote as a
Shareholder or proxy of a shareholder if, in fact, he is also a shareholder or such
proxy). |
| 33 |
Adoption
of Resolutions at General Meetings |
| |
33.1 |
Subject
to the provisions of Articles 77 and 79, every resolution put to the vote at a meeting
shall be decided by a count of votes. Subject to any provision in this regard in the Law
or in these Articles requiring a higher majority, all resolutions shall be passed by a
majority vote (on an as-converted basis). |
| |
33.2 |
Every
question submitted to a General Meeting shall be decided by a show of hands, but if a
written ballot is demanded by any Shareholder present in person or by proxy and entitled
to vote at the meeting, the same shall be decided by such ballot. A written ballot may be
demanded before the proposed resolution is voted upon or immediately after the
declaration by the Chairman of the results of the vote by a show of hands. If a vote by
written ballot is taken after such declaration, the results of the vote by a show of
hands shall be of no effect, and the proposed resolution shall be decided by such written
ballot. The demand for a written ballot may be withdrawn at any time before the same is
conducted, in which event another Shareholder may then demand such written ballot. The
demand for a written ballot shall not prevent the continuance of the meeting for the
transaction of business other than the question on which the written ballot has been
demanded. |
| |
33.3 |
A
declaration by the Chairman of the meeting that a resolution has been carried
unanimously, or carried by a particular majority, or lost, and an entry to that effect in
the minute book of the Company, shall be conclusive evidence of the fact without proof of
the number or proportion of the votes recorded in favor of or against such resolution. |
| 34 |
Resolutions
in Writing |
| |
A
resolution in writing signed by all Shareholders of the Company then entitled to attend
and vote at General Meetings or to which all such Shareholders have given their written
consent (by letter, facsimile, telecopier, telegram, telex or otherwise) shall be deemed
to have been unanimously adopted by a General Meeting duly convened and held. |
A - 20
| |
35.1 |
The
Chairman of a General Meeting at which a quorum is present may, with the consent of the
holders of a majority of the voting power represented in person or by proxy and voting on
the question of adjournment (and shall if so directed by the meeting), adjourn the
meeting from time to time and from place to place, but no business shall be transacted at
any adjourned meeting except business which might lawfully have been transacted at the
meeting as originally called. |
| |
35.2 |
Notice
of an adjournment, pursuant to Sub-Article 35.1, shall be given in the manner
required under section 74 of the Companies Law. |
| |
Subject
to the provisions of Articles 6A, 44 and 77 and subject to any provision hereof conferring
special rights as to voting, or restricting the right to vote, every Shareholder shall
have one vote for each share held by him of record on an as-converted basis, on every
resolution, without regard to whether the vote hereon is conducted by a show of hands, by
written ballot or by any other means. |
| |
37.1 |
No
Shareholder shall be entitled to vote at any General Meeting (or be counted as a part of
the quorum thereat), unless all calls and other sums then payable by him in respect of
his shares in the Company have been paid, but this Article shall not apply to separate
General Meetings of the holders of a particular class of shares pursuant to Article 8.2. |
| |
37.2 |
A
company or other corporate body being a Shareholder of the Company may, by resolution of
its directors or any other managing body thereof, authorize any person to be its
representative at any meeting of the Company. Any person so authorized shall be entitled
to exercise on behalf of such Shareholder all the power which the latter could have
exercised if it were an individual shareholder. Upon the request of the Chairman of the
meeting, written evidence of such authorization (in form acceptable to the Chairman)
shall be delivered to him. |
| |
37.3 |
Any
Shareholder entitled to vote may vote either personally or by proxy (who need not be a
Shareholder of the Company), or by submitting a proxy card which indicates its vote, in a
form approved by the Board of Directors, or, if the Shareholder is a company or other
corporate body, by a representative authorized pursuant to Article 37.2. |
| |
37.4 |
If
two or more persons are registered as joint holders of any share, the vote of the senior
(as defined in Article 11 above) who tenders a vote, in person, in proxy or by proxy
card, shall be accepted to the exclusion of the vote(s) of the other joint holder(s). |
A - 21
PROXIES AND PROXY CARDS
| 38 |
Instrument
of Appointment of a Proxy |
| |
38.1 |
The
instrument appointing a proxy shall be in writing and shall be substantially in
the following form: |
| |
"I
_____________________ of __________________________________ (Name of
Shareholder) (Address of Shareholder) being a
Shareholder of Jemtex Ink Jet Printing Ltd. hereby appoint (Name of the
Company) of (Name of Proxy)(Address of Proxy) as my proxy to vote for me
and on my behalf at the General Meeting of the Company to be held on
the _____ day of ___________, 20__ and at any adjournment(s) thereof. |
| |
Signed
this ______ day of ____________, 20__. |
| |
_________________________
(Signature of Appointer)" |
| |
or
in any usual or common form or in such other form as may be approved by the Board of
Directors. It shall be duly signed by the appointer or his duly authorized attorney or,
if such appointer is a company or other corporate body, under its common seal or stamp or
the hand of its duly authorized agent(s) or attorney(s). |
| |
38.2 |
The
instrument appointing a proxy (and the power of attorney or other authority, if any,
under which such instrument has been signed) shall either be delivered to the Company (at
its Registered Office, or at its principal place of business or at the offices of its
registrar and/or transfer agent or at such place as the Board of Directors may specify)
not less than forty-eight (48) hours before the time fixed for the meeting at which the
person named in the instrument proposes to vote, or presented to the Chairman at such
meeting. |
| 39 |
Effect
of Death of Appointer or Revocation of Appointment |
| |
A
vote cast pursuant to an instrument appointing a proxy shall be valid notwithstanding the
previous death of the appointing Shareholder (or of his attorney-in-fact, if any, who
signed such instrument), or the revocation of the appointment or the transfer of the share
in respect of which the vote is cast, provided no written intimation of such death,
revocation or transfer shall have been received by the Company or by the Chairman of the
meeting before such vote is cast and provided, further, that the appointing Shareholder,
if present in person at said meeting, may revoke the appointment by means of a written or
oral notification to the Chairman, or otherwise. This Article 39 shall apply, mutatis
mutandis, to a vote cast by means of a proxy card. |
A - 22
BOARD OF DIRECTORS
| 40 |
Powers
of Board of Directors |
| |
The
management of the business of the Company shall be vested in the Board of Directors,
which may exercise all such powers and do all such acts and things as the Company is
authorized to exercise and do, and are not hereby or by law required to be exercised or
done by the Company in General Meeting. The authority conferred on the Board of Directors
by this Article 40 shall be subject to the provisions of the Companies Law, of these
Articles and any regulation or resolution consistent with these Articles adopted from
time to time by the Company in General Meeting, provided, however, that no such
regulation or resolution shall invalidate any prior act done by or pursuant to a decision
of the Board of Directors which would have been valid if such regulation or resolution
had not been adopted. |
| |
The
Board of Directors may from time to time, in its discretion, cause the Company to borrow
or secure the payment of any sum or sums of money for the purposes of the Company, and
may secure or provide for the repayment of such sum or sums in such manner, at such times
and upon such terms and conditions in all respects as it thinks fit, and, in particular,
by the issuance of bonds, perpetual or redeemable debentures, debenture stock, or any
mortgages, charges, or other securities on the undertaking of the whole or any part of
the property of the Company, both present and future, including its uncalled or called
but unpaid capital for the time being. |
| |
The
Board of Directors may, from time to time, set aside any amount(s) out of the profits of
the Company as a reserve or reserves for any purpose(s) which the Board of Directors, in
its absolute discretion, shall think fit, and may invest any sum so set aside in any
manner and from time to time deal with and vary such investments, and dispose of all or
any part thereof, and employ any such reserve or any part thereof in the business of the
Company without being bound to keep the same separate from other assets of the Company,
and may subdivide or redesignate any reserve or cancel the same or apply the funds
therein for another purpose, all as the Board of Directors may from time to time think
fit. |
| 41 |
Exercise
of Powers of Directors |
| |
41.1 |
A
meeting of the Board of Directors at which a quorum is present shall be competent to
exercise all the authorities, powers and discretions vested in or exercisable by the
Board of Directors. |
| |
41.2 |
Subject
to the provisions of Article 77, a resolution proposed at any meeting of the Board
of Directors shall be deemed adopted if approved by a majority of the Directors present
when such resolution is put to a vote and voting thereon. |
| |
41.3 |
A
resolution in writing signed by all Directors then in office and lawfully entitled to
vote thereon (as conclusively determined by the Chairman of the Board of Directors) or to
which all such Directors have given their written consent (by letter, telegram, email,
telex, facsimile, telecopier or otherwise) shall be deemed to have been unanimously
adopted by a meeting of the Board of Directors duly convened and held. Any resolution by
email in accordance with this Article, shall be followed up with a confirmation in
writing no later than 14 days following the date of such resolution. |
A - 23
| |
42.1 |
The
Board of Directors may, subject to the provisions of the Companies Law, delegate any or
all of its powers to committees, each consisting of two or more persons, and it may from
time to time revoke such delegation or alter the composition of any such committee. Any
Committee so formed (in these Articles referred to as a “Committee of the Board of
Directors”), shall, in the exercise of the powers so delegated, conform to any
regulations imposed on it by the Board of Directors and shall be subject to Article 77
below. The meetings and proceedings of any such Committee of the Board of Directors
shall, mutatis mutandis, be governed by the provisions herein contained for regulating
the meetings of the Board of Directors, so far as not superseded by any regulations
adopted by the Board of Directors under this Article. Unless otherwise expressly provided
by the Board of Directors in delegating powers to a Committee of the Board of Directors,
such Committee shall not be empowered to further delegate such powers. |
| |
42.2 |
The
Board of Directors may, subject to the provisions of the Companies Law and to Article 77
below, from time to time appoint a Secretary to the Company, as well as officers, agents,
employees and independent contractors, as the Board of Directors may think fit, and may
terminate the service of any such person. The Board of Directors may, subject to the
provisions of the Companies Law and of Article 77 below, determine the powers and duties,
as well as the salaries and emoluments, of all such persons, and may require security in
such cases and in such amounts as it thinks fit. |
| |
42.3 |
Subject
to the provisions of Article 77 below, the Board of Directors may from time to time, by
power of attorney or otherwise, appoint any person, company, firm or body of persons to
be the attorney or attorneys of the Company at law or in fact for such purpose(s) and
with such powers, authorities and discretions, and for such period and subject to such
conditions, as it thinks fit, and any such power of attorney or other appointment may
contain such provisions for the protection and convenience of persons dealing with any
such attorney as the Board of Directors may think fit, and may also authorize any such
attorney to delegate all or any of the powers, authorities and discretions vested in him. |
| |
Until
otherwise determined by the Company, and subject to Article 77 hereinbelow, the Board of
Directors of the Company shall consist of up to five (5) Directors. |
| 44 |
Appointment
and Removal of Directors |
| |
Up
to five (5) Directors shall be designated by written notice by the holders of a majority
of the Shares. |
| |
Scailex
may elect to appoint an observer to the Board and the provisions of this Article 44 shall
apply with respect to such observer, mutatis mutandis. |
A - 24
| |
Subject
to the provisions of Article 77, any Director(s) may only be removed from office (by
written notice) by the shareholder or the holders of the class(es) of shares, as the case
may be, that designated such Director, and any vacancy, however created, in the Board of
Directors may only be filled (by written notice) by the shareholder or the holders of the
class(es) of shares, as the case may be, that designated the previous incumbent of such
vacancy. Any such act shall become effective on the date fixed in such notice, or upon
the delivery thereof to the Company, whichever is later. |
| 45 |
Qualification
of Directors |
| |
No
person shall be disqualified to serve as a Director by reason of his not holding shares
in the Company or by reason of his having served as a Director in the past.
Notwithstanding anything to the contrary contained herein, a person shall be disqualified
to serve as a Director in the Company by reason of such person being an employee, office
holder or director of any competitor of the Company, provided that for the purpose of
this Article neither Scailex nor any Affliate thereof, shall be deemed a competitor of
the Company, provided further however that any officer of Scitex Vision Ltd.,
that is not a director in either of Scitex Vision Ltd. and/or Aprion Digital Ltd., shall
not serve as a Director in the Company. |
| 46 |
Continuing
Directors in the Event of Vacancies |
| |
In
the event of one or more vacancies in the Board of Directors, the continuing Directors may
continue to act in every matter, and, pending the filling of any vacancy pursuant to the
provisions of Article 44, may temporarily fill any such vacancy, provided, however,
that if they number less than a majority of the number provided for pursuant to
Article 43, they may only act in an emergency, and may call a General Meeting of the
Company for the purpose of electing Directors to fill any or all vacancies, so that at
least a majority of the number of Directors provided for pursuant to Article 43
hereof are in office as a result of said meeting. |
| |
47.1 |
The
office of a Director shall be vacated, ipso facto, upon his death, or if he be found
lunatic or become of unsound mind, or if he becomes bankrupt, or, if the Director is a
company, upon its winding-up. |
| |
47.2 |
The
office of a Director may be vacated by his written resignation. Such resignation shall
become effective on the date fixed therein, or upon the delivery thereof to the Company,
whichever is later. |
| 48 |
Remuneration
of Directors |
| |
Subject
to the provisions of the Companies Law, the Directors’ remuneration shall be set from
time to time by the Board of Directors. In addition, the Directors, their Alternate
Directors (as defined below) and proxies shall be entitled to reimbursement of their
reasonable expenses for travel, board and lodging that have been expended in the course of
their performance of their duties as Directors, including actual and reasonable travel
expenses to and from Board of Directors’ meetings, all as decided by the Board of
Directors and subject to the provisions of the Companies Law. |
A - 25
| |
Subject
to the provisions of the Companies Law, the Company may enter into any contract or
otherwise transact any business with any Director in which contract or business such
Director has a personal interest, directly or indirectly; and may enter into any contract
or otherwise transact any business with any third party in which contract or business a
Director has a personal interest, directly or indirectly. |
| |
50.1 |
A
Director may, by written notice to the Company, appoint an alternate for himself (in
these Articles referred to as “Alternate Director”), remove such
Alternate Director and appoint another Alternate Director in place of any Alternate
Director appointed by him whose office has been vacated for any reason whatsoever. Unless
the appointing Director, by the instrument appointing an Alternate Director or by written
notice to the Company, limits such appointment to a specified period of time or restricts
it to a specified meeting or action of the Board of Directors, or otherwise restricts its
scope, the appointment shall be for an indefinite period, and for all purposes. |
| |
50.2 |
Any
notice given to the Company pursuant to Article 50.1 shall become effective on the
date fixed therein, or upon the delivery thereof to the Company, whichever is later. |
| |
50.3 |
An
Alternate Director shall have all the rights and obligations of the Director who
appointed him, provided, however, that he may not in turn appoint an alternate for
himself (unless, subject to applicable law, the instrument appointing him otherwise
expressly provides), and provided further that an Alternate Director shall have no
standing at any meeting of the Board of Directors or any committee thereof while the
Director who appointed him is present. |
| |
50.4 |
Subject
to the provisions of the Companies Law, any natural person may act as an Alternate
Director, including any other Director or Alternate Director. |
| |
50.5 |
Subject
to the provisions of the Companies Law, an Alternate Director shall alone be responsible
for his own acts and defaults, and he shall not be deemed the agent of the Director(s)
who appointed him. |
| |
50.6 |
The
office of an Alternate Director shall be vacated under the circumstances, mutatis
mutandis, set forth in Article 44, and such office shall ipso facto be vacated if
the Director who appointed such Alternate Director ceases to be a Director. |
A - 26
PROCEEDINGS OF THE
BOARD OF DIRECTORS
| |
51.1 |
The
Board of Directors may meet and adjourn its meetings and otherwise regulate such meetings
and proceedings as the Directors think fit. Subject to all of the other provisions of
these Articles concerning meetings of the Board of Directors, the Board of Directors may
meet by telephone conference call so long as each Director participating in such call can
hear, and be heard by, each other Director participating in such call. |
| |
51.2 |
Any
Director may at any time, and the Secretary, upon the request of such Director, shall,
convene a meeting of the Board of Directors, but not less than two (2) days’ written
notice shall be given of any meeting, unless such notice is waived in writing by all of
the Directors as to a particular meeting. |
| |
Until
otherwise unanimously decided by the Board of Directors, a quorum at a meeting of the
Board of Directors shall be constituted by the presence of a majority of the Directors
then in office who are lawfully entitled to participate in the meeting (as conclusively
determined by the Chairman of the Board of Directors), but shall not be less than three. |
| 53 |
Chairman
of the Board of Directors |
| |
The
Board of Directors may from time to time elect one of its members to be the Chairman of
the Board of Directors, remove such Chairman from office and appoint another in its place.
The Chairman of the Board of Directors shall preside at every meeting of the Board of
Directors, but if there is no such Chairman, or if at any meeting he is not present within
fifteen (15) minutes of the time fixes for the meeting, or if he is unwilling to take the
chair, the Directors present shall choose one of their number to be the chairman of such
meeting. |
| 54 |
Validity
of Acts Despite Defects |
| |
Subject
to the provisions of the Companies Law, all acts done bona fide at any meeting of the
Board of Directors, or of a Committee of the Board of Directors, or by any person(s)
acting as Director(s), shall, notwithstanding that it may afterwards be discovered that
there was some defect in the appointment of the participants in such meetings or any of
them or any person(s) acting as aforesaid, or that they or any of them were disqualified,
be as valid as if there were no such defect or disqualification. |
GENERAL MANAGER
| |
55.1 |
The
Board of Directors may from time to time appoint one or more persons, (whether a Director
or not) to be Managing Director(s), General Manager(s), or President(s) of the Company
(or any other titles with similar authorities), either for a fixed term or without any
limitation as to the period for which he is or they are to hold office, and may from time
to time (subject to any provisions of any contract between him or them and the Company)
remove or dismiss him or them from office and appoint another or others in his or their
place or places. |
A - 27
| |
In
the event that a decision of the Board of Directors in any of the issues in this
Sub-Article 55.1 shall not be resolved unanimously, then the Directors designated by the
holders of a majority of the Preferred Shares shall have a conclusive and absolute right
to vote and decide as to each such resolution and their decision shall be binding and
shall be deemed for all purposes whatsoever as the decision of the Board. |
| |
55.2 |
The
remuneration of a Managing Director, General Manager, or President shall from time to
time (subject to any contract between him and the Company and subject to the provisions
of the Companies Law) be fixed by the Board of Directors, and may be in the form of a
fixed salary or commission on dividend, profits or turnover of the Company, or of any
other company the Company has an interest in, or by participation in profits or in one or
more of these forms. The Board of Directors may from time to time entrust to and confer
upon a Managing Director, General Manager or President for the time being such of the
powers exercisable under these Articles by the Board of Directors as it may think fit,
and may confer such powers for such time, and to be exercised for such objects and
purposes, and upon such terms and conditions, and with such restrictions, as it thinks
expedient; and it may confer such powers, either collaterally with, or to the exclusion
of, and in substitution for, all or any of the powers of the Board of Directors in that
behalf; and may from time to time revoke, withdraw, alter, or vary all or any of such
powers. |
| |
In
the event that a decision of the Board of Directors in any of the issues in this
Sub-Article 55.2 shall not be resolved unanimously, then the Directors designated by the
holders of a majority of the Preferred Shares shall have a conclusive and absolute right
to vote and decide as to each such resolution and their decision shall be binding and
shall be deemed for all purposes whatsoever as the decision of the Board. |
MINUTES
| |
56.1 |
Minutes
of each General Meeting and of each meeting of the Board of Directors shall be recorded
and duly entered in books provided for that purpose. Such minutes shall, in all events,
set forth the names of the persons present at the meeting and all resolutions adopted
thereat. |
| |
56.2 |
Any
minutes as aforesaid, if purporting to be signed by the chairman of the meeting shall
constitute prima facie evidence of the matters recorded therein. |
A - 28
DIVIDENDS
| 57 |
Declaration
of Dividends |
| |
Subject
to Article 77, entitlement to the receipt of dividend payments shall be determined by the
Company’s Annual General Meeting. |
| 58 |
Funds
Available for Payment of Dividends |
| |
No
dividend shall be paid except as permitted in the Companies Law. |
| 59 |
Any
dividend shall be payable by the Company to and allocated among, all Shareholders on an
as converted basis, assuming all Preferred Shares were converted into Ordinary Shares at
such time. |
| |
Upon
the recommendation of the Board of Directors approved by the Company’s General
Meeting, a dividend may be paid, wholly or partly, by the distribution of specific assets
of the Company or by distribution of paid up shares, debentures or debenture stock of the
Company or of any other companies, or in any one or more of such ways. |
| 61 |
Capitalization
of Profits, Reserves etc. |
| |
Upon
the recommendation of the Board of Directors approved by the Company’s General
Meeting, and subject to the provisions of the Companies Law, the Company – |
| |
61.1 |
may
cause any moneys, investments, or other assets forming part of the undivided profits of
the Company, standing to the credit of a reserve fund, or to the credit of a reserve fund
for the redemption of capital, or in the hands of the Company and available for
dividends, or representing premiums received on the issuance of shares and standing to
the credit of the share premium account, to be capitalized and distributed among such of
the shareholders as would be entitled to receive the same if distributed by way of
dividend and in the same proportion, on the footing that they become entitled thereto as
capital, or may cause any part of such capitalized fund to be applied on behalf of such
shareholders in paying up in full, either at par or at such premium as the resolution may
provide, any unissued shares or debentures or debenture stock of the Company which shall
be distributed accordingly, in payment, in full or in part, of the uncalled liability on
any issued shares or debentures or debenture stock; and |
| |
61.2 |
may
cause such distribution or payment to be accepted by such shareholders in full
satisfaction of their interest in the said capitalized sum. |
| 62 |
Implementation
of Powers under Articles 60 and 61 |
| |
For
the purpose of giving full effect to any resolution under Articles 60 or 61, and
without derogating from the provisions of Article 8.2 hereof, the Board of Directors
may settle any difficulty which may arise in regard to the distribution as it thinks
expedient, and, in particular, may issue fractional certificates, and may fix the value
for distribution of any specific assets, and may determine that cash payments shall be
made to any Shareholders upon the footing of the value so fixed, or that fractions of less
value than the nominal value of one share may be disregarded in order to adjust the rights
of all parties, and may vest any such cash, shares, debentures, debenture stock or
specific assets in trustees upon such trusts for the persons entitled to the dividend or
capitalized fund as may seem expedient to the Board of Directors. Where requisite, a
proper contract shall be filed in accordance with Section 291 of the Companies Law,
and the Board of Directors may appoint any person to sign such contract on behalf of the
persons entitled to the dividend or capitalized fund. |
A - 29
| 63 |
Deductions
from Dividends |
| |
The
Board of Directors may deduct from any dividend or other moneys payable to any Shareholder
in respect of a share any and all sums of money then payable by him to the Company on
account of calls or otherwise in respect of shares of the Company and/or on account of any
other matter of transaction whatsoever. |
| 64 |
Retention
of Dividends |
| |
64.1 |
The
Board of Directors may retain any dividend or other moneys payable or property
distributable in respect of a share on which the Company has a lien, and may apply the
same in or toward satisfaction of the debts, liabilities, or engagements in respect of
which the lien exists. |
| |
64.2 |
The
Board of Directors may retain any dividend or other moneys payable or property
distributable in respect of a share in respect of which any person is, under Articles 26
or 27, entitled to become a Shareholder, or which any person is, under said Articles,
entitled to transfer, until such person shall become a Shareholder in respect of such
share or shall transfer the same. |
| |
All
unclaimed dividends or other moneys payable in respect of a share may be invested or
otherwise made use of by the Board of Directors for the benefit of the Company until
claimed. The payment by the Directors of any unclaimed dividend or such other moneys into
a separate account shall not constitute the Company a trustee in respect thereof, and any
dividend unclaimed after a period of seven (7) years from the date of declaration of such
dividend, and any such other moneys unclaimed after a like period from the date the same
were payable, shall be forfeited and shall revert to the Company, provided, however, that
the Board of Directors may, at its discretion, cause the Company to pay any such dividend
or such other moneys, or any part thereof, to a person who would have been entitled
thereto had the same not reverted to the Company. |
A - 30
| |
Any
dividend or other moneys payable in cash in respect of a share may be paid by check or
