EXHIBIT
1.1
SodaStream
International Ltd.
_____Ordinary
Shares
Underwriting
Agreement
, 2010
J.P.
Morgan Securities LLC
Deutsche
Bank Securities Inc.
As
Representatives of the
several Underwriters
listed
in Schedule 1 hereto
c/o J.P.
Morgan Securities LLC
383
Madison Avenue
New York,
New York 10179
Ladies
and Gentlemen:
SodaStream
International Ltd., an Israeli company (the “Company”), proposes to issue and
sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representatives (the
“Representatives”), an aggregate of _______ ordinary shares, par value NIS 0.645
per share, of the Company (the “Underwritten Shares”). In addition, the
Company proposes to issue and sell, at the option of the Underwriters, up to an
additional _______ ordinary shares of the Company (collectively, the “Option
Shares”). The Underwritten Shares and the Option Shares are herein
referred to as the “Offered Shares.” The ordinary shares of the Company to
be outstanding after giving effect to the sale of the Offered Shares are
referred to herein as the “Shares.”
As part
of the offering contemplated by this Agreement, and subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and all other applicable
laws, rules and regulations, J.P. Morgan Securities LLC (the “Designated
Underwriter”) has agreed to reserve out of the Underwritten Shares purchased by
it under this Agreement, up to _______ shares for sale to certain of the
Company’s directors, employees and other parties associated with the Company
(collectively, the “Directed Share Participants”), as set forth in the
Prospectus (as defined below) under the heading “Underwriting” (the “Directed
Share Program”). The Underwritten Shares to be sold by the Designated
Underwriter to the Directed Share Participants pursuant to the Directed Share
Program (the “Directed Shares”) will be sold by the Designated Underwriter
pursuant to this Agreement at the initial public offering price set forth on the
cover of the Prospectus (as defined below). Any Directed Shares not
subscribed for by any Directed Share Participant by 8:00 a.m. New York City time
on the business day following the date on which this Agreement is executed will
be offered to the public by the Underwriters as set forth in the Prospectus (as
defined below).
The
Company hereby confirms its agreement with the several Underwriters concerning
the purchase and sale of the Offered Shares, as follows:
1.
Registration
Statement
. The Company has prepared and filed with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form F-1 (File
No. 333-_____), including a prospectus, relating to the Offered Shares.
Such registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the registration statement at the time of
its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus included in such registration statement (and any
amendments thereto) before effectiveness, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with confirmation of sales of
the Offered Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus.
At or
prior to the Applicable Time (as defined below), the Company had prepared the
following information (collectively with the pricing information set forth on
Annex C, the “Pricing Disclosure Package”): a Preliminary Prospectus dated
_____________, 2010 and each “free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex C hereto.
“Applicable
Time” means [ ] [A/P].M., New York City
time, on ____, 2010.
2.
Purchase of the Offered
Shares by the Underwriters
.
(a)
The Company agrees to issue and sell the
Underwritten Shares to the several Underwriters as provided in this Agreement,
and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase at a price per share (the
“Purchase Price”) of $_______ from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1
hereto.
In
addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, shall have the option to purchase from the
Company at the Purchase Price less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Underwritten Shares but
not payable on the Option Shares. If any Option Shares are to be
purchased, the number of Option Shares to be purchased by each Underwriter shall
be the number of Option Shares which bears the same ratio to the aggregate
number of Option Shares being purchased as the number of Underwritten Shares set
forth opposite the name of such Underwriter in Schedule 1 hereto (or such number
increased as set forth in Section 11 hereof) bears to the aggregate number of
Underwritten Shares being purchased from the Company by the several
Underwriters, subject, however, to such adjustments to eliminate any fractional
Shares as the Representatives in their sole discretion shall make.
The
Underwriters may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day following
the date of the Prospectus, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares
as to which the option is being exercised and the date and time when the Option
Shares are to be delivered and paid for, which may be the same date and time as
the Closing Date (as hereinafter defined) but shall not be earlier than the
Closing Date or later than the tenth full business day (as hereinafter defined)
after the date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 11 hereof). Any such notice
shall be given at least two business days prior to the date and time of delivery
specified therein.
(b)
The Company understands that the Underwriters
intend to make a public offering of the Offered Shares as soon after the
effectiveness of this Agreement as in the judgment of the Representatives is
advisable, and initially to offer the Offered Shares on the terms set forth in
the Prospectus. The Company acknowledges and agrees that the Underwriters
may offer and sell Offered Shares to or through any affiliate of an
Underwriter.
(c)
Payment for the Offered Shares shall be made
by wire transfer in immediately available funds to the accounts specified to the
Representatives by the Company at the offices of White & Case LLP, 1155
Avenue of the Americas, New York, New York 10036 at 10:00 A.M., New York City
time, on _____, 2010, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representatives
and the Company may agree upon in writing or, in the case of the Option Shares,
on the date and at the time and place specified by the Representatives in the
written notice of the Underwriters’ election to purchase such Option
Shares. The time and date of such payment for the Underwritten Shares is
referred to herein as the “Closing Date,” and the time and date for such payment
for the Option Shares, if other than the Closing Date, is herein referred to as
the “Additional Closing Date.”
Payment
for the Offered Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to the
Representatives for the respective accounts of the several Underwriters of the
Offered Shares to be purchased on such date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of
such Offered Shares duly paid by the Company. Delivery of the Offered
Shares shall be made through the facilities of The Depository Trust Company
(“DTC”) unless the Representatives shall otherwise instruct. The
certificates for the Offered Shares will be made available for inspection and
packaging by the Representatives at the office of DTC or its designated
custodian not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date or the Additional Closing Date, as the case may
be.
