CUSIP No. M6786D 10 4
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1
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NAME OF REPORTING PERSON: Mr. Nathan Kirsh
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): Not Applicable
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:(a)¨
(b) ý
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS: PF, WC
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e):¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION: Swaziland
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
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7
8
9
10
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SOLE VOTING POWER: 0
SHARED VOTING POWER: 7,107,290 Ordinary Shares*
SOLE DISPOSITIVE POWER: 0
SHARED DISPOSITIVE POWER: 7,107,290 Ordinary Shares*
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 7,107,290 Ordinary Shares
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES¨
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 44.01%
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14
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TYPE OF REPORTING PERSON: IN
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CUSIP No. M6786D 10 4
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1
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NAME OF REPORTING PERSON: The Eurona Foundation
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): Not Applicable
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:(a)¨
(b) ý
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|||
3
|
SEC USE ONLY
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|||
4
|
SOURCE OF FUNDS: WC
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|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e):¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION: Liechtenstein
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
|
7
8
9
10
|
SOLE VOTING POWER: 0
SHARED VOTING POWER: 7,107,290 Ordinary Shares*
SOLE DISPOSITIVE POWER: 0
SHARED DISPOSITIVE POWER: 7,107,290 Ordinary Shares*
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 7,107,290 Ordinary Shares
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES¨
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 44.01%
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14
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TYPE OF REPORTING PERSON: OO
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CUSIP No. M6786D 10 4
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1
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NAME OF REPORTING PERSON: Ki Corporation Ltd.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): Not Applicable
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:(a)¨
(b) ý
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS: WC
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e):¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION Jersey, Channel Islands
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
|
7
8
9
10
|
SOLE VOTING POWER: 0
SHARED VOTING POWER: 7,107,290 Ordinary Shares*
SOLE DISPOSITIVE POWER: 0
SHARED DISPOSITIVE POWER: 7,107,290 Ordinary Shares*
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 7,107,290 Ordinary Shares
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES¨
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 44.01%
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14
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TYPE OF REPORTING PERSON: CO
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/s/Nathan Kirsh
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Mr. Nathan Kirsh
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The Eurona Foundation
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/s/Nathan Kirsh
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By: Nathan Kirsh
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Title: Trustee
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Ki Corporation Limited
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/s/Nathan Kirsh
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By: Nathan Kirsh
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Title: Director
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1.
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Sale of the Purchased Shares. Subject to the terms and conditions contained herein, at the Closing (as defined below), the Seller shall sell to the Purchaser and the Purchaser shall purchase from the Seller the Purchased Shares, free and clear of any and all Encumbrances, at a price per Purchased Share of US$ 3.5 (the "Price Per Share") and an aggregate purchase price of US$ 22,614,515 (the “Purchase Price”), payable at Closing.
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2.
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Purchase Price Adjustment. If the Purchaser sells any or all of the Purchased Shares, in one or a series of transactions, in consideration for cash and the aggregate U.S. Dollar equivalent amount it receives upon such sale(s) (the "Realization Amounts") is greater than US$ 45,229,030, then the Purchaser shall pay to the Seller 20% of the excess of the Realization Amounts actually received by it over US$ 45,229,030; provided however, that such compensation (the “Earn Out Amount”) shall not exceed an aggregate of US$ 6,461,290. The Earn Out Amount will be payable by the Purchaser within 14 days of such time(s) as the Seller becomes entitled to such amount.
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3.
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Transactions at the Closing. The closing of the transactions set forth herein (the "Closing") shall take place at York Gate, 100 Marylebone Road, London, England, within ten business days after the date on which all conditions to the Closing shall have been satisfied and all legally required regulatory approvals (including the approval of the Controller of Restrictive Trade Practices, which approval shall not include any conditions or restrictions (the “Anti-trust Approval”)) shall have been obtained, or thereafter at such other time, date and place as may be agreed by the Parties (the time and date of the Closing being herein referred to as the “Closing Date”).
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(1)
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Seller shall transfer to the Purchaser the Purchased Shares, free and clear of any and all Encumbrances.
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(2)
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Seller shall deliver to Purchaser duly executed irrevocable instructions from the Seller to the broker holding the Purchased Shares or to the holder registered as holding the Purchased Shares with any registration company or otherwise, instructing the electronic transfer of the Purchased Shares to the respective accounts of the Purchaser, as shall be provided to Seller by Purchaser.
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(3)
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The Purchaser shall transfer to the bank account of the Seller the Purchase Price. The Purchase Price shall be paid in US$ by wire transfer of immediately available funds.
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4.