warrant sent through the post to, or left at, the registered address of the person
entitled thereto or by transfer to a bank account specified by such person (or, if two or
more persons are registered as joint holders of such share or are entitled jointly thereto
in consequence of the death or bankruptcy of the holder or otherwise, to any one of such
persons or to his bank account), or to such person and at such address as the person
entitled thereto may be writing direct. Every such check or warrant shall be made payable
to the order of the person to whom it is sent, or to such person as the person entitled
thereto as aforesaid may direct, and payment of the check or warrant by the banker upon
whom it is drawn shall be a good discharge to the Company. Every such check or warrant
shall be sent at the risk of the person entitled to the money represented thereby. |
| 67 |
Receipt
from a Joint Holder |
| |
If
two or more persons are registered as joint holders of any share, or are entitled jointly
thereto in consequence of the death or bankruptcy of the holder or otherwise, any one of
them may give effectual receipts for any dividend or other moneys payable or property
distributable in respect of such share. |
ACCOUNTS
| |
The
Board of Directors shall cause accurate books of account to be kept in accordance with the
provisions of the Companies Law and of any other applicable law. Such books of account
shall be kept at the Registered Office of the Company, or at such other place or places as
the Board of Directors may think fit, and they shall always be open to inspection by all
Directors. |
| |
At
least once in every fiscal year the accounts of the Company shall be audited and the
correctness of the profit and loss account and balance sheet certified by one or more duly
qualified auditors. |
| |
The
appointment, authorities, rights and duties of the auditor(s) of the Company, shall be
regulated by applicable law, provided, however, that in exercising its authority to fix
the remuneration of the auditor(s), the Company’s General Meeting may act (and in the
absence of any action in connection therewith shall be deemed to have so acted), to
authorize the Board of Directors to fix such remuneration subject to such criteria or
standards, if any, as may be provided in such resolution of the Company’s General
Meeting , and if no such criteria or standards are so provided, such remuneration shall be
fixed in an amount commensurate with the volume and nature of the services rendered by
such auditor(s). |
REGISTERS OUTSIDE OF
ISRAEL
| 71 |
Subject
to and in accordance with the provisions of Sections 130 through 139, inclusive, of
the Companies Law, and to all orders and regulations issued thereunder, the Company may
cause registers to be kept in any place outside Israel as the Board of Directors may
think fit, and, subject to all applicable requirements of law, the Board of Directors may
from time to time adopt such rules and procedures as it may think fit in connection with
the keeping of such registers. |
A - 31
RIGHTS OF SIGNATURE,
STAMP AND SEAL
| 72 |
Rights
of Signature, Stamp and Seal |
| |
72.1 |
The
Board of Directors shall be entitled to authorize any person or persons (who need not be
a Director) to act and sign on behalf of the Company, and the acts and signature of such
person(s) on behalf of the Company shall bind the Company insofar as such person(s) acted
and signed within the scope of his or their authority. |
| |
72.2 |
The
Company shall have at least one official stamp. |
| |
72.3 |
The
Board of Directors may provide for a seal. If the Board of Directors so provides, it
shall also provide for the safe custody thereof. Such seal shall not be used except by
the authority of the Board of Directors and in the presence of the person(s) authorized
to sign on behalf of the Company, who shall sign every instrument to which such seal is
affixed. |
NOTICES
| |
73.1 |
Any
written notice or other document may be served by the Company upon any Shareholder either
personally or by sending it by prepaid registered mail (airmail if sent to a place
outside Israel) addressed to such Shareholder at his address as described in the Register
or such other address as he may have designated in writing for the receipt of notices and
other documents. Any written notice or other document may be served by any Shareholder
upon the Company by tendering the same in person to the Secretary or the General Manager
of the Company at the principal office of the Company or by sending it by prepaid
registered mail (airmail if posted outside Israel) to the Company at its Registered
Office. Any such notice or other document shall be deemed to have been served seven (7)
business days after it has been posted, or when actually received by the addressee if
sooner than seven days after it has been posted, or when actually tendered in person, to
such Shareholder (or to the Secretary or the General Manager), provided, however, that
notice may be sent in lieu thereof by, telex, telecopier (facsimile) or other electronic
means and confirmed by registered mail or facsimile as aforesaid, and such notice shall
be deemed to have been given the first business day after such cablegram, telex, telecopy
or other electronic communication has been sent or when actually received by such
Shareholder (or by the Company), whichever is earlier. If a notice is, in fact, received
by the addressee, it shall be deemed to have been duly served, when received,
notwithstanding that it was defectively addressed or failed, in some respect, to comply
with the provisions of this Article 73.1. |
A - 32
| |
73.2 |
All
notices to be given to the Shareholders shall, with respect to any share to which persons
are jointly entitled, be given to whichever of such persons is named first in the
Register, and any notice so given shall be sufficient notice to the holders of such
share. |
| |
73.3 |
Any
Shareholder whose address is not described in the Register of Shareholders, and who shall
not have designated in writing an address for the receipt of notices, shall not be
entitled to receive any notice from the Company. |
INSURANCE AND INDEMNITY
| |
74.1 |
Subject
to the provisions of the Companies Law including the receipt of all approvals as required
therein, the Company may undertake to indemnify an Office Holder, to the fullest extent
permitted by the Companies Law, with respect to any of the following liabilities whether
imposed on, or incurred by, the Office Holder, in respect of an act or omission taken or
made in his capacity as an Office Holder: |
| |
74.1.1 |
reasonable
litigation expenses, including lawyer’s fees, expended by the Office Holder as a
result of an investigation or proceeding instituted against him by a competent authority,
provided that such investigation or proceeding concluded without the filing of an
indictment against him and either (i) without the imposition of any financial liability
in lieu of criminal proceedings or (ii) with the imposition of a financial liability in
lieu of criminal proceedings but which relates to a criminal offence that does not
require proof of criminal intent (as such term is understood under the (Israeli) Penal
Law, 5737-1977); and |
| |
74.1.2 |
A
monetary liability imposed on him in favor of a third party in any judgment, including
any settlement confirmed as judgment and an arbitrator’s award which has been
confirmed by court; or |
| |
74.1.3 |
Reasonable
litigation expenses, including legal fees paid for by the Office Holder, or which he is
obligated to pay under a court order, in a proceeding brought against him by the Company,
or on its behalf, or by a third party, or in a criminal proceeding in which he was
acquitted or in a criminal proceeding in which he was convicted of an offense that does
not require proof of criminal intent (as such term is understood under the (Israeli)
Penal Law, 5737-1977). |
| |
74.1.4 |
The
Company may undertake to indemnify an Office Holder as mentioned above: |
A - 33
| |
(a)
prospectively, provided that in respect of Article 74.1.2, the undertaking is
limited to events which, in the opinion of the Board, can be foreseen in light
of the Company’s actual operations when the undertaking to indemnify is
given and to an amount or criteria set by the Board of Directors as reasonable
under the circumstances and further provided that such events and amount or
criteria are set out in the undertaking to indemnify, and |
| |
74.2 |
Subject
to the provisions of the Companies Law, the Company may procure from financially sound
and reputable insurers (and shall pay all premiums and maintain in full force and
effect), for the benefit of any of its Office Holders, office holders’ liability
insurance with respect to any of the following: |
| |
74.2.1 |
A
breach of the duty of care owed to the Company or any other person, in respect of an act
performed by him by virtue of him being an Office Holder of the Company; |
| |
74.2.2 |
A
breach of the fiduciary duty owed to the Company in respect of an act performed by him by
virtue of him being an Office Holder of the Company, provided that such Office
Holder acted in good faith and had reasonable grounds to assume that the action would not
injure the Company; or |
| |
74.2.3 |
A
monetary liability imposed on such Office Holder in favor of a third party, in respect of
an act performed by him by virtue of him being an Office Holder of the Company. |
| |
74.3 |
Subject
to the provisions of the Companies Law including the receipt of all approvals as required
therein, the Company may exempt in advance an Office Holder from all or part of such
Office Holder’s responsibility or liability for damages caused to the Company due to
any breach of such Office Holder’s duty of care towards the Company. |
| |
74.4 |
This
Article 74 shall not apply under any of the following circumstances or other
circumstances prohibited under Section 263 of the Companies Law: |
| |
74.4.1 |
a
breach of an Office Holder’s fiduciary duty, in which the Officer Holder did not act
in good faith and with reasonable grounds to assume that the action in question would not
prejudice the interests of the Company; |
| |
74.4.2 |
a
grossly negligent or intentional violation of an Office Holder's duty of care; |
| |
74.4.3 |
an
intentional action by an Office Holder in which such Officer Holder intended to reap a
personal gain illegally; and |
| |
74.4.4 |
a
fine or xxxxxx levied on an Office Holder. |
A - 34
| |
74A
The provisions of Articles 74.1 and 74.3 are not intended, and shall not be interpreted,
to restrict the Company in any manner in respect of the procurement of insurance and/or
in respect of indemnification (i) in connection with any person who is not an Office
Holder, including, without limitation, any employee, agent, consultant or contractor of
the Company who is not an Office Holder, and/or (ii) in connection with any Office
Holder to the extent that such insurance and/or indemnification is not specifically
prohibited under law; provided that the procurement of any such insurance and/or the
provision of any such indemnification shall be approved by the Audit Committee of the
Company and in the absence of such Committee, by the Board of Directors. Subject to
applicable law, any modification of Article 74 shall be prospective in effect and shall
not effect the Company’s obligation or ability to indemnify an Office Holder for any
act or omission occurring prior to such modification. |
WINDING UP
| |
If
the Company be wound up on liquidation or dissolution then, subject to applicable law,
and to any outstanding commitments of the Company to third parties, all the assets of the
Company available for distribution among the Shareholders shall be distributed ratably to
the holders of the Ordinary Shares and the holders of Preferred Shares (assuming the
conversion into Ordinary Shares of all issued and outstanding Preferred Shares). |
| 77 |
Negative
Covenants of Scailex |
| |
The
Company shall not, without the written consent of Scailex: |
| |
77.1 |
adopt
any amendment of the Memorandum or the Articles of Association of the Company or take any
other action which would have the effect of adversely affecting the rights, preferences
or privileges of the Preferred Shares. Any modification, amendment or abrogation of these
Articles for the purpose of offering the Company’s securities to the public on any
stock exchange or similar trading systems or markets, including the NASDAQ or any similar
trading systems or markets, shall not be considered as an action which would have the
effect of adversely affecting the rights, preferences or privileges of the Preferred
Shares; |
| |
77.2 |
authorize
or issue any capital stock, rights, options or warrants to purchase capital stock or
other securities convertible into capital stock or equity securities of any class, or
other securities convertible into such securities, nor enter into any contract or grant
any option for the issue of any such securities reflecting a Company valuation (upon such
issuance) of less than US$5,000,000; |
| |
77.3 |
change,
in any material way, the business of the Company; |
A - 35
| |
77.4 |
merge
with or consolidate into any corporation, firm or entity, make structural change or sell,
lease, or otherwise dispose of all or substantially all of its shares or assets,
including the Company’s technology and intellectual property; |
| |
77.5 |
effect
a reclassification or recapitalization of the Company’s share capital in a manner
adverse to the rights attached to the Preferred Shares; |
| |
77.6 |
declare
or pay any dividend or other distributions of cash, shares or other assets; |
| |
77.7 |
effect
any transaction with any Officer, Director, Shareholder or any other interested party or
any party related, directly or indirectly to any of them, except with respect to the
employment or service provision of such persons; |
| |
77.8 |
effect
any dissolution, liquidation or winding up of the Company or of any Subsidiary or
the cessation of all or a substantial part of the business of the Company; |
| |
77.9 |
grant
a mortgage, pledge, lien, or a series of mortgages, pledges or liens, or create a
security interest over any material asset of the Company or any number of assets of the
Company, which together are material to the Company, or all or substantially all of the
assets of the Company or any of its subsidiaries; |
| |
77.10 |
sell
or grant an exclusive license to all or substantially all of the Company’s
technology; 77.11 amend or modify the rights, preferences, privileges or limitations of
the Preferred Shares; or |
| |
77.12 |
appoint
and dismiss the Company's legal counsel and accountant. |
| |
This
Article 77 may be modified, amended or abrogated only by resolution of the General
Meeting with the consent of Scailex. |
| 78 |
Amendment
to these Articles |
| |
Subject
to the provisions of these Articles, these Articles and the Memorandum may be amended,
modified or abrogated by resolution of the General Meeting of the Company by the holders
of 51% of the issued and outstanding share capital of the Company voting on an as
converted basis. |
A - 36
Exhibit B
AGREEMENT
THIS AGREEMENT
(“Agreement”) is made and entered into as of August 4, 2006, by and among
Scailex Corporation Ltd. (formerly Scitex Corporation Ltd.) (“Scailex”)
and Jemtex Ink Jet Printing Ltd. (the “Company”). All terms not otherwise
defined herein shall have the meanings attributed thereto in the Reorganization Agreement
to which this Agreement is attached.
1.
Exercise of Promissory Notes; Conversion of Preferred Shares. Scailex
hereby exercises its rights to convert $6,675,808 of the principal transferred
to the Company under the Promissory Notes pursuant to the Promissory Notes
Agreements into a total of 9,221,570 shares of the Company as follows: (i)
318,129 Series B Preferred Shares, NIS 0.01 par value each, (ii) 2,500,000
Series C Preferred Shares, NIS 0.01 par value each, (iii) 1,442,623 Series D
Preferred Shares, NIS 0.01 par value each, (iv) 1,459,992 Series E Preferred
Shares, NIS 0.01 par value each, and (v) 3,500,826 Series F Preferred Shares,
NIS 0.01 par value each. Scailex acknowledges that pursuant to the Amended
Articles of Association, all Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares, Series E Preferred Shares and Series F
Preferred Shares will be automatically converted into Series A Preferred Shares,
NIS 0.01 par value each (“Series A Preferred Shares”) on a
one-to-one basis unless Scailex otherwise notifies the Company, and Scailex
hereby notifies the Company that the aforementioned 9,221,570 shares underlying
the Promissory Notes shall be converted into 711,144 Series A Preferred Shares,
NIS 0.01 par value each, and 8,510,426 Ordinary Shares, NIS 0.01 par value each
(“Ordinary Shares”).
Upon execution of this Agreement the
Company hereby submits to Scailex a duly executed share certificate of the Company in
respect of the said 711,144 Series A Preferred Shares, NIS 0.01 par value each.
2.
Loan.
|
2.1 Scailex
hereby converts the aggregate remaining amount of debt owing to Scailex of $3,000,000
(Three Million US Dollars) (the “Outstanding Principal”) comprised of
(i) the remaining amount of principal owing under the Promissory Notes not converted
pursuant to Section 1 above in the aggregate amount of $449,109 ; (ii) all accrued
interest under the Promissory Notes and the Bridge Loan Agreements to date in the amount
of $550,891, and (ii) all principal owing under the Bridge Loan Agreements in the
aggregate amount of $2,000,000, into a loan according to the terms set forth in this
Section 2. The Outstanding Debt shall bear interest from the date hereof, at a per annum
rate equal to the higher of (i) 3 month US Dollar LIBOR on the date hereof, compounded
annually until the date of repayment, and (ii) linkage to the Israeli cost of living
index (“CPI Linkage”) calculated based on the increase from the index
known on the date hereof until the index known on the date of repayment (the Outstanding
Principal together with the interest accrued thereon or linkage if applicable, shall
collectively be referred to as the “Outstanding Debt”). |
|
2.2 The
Outstanding Debt may be repaid by either of the following methods (as determined by the
Company): |
|
(a) The
Outstanding Debt shall be deemed fully repaid, upon the payment by the Company
to Scailex of the sum of $1,000,000 (One Million US Dollars), plus interest
accruing pursuant to Section 2.1 above, provided that such payment is made no
later than December 31, 2006 (the “Maturity Date”), and further
provided that if such payment is made on or prior to September 14, 2006,
the conversion price of the Protected Shares (as defined in the Amended
Articles of Association) shall be adjusted to reflect a ‘10% Price
Protection’ (as defined in the Amended Articles of Association). Should
such amount be received by Scailex from the Company as aforesaid on or prior to
the Maturity Date, (i) the Outstanding Debt shall be deemed fully repaid for
all intents and purposes (including for the purposes of the cancellation of the
Fixed Charge pursuant to Section 3 below, the expiration of the Option pursuant
to Section 4 below, and otherwise under this Agreement and the Articles of
Association of the Company); and (ii) any other debts of the Company to Scailex
under the Promissory Notes and the Bridge Loan Agreements shall be deemed
waived, cancelled and forgiven. Should such payment not be received by Scailex
on or prior to the Maturity Date, then the Outstanding Debt shall be repaid
pursuant to Section 2.2 (b) below and the provisions of this subsection 2.2(a)
shall not apply. |
|
(b) The
Outstanding Debt shall be due and payable on the fifth anniversary of the date
hereof (“Second Maturity Date”). The Outstanding Debt may be
prepaid by the Company at any time upon no less than thirty (30) days prior
written notice. Notwithstanding the foregoing, should the Company not have
sufficient funds to repay the Outstanding Debt upon the Second Maturity Date
and cannot reasonably obtain such sum (as determined by its Board of
Directors), the Company will repay the highest amount it can reasonably repay
or reasonably obtain and repay, without risking its continued operations (as
determined by its Board of Directors) which in any event shall not be less than
$1,000,000 (One Million US Dollars) (which shall be attributed first to
interest and the remainder to Outstanding Principal), and the remainder shall
be repaid as follows: (i) the remainder of the Outstanding Debt will be paid on
or prior to the sixth anniversary of the date hereof, provided that should the
Company not have sufficient funds to repay the remainder of the debt on such
date and cannot reasonably obtain it (as determined by its Board of Directors),
the Company will repay on such date, the highest amount it can reasonably
repay, or reasonably obtain and repay, without risking its continued operations
(as determined by its Board of Directors) which in any event shall not be less
than additional $1,000,000 (One Million US Dollars) (or a lesser amount only in
the event that the debt be less than such amount) (which shall be attributed
first to interest and the remainder to Outstanding Principal), and (ii) the
remainder (if any) of the Outstanding Debt will be repaid on or prior to the
seventh anniversary of the date hereof. |
|
2.3 Notwithstanding
anything herein to the contrary, the entire Outstanding Debt, shall be due and payable at
any time without any further demand, immediately upon the occurrence of any of the events
described below (“Event of Acceleration”): |
|
(i) the
Company fails to pay any sum due from it to Scailex under this Section 2 when
due, or otherwise is in material breach of this Agreement, and the same is not
remedied within fourteen (14) days after receipt of written notice thereof; or |
B - 2
|
(ii) the
Company performs a general rescheduling or another arrangement regarding its
indebtedness pursuant to Section 350 to the Israeli Companies Law, 1999 (the
“Companies Law”) or otherwise; or makes a general assignment
for the benefit of, or a composition with, its creditors pursuant to Section
350 to the Companies Law or otherwise; or |
|
(iii) the
filing against the Company of any petition in liquidation or any petition for
relief under the provisions of applicable law for the relief of debtors, or the
appointment of a special manager, temporary liquidator, temporary receiver or
trustee to take possession of any material property or assets of the Company;
or an attachment is placed on any of the material assets of the Company; or the
Company resolves to voluntarily liquidate; or the appointment of a liquidator
or receiver to take possession of material property or assets of the Company,
provided that such filing, appointment, resolution or attachment is not
discharged in its favor or cancelled within forty five (45) days thereafter. |
| |
The
company will inform Scailex upon the occurrence of an Event of Acceleration, within two
(2) business days thereafter.
|
| |
Without
derogating from the foregoing, for as long as an Event of Acceleration has occurred and
all or any part of the Outstanding Debt remains outstanding, the amount of the
Outstanding Debt applicable on the date of the Event of Acceleration, shall thereafter
(in lieu of the interest set forth in Section 2.1 above), bear interest equal to the
higher of (i) interest at an annual rate equal to 3 month US Dollar LIBOR plus 8%,
compounded every three months; and (ii) CPI Linkage, in each case which shall be
calculated from the date of the Event of Acceleration until the full repayment thereof (“Default
Interest”).
|
|
2.4 Without
derogating from the foregoing, for as long as all or any part of the Outstanding Debt
remains outstanding, Scailex may elect to convert all or any part thereof (which
following an Event of Acceleration shall include any Default Interest) into shares of the
Company upon exercise of all or part of the option granted to Scailex pursuant to and
subject to the provisions of, Section 4 below. |
3. Fixed
Charge.
|
3.1 To
secure the performance of the Company’s obligations pursuant to Section 2 above (the
“Secured Obligations”), the Company hereby pledges and grants Scailex a
first priority fixed charge on all of the Company’s rights in and to its
intellectual property (the “Fixed Charge”) as more fully described in Schedule
A attached hereto (the “Collateral”), for as long as the
Fixed Charge is in effect. |
|
3.2. Until
the full repayment of the Outstanding Debt, the Company will not: |
|
A. without
prior written consent of Scailex which consent may be granted or withheld in
its sole discretion: (a) materially change the general nature of its business;
(b) sell, transfer, assign, grant or permit to subsist a security interest or
exclusive license in, pledge or otherwise dispose of any of the Collateral or
any part thereof; or (c) institute any legal or similar proceedings whatsoever
in respect of the Collateral or any part thereof which would have a material
adverse effect on the ability of Scailex to realize the Collateral or any part
thereof, in each case, whether directly or indirectly, whether for
consideration or otherwise, and |
B - 3
|
B. without
prior written consent of Scailex which will not be unreasonably withheld or
delayed: (a) receive any loan or advance from a third party or incur any debt
in each case of an amount in excess of $1,000,000, other than debt incurred in
the ordinary course of business consistent with past business practices of the
Company; or (b) issue any guarantee or otherwise incur any contingent liability
in excess of $1,000,000, other than in the ordinary course of business. |
|
3.3 The
Company shall use best efforts to preserve the Collateral, without interfering with the
use of the Collateral in the ordinary course of business. The Company shall permit
Scailex to inspect the Collateral and its records at all reasonable times and upon
reasonable notice. |
|
3.4. Subject
to applicable law, Scailex shall be entitled to enforce the Fixed Charge
against the Company, and the Collateral shall be subject to immediate
foreclosure, at any time without any further demand, immediately upon the
occurrence of an Event of Acceleration, unless otherwise provided for herein.
The Company shall promptly inform Scailex of the occurrence of any Event of
Acceleration and, upon receipt of a written request to that effect from
Scailex, confirm to Scailex that, except as previously notified to Scailex or
as notified in such confirmation, no Event of Acceleration has occurred. |
|
3.5 Upon
the occurrence of any Event of Acceleration, Scailex shall be entitled to adopt all the
measures it deems fit, allowed by applicable law, in order to recover the performance of
the Secured Obligations and realize all of its rights hereunder, including the
realization of the Collateral, in whole or in part, and to apply the proceeds thereof to
the Secured Obligations without Scailex first being required to realize any other
guarantees or collateral securities, if such be held by Scailex. |
|
3.6 Upon
the occurrence of an Event of Acceleration, Scailex may, as attorney-in-fact of the
Company (and, for the purpose hereof, the Company does hereby irrevocably appoints
Scailex to be its attorney-in-fact), subject to any applicable law, sell all or any part
of the Collateral by public auction or otherwise, by itself or through others, for cash
or installments thereof or otherwise, at a price and on such terms as Scailex in its
reasonable discretion shall deem fit, and likewise, subject to applicable law, Scailex
may of its own accord or through the court or an execution office, realize the Collateral
or any part thereof, including, inter alia, by appointing a receiver or receiver and
manager on behalf of Scailex, who shall be empowered, inter alia: (i) to call in all or
any part of the Collateral; (ii) to sell, or agree to the sale of, the Collateral, in
whole or in part, to dispose, or agree to dispose, of same in such other manner on such
terms as he deems fit; (iii) to make such other arrangement regarding the Collateral or
any part thereof as he deems fit; (iv) to take any and all action required which he, at
his sole discretion, deems productive or otherwise helpful, for the realization of the
Collateral, and/or for the fulfillment of his duty; and (v) to carry out any other
authority empowered to him by the court or the execution office. |
B - 4
|
3.7 Scailex
acknowledges and agrees that certain of the Collateral may have been developed with the
assistance of funds received from the Office of the Chief Scientist of the Israeli
Ministry of Industry and Trade and consequently the use, transfer and sale of such
Collateral is subject to the Law for the Encouragement of Industrial Research and
Development, 5744-1984, as amended or supplemented from time to time and all rules and
regulations issued thereunder (the “R&D Law”) and Scailex undertakes
to comply with the R&D Law in exercising its rights hereunder, and acknowledges that
its rights hereunder are subject to the provisions of the R&D Law and the rights of
the aforementioned Office of the Chief Scientist. |
|
3.8. The
Company shall cooperate with Scailex and execute all documents necessary or
advisable to register the Fixed Charge with the Israeli Registrar of Companies
and/or Registrar of Patents within 7 days from the date hereof, and shall bear
all stamp taxes with respect to such registrations, if such are applicable. The
Company shall pay, upon demand, all reasonable expenses, including reasonable
attorney’s fees, incurred by Scailex in enforcing it rights and remedies
hereunder. |
|
3.9. The
amount being secured under the Fixed Charge created by this Agreement is
limited as set forth herein, to the Outstanding Debt and any other amounts due
according to this Agreement. The payments to be made to Scailex in the event of
the foreclosure of the Fixed Charge will be made in the following order: costs,
expenses and taxes, interest, and then the Outstanding Principal. The Fixed
Charge shall be cancelled, and Scailex shall promptly execute and provide the
Company with all documents necessary to release the Fixed Charge, upon
repayment of all amounts owed to Scailex hereunder. |
|
3.10 Without
derogating from any other of the rights and remedies available to Scailex hereunder in
the event of a breach of this Agreement by the Company, the Company shall indemnify and
hold Scailex harmless from and against any and all damages or losses, incurred or
suffered by Scailex (including all expenses trial costs and legal fees) resulting from
any breach by the Company of the provisions of this Agreement. |
|
3.11 To
the extent that the Company or any other person on behalf of the Company makes a payment
or payments to Scailex, and such payment is declared to be fraudulent or preferential or
required to be repaid or refunded or reduced by virtue of any applicable law relating to
bankruptcy, insolvency, administration, receivership, liquidation or similar proceedings,
then the Secured Obligations or any part thereof originally intended to be satisfied,
this Agreement, the Fixed Charge and all other rights and remedies hereunder shall be
revived or restored to their full scope and continued in full force and effect as if such
payment or payments had not been made or such enforcement or set-off had not occurred. |
B - 5
4.
Option. Until the Outstanding Debt and all Default Interest (if
applicable) have been repaid by the Company to Scailex in full, Scailex is
granted the option to invest (including by way of conversion of all or any part
of the Outstanding Debt and/or Default Interest as set forth in Section 2.4
above) $5,000,000 (Five Million US Dollars) at a pre-money company valuation of
$20,000,000 (Twenty Million US Dollars) on a fully diluted basis at such time
(assuming conversion of all options, warrants and other securities exchangeable
for or convertible into shares of the Company including reserved employee
options and the conversion of all convertible shares into Ordinary Shares). The
shares to be issued to Scailex upon exercise shall be either the preferred
shares of the same class and rights issued on the most recent round of financing
of the Company, Preferred A Shares or Ordinary Shares, or any combination
thereof, as determined by Scailex at its sole and absolute discretion, and such
option may be exercised in whole but not in part.
5.
Representations and Warranties of the Company. The Company hereby
represents and warrants to Scailex that:
|
5.1 the
authorized capital of the Company will consist at and immediately following the Closing
as set forth in Article 4.1 of the Amended Articles of Association attached as Exhibit
A to the Reorganization Agreement. |
|
5.2 At
and immediately following the Closing, the outstanding Ordinary Shares and Preferred A
Shares are owned by the shareholders of the Company in the numbers specified in the
capitalization table attached as Exhibit E to the Reorganization
Agreement. Except as set forth in such Exhibit E, the shareholders
of the Company, are the lawful owners, beneficially and (to the Company’s knowledge)
of record, of all the issued and outstanding shares of the Company (except the Deferred
Shares), and of all rights thereto, to the best knowledge of the Company, free and clear
of all liens, claims, charges, encumbrances, restrictions, rights, options to purchase,
proxies, voting trust and other voting agreements, calls or commitments of every kind,
except for Xxxx Xxxxxxxx & Co. which holds shares as trustee on behalf of Xxxx
Xxxxxxx and Xxxxxxxx Xxxxxxxx. |
|
5.3 The
outstanding Ordinary Shares and Preferred A Shares have been duly authorized and validly
issued, are fully paid, non-assessable, and were issued in accordance with any applicable
law including any relevant securities law. |
|
5.4 Upon
and immediately following the Closing, except for (i) options to purchase up to 426,100
Ordinary Shares reserved by the Company’s Board of Directors to be granted to
employees pursuant to the Company’s Employee Share Option Plan adopted by the
Company, (ii) as set forth in the Amended Articles of Association of the Company, and
(iii) under applicable law, there are, as of the date hereof, no outstanding options,
warrants, rights (including conversion or preemptive rights and rights of first refusal),
proxy or shareholder agreements or agreements of any kind for the purchase or acquisition
from the Company of any of its securities. The Company is not a party or subject to any
agreement or understanding, and, to the best of the Company’s knowledge, there is no
agreement or understanding between any other persons that affect or relate to the voting
or giving of written consents with respect to voting of any security of the Company. |
B - 6
|
5.5 The
Company has the requisite right, power and authority to perform its obligations under
this Agreement; and the execution, delivery and performance by the Company of this
Agreement has been duly authorized by all necessary action. This Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms. The execution, delivery and performance of this Agreement by
the Company will not (a) contravene, conflict with or result in a violation of any
breach of any provisions of its corporate documents, (b) result in a default by the
Company under any material contract to which such the Company is a party, or (c)
contravene, conflict with or result in a material violation by the Company of any
applicable law, legal requirement, order, writ, injunction, judgment or decree to which
the Company is subject. |
6. Information
Rights
|
6.1 The
Company shall deliver to Scailex, for so long as Scailex is a record holder of Ordinary
Shares, or other securities convertible into Ordinary Shares: |
|
(a) As
soon as practicable, but in any event within thirty five (35) days after the
end of each fiscal year, consolidated balance sheet of the Company as of the
end of such year, statements of income and statements of cash flow of the
Company for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail, United States
dollar-denominated, prepared in accordance with United States or Israeli
generally accepted accounting principles (“GAAP”) (as shall be
determined by Scailex), audited by a “Big 4” firm of Certified Public
Accountants in the State of Israel, and accompanied by an opinion of such firm
which opinion shall state that such balance sheet and statements of income and
cash flow have been prepared in accordance with GAAP applied on a basis
consistent with that of the preceding fiscal year, and present fairly and
accurately the financial position of the Company as of their date, and that the
audit by such accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards; and |
|
(b) If
so requested by Scailex, as soon as practicable, but in any event within thirty
(30) days after the end of each quarter of each fiscal year, the Company shall
deliver an unaudited consolidated balance sheet of the Company as at the end of
each such period and unaudited consolidated statements of (i) income and (ii)
cash flow of the Company for such period and, in the case of the first, second
and third quarterly periods, for the period from the beginning of the current
fiscal year to the end of such quarterly period, setting forth in each case in
comparative form the figures for the corresponding period of the previous
fiscal year, all in reasonable detail, United States dollar-denominated,
prepared in accordance with GAAP applied on a basis consistent with that of
preceding periods, and fairly presenting the financial position of the Company
as of their date, subject to (x) there being footnotes contained therein and
(y) changes resulting from year-end audit adjustments, and all reviewed by a
firm of Independent Certified Public Accountants in the State of Israel who are
members of the Israeli Institute of Certified Public Accountants; |
The
Company represents and confirms that they recognize that Scailex is a public company which
shares are being traded on the NASDAQ and Tel Aviv Stock Markets and it is subject to the
reporting requirements under applicable US and Israeli securities laws and regulations,
and therefore has certain obligations of reporting and disclosure
(“Obligations”). Consequently, the Company shall deliver to Scailex any required
information, financials and consents (if requested by Scailex) and shall waive any claim
with regard to such Obligations.
B - 7
|
6.2 Additional
Information. The Company will permit Scailex, at all reasonable times, and upon
reasonable notice, full and free access to any of the properties of the Company,
including all its books and records. Scailex shall be entitled to review, inspect and
copy the aforementioned and to discuss the Company’s affairs, finances and accounts
with the Company’s management, officers and auditor, for any purpose whatsoever, all
subject to standard confidentiality undertakings. This Section 6.2 shall not be in
limitation of any rights, which Scailex may have under applicable law. |
|
6.3 Accounting. The
Company will maintain and cause each of its Subsidiaries to maintain a system of
accounting established and administered in accordance with GAAP consistently applied, and
will set aside on its books and cause each of its operating Subsidiaries to set aside on
its books all such proper reserves as shall be required by GAAP. For purposes of this
Agreement, “Subsidiary” means any corporation or entity at least a majority of
whose voting securities are at the time owned by the Company (taking into account
conversion of warrant or option held by the Company or by any of its Subsidiaries), or by
one or more Subsidiaries, or by the Company and one or more Subsidiaries. |
|
6.4 Confidentiality. Scailex
agrees that any information obtained from the Company pursuant to this Agreement will not
be disclosed without the prior written consent of the Company except to Scailex’s
respective advisors (who have themselves undertaken such confidentiality undertakings)
and except as may be necessary in connection with the exercise of rights under this
Agreement, the Amended Articles of Association, or as a shareholder, unless the Company
has made such information available to the public generally or Scailex is required to
disclose such information by law, a governmental body or by judicial order, but only to
the persons and the extent so required. |
|
6.5 Additional
Rights. Without derogating from the abovementioned, the Company undertakes to furnish
Scailex with such other information as may be reasonably requested, from time to time
prior to its initial public offering, by Scailex upon its request, provided Scailex holds
not less than 5% of the Company’s share capital (excluding the Deferred Shares of
the Company), calculated on a fully diluted basis. Scailex may file the Company’s
financial statements with the applicable regulatory authorities, when required under
applicable law, rules and regulations. |
|
6.6 Termination
of Financial Information Rights. The Company’s obligations to deliver the
financial statements and other information to Scailex hereunder shall terminate and shall
be of no further force or effect upon the closing of the Company’s initial firmly
underwritten public offering of its Ordinary Shares pursuant to an effective registration
statement under the United States Securities Act of 1933, as amended (the “Securities
Act”), or equivalent law of another jurisdiction. Thereafter, the Company shall
deliver to Scailex and its respective assignees or transferees, such financial
information as the Company from time to time provides to other holders of its shares. |
B - 8
7.
Registration Rights. The Company shall not grant any registration rights
to its current or future investors in the Company without concurrently therewith
granting Scailex in respect of any shares it holds, pro rata registration
rights according to the same terms and conditions.
8.
Covenants of the Parties. Each Party shall use all reasonable efforts to
take, or cause to be taken, all actions necessary to consummate the transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, each Party (i) shall make all filings (if any) and give all
notices (if any) required to be made and given by such Party in connection with
the transactions contemplated by this Agreement, and (ii) shall use all
reasonable efforts to obtain each consent (if any) required to be obtained by
such Party in connection with the transactions contemplated by this Agreement.
9.
Termination of Outstanding Agreements.
To
the extent not already terminated, at the Closing the following documents will be deemed
terminated and of no further force and effect: (i) that certain Investors Rights Agreement
between the Company and Scailex; (ii) that certain Option to Purchase Securities Agreement
between the Company, Scailex and certain other parties; (iii) the Promissory Notes
Agreements; (iv) the Promissory Notes; and (v) that certain Shareholders Agreement between
the Company, Scailex and certain other parties.
10.
Transfer; Successors and Assigns. None of the rights, privileges, or
obligations set forth in, arising under, or created by this Agreement may be
assigned or transferred by the Company without the prior consent in writing of
Scailex. Scailex may assign or transfer any of the rights, privileges, or
obligations set forth in, arising under, or created by this Agreement. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties.
11.
Governing Law. This Agreement shall be solely and exclusively governed by
and construed according to the laws of the State of Israel, without regard to
the conflict of laws provisions thereof. Any dispute arising under or in
relation to this Agreement shall be solely and exclusively resolved in the
competent courts of the Tel Aviv-Jaffa district, and each of the parties hereby
submits irrevocably to the jurisdiction of such court.
12.
Amendments and Waivers. Any term of this Agreement may be amended or
waived only with the written consent of the Company and Scailex. Any waiver by
the Company or Scailex of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement. The failure of the
Company or Scailex to insist upon strict adherence to any term of this Agreement
or to exercise any of its rights hereunder, on one or more occasions shall not
be considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement. Neither
Scaliex nor any person acting on its behalf shall be liable for, and the Company
hereby waives any claim it may have against Scailex and/or any other person
acting on its behalf, which arises from, any loss or damage which may be caused
as a result of the exercise or purported exercise of the powers, authorities,
rights or discretions vested in Scailex in connection herewith.
B - 9
13.
Invalidity. If any provision of this Agreement is invalid, illegal or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. In such an event, the
parties will in good faith attempt to effect the business agreement represented
by such invalidated term to the fullest extent permitted by law.
14.
Taxes. Each party shall bear its own taxes and expenses arising from or
incurred in connection with this Agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
B - 10
IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed as of the date first above written.
|
|
JEMTEX INK JET PRINTING LTD.
By: /s/ Avi Xxxx
Title: CEO
|
|
|
SCAILEX CORPORATION LTD.
By: /s/ Shachar Rachim, /s/ Yahel Shachar
Title: ________________________ |
B - 11
SCHEDULE A
COLLATERAL
The Collateral consists of all of
Company’s right, title in and to its intellectual property rights, including, but not
limited to, all goodwill, trademarks, servicemarks, Internet domain names, trade dress,
trade styles, trade names, patents, patent applications, blueprints, drawings,
infringements, intellectual property claims, computer programs, computer discs, computer
tapes, literature, reports, catalogs, design rights, all claims for damages by way of any
past, present and future infringement of any of the foregoing and rights to payment of any
kind.
B - 12
Exhibit C
August 1, 2006
| To: |
Scailex
Corporation Ltd. |
| |
Jemtex Ink Jet Printing Ltd. |
Gentlemen,
In
connection with the transactions contemplated in the Reorganization Agreement, dated of
even date herewith (“Reorganization Agreement”), I agree as follows:
| 1. |
Should
my employment with Jemtex Ink Jet Printing Ltd. (the "Company") be terminated in a
Non Approved Termination (as defined below), then either of the Company or
Scailex, each in their sole and absolute discretion, shall be entitled to
require that the Repurchase Option (as defined below) with respect to all the
Shares is exercised as follows: |
| |
(a) |
If the Non Approved Termination shall occur prior to 30 months from the date
hereof, the Repurchase Option shall apply with respect to One Hundred Percent
(100%) of the Shares; |
| |
(b) |
If the Non Approved Termination shall occur after 30 months from the date hereof
but prior to the third anniversary of the date hereof, the Repurchase Option
shall apply with respect to Ninety Five Percent (95%) of the Shares; |
| |
(c) |
If the Non Approved Termination shall occur after the third anniversary of the
date hereof but prior to the fourth anniversary of the date hereof, the
Repurchase Option shall apply with respect to Eighty Percent (80%) of the
Shares; |
| |
(d) |
If the Non Approved Termination shall occur after the fourth anniversary of the
date hereof but prior to the later of (i) full repayment of the Outstanding Debt
by the Company (as defined in the Agreement attached as Exhibit B to the
Reorganization Agreement) or (ii) the fifth anniversary of the date hereof, the
Repurchase Option shall apply with respect to Fifty Percent (50%) of the Shares;
or |
| |
(e) |
If I shall continue to be employed by the Company upon the later of (i) full
repayment of the Outstanding Debt (as defined in the Agreement attached as
Exhibit B to the Reorganization Agreement) or (ii) the fifth anniversary of the
date hereof, the Repurchase Option of the Company shall expire and lapse. |
| 2. |
I
undertake not to transfer any of the Shares of the Company held by me, nor
transfer, encumber or otherwise dispose of any rights in the Shares in any
manner until the Company's rights have been exercised or lapsed hereunder.
Notwithstanding the foregoing, I shall be entitled to transfer some of the
Shares to other shareholders of the Company, provided that prior to such
transfer, such shareholder acknowledges and undertakes in writing to the
Company and Scailex that (i) the Shares received by such shareholder shall
remain subject to the provisions hereof (including the Company's and
Scailex's Repurchase Option upon a Non Approved Termination of my
employment) as if I had continued to hold such Shares, and (ii) such
shareholder will not transfer any of the Shares or rights therein, in violation
of the first sentence of this Section 2. |
| 3. |
I
hereby appoint each of the directors and officers of the Company as my agent and
attorney in fact to execute any documents, including share transfer deeds,
that may be required to effect the foregoing rights of the Company. |
| 4. |
For
the purposes hereof: |
| |
“Non
Approved Termination” shall mean (i) my resignation from the Company without Good
Reason; or (ii) the termination of my employment by the Company for Cause.
“Good
Reason” shall mean any of the following without my express written consent or
waiver: (i) my salary is materially reduced by the Board of Directors of the Company,
other than in the framework of a salary decrease that effects all senior employees of the
Company, and other than in the framework of a decrease in my position that would not fall
under (iii) below; or (ii) health problems are suffered by me that incapacitate me from
being able to fulfill my duties to the Company, as approved by the Board of Directors of
the Company; or (iii) my position with the Company will be decreased to less than a 50%
position. |
| |
“Cause”
shall mean (i) a serious breach of trust including but not limited to theft, embezzlement,
self-dealing, prohibited disclosure to unauthorized persons or entities of confidential or
proprietary information of or relating to the Company or engagement in any prohibited
business or business which is competitive to the business of the Company and its
subsidiaries or affiliates; (ii) any willful failure to perform any of my fundamental
functions or duties hereunder which has or is likely to seriously damage the Company, or
(iii) any other cause which justifies, according to applicable law, the termination or
dismissal of an employee without payment of full severance compensation. |
| |
“Repurchase
Option” shall mean the right, which shall be exercised within ninety days from
the date of the Non Approved Termination, pursuant to which (1) one-half of the Shares
subject to the Repurchase Option will be transferred, without consideration, to Scailex
Corporation Ltd. (“Scailex”); and (2) the remaining half of the Shares subject
to the Repurchase Option will be converted into Deferred Shares (as set forth in the
Articles of Association of the Company) or otherwise cancelled, as determined by the
Company. |
C - 2
| |
“Shares” shall mean all shares of the Company held by me at the tie of exercise of the Repurchase
Option which shall include, without limitation, any shares issued to me as a share
dividend or share split or resulting from a recapitalization or other change in the
character or amount of any of the outstanding shares of the Company. |
| 5. |
In
the event of the sale, spin-off, transfer or other disposition, directly or
indirectly, of all or substantially all of the business, assets or
securities of Company, whether by way of a merger, consolidation or other
similar transaction ("M&A Transaction"), and such M&A Transaction has been
approved by Scailex, then the Repurchase Option shall expire and lapse upon
the consummation of the M&A Transaction. |
| 6. |
I
agree and acknowledge that for as long as the Repurchase Option or any part thereof
is outstanding, any share certificate representing Shares subject to such
Repurchase Option shall include a legend stating the: |
| |
“ANY
TRANSFER ANY OF THE SHARES OF THE COMPANY REPRESENTED BY THIS SHARE CERTIFICATE, OR ANY
TRANSFER, ENCUMBER OR OTHER DISPOSITION, IN ANY WAY, OF ANY RIGHTS OF THE SHARES OF THE
COMPANY REPRESENTED BY THIS SHARE CERTIFICATE, IS PROHIBITED” |
|
|
Sincerely,
/s/ Avi Xxxx
Avi Rabi
/s/ Xxxxxxxx Xxxxxxxx
Xx. Xxxxxxxx Xxxxxxxx |
Accepted and Agreed:
Scailex Corporation Ltd.
By: /s/ Shachar Rachim, /s/ Yahel Shachar
Name: _______________________
Title: _______________________
Jemtex Ink Jet Printing Ltd.
By: /s/ Avi Xxxx
Name: Avi Xxxx
Title: CEO
C - 3
Exhibit D
SHARE TRANSFER DEED
For no consideration, the
undersigned, Scailex Corporation Ltd. (formerly Scitex Corporation Ltd.), hereby transfers
to Avi Xxxx (the “Transferee”) 5,298,907 Ordinary Shares, nominal value
NIS 0.01 each, of Jemtex Ink Jet Printing Ltd. (51-221451-1) to be held by the Transferee,
under the same conditions under which the undersigned held them immediately prior to
signing this instrument of transfer, and the Transferee, hereby agree to accept the above
mentioned shares in accordance with the above mentioned conditions.
In witness whereof, we affix our
signatures hereto this 4th day of August, 2006.
|
|
|
|
|
|
|
|
|
|
| Transferor: |
Transferee: |
| |
| |
| Scailex Corporation Ltd. |
Avi Xxxx |
| |
| By: /s/ Yahel Shachar /s/ Shachar Rachim, |
By: /s/ Avi Xxxx |
| |
| Name: Shachar/Rachim |
| Title: CEO/CFO |
SHARE TRANSFER DEED
For no consideration, the
undersigned, Scailex Corporation Ltd. (formerly Scitex Corporation Ltd.), hereby transfers
to Avi Xxxx (the “Transferee”) 4,196,907 Ordinary Shares, nominal value
NIS 0.01 each, of Jemtex Ink Jet Printing Ltd. (51-221451-1) to be held by the Transferee,
under the same conditions under which the undersigned held them immediately prior to
signing this instrument of transfer, and the Transferee, hereby agree to accept the above
mentioned shares in accordance with the above mentioned conditions.
In witness whereof, we affix our
signatures hereto this 4th day of August, 2006.
|
|
|
|
|
|
|
|
|
|
| Transferor: |
Transferee: |
| |
| |
| Scailex Corporation Ltd. |
Xxxxxxxx Xxxxxxxx |
| |
| By: /s/ Yahel Shachar /s/ Shachar Rachim, |
By: /s/ Xxxxxxxx Xxxxxxxx |
| |
| Name: Shachar/Rachim |
| Title: CEO/CFO |
D - 2
Exhibit E
Jemtex Ink Jet Printing Ltd.
Post Reorganization Capitalization Table
Shareholder
|
Ordinary Shares
|
MBO Shares (Ordinary)
|
Preferred A Shares
|
Ordinary Options
|
Total (FDB)
|
% FDB
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Xxxxx Xxxxxxxx |
|
|
| 1,102,000 |
|
| 4,007,259 |
|
| |
|
| |
|
| 5,109,259 |
|
| 34.49 |
% |
| Xxxx Xxxxxxx | | |
| 1,102,000 |
|
| 379,296 |
|
| |
|
| |
|
| 1,481,296 |
|
| 10.00 |
% |
| Leeholme | | |
| 310,000 |
|
| |
|
| |
|
| |
|
| 310,000 |
|
| 2.09 |
% |
| Xxxxxx Xxxxx | | |
| 124,000 |
|
| |
|
| |
|
| |
|
| 124,000 |
|
| 0.84 |
% |
| Xxx Xxxxx | | |
| 15,500 |
|
| |
|
| |
|
| |
|
| 15,500 |
|
| 0.10 |
% |
| Xxxx Xxxxx | | |
| 15,600 |
|
| |
|
| |
|
| |
|
| 15,600 |
|
| 0.11 |
% |
| Scailex Corporation Ltd.* | | |
| |
|
| |
|
| 2,221,944 |
|
| |
|
| 2,221,944 |
|
| 15.00 |
% |
| Avi Xxxx | | |
| |
|
| 5,109,259 |
|
| |
|
| |
|
| 5,109,259 |
|
| 34.49 |
% |
| ESOP | | |
| |
|
| |
|
| |
|
| 426,100 |
|
| 426,100 |
|
| 2.88 |
% |
| TOTAL | | |
| 2,669,100 |
|
| 9,495,814 |
|
| 2,221,944 |
|
| 426,100 |
|
| 14,812,958 |
|
| 100 |
% |
*Scailex has an option exercisable until repayment of the Loan, to invest $5m at a pre-money company valuation of $20m
*Scailex has anti dilution rights to retain 10%/15% holdings in the Company until 3 years after closing / repayment of the Loan as set forth in the Amended Articles of Association of the Company.
Jemtex Ink Jet Printing Ltd.
Capitalization Table
Shareholder
|
Ordinary
Shares
|
Preferred A
Shares
|
Preferred B
Shares
|
Preferred C
Shares
|
Preferred D
Shares
|
Preferred E
Shares
|
Preferred F
Shares
|
Ordinary
Options
|
Total
(FDB)
|
% FDB
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Xxxx Xxxxxxxx & Co. |
|
|
| 2,204,000 |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| 2,204,000 |
|
| 14.88 |
% |
| Leeholme | | |
| 310,000 |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| 310,000 |
|
| 2.09 |
% |
| Xxxxxx Xxxxx | | |
| 124,000 |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| 124,000 |
|
| 0.84 |
% |
| Xxx Xxxxx | | |
| 15,500 |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| 15,500 |
|
| 0.10 |
% |
| Xxxx Xxxxx | | |
| 15,600 |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| 15,600 |
|
| 0.11 |
% |
| Scailex Corporation Ltd. | | |
| 31,000 |
|
| 1,510,800 |
|
| 1,272,517 |
|
| 2,500,000 |
|
| 1,442,623 |
|
| 1,459,992 |
|
| 3,500,826 |
|
| |
|
| 11,717,758 |
|
| 79.10 |
% |
| ESOP | | |
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| 426,100 |
|
| 426,100 |
|
| 2.88 |
% |
| TOTAL | | |
| 2,700,100 |
|
| 1,510,800 |
|
| 1,272,517 |
|
| 2,500,000 |
|
| 1,442,623 |
|
| 1,459,992 |
|
| 3,500,826 |
|
| 426,100 |
|
| 14,812,958 |
|
| 100 |
% |
Class of Shares
|
Purchase Price
|
Investment Amount
|
Shares issued
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Series A Preferred Shares |
|
|
$ | 3.6673 |
|
$ | 5,540,557 |
|
| 1,510,800 |
|
| Series B Preferred Shares | | |
$ | 2.5147 |
|
$ | 2,399,971 |
|
| 954,388 |
|
| Total Invested | | |
| |
|
$ | 7,940,528 |
|
| 2,465,188 |
|
| Series B Preferred Shares | | |
$ | 2.5147 |
|
$ | 799,989 |
|
| 318,129 |
|
| Series C Preferred Shares | | |
$ | 0.6000 |
|
$ | 1,500,000 |
|
| 2,500,000 |
|
| Series D Preferred Shares | | |
$ | 0.6932 |
|
$ | 999,997 |
|
| 1,442,623 |
|
| Series E Preferred Shares | | |
$ | 0.6849 |
|
$ | 1,000,000 |
|
| 1,459,992 |
|
| Series F Preferred Shares | | |
$ | 0.6786 |
|
$ | 2,375,821 |
|
| 3,500,826 |
|
| Total Notes | | |
$ | 6,675,808 |
|
| 9,221,570 |
|
| Total Shares issued to Scailex (excluding 31,000 Ordinary Shares) | | |
| |
|
| |
|
| 11,686,758 |
|
| Total Investment Amount (A&B) | | |
| |
|
| $ 7,910,000 |
| Total Notes and Bridge Loan Amount (including interest) | | |
| |
|
| $ 9,675,808 |
| Total Invested & Loan & Notes | | |
| |
|
| $ 17,585,808 |
| Total Notes /Bridge Loan Converted (Total minus $3m) | | |
| |
|
| $ 6,675,808 |
| Total Loan ($3m) | | |
| |
|
| $ 3,000,000 |
Amendment to
Reorganization Agreement dated August 4, 2006
This Amendment (this "Amendment") is entered into as of September __, 2006 by and between Scailex
Corporation Ltd. and Jemtex Ink Jet Printing Ltd.