(d)
The Company acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Offered Shares
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person. Additionally, neither the Representatives nor
any other Underwriter is advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning
such matters to the extent each deems it appropriate and shall be responsible
for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Company.
3.
Representations and
Warranties of the Company
. The Company represents and warrants to
each Underwriter that:
(a)
Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary Prospectus, at the
time of filing thereof, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
provided
that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b)
hereof.
(b)
Pricing Disclosure
Package
. The Pricing Disclosure Package as of the Applicable Time
did not, and as of the Closing Date and as of the Additional Closing Date, as
the case may be, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided
that
the Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in Section 7(b)
hereof.
(c)
Issuer Free Writing
Prospectus.
Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, used, authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Offered Shares (each such communication by the Company or
its agents and representatives (other than a communication referred to in clause
(i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on
Annex C hereto, each electronic road show and any other written
communications approved in writing in advance by the Representatives. Each
such Issuer Free Writing Prospectus complied in all material respects with the
Securities Act, has been or will be (within the time period specified in Rule
433) filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus accompanying,
or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not,
and as of the Closing Date and as of the Additional Closing Date, as the case
may be, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided
that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or Preliminary
Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in such Issuer Free Writing Prospectus or
Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(d)
Registration Statement and
Prospectus.
The Registration Statement has been declared effective
by the Commission. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission, and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering of the Offered Shares has been initiated or, to the
knowledge of the Company, threatened by the Commission; as of the applicable
effective date of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective amendment
complied and will comply in all material respects with the Securities Act, and
did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and as of the date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
provided
that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 7(b) hereof.
(e)
Financial Statements.
The financial statements (including the related notes thereto) of the Company
and its consolidated subsidiaries included in the Registration Statement, the
Pricing Disclosure Package and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and present fairly in all
material respects the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified in each case on the
basis stated in the Registration Statement; such financial statements have been
prepared in conformity with International Financial Reporting Standards as
issued by the International Accounting Standards Board (“IFRS”), applied on a
consistent basis throughout the periods covered thereby, and any supporting
schedules included in the Registration Statement present fairly in all material
respects the information required to be stated therein; the other financial
information included in the Registration Statement, the Pricing Disclosure
Package and the Prospectus has been derived from the accounting records of the
Company and its consolidated subsidiaries and presents fairly in all material
respects the information shown thereby.
(f)
No Material Adverse
Change.
Since the date of the most recent financial statements of
the Company included in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) there has not been any change in the capital
stock (other than (i) the reverse stock split described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (ii) the issuance
of Shares upon the exercise of stock options and warrants described as
outstanding in, and the grant of options and awards under existing equity
incentive plans described in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus and (iii) the issuance of Shares upon the conversion
of outstanding preferred stock or convertible securities into ordinary shares as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus), short-term debt or long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
position, stockholders’ equity, or results of operations of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) neither the Company nor any of its subsidiaries has sustained
any loss or interference with its business that is material to the Company and
its subsidiaries taken as a whole and that is either from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case as otherwise
disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(g)
Organization and Good
Standing.
The Company and each of its significant subsidiaries have
been duly organized and are validly existing and in good standing (where such
concept is recognized) under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good standing in each
other jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to
be so qualified or in good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries taken as
a whole or on the performance by the Company of its obligations under this
Agreement (a “Material Adverse Effect”). The subsidiaries listed in
Schedule 2 to this Agreement are the only significant subsidiaries of the
Company.
(h)
Capitalization.
The
Company has an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar rights; except
as described in or expressly contemplated by the Pricing Disclosure Package and
the Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest
in the Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; the capital
stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; and except as otherwise disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, all the
outstanding shares of capital stock or other equity interests of each subsidiary
owned, directly or indirectly, by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except, in the case of
any foreign subsidiary, for directors’ qualifying shares) and are owned directly
or indirectly by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other claim of any
third party.
(i)
Stock Options.
With
respect to the stock options (the “Stock Options”) granted pursuant to the
stock-based compensation plans of the Company and its subsidiaries (the “Company
Stock Plans”), (i) each grant intended to qualify for the “capital gains track”
of Section 102 of the Israel Tax Ordinance so qualifies, (ii) each grant of a
Stock Option has been duly authorized, approved or ratified by all necessary
corporate action, including, as applicable, approval or ratification by the
board of directors of the Company and any required shareholder approval, and the
award agreement governing such grant (if any) was duly executed and delivered by
each party thereto, (iii) each such grant was made in accordance with the terms
of the Company Stock Plans and all other applicable laws and regulatory rules or
requirements, and (iv) each such grant was properly accounted for in
accordance with IFRS in the financial statements (including the related notes)
of the Company. The Company has not in the past knowingly granted, and there is
no and has been no policy or practice of the Company of granting, Stock Options
prior to, or otherwise coordinating the grant of Stock Options with, the release
or other public announcement of material information regarding the Company or
its subsidiaries or their results of operations or prospects.
(j)
Due Authorization.
The
Company has full right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder; and all action required to
be taken for the due and proper authorization, execution and delivery by it of
this Agreement and the consummation by it of the transactions contemplated
hereby has been duly and validly taken.
(k)
Underwriting Agreement.
This
Agreement has been duly authorized, executed and delivered by the
Company.
(l)
The Offered Shares.
The
Offered Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as
provided herein, will be duly and validly issued, will be fully paid and
nonassessable and will conform in all material respects to the descriptions
thereof in the Registration Statement, the Pricing Disclosure Package and the
Prospectus; and the issuance of the Offered Shares is not subject to any
preemptive or similar rights.
(m)
No Violation or
Default.
Neither (i) the Company nor any of its significant
subsidiaries is in violation of its charter or by-laws or similar
organizational documents; (ii) the Company nor any of its subsidiaries is
in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject; or (iii) the Company nor any of its
subsidiaries is in violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(n)
No Conflicts.
The
execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Offered Shares by the Company and the consummation by
the Company of the transactions contemplated by this Agreement will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the
Company or any of its significant subsidiaries (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of any court or
governmental or regulatory authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(o)
No Consents Required.
No consent, approval, authorization, order, license, registration (other than
the registration of the Shares with the Israeli Companies Registrar) or
qualification of or with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance by the Company
of this Agreement, the issuance and sale of the Offered Shares and the
consummation of the transactions contemplated by this Agreement, except for
(i) the registration of the Offered Shares under the Securities Act, (ii)
the listing of the Offered Shares on The NASDAQ Global Market (“Nasdaq”), (iii)
such consents, approvals, authorizations, orders and registrations or
qualifications as may be required by FINRA and under applicable state securities
laws in connection with the purchase and distribution of the Offered Shares by
the Underwriters and (iv) those that have already been obtained, if any.
Subject to the Underwriters’ compliance with Section 5(d) hereof, the Company is
not required to publish a prospectus under the laws of the State of Israel with
respect to the offer and sale of the Offered Shares.
(p)
Legal Proceedings.
Except as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or
any of its subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject that, individually
or in the aggregate, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse Effect; no
such investigations, actions, suits or proceedings are, to the knowledge of the
Company, threatened or contemplated by any governmental or regulatory authority
or threatened by others; and (i) there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that are required under
the Securities Act to be described in the Registration Statement, the Pricing
Disclosure Package or the Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and
(ii) there are no statutes, regulations or contracts or other documents that are
required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(q)
Independent
Accountants
. Somekh Chaikin, a member firm of KPMG International,
who has certified certain financial statements of the Company and its
subsidiaries is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board and
as required by the Securities Act.
(r)
Title to Real and Personal
Property
. The Company and its subsidiaries have good and marketable
title to, or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except those that (i) do not
materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries or (ii) would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(s)
Title to Intellectual
Property
. Except as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, or as would not reasonably be
expected to have a Material Adverse Effect, the Company and its subsidiaries own
or possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses
as currently conducted and as currently proposed to be conducted, and, to the
knowledge of the Company, the conduct of their respective businesses will not
conflict in any material respect with any such rights of others. The Company and
its subsidiaries have not received any notice of any claim of infringement,
misappropriation or conflict with any such rights of others in connection with
its patents, patent rights, licenses, inventions, trademarks, service marks,
trade names, copyrights and know-how, which would reasonably be expected to
result in a Material Adverse Effect.
(t)
No Undisclosed
Relationships
. No relationship, direct or indirect, exists between
or among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any
of its subsidiaries, on the other, that is required by the Securities Act to be
described in the Registration Statement and the Prospectus and that is not so
described in such documents and in the Pricing Disclosure Package.
(u)
Investment Company Act
.
The Company is not required to register as an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Investment Company
Act”). After giving effect to the offering and sale of the Offered Shares
and the application of the proceeds thereof as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the Company will
not be required to register as an “investment company” within the meaning of the
Investment Company Act.
(v)
Taxes.
The Company and
its subsidiaries have prepared and timely filed with all appropriate taxing
authorities all federal, state, local and foreign tax returns, reports and other
related information required to be filed through the date hereof by or with
respect to it or has properly requested extensions thereof, except where the
failure to do so would not result in a Material Adverse Effect; all taxes,
assessments, fees and other governmental charges due on such returns or pursuant
to any assessment received by the Company and its subsidiaries or which are
imposed upon it or on any of its properties or assets or in respect of any of
its business, income or profits have been fully
paid when due,
other than
taxes or charges that are being contested in
good faith by appropriate proceedings and except where the failure to do so
would not result in a Material Adverse Effect; and except as otherwise disclosed
in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there is no tax deficiency that has been, or would reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any
of their respective properties or assets, except for those tax deficiencies
which would not, individually or in the aggregate, have a Material Adverse
Effect.
(w)
Licenses and Permits.
The Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by, and have made all declarations and filings with,
the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus,
except where the failure to possess or make the same would not, individually or
in the aggregate, have a Material Adverse Effect; and except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus,
neither the Company nor any of its subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course, except for
any such revocation, modification or failure to renew would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(x)
No Labor Disputes.
No
labor disturbance by or dispute with employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is contemplated or
threatened, and the Company is not aware of any existing or imminent labor
disturbance by, or dispute with, the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers, except as would not
reasonably be expected to have a Material Adverse Effect.
(y)
Compliance with and Liability under
Environmental Laws.
(i) The Company and its subsidiaries (a) are,
and at all prior times in respect of which the Company may still be subject to
any claim or liability were, in compliance with any and all applicable United
States federal, state and local (including common law), Israeli and European
Community laws, rules, regulations, requirements, decisions, judgments, decrees
and orders relating to pollution or the protection of the environment, natural
resources or human health or safety, including those relating to the generation,
storage, treatment, use, handling, transportation, Release or threat of Release
of Hazardous Materials (collectively, “Environmental Laws”), (b) have
received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws
to conduct their respective businesses, (c) have not received notice of any
actual or potential liability under or relating to, or actual or potential
violation of, any Environmental Laws, including for the investigation or
remediation of any Release or threat of Release of Hazardous Materials, and have
no knowledge of any event or condition that would reasonably be expected to
result in any such notice, (d) are not conducting or paying for, in whole or in
part, any investigation, remediation or other corrective action pursuant to any
Environmental Law at any location, and (e) are not a party to any order, decree
or agreement (other than decisions of general applicability or permits and
authorizations applicable to the businesses) that imposes any obligation or
liability under any Environmental Law, and (ii) there are no costs or
liabilities associated with Environmental Laws of or relating to the Company or
its subsidiaries, except in the case of each of (i) and (ii) above, for any such
matter, as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and (iii) except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, (a)
there are no proceedings that are pending, or that are known to be contemplated,
against the Company or any of its subsidiaries under any Environmental Laws in
which a governmental entity is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or
more will be imposed, (b) the Company and its subsidiaries are not aware of any
facts or issues regarding compliance with Environmental Laws, or liabilities or
other obligations under Environmental Laws, including the Release or threat of
Release of Hazardous Materials, that would reasonably be expected to have a
Material Adverse Effect, and (c) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any Environmental Laws
other than those reasonably expected to be included in the estimated cost of the
Company’s proposed new manufacturing facility as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(z)
Hazardous Materials
.
There has been no storage, generation, transportation, use, handling, treatment,
Release or threat of Release of Hazardous Materials by, relating to or caused by
the Company or any of its subsidiaries (or, to the knowledge of the Company and
its subsidiaries, any other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or would reasonably be
expected to be liable) at, on, under or from any property or facility now or
previously owned, operated or leased by the Company or any of its subsidiaries,
or, to the knowledge of the Company, at, on, under or from any other property or
facility, in violation of any Environmental Laws or in a manner or amount or to
a location that would reasonably be expected to result in any liability to the
Company or its subsidiaries under any Environmental Law, except for any
violation or liability which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance, waste, pollutant,
contaminant, compound, mixture, or constituent thereof, in any form or amount,
including petroleum (including crude oil or any fraction thereof) and petroleum
products, natural gas liquids, asbestos and asbestos containing materials,
naturally occurring radioactive materials, brine, and drilling mud, which is
regulated or which can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, or migrating in, into or through the environment, or in,
into, from or through any building or structure.
(aa)
Disclosure Controls
.
The Company and its subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in reports that
it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commission’s rules and
forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required
disclosure.
(bb)
Accounting Controls.
The Company and its subsidiaries maintain systems of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that
comply with the requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and principal
financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
IFRS, including, but not limited to, internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with IFRS and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as
disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there are no material weaknesses in the Company’s internal controls.
The Company’s auditors and the Board of Directors of the Company have been
advised of any fraud, whether or not material, that involved management or other
employees who have a significant role in the Company’s internal controls over
financial reporting.
(cc)
Insurance.
The Company
and each of its significant subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business
interruption insurance, which insurance is in amounts and insures against such
losses and risks as are reasonably adequate to protect the Company and its
subsidiaries and their respective businesses; and neither the Company nor any of
its subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(dd)
No Unlawful Payments.
Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the United States Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(ee)
Compliance with Money Laundering
Laws
. The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”); and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(ff)
Compliance with OFAC.
None of the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent or employee or affiliate of the Company or
any of its subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not, directly or indirectly, use the proceeds of
the offering of the Offered Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(gg)
No Restrictions on
Subsidiaries
. Except as otherwise described in the Prospectus, the
Registration Statement, and the Pricing Disclosure Package, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or
other instrument to which it is a party or is subject, from paying any dividends
to the Company, from making any other distribution on such subsidiary’s capital
stock or shares, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary’s
properties or assets to the Company or any other subsidiary of the
Company.
(hh)
No Broker’s Fees.
Neither the Company nor any of its subsidiaries is a party to any contract,
agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or any of its subsidiaries
or any Underwriter for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Offered Shares.
(ii)
No Registration Rights
.
No person has the right to require the Company or any of its subsidiaries to
register any securities for sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issuance and
sale of the Offered Shares by the Company, except for rights that have been duly
and validly waived in writing or otherwise satisfied.
(jj)
No Stabilization.
The
Company has not taken, directly or indirectly, any action designed to or that
would reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Offered Shares.
(kk)
Business with Cuba.
The
Company has complied with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida, as amended) relating to doing
business with the Government of Cuba or with any person or affiliate located in
Cuba.
(ll)
Forward-Looking
Statements.
No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained
in the Registration Statement, the Pricing Disclosure Package or the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(mm)
Statistical and Market
Data.
Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data
included in the Registration Statement, the Pricing Disclosure Package and the
Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(nn)
Sarbanes-Oxley Act
.
There is no failure on the part of the Company or, to the knowledge of the
Company, any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley
Act”) applicable to the Company, including Section 402 related to
loans.
(oo)
Status under the Securities
Act
. At the time of filing the Registration Statement and any
post-effective amendment thereto, at the earliest time thereafter that the
Company or any offering participant made a
bona fide
offer (within the
meaning of Rule 164(h)(2) under the Securities Act) of the Offered Shares and at
the date hereof, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405 under the Securities Act.
(pp)
Directed Share Program
.
The Prospectus and the Time of Sale Prospectus comply, and any amendments or
supplements thereto, if applicable, as of the date of such amendment or
supplement will comply, in all material respects with any applicable laws or
regulations of foreign jurisdictions in which the Prospectus or the Time of Sale
Prospectus, as amended or supplemented, if applicable, are distributed by the
Company in connection with the Directed Share Program. No consent,
approval, authorization or order of, or qualification with, any governmental
body or agency, other than those obtained, is required in connection with the
offering of the Directed Shares in any jurisdiction where the Directed Shares
are being offered by the Company, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Directed Shares. The Company has not offered, or caused
the Designated Underwriter or any Designated Underwriter Entity as defined in
Section 8 to offer, Shares to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer’s or supplier’s level or type of business
with the Company, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products. Except with
notice to the Representatives and compliance with applicable laws, none of the
Directed Shares distributed in connection with the Directed Share Program will
be offered or sold outside of the United States and Israel.
(qq)
Passive Foreign Investment Company
Status
. The Company was not, for the taxable year ended December
31, 2009, and, after giving effect to the offering and sale of the Offered
Shares and the application of the proceeds thereof as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, does
not expect to become in the future, a “passive foreign investment company” as
defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
(rr)
No Immunity
. Neither
the Company nor its subsidiaries nor any of their properties or assets has any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of the State of Israel.
(ss)
Approved Enterprise
Status
. (i) The Company is in compliance in all material respects
with all conditions and requirements stipulated by the instruments of approval
granted to it with respect to the “Approved Enterprise” status of any of the
facilities of the Company as well as with respect to the other tax benefits
received by the Company as set forth under the caption “Israeli Tax
Considerations and Government Programs” in the Prospectus and by Israeli laws
and regulations relating to such “Approved Enterprise” status and the
aforementioned other tax benefits received by the Company; (ii) all information
supplied by the Company with respect to applications relating to such “Approved
Enterprise” status was true, correct and complete in all material respects when
supplied to the appropriate authorities; and (iii) the Company has not received
any notice of any proceeding or investigation relating to revocation or
modification of any “Approved Enterprise” status granted with respect to any of
the Company’s facilities, in each case except for any failure to comply,
inaccuracy, or notice that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(tt)
Enforcement of Judgments.
Subject to the conditions and qualifications set forth in the
Registration Statement and the Preliminary Prospectus, a final and conclusive
judgment against the Company for a definitive sum of money entered by any court
in the United States would be enforced by an Israeli court.
4.
Further Agreements of the
Company
. The Company covenants and agrees with each Underwriter
that:
(a)
Required Filings.
The
Company will file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file any Issuer Free Writing Prospectus to the extent
required by Rule 433 under the Securities Act; and will furnish copies of
the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered) to the Underwriters in New York City prior to 10:00 A.M.,
New York City time, on the business day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably
request.
(b)
Delivery of Copies.
The
Company will deliver, without charge, (i) to the Representatives, three signed
copies of the Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed therewith; and
(ii) to each Underwriter (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) and (B) during
the Prospectus Delivery Period (as defined below), as many copies of the
Prospectus (including all amendments and supplements thereto and each Issuer
Free Writing Prospectus) as the Representatives may reasonably request. As
used herein, the term “Prospectus Delivery Period” means such period of time
after the first date of the public offering of the Offered Shares as in the
opinion of counsel for the Underwriters a prospectus relating to the Offered
Shares is required by law to be delivered (or required to be delivered but for
Rule 172 under the Securities Act) in connection with sales of the Offered
Shares by any Underwriter or dealer.
(c)
Amendments or Supplements, Issuer
Free Writing Prospectuses.
Before preparing, using, authorizing,
approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the
Prospectus, the Company will furnish to the Representatives and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize, approve, refer to or
file any such Issuer Free Writing Prospectus or file any such proposed amendment
or supplement to which the Representatives reasonably object.
(d)
Notice to the
Representatives.
The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional
information; (v) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use
of any Preliminary Prospectus, any of the Pricing Disclosure Package or the
Prospectus or the initiation or, to the knowledge of the Company, threatening of
any proceeding for that purpose or pursuant to Section 8A of the Securities Act;
(vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Pricing Disclosure Package or any Issuer
Free Writing Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when
the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt
by the Company of any notice with respect to any suspension of the qualification
of the Offered Shares for offer and sale in any jurisdiction or the initiation
or, to the knowledge of the Company, threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any
of the Pricing Disclosure Package or the Prospectus or suspending any such
qualification of the Offered Shares and, if any such order is issued, the
Company will use its reasonable best efforts to obtain as soon as possible the
withdrawal thereof.
(e)
Ongoing Compliance.
(1)
If during the Prospectus Delivery Period (i) any event shall occur or condition
shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law and (2) if at any time prior to the Closing Date (i) any
event shall occur or condition shall exist as a result of which the Pricing
Disclosure Package as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances existing
when the Pricing Disclosure Package is delivered to a purchaser, not misleading
or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission (to the extent required) and furnish to the Underwriters and to such
dealers as the Representatives may designate such amendments or supplements to
the Pricing Disclosure Package as may be necessary so that the statements in the
Pricing Disclosure Package as so amended or supplemented will not, in the light
of the circumstances existing when the Pricing Disclosure Package is delivered
to a purchaser, be misleading or so that the Pricing Disclosure Package will
comply with law.
(f)
Blue Sky Compliance.
The Company will qualify the Offered Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect so long as
required for distribution of the Offered Shares;
provided
that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g)
Earning Statement.
The
Company will make generally available to its security holders and the
Representatives as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement.
(h)
Clear Market.
For a
period of 180 days after the date of the Prospectus, the Company will not (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, or file
with the Commission a registration statement under the Securities Act relating
to, any Shares or any securities convertible into or exercisable or exchangeable
for Shares, or publicly disclose the intention to make any offer, sale, pledge,
disposition or filing, or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Shares or any such other securities, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Shares or such other
securities, in cash or otherwise, without the prior written consent of J.P.
Morgan Securities LLC and Deutsche Bank Securities Inc., other than (A) the
Offered Shares to be sold hereunder, (B) any Shares of the Company issued upon
the exercise of options granted under Company Stock Plans, (C) the grant or
issuance by the Company of employee, consultant, or director stock options or
restricted stock in the ordinary course of business under Company Stock Plans,
(D) the issuance of securities in connection with the acquisition by the Company
or any of its subsidiaries of the securities, businesses, property or other
assets of another person or entity or pursuant to any employee benefit plan
assumed by the Company in connection with any such acquisition, (E) the issuance
of securities in connection with joint ventures, commercial relationships, or
other strategic transactions; provided that, in the case of clauses (D) and (E),
(1) the aggregate number of shares issued in all such acquisitions and
transactions does not exceed 5% of the Company’s outstanding ordinary shares
following the offering of the Offered Shares contemplated by this Agreement and
(2) each person to whom such shares are issued executes a “lock-up” agreement in
the form of Exhibit A hereto, or (F) any Shares otherwise transferred or
disposed of by the Company during the 180-day restricted period with the advance
written consent of the Representatives. Notwithstanding the foregoing, if
(1) during the last 17 days of the 180-day restricted period, the Company issues
an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, the restrictions imposed by
this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
(i)
Use of Proceeds.
The
Company will apply the net proceeds from the sale of the Offered Shares as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Use of Proceeds”.
(j)
No Stabilization.
The
Company will not take, directly or indirectly, any action designed to or that
would reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(k)
Exchange Listing.
The
Company will use its reasonable best efforts to list the Offered Shares for
quotation on the Nasdaq Stock Market.
(l)
Reports.
So long as the
Offered Shares are outstanding, the Company will furnish to the Representatives,
as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Offered Shares, and copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange or automatic quotation system;
provided
the Company
will be deemed to have furnished such reports and financial statements to the
Representatives to the extent they are filed on the Commission’s Electronic Data
Gathering, Analysis, and Retrieval system.
(m)
Record Retention
. The
Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
(n)
Filings.
The Company
will file with the Commission such reports as may be required by Rule 463 under
the Securities Act.
(o)
Directed Share Program
.
The Company will comply in all material respects with all applicable securities
and other laws, rules and regulations in each jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program
5.
Certain Agreements of the
Underwriters
. Each Underwriter hereby represents and agrees
that:
(a)
It has not used, authorized use of, referred
to or participated in the planning for use of, and will not use, authorize use
of, refer to or participate in the planning for use of, any “free writing
prospectus”, as defined in Rule 405 under the Securities Act (which term
includes use of any written information furnished to the Commission by the
Company and not incorporated by reference into the Registration Statement and
any press release issued by the Company) other than (i) a free writing
prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free
Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex C or
prepared pursuant to Section 3(c) above (including any electronic road show), or
(iii) any free writing prospectus prepared by such underwriter and approved by
the Company in advance in writing (each such free writing prospectus referred to
in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b)
It has not and will not, without the prior
written consent of the Company, use any free writing prospectus that contains
the final terms of the Offered Shares unless such terms have previously been
included in a free writing prospectus filed with the Commission;
provided
that Underwriters
may use a term sheet substantially in the form of Annex C hereto without the
consent of the Company;
provided further
that any
Underwriter using such term sheet shall notify the Company, and provide a copy
of such term sheet to the Company, prior to, or substantially concurrently with,
the first use of such term sheet.
(c)
It is not subject to any pending proceeding
under Section 8A of the Securities Act with respect to the offering (and will
promptly notify the Company if any such proceeding against it is initiated
during the Prospectus Delivery Period).
(d)
Other than as set forth in the next
paragraph, it will not offer any Shares to offerees in Israel, other than to
Institutional Investors (mashki’im mosdiem), as such term is defined in the
Israel Securities Law, and only subject to the prior written consent of the
Company.
The Company acknowledges, understands
and agrees that Shares may be sold in Israel only by the Underwriters and only
to such Israeli investors listed in the First Addendum to the Israeli Securities
Law (“Addendum”) and to certain other investors who are not institutional
investors in such number as shall be exempt from prospectus requirements under
the Israeli Securities Law; all of whom are to be specifically identified and
approved by the Underwriters, and provided further that as a prerequisite to
sale of Shares by the Underwriters to such Israeli investors, each of them shall
be required to submit written confirmation to the Underwriters and the Company
that such investor (i) falls within the scope of the Addendum; and
(ii) is acquiring the Shares being offered to it for investment for its own
account or, if applicable, for investment for clients who are institutional
investors and in any event not as a nominee, market maker or agent and not with
a view to, or for the resale in connection with, any distribution thereof. The
Company acknowledges and agrees that any failure of the Company to comply with
the above procedure may result in a default under Israeli Securities
Law.
6.
Conditions of Underwriters’
Obligations.
The obligation of each Underwriter to purchase the
Underwritten Shares on the Closing Date or the Option Shares on the Additional
Closing Date, as the case may be, as provided herein is subject to the
performance by the Company of its respective covenants and other obligations
hereunder and to the following additional conditions:
(a)
Registration Compliance; No Stop
Order.
No order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by the
Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of
an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the
Securities Act) and in accordance with Section 4(a) hereof; and all requests by
the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
(b)
Representations and
Warranties.
The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of
the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing
Date or the Additional Closing Date as the case may be.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Applicable Time and (B) the execution and
delivery of this Agreement, if there are any debt securities or preferred stock
of, or guaranteed by, the Company or any of its subsidiaries that are rated by a
“nationally recognized statistical rating organization,” as such term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities Act, (i)
no downgrading shall have occurred in the rating accorded any such debt
securities or preferred stock and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its outlook
with respect to, its rating of any such debt securities or preferred stock
(other than an announcement with positive implications of a possible
upgrading).
(d)
No Material Adverse
Change.
No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not
described in the Pricing Disclosure Package (excluding any amendment or
supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Offered Shares on the Closing Date or the Additional Closing Date, as the
case may be, on the terms and in the manner contemplated by this Agreement, the
Pricing Disclosure Package and the Prospectus.
(e)
Officer’s Certificate.
The Representatives shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, (x) a certificate of the chief
financial officer or chief accounting officer of the Company and one additional
senior executive officer of the Company who is satisfactory to the
Representatives (i) confirming that such officers have carefully reviewed
the Registration Statement, the Pricing Disclosure Package and the Prospectus
and, to the best knowledge of such officers, the representations of the Company
set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming
that the other representations and warranties of the Company in this Agreement
are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date or the Additional Closing Date, as the case may be,
and (iii) to the effect set forth in paragraphs (a), (c) and (d)
above.
(f)
Comfort Letters.
On the
date of this Agreement and on the Closing Date or the Additional Closing Date,
as the case may be, Somekh Chaikin shall have furnished to the Representatives,
at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement, the Pricing Disclosure Package and the
Prospectus; provided, that the letter delivered on the Closing Date or the
Additional Closing Date, as the case may be, shall use a “cut-off” date no more
than three business days prior to such Closing Date.
(g)
Opinion and 10b-5 Statement of U.S.
Counsel for the Company.
Orrick, Herrington & Sutcliffe
LLP, U.S. counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion and 10b-5 statement, dated
the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex A hereto.
(h)
Opinion and 10b-5 Statement of
Israeli Counsel for the Company.
Gornitzky & Co., Israeli
counsel for the Company, shall have furnished to the Representatives, at the
request of the Company, their written opinion and 10b-5 statement, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed
to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex B hereto.
(i)
Opinion and 10b-5 Statement of U.S.
Counsel for the Underwriters.
The Representatives shall have
received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion and 10b-5 statement of White & Case LLP, U.S.
counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(j)
No Legal Impediment to Issuance
and/or Sale.
No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Offered Shares by the Company; and no injunction or
order of any federal, state or foreign court shall have been issued that would,
as of the Closing Date or the Additional Closing Date, as the case may be,
prevent the issuance or sale of the Offered Shares by the Company.
(k)
Good Standing
. The
Representatives shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, satisfactory evidence of the good
standing, where such concept is applicable, of the Company and its significant
subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representatives
may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l)
Exchange
Listing.
The Offered Shares to be delivered on the Closing
Date or the Additional Closing Date, as the case may be, shall have been
approved for listing on the Nasdaq Stock Market, subject to official notice of
issuance.
(m)
Lock-up Agreements
. The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and certain shareholders, officers and directors of the Company
relating to sales and certain other dispositions of Shares or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date or the Additional Closing Date, as the case
may be.
(n)
Additional Documents.
On or prior to the Closing Date or the Additional Closing Date, as the
case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably
request.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7.
Indemnification and
Contribution
.
(a)
Indemnification of the Underwriters
by the Company.
The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if
any, who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, not misleading, (ii) or any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing
Disclosure Package that has subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use therein it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b)
Indemnification of the
Company.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Pricing
Disclosure Package, it being understood and agreed upon that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the third paragraph under the caption
“Underwriting,” the information contained in the twelfth, thirteenth and
fourteenth paragraphs relating to stabilization transactions under the caption
“Underwriting.”
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnification may be sought pursuant the preceding
paragraphs of this Section 7 such person (the “Indemnified Person”) shall
promptly notify the person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing;
provided
that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under the preceding paragraphs of this Section 7
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under the
preceding paragraphs of this Section 7. If any such proceeding shall be
brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interest between them. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be paid or
reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by the Representatives and any
such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d)
Contribution.
If the
indemnification provided for in paragraphs (a), (b) and (c) above is unavailable
to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters on the other, from the offering of the Offered
Shares or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriters on the other, in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the Underwriters
on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale
of the Offered Shares and the total underwriting discounts and commissions
received by the Underwriters in connection therewith, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Offered Shares. The relative fault of the Company, on the one hand,
and the Underwriters on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e)
Limitation on Liability.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by
pro
rata
allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (e) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (e) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the
Offered Shares exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
8.
Directed Share Program
Indemnification and Contribution
.
(a)
Indemnification of the Designated
Underwriter Entities by the Company.
The Company agrees to
indemnify and hold harmless the Designated Underwriter, each person, if any, who
controls the Designated Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and each affiliate
of the Designated Underwriter within the meaning of Rule 405 of the
Securities Act (“Designated Underwriter Entities”) from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement
or alleged untrue statement of a material fact contained in any material
prepared by or with the consent of the Company for distribution to Participants
in connection with the Directed Share Program or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out
of, or in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
Designated Underwriter Entities.