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Representations and Warranties. The representations and warranties herein contained shall be true and correct as of the date hereof and on, and as of, the Closing Date with the same force and effect as if made on, and as of, that date.
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(a)
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Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser as follows:
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(1)
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Ownership of Purchased Shares. It is the beneficial and record owner and holder of the Purchased Shares and owns such Purchased Shares free and clear of any and all Encumbrances.
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(2)
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Authorization; Binding Authority; Enforceability. It has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by it, and constitutes a legal, valid and binding obligation of the Seller, enforceable against it in accordance with its terms. No provisions of any applicable law or regulation, or any order or decree of any court or Governmental body or any agreement to which Seller is a party or by which it is bound have been or will be violated by the execution and delivery of this Agreement or by the consummation of the transactions contemplated hereby. No authorization, approval or consent of, or filing with, any third party, including any Governmental or official body, is required of the Seller in connection with the execution and delivery of this Agreement or, other than the Anti-trust Approval, the consummation of the transactions contemplated hereby. Without limiting the foregoing, the Purchaser is not bound by any agreement in respect of the Purchased Shares.
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(3)
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Public Filings.
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(b)
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Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Seller as follows:
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5.
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Regulatory Filings and Correspondence. As soon as practicable following the date hereof, each of the Company (and the Seller shall so ensure) and the Purchaser shall file with the Restrictive Trade Practices Commission a Merger Notice as prescribed by the Restrictive Trade Practices Law with respect to the transactions contemplated by this Agreement (the “Filings”); provided that the Company’s Filings must be approved by the Purchaser’s counsel prior to their filings, and shall use its reasonable best efforts to obtain all approvals required for the consummation of the transactions contemplated by this Agreement. The Company shall obtain the Purchaser’s prior approval to any correspondence with the Controller of Restrictive Trade Practices which concerns or may affect the transactions contemplated by this Agreement or the conduct of the Company thereafter.
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6.
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Board of Directors. As soon as practicable following the date hereof (but in any event prior to the Closing and as a condition thereto), the Company (and the Seller shall so ensure) shall convene a general meeting of its shareholders in which nine (9) directors (excluding the Company's external directors) shall be appointed as of the Closing until the next annual meeting of Company's shareholders, of which six (6) persons shall be designated by the Purchaser, the names of which Purchaser shall deliver to Seller by no later than 7 days prior to the mailing to shareholders of notice regarding the convening of such general meeting.
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7.
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Miscellaneous.
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(1)
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Further Assurances. Each of the Parties hereto 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 Agreement and the intentions of the Parties as reflected hereby.
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(2)
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Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom, without regard to the conflict of laws provisions thereof. Each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the appropriate court in London, England, and agrees not to assert any objections to the jurisdiction thereof.
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(3)
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Successors and Assigns; Assignment. Except as otherwise expressly limited herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the Parties hereto. None of the rights, privileges, or obligations set forth in, arising under, or created by this Agreement may be assigned or transferred without the prior consent in writing of the other Parties to this Agreement.
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(4)
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Entire Agreement; Amendment and Waiver. This Agreement constitutes the full and entire understanding and agreement between the Parties with regard to the subject matter hereof. Any term of this Agreement may be amended and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the Parties to this Agreement.
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(5)
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Notices, etc. All notices and other communications required or permitted hereunder to be given to a Party to this Agreement shall be in writing and shall be telecopied or mailed by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed to such Party's address as set forth below or at such other address as the Party shall have furnished to the other Party in writing in accordance with this provision:
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if to the Seller:
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Elizabeth House
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9 Castle Street
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St Helier
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Jersey JE4 2QP
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Channel Islands
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With a copy to Barry A Stiefel
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Kirsh Family Office
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York Gate
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100 Marylebone
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LONDON
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if to the Purchaser:
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c/o FIMI V 2012 Ltd.
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Electra Building
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98 Yigal Alon St.
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Tel-Aviv, 67891
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Israel
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Tel: 03-5652244
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Fax: 03-5652245
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(6)
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Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any Party upon any breach or default under this Agreement, shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise, afforded to any of the Parties, shall be cumulative and not alternative.
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(7)
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Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
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(8)
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Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which together shall constitute one and the same instrument.
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(9)
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Expenses. Each Party shall bear its own legal and other expenses in connection with the transaction contemplated under this Agreement.
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Seller:
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Ki Corporation Limited
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By:
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Name:
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Title:
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Purchaser:
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FIMI Opportunity V, L.P.
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By:
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Name:
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Title:
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FIMI Israel Opportunity V, Limited Partnership
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By:
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Name:
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Title:
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