WHEREAS,
the parties entered into a into an Agreement dated as of August 4, 2006 (the
“Agreement”); and
WHEREAS,
the parties desire to amend the Agreement, by the terms of this Amendment;
NOW,
THEREFORE, the parties hereto hereby agree to amend the Agreement as follows:
| |
1. |
The
following sentence shall be added to the end of Schedule A – Collateral, |
| |
“For
clarification, it is hereby noted that the aforementioned patent applications include
inter alia Patent Application No. 168772 filed on November 24, 2003.” |
| |
2. |
This
amendment shall be deemed an integral part of the Agreement and accordingly all
provisions of the Agreement shall apply hereto. |
IN
WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have caused
this Agreement to be executed as of the date written above.
|
|
|
|
|
|
|
|
|
|
| |
|
—————————————————— |
/s/ Yahel Shachar, /s/ Shachar Rachim [Company Seal]
—————————————————— |
| JEMTEX INK JET PRINTING LTD. |
SCAILEX CORPORATION LTD. |
| |
| By: /s/ Avi Xxxx |
By: Xxxxxxx / Rachim |
| Title: CEO |
Title: CEO/CFO |
Amendment to Reorganization Agreement dated August 4, 2006
This Amendment (this
“Amendment”) is entered into as of September __, 2006 by and between
Scailex Corporation Ltd. (formerly Scitex Corporation Ltd.) (“Scailex”)
and Avi Xxxx and Xxxxxxxx Xxxxxxxx (together, the “Management”). Each of
Scailex and the Management shall be referred to herein individually as a
“Party” and collectively, as the “Parties”.
WHEREAS,
the parties entered into a into a Reorganization Agreement dated as of August 4, 2006 (the
“Agreement”); and
WHEREAS,
the parties desire to amend the Reorganization Agreement, by the terms of this Amendment;
NOW,
THEREFORE, the parties hereto hereby agree to amend the Reorganization Agreement as
follows:
| |
1. |
Exhibit
B is hereby amended to include the Amendment to the Agreement- attached hereto as Exhibit
1. |
| |
2. |
This
amendment shall be deemed an integral part of the Agreement and accordingly all
provisions of the Agreement shall apply hereto. |
IN
WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have caused
this Agreement to be executed as of the date written above.
|
|
SCAILEX CORPORATION LTD.
By: [COMPANY SEAL]
/s/ Yahel Shachar, /s/ Shachar Rachim
Title: CEO/CFO
/s/ Avi Xxxx
AVI XXXX
/s/ Xxxxxxxx Xxxxxxxx
XXXXXXXX XXXXXXXX |
AMENDMENT TO
REORGANIZATION AGREEMENT
This
Amendment (the “Amendment”) to Reorganization Agreement (as defined
below) is entered into as of January 4, 2007, by and among Scailex Corporation (formerly
Scitex Corporation) (“Scailex”), Xxxxxxx Xxxx and Xxxxxxxx Xxxxxxxx (together,
the “Executives”);
WHEREAS,
Scailex and the Executives are parties to a Reorganization Agreement, dated August 4,
2006, as amended on September __, 2006 (the “Reorganization Agreement); and
WHEREAS,
the parties wish to amend certain provisions in the Reorganization Agreement as set forth
herein; and
WHEREAS,
according to Section 7.1 of the Reorganization Agreement, any term of the Reorganization
Agreement may be amended only by a written instrument signed by all parties to the
Reorganization Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises and
covenants set forth herein, the parties hereby agree to amend the Reorganization Agreement
as follows:
| 1. |
Interpretation.
The preamble to this Amendment forms an integral part hereof. Unless
otherwise expressly referred to herein, reference to various sections,
schedules and exhibits shall refer to the schedules and exhibits attached
to the Reorganization Agreement, as applicable. Capitalized terms used but
not expressly defined herein shall bear the meanings ascribed thereto in
the Reorganization Agreement. |
| 2. |
Amendment
to Exhibit B of the Reorganization Agreement. At and
subject to the Closing as defined in that certain Share Purchase Agreement
to be entered into by and among (i) Jemtex Ink Jet Printing Ltd., (ii)
Micro-Dent Ltd. and (iii) the Executives (the “SPA”), and
the payment of all amounts due to Scailex in accordance with Section
1.2(c) of the SPA, Exhibit B of the Reorganization Agreement shall be
amended in accordance with the provisions of Exhibit B hereto. |
| 3. |
Amendment
of Exhibit C of the Reorganization Agreement. At and
subject to the Closing of the SPA, and the payment of all amounts due to
Scailex in accordance with Section 1.2(c) of the SPA, Exhibit
C of the Reorganization Agreement shall be amended and
replaced in its entirely with the amended Exhibit C attached
hereto. |
| |
4.1. |
Except
as otherwise amended and modified hereby, the provisions of the
Reorganization Agreement shall remain in full force and effect. This
Amendment shall be deemed for all intents and purposes as an integral part
of the Reorganization Agreement. The Reorganization Agreement and this
Amendment constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior agreements
and undertakings, both written and oral, between the parties hereto with
respect to the subject matter hereof. |
| |
4.2. |
Each
of the parties shall perform such further acts and execute such further
documents as may reasonably be necessary to carry out and give full effect
to the provisions of this Amendment and the intentions of the parties as
reflected hereby, and this Amendment shall be interpreted and construed in
such manner so as to give effect to the parties’ intentions. |
| |
4.3. |
This
Amendment may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be deemed to be an original but all of which taken together shall
constitute one and the same agreement. |
[SIGNATURE PAGE TO
FOLLOW]
IN
WITNESS WHEREOF, the parties have executed this Amendment to the Reorganization
Agreement as of the date first above written.
SCAILEX [Company Seal]
/s/ Xxxx Xxxxxxxx, /s/ Yahel Shachar
Scailex Corporation
By: Xxxxxxxx; Xxxxxxx
Title: Chairman/CEO
EXECUTIVES
|
|
|
|
|
|
|
|
|
|
| /s/ Xxxxxxx Xxxx |
/s/ Xxxxxxxx Xxxxxxxx |
| Xxxxxxx Xxxx |
Xxxxxxxx Xxxxxxxx |
Agreed and Accepted by:
/s/ Xxxx Xxxxxxxxx
Micro-Dent Ltd.
4.1.2007
Pursuan to a Board resolution dated December 13, 2006
By: ________________
Title: _____________
- 2 -
Exhibit B
Amendment to Exhibit B Agreement
This
Amendment (the “Amendment”) to Agreement (as defined below) is entered
into as of January 4, 2007, by and between Scailex Corporation (formerly Scitex
Corporation) (“Scailex”) and Jemtex Ink Jet Ltd. (the
“Company”).
WHEREAS,
the Company and the Scailex are parties to an Agreement, dated August 4, 2006 as
amended on September __ 2006 (the “Agreement); and
WHEREAS,
the parties wish to amend certain provisions in the Agreement as set forth herein; and
WHEREAS, according
to Section 12 of the Agreement, any term of the Agreement may be amended only by a written
instrument signed by the Company and Scailex.
NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises and covenants set forth
herein, the parties hereby agree to amend the Reorganization Agreement as follows:
| |
3.1. |
Section
4 shall be replaced in its entirety to read as follows: |
| |
4.
Option. Scailex is hereby granted the option to invest $3,000,000 (Three
Million US Dollars) at a pre-money Company valuation of $20,000,000 (Twenty
Million US Dollars) on a fully diluted basis at such time (assuming conversion
of all options, warrants and other securities exchangeable for or convertible
into shares of the Company including reserved employee options and the
conversion of all convertible shares into Ordinary Shares) to be exercisable
until (and including) August 3, 2009. The shares to be issued to Scailex upon
exercise shall be either the preferred shares of the same class and rights
issued on the most recent round of financing of the Company, Preferred Shares
or Ordinary Shares, or any combination thereof, as determined by Scailex at its
sole and absolute discretion, and such option may be exercised in whole but not
in part. |
| |
For
the avoidance of doubt, in the event that the Company issues to Scailex new Preferred
Shares with rights identical to the Preferred Shares held by Scailex on the date of this
Amendment, in connection with the exercise of the Option, such shares shall be subject to
the terms and conditions of Article 5.2. |
| |
3.2. |
The
first sentence in Section 6.1 shall be replaced in its entirety to read as
follows: |
| |
6.1
To the extent such information is required by Scailex in order to comply with the
provisions of any applicable law, regulation or decree of any regulatory authority, the
Company shall deliver to Scailex, for so long as Scailex is a record holder of Ordinary
Shares or other securities convertible into Ordinary Shares: |
| |
3.3. |
The
first sentence in Section 6.2 shall be replaced in its entirety to read as
follows: |
| |
6.2
To the extent such information is required by Scailex in order to comply with the
provisions of any applicable law, regulation or decree of any regulatory authority, the
Company shall permit Scailex, at all reasonable times, and upon reasonable notice, full
and free access to any of the properties of the Company, including all its books and
records. |
- 3 -
| |
3.4 |
Scailex
acknowledges that the Company’s obligations and/or the rights granted to Scailex
under Section 6.3 (Accounting) and Section 6.5 (Additional Rights) shall be in effect
only to the extent and as long as such information is required by Scailex in order to
comply with the provisions of any applicable law, regulation or decree of any regulatory
authority. |
| |
4.1. |
Acknowledgement.
Scailex acknowledges and agrees that due to the repayment of the Loan, no
additional amounts are due to Scailex and as such Section 2 (Loan) and
Section 3 (Fixed Charge) of the Agreement are no longer in force and effect. |
| |
4.2. |
Except
as otherwise amended and modified hereby, all other provisions of the
Agreement shall remain in full force and effect. This Amendment shall be
deemed for all intents and purposes as an integral part of the Agreement.
The Agreement and this Amendment constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and supersede all
prior agreements and undertakings, both written and oral, between the
parties hereto with respect to the subject matter hereof. |
| |
4.3. |
This
Amendment may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be deemed to be an original but all of which taken together shall
constitute one and the same agreement. |
IN
WITNESS WHEREOF, the parties have executed this Amendment to the Reorganization
Agreement as of the date first above written.
