Share Acquisition Option Agreement
That was prepared and signed in Tel Aviv
on the 5th of the month of December, 2007
BETWEEN :
DCI USA Inc.
a corporation that is a registered in Delaware, USA -
3248228
(hereinafter:
the “
Conferrer ”
and/or the “
Conferrer of the Option ”)
of the first part ;
AND :
World Group Shipping Ltd.
Israeli Limited Liability Company, No.
52-003361-4
(hereinafter:
the “
Recipient ”
and/or the “
Recipient of the Option ”)
of the second part ;
|
WHEREAS: |
The
Conferrer is the sole and only owner of the entire issued share
capital of Gontar Wind Energy Ltd., corporation No. 51-386665-7
(hereinafter: the “
Company ”),
all of which is according to the report from the Companies
Registrar which is attached to this agreement as
Appendix A ;
and
|
|
WHEREAS: |
It
is the desire of the Conferrer to grant to the Recipient, and it is
the desire of the Recipient to receive from the Conferrer, an
irrevocable right to purchase from the Conferrer the entire 100% of
the issued and fully paid-up share capital of the Company
(hereinafter: the “
shares ”
and the “
option ”,
respectively); and
|
|
WHEREAS: |
The
parties have agreed between themselves concerning the option
execution terms as stated in this agreement;
|
Therefore, it has been agreed, stipulated and declared between the
parties as follows:
|
1.1
|
The
Conferrer hereby irrevocably undertakes to the Recipient that as
from the date of fulfilling of the pending terms as stipulated in
clause 2 below, and for a period ending on February 28
th ,
2008 (hereinafter: the “
execution period ”),
the Recipient shall be permitted, should he deem fit to do so, at
his sole and complete discretion, to purchase the shares and all
rights connected to any shareholders' loan, from the Conferrer, at
any time during the execution period, in their condition and in the
condition of the Company as is stipulated in clause 4 below, in
exchange for the payment of a total of NIS equal to 2,450,000
Million USD (hereinafter: the “
Consideration For the Shares ”),
which is provided that the Recipient shall deliver a execution
notification to the Conferrer during the execution period as is
defined below.
|
Without
derogating from any other provision or representation in this
Agreement it is stressed, that the Consideration For the
Shares is based on all other figures in the Balance Sheet and
financial statement annexed to this agreement as
Appendix B which
shall be a representation by the Conferrer towards the Recipient.
Therefore, the final Consideration For the Shares shall be adapted
to the amended and updated financial situation of the Company at
the date of payments, according to a new and updated balance sheet
audited and approved by an Israeli CPA of the Recipient. Any
discrepancy or change of any nature, between the figures in the
Balance Sheet shall cause the relevant and proportional correction
to the Consideration For the Shares, but it is agreed between the
Parties that no correction shall be done to increase the said
Consideration.
All
payments in USD shall be executed either in USD or in NIS (as
Recipient determines on its sole discretion), according to
representative rate of the USD against the NIS as last
determined by the Bank of Israel at the time of execution of
the payment order from Recipient's bank account in
Israel.
| 1.2 |
To
remove any doubt it is hereby clarified that the Recipient is
entering into an engagement with the Conferrer through this
agreement which relies upon the correctness of the
Conferrer’s presentations.
|
| 1.3 |
The
option is given to the Recipient without any consideration and the
Conferrer shall not be entitled to receive any kind of
consideration in respect of granting said option.
|
| 3.1 |
The
execution of the option shall be undertaken by means of an
irrevocable and unconditional notification in writing to the
Conferrer, by which the Recipient chooses to execute the option
which is being conferred upon him by this agreement (both above and
below: the “
execution notification ”)
and that shall be delivered to the Conferrer, which shall be during
the course of the execution period only (hereinafter the
“
execution date ”).
|
| 3.2 |
Should
the Recipient choose to execute the option, at his sole and
complete discretion, he shall submit the execution notification to
the Conferrer and also he shall pay to the Conferrer the shares
consideration, subject to the following:
|
|
3.2.1 |
The
Conferrer has ratified in writing that the condition of the shares
and of the Company on the option execution date is as stipulated
and described in this agreement and in its appendices;
|
|
3.2.2 |
The
Company’s shares were transferred into the name of the
Recipient and/or on his behalf;
|
|
3.2.3 |
The
directors serving on behalf of the Conferrer have resigned and in
their place are directors who have been appointed by the
Recipient;
|
| 3.3 |
At
the time of signing the agreement, the parties shall sign a shares
transfer deed, notifications to the Company concerning the
resignation of the Company’s board of directors and
statements to the Companies Registrar, all of which shall be
without a franked date (hereinafter: the “
documents ”).
It is agreed that the documents shall be held in trust by adv. Erez
Tik from 3 Azriely Tower Tel Aviv Israel (hereinafter: the
“
Trustee ”).
The parties shall empower the Trustee to fill in the
director’s resignation date and the appointment of the new
director on the option realization date and on all the other
documents necessary according to Article 7 below.
|
The
Conferred undertakes to sign and submit all necessary
documents to the Trustee within 30 days from the date of
signing this Agreement by the Recipient. A breach of the
provisions of this article shall be considered as fundamental
breach by the Conferrer.
In
addition, the Conferrer shall sign an irrevocable Power of
Attorney which gives a Power of Attorney to the
Recipient’s lawyers to execute, in his name and in his
stead, those necessary actions required for the completion of
the transfer of the shares into the name of the Recipient and
the execution of the other actions which are the subject of
this agreement (hereinafter: the “
Power of Attorney ”).
The wording of the Power of Attorney shall be drafted by the
Recipient's attorney and shall be duly singed, confirmed and
submitted to the Recipient within 14 days of its submission to the
Conferrer.
| 3.4 |
Should
the Recipient not have delivered the Recipient’s execution
notification by the end of the execution period, then the option
shall expire automatically and the Conferrer shall not have any
complaint and/or demand and and/or claim in respect of
this.
|
|
4. |
Presentations and undertakings
|
| 4.1 |
The
Conferrer declares, certifies and undertakes in respect of the
shares and the Company, including regarding any subsidiary, as
follows:
|
|
4.1.1 |
The
Company’s Incorporation and Articles of Association do not
include any article which is in contradiction to this
Agreement;
|
|
4.1.2 |
The
Company is in a state as reflected in the financial statements for
30 September 2007 (hereinafter -
"the Balance Sheet" )
submitted and presented as
Appendix B ,
and any discrepancy and/or inaccuracy shall be remedied and
indemnified by the Conferrer within 7 days of Recipient's first
demand in writing;
|
|
4.1.3 |
There
are no attachments and/or debts and/or obligations and/or any third
party's rights which apply to the shares and/or to the Company
and/or to any of its assets, except those specifically mentioned
and reflected in the Balance Sheet. It is hereby emphasized that
the Conferrer undertakes to submit to the Recipient the consent of
any third party to the sale of the shares inasmuch as their consent
is required;
|
|