(b)
Notice and Procedures for Directed
Share Program Indemnification
. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be bought or asserted against any Designated Underwriter Entity in respect of
which indemnification may be sought pursuant to the preceding paragraphs of this
Section 8, such Designated Underwriter Entity shall promptly notify the Company
against whom such indemnification may be sought in writing;
provided
that the
failure to notify the Company shall not relieve it from any liability that it
may have under the preceding paragraphs of this Section 8 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and
provided
,
further
, that the
failure to notify the Company shall not relieve it from any liability that it
may have to a Designated Underwriter Entity otherwise than under the preceding
paragraphs of this Section 8. If any such proceeding shall be brought or
asserted against a Designated Underwriter Entity and it shall have notified the
Company thereof, the Company shall retain counsel reasonably satisfactory to the
Designated Underwriter Entity (who shall not, without the consent of the
Designed Underwriter Entity, be counsel to the Company) to represent
the Designated Underwriter Entity in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Designated Underwriter Entity shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Designated Underwriter Entity unless (i) the Company and the
Designated Underwriter Entity shall have mutually agreed to the contrary; (ii)
the Company has failed within a reasonable time to retain counsel reasonably
satisfactory to the Designated Underwriter Entity; (iii) the Designated
Underwriter Entity shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Company; or (iv) the named parties to any such proceeding
(including any impleaded parties) include both the Company and the Designated
Underwriter Entity and the Designated Underwriter and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the Company
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Designated Underwriter Entities, and
that all such fees and expenses shall be paid or reimbursed as they are
incurred. Any such separate firm for the Designated Underwriter Entities, its
affiliates, directors and officers and any control persons of such Designated
Underwriter Entity shall be designated in writing by the Designated Underwriter
Entity and any such separate firm for the Company shall be designated in writing
by the Company. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify each Designated Underwriter Entity from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time a Designated Underwriter Entity shall have
requested that the Company reimburse the Designated Underwriter Entity for fees
and expenses of counsel as contemplated by this paragraph, the Company shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by the
Company of such request and (ii) the Company shall not have reimbursed the
Designated Underwriter Entity in accordance with such request prior to the date
of such settlement. The Company shall, without the written consent of the
Designated Underwriter Entity, effect any settlement of any pending or
threatened proceeding in respect of which any Designated Underwriter Entity is
or could have been a party and indemnification could have been sought hereunder
by such Designated Underwriter Entity, unless such settlement (x) includes an
unconditional release of such Designated Underwriter Entity, in form
and substance reasonably satisfactory to such Designated Underwriter
Entity, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Designated
Underwriter Entity.
(c)
Contribution for Directed Share
Program Indemnification.
To the extent the indemnification provided for
in Section 8(a) is unavailable to a Designated Underwriter Entity or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the Company in lieu of indemnifying the Designated Underwriter
Entity thereunder, shall contribute to the amount paid or payable by the
Designated Underwriter Entity as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Designated Underwriter
Entities on the other hand from the offering of the Directed Shares or (ii) if
the allocation provided by clause 10(c)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 10(c)(i) above but also the relative fault of the
Company on the one hand and of the Designated Underwriter Entities on the other
hand in connection with any statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Designated Underwriter Entities on the other hand in connection with the
offering of the Directed Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Directed Shares (before
deducting expenses) and the total underwriting discounts and commissions
received by the Designated Underwriter Entities for the Directed Shares, bear to
the aggregate Public Offering Price of the Directed Shares. If the loss, claim,
damage or liability is caused by an untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact, the
relative fault of the Company on the one hand and the Designated Underwriter
Entities on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement or the omission or
alleged omission relates to information supplied by the Company or by the
Designated Underwriter Entities and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(d)
Limitation on Liability for Directed
Share Program.
The Company and the Designated Underwriter Entities
agree that it would not be just or equitable if contribution pursuant to this
Section 8 were determined by
pro rata
allocation (even if
the Designated Underwriter Entities were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 8(c). The amount paid or payable by the
Designated Underwriter Entities as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by the Designated Underwriter Entities in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall a Designated
Underwriter Entity be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such
Designated Underwriter Entity with respect to the offering of the Directed
Shares exceeds the amount of any damages that such Designated Underwriter Entity
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in
equity.
(e)
Survival
. The indemnity and
contribution provisions contained in this Section 8 shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Designated
Underwriter Entity or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Directed Shares.
9.
Effectiveness of
Agreement
. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
10.
Termination
.
(a)
Termination; General.
This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date or in the case of the Option
Shares, prior to the Additional Closing Date (i) trading generally shall have
been suspended or materially limited on or by any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq Stock Market, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade; (ii) trading of any securities issued or guaranteed by the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a general moratorium on commercial banking activities shall have been
declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
that, in the judgment of the Representatives, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Offered Shares on the Closing Date or the Additional Closing Date, as the
case may be, on the terms and in the manner contemplated by this Agreement, the
Pricing Disclosure Package and the Prospectus.
(b)
Lock-up Agreement Termination.
If this Agreement is terminated for any reason, the lock-up agreements
referred to in Section 6(m) shall be automatically terminated contemporaneously
with the termination hereof.
11.
Defaulting
Underwriter
.
(a) If,
on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Offered Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters
may in their discretion arrange for the purchase of such Offered Shares by other
persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter,
the non-defaulting Underwriters do not arrange for the purchase of such Offered
Shares, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Offered Shares on such terms. If other
persons become obligated or agree to purchase the Offered Shares of a defaulting
Underwriter, either the non-defaulting Underwriters or the Company may postpone
the Closing Date or the Additional Closing Date, as the case may be, for up to
five full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any
such changes. As used in this Agreement, the term “Underwriter” includes,
for all purposes of this Agreement unless the context otherwise requires, any
person not listed in Schedule 1 hereto that, pursuant to this Section 11,
purchases Offered Shares that a defaulting Underwriter agreed but failed to
purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Offered Shares
of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters,
the Company as provided in paragraph (a) above, the aggregate number of Offered
Shares that remain unpurchased on the Closing Date or the Additional Closing
Date, as the case may be, does not exceed one eleventh of the aggregate number
of Offered Shares to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Offered Shares that such Underwriter agreed to purchase hereunder on such date
plus such Underwriter’s pro rata share (based on the number of Offered Shares
that such Underwriter agreed to purchase on such date) of the Offered Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made.
(c) If,
after giving effect to any arrangements for the purchase of the Offered Shares
of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters
and the Company as provided in paragraph (a) above, the aggregate number of
Offered Shares that remain unpurchased on the Closing Date or the Additional
Closing Date, as the case may be, exceeds one eleventh of the aggregate amount
of Offered Shares to be purchased on such date, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement or,
with respect to any Additional Closing Date, the