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| |
|
[Company Seal] |
| |
/s/ Avi Xxxx
Jemtex Ink Jet Ltd. |
/s/ Xxxx Xxxxxxxx, /s/ Yahel Shachar
Scailex Corporation |
| |
|
| |
By: Avi Xxxx |
By: Xxxxxxxx, Xxxxxxx |
| |
Title: CEO |
Title: Chairman, CEO |
- 4 -
January 4, 2007
| To: |
Scailex
Corporation ("Scailex")
Micro-Dent Ltd. (the "Purchaser")
Xxxxxxx Xxxx
("Xxxx")
Jemtex Ink Jet Printing Ltd. (the "Company") |
Gentlemen,
In connection with the Reorganization
Agreement, I agree as follows:
| 1. |
Should
my employment with the Company be terminated in a Non Approved Termination
(as defined below), then any of the Company, the Purchaser, Xxxx and/or
Scailex (collectively, the “Beneficiaries”), each in
their sole and absolute discretion, shall be entitled to exercise a
portion of the Repurchase Option (as defined below) (in a ratio among the
Beneficiaries set forth in Section 2 below) in accordance with the terms
specified herein, with respect to the Shares (as such term is defined
below) as follows: |
| |
(a)
If
the Non Approved Termination shall occur prior to 30 months from the date
hereof, the Repurchase Option shall apply with respect to One Hundred
Percent (100%) of the Shares; |
| |
(b)
If
the Non Approved Termination shall occur after 30 months from the date
hereof but prior to the third anniversary of the date hereof, the
Repurchase Option shall apply with respect to Ninety Five Percent
(95%) of the Shares; |
| |
(c)
If
the Non Approved Termination shall occur after the third anniversary of the
date hereof but prior to the fourth anniversary of the date hereof,
the Repurchase Option shall apply with respect to Eighty Percent
(80%) of the Shares; |
| |
(d)
If
the Non Approved Termination shall occur after the fourth anniversary of the
date hereof but prior to the later of (i) full repayment of the
Outstanding Debt by the Company (as defined in the Agreement attached
as Exhibit B to the Reorganization Agreement) or (ii) the fifth
anniversary of the date hereof, the Repurchase Option shall apply
with respect to Fifty Percent (50%) of the Shares; or |
| |
(e)
If
I shall continue to be employed by the Company upon the later of (i) full
repayment of the Outstanding Debt (as defined in the Agreement
attached as Exhibit B to the Reorganization Agreement) or (ii) the
fifth anniversary of the date hereof, the Repurchase Option shall
expire and lapse. |
| 2. |
Each
of the Beneficiaries may exercise the following portion of the Repurchase
Option in accordance with Section 1 above: (i) Scailex – 50%, (ii)
the Purchaser – 25%, and (iii) Xxxx – 25%. |
| 3. |
I
undertake not to transfer any of the Shares of the Company held by me, nor
transfer, encumber or otherwise dispose of any rights in the Shares in any
manner until the Company’s rights have been exercised or lapsed
hereunder. Notwithstanding the foregoing, I shall be entitled to transfer
some of the Shares to other shareholders of the Company, provided that
prior to such transfer, such shareholder acknowledges and undertakes in
writing to the Company, the Purchaser and Scailex that (i) the Shares
received by such shareholder shall remain subject to the provisions hereof
(including the Company’s, the Purchaser’s and Scailex’s
Repurchase Option upon a Non Approved Termination of my employment) as if
I had continued to hold such Shares, and (ii) such shareholder will not
transfer any of the Shares or rights therein, in violation of the first
sentence of this Section 2. |
- 5 -
| 4. |
I
hereby appoint each of the directors and officers of the Company as my agent
and attorney in fact to execute any documents, including share transfer
deeds, which may be required to effect the foregoing rights of the
Company. |
| 5. |
For
the purposes hereof: |
| |
“Non
Approved Termination” shall mean (i) my resignation from the Company without
Good Reason; or (ii) the termination of my employment by the Company for Cause. |
| |
“Good
Reason” shall mean any of the following without my express written consent or
waiver: (i) my salary is materially reduced by the Board of Directors of the Company,
other than in the framework of a salary decrease that effects all senior employees of the
Company, and other than in the framework of a decrease in my position that would not fall
under (iii) below; or (ii) health problems are suffered by me that incapacitate me from
being able to fulfill my duties to the Company, as approved by the Board of Directors of
the Company; or (iii) my position with the Company will be decreased to less than a 50%
position. |
| |
“Cause” shall
mean (i) a serious breach of trust including but not limited to theft, embezzlement,
self-dealing, prohibited disclosure to unauthorized persons or entities of confidential
or proprietary information of or relating to the Company or engagement in any prohibited
business or business which is competitive to the business of the Company and its
subsidiaries or affiliates; (ii) any willful failure to perform any of my fundamental
functions or duties hereunder which has or is likely to seriously damage the Company, or
(iii) any other cause which justifies, according to applicable law, the termination or
dismissal of an employee without payment of full severance compensation. |
| |
“RepurchaseOption” shall
mean the right, which shall be exercised within ninety days from the date of the Non
Approved Termination, to purchase Shares without consideration. |
| |
“Shares” shall
mean 4,196,907 Ordinary Shares of the Company (as adjusted in the event of any stock
splits, dividends, reconsolidations or reclassifications of the share capital of the
Company), transferred to the undersigned in connection with the Reorganization Agreement. |
| 6. |
In
the event of the sale, spin-off, transfer or other disposition, directly or
indirectly, of all or substantially all of the business, assets or
securities of Company, whether by way of a merger, consolidation or other
similar transaction (“M&A Transaction”), and such M&A
Transaction has been approved by Scailex, then the Repurchase Option shall
expire and lapse upon the consummation of the M&A Transaction. |
| 7. |
I
agree and acknowledge that for as long as the Repurchase Option or any part
thereof is outstanding, any share certificate representing Shares subject
to such Repurchase Option shall include a legend stating the: |
| |
“ANY
TRANSFER ANY OF THE SHARES OF THE COMPANY REPRESENTED BY THIS SHARE CERTIFICATE, OR ANY
TRANSFER, ENCUMBER OR OTHER DISPOSITION, IN ANY WAY, OF ANY RIGHTS OF THE SHARES OF THE
COMPANY REPRESENTED BY THIS SHARE CERTIFICATE, IS PROHIBITED” |
|
|
|
|
|
|
|
|
|
|
| |
Sincerely, |
| |
| |
/s/ Xxxxxxxx Xxxxxxxx
Xx. Xxxxxxxx Xxxxxxxx |
- 6 -
Accepted and Agreed:
Scailex Corporation
[Company Seal]
By: /s/ Xxxx Xxxxxxxx, /s/ Yahel Shachar
Name: Xxxxxxxx, Yahel Shachar
Title: Chairman, CEO
Micro-Dent Ltd.
By: /s/ Xxxx Xxxxxxxxx 4.1.2007
Name: Xxxx Xxxxxxxxx
Title:
Pursuant to a Board resolution dated December 13, 2006
Jemtex Ink Jet Printing Ltd.
By: /s/ Avi Xxxx
Name: Avi Xxxx
Title: CEO
Avi Xxxx
Signature: /s/ Avi Xxxx
- 7 -
Exhibit C
January 4, 2007
| To: |
Scailex
Corporation Ltd. ("Scailex")
Micro-Dent Ltd. (the "Purchaser")
Jemtex
Ink Jet Printing Ltd. (the "Company") |
Gentlemen,
In connection with the Reorganization
Agreement, I agree as follows:
| 1. |
Should
my employment with the Company be terminated in a Non Approved Termination
(as defined below), then any of the Company, the Purchaser and/or Scailex
(collectively, the “Beneficiaries”), each in their sole
and absolute discretion, shall be entitled to exercise a portion of the
Repurchase Option (as defined below) (in a ratio among the Beneficiaries
set forth in Section 2 below) in accordance with the terms specified
herein, with respect to the Shares (as such term is defined below) as
follows: |
| |
(a)
If
the Non Approved Termination shall occur prior to 30 months from the date
hereof, the Repurchase Option shall apply with respect to One Hundred
Percent (100%) of the Shares; |
| |
(b)
If
the Non Approved Termination shall occur after 30 months from the date
hereof but prior to the third anniversary of the date hereof, the
Repurchase Option shall apply with respect to Ninety Five Percent
(95%) of the Shares; |
| |
(c)
If
the Non Approved Termination shall occur after the third anniversary of the
date hereof but prior to the fourth anniversary of the date hereof,
the Repurchase Option shall apply with respect to Eighty Percent
(80%) of the Shares; |
| |
(d)
If
the Non Approved Termination shall occur after the fourth anniversary of the
date hereof but prior to the later of (i) full repayment of the
Outstanding Debt by the Company (as defined in the Agreement attached
as Exhibit B to the Reorganization Agreement) or (ii) the fifth
anniversary of the date hereof, the Repurchase Option shall apply
with respect to Fifty Percent (50%) of the Shares; or |
| |
(e)
If
I shall continue to be employed by the Company upon the later of (i) full
repayment of the Outstanding Debt (as defined in the Agreement
attached as Exhibit B to the Reorganization Agreement) or (ii) the
fifth anniversary of the date hereof, the Repurchase Option shall
expire and lapse. |
| 2. |
Each
of the Beneficiaries may exercise the following portion of the Repurchase
Option in accordance with Section 1 above: (i) Scailex – 50%, and
(ii) the Purchaser – 50%. |
| |
Notwithstanding
the above, should my employment with the Company be terminated in a Non Approved
Termination, then the Purchaser, in its sole and absolute discretion, shall be entitled
to demand transfer for no consideration of such portion of the CEO Shares calculated in
same proportion as the vesting of the Repurchase Option (as specified in Section 1
above). |
| 3. |
I
undertake not to transfer any of the Shares of the Company held by me, nor
transfer, encumber or otherwise dispose of any rights in the Shares in any
manner until the Company’s rights have been exercised or lapsed
hereunder. Notwithstanding the foregoing, I shall be entitled to transfer
some of the Shares to other shareholders of the Company, provided that
prior to such transfer, such shareholder acknowledges and undertakes in
writing to the Company, the Purchaser and Scailex that (i) the Shares
received by such shareholder shall remain subject to the provisions hereof
(including the Company’s, the Purchaser’s and Scailex’s
Repurchase Option upon a Non Approved Termination of my employment) as if
I had continued to hold such Shares, and (ii) such shareholder will not
transfer any of the Shares or rights therein, in violation of the first
sentence of this Section 2. |
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| 4. |
I
hereby appoint each of the directors and officers of the Company as my agent
and attorney in fact to execute any documents, including share transfer
deeds, which may be required to effect the foregoing rights of the
Company. |
| 5. |
For
the purposes hereof: |
| |
“Non
Approved Termination” shall mean (i) my resignation from the Company without
Good Reason; or (ii) the termination of my employment by the Company for Cause. |
| |
“Good
Reason” shall mean any of the following without my express written consent or
waiver: (i) my salary is materially reduced by the Board of Directors of the Company,
other than in the framework of a salary decrease that effects all senior employees of the
Company,; or (ii) health problems are suffered by me that incapacitate me from being able
to fulfill my duties to the Company, as approved by the Board of Directors of the
Company. |
| |
“Cause” shall
mean (i) a serious breach of trust including but not limited to theft, embezzlement,
self-dealing, prohibited disclosure to unauthorized persons or entities of confidential
or proprietary information of or relating to the Company or engagement in any prohibited
business or business which is competitive to the business of the Company and its
subsidiaries or affiliates; (ii) any willful failure to perform any of my fundamental
functions or duties hereunder which has or is likely to seriously damage the Company, or
(iii) any other cause which justifies, according to applicable law, the termination or
dismissal of an employee without payment of full severance compensation. |
| |
“CEO
Shares” shall mean the shares issued upon exercise of the fully vested 3,578,042
options granted to Mr. Avi Xxxx on January 4, 2007 and any shares issued as a share
dividend or share split or resulting from a recapitalization or other change in the
character or amount of any of the outstanding shares of the Company, all in connection
with the shares issued upon the exercise of such 3,578,042 options. |
| |
“Repurchase Option” shall
mean the right, which shall be exercised within ninety days from the date of the Non
Approved Termination, to purchase Shares without consideration. |
| |
“Shares” shall
mean 5,298,907 Ordinary Shares of the Company (as adjusted in the event of any stock
splits, dividends, reconsolidations or reclassifications of the share capital of the
Company), issued to the undersigned in connection with the Reorganization Agreement. |
| 6. |
In
the event of the sale, spin-off, transfer or other disposition, directly or
indirectly, of all or substantially all of the business, assets or
securities of Company, whether by way of a merger, consolidation or other
similar transaction (“M&A Transaction”), and such M&A
Transaction has been approved by Scailex, then the Repurchase Option shall
expire and lapse upon the consummation of the M&A Transaction. |
| 7. |
I
agree and acknowledge that for as long as the Repurchase Option or any part
thereof is outstanding, any share certificate representing Shares subject
to such Repurchase Option shall include a legend stating the: |
| |
“ANY
TRANSFER ANY OF THE SHARES OF THE COMPANY REPRESENTED BY THIS SHARE CERTIFICATE, OR ANY
TRANSFER, ENCUMBER OR OTHER DISPOSITION, IN ANY WAY, OF ANY RIGHTS OF THE SHARES OF THE
COMPANY REPRESENTED BY THIS SHARE CERTIFICATE, IS PROHIBITED” |
|
|
|
|
|
|
|
|
|
|
| |
Sincerely, |
| |
| |
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx |
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Accepted and Agreed:
Scailex Corporation
[Company Seal]
By: /s/ Xxxx Xxxxxxxx, /s/ Yahel Shachar
Name: Xxxxxxxx, Xxxxxxx
Title: Chairman, CEO
Micro-Dent Ltd.
By: /s/ Xxxx Xxxxxxxxx 4.1.2007
Name: Xxxx Xxxxxxxxx
Title:
Pursuant to a Board resolution dated December 13, 2006
Jemtex Ink Jet Printing Ltd.
By: /s/ Avi Xxxx
Name: Avi Xxxx
Title: CEO
- 10 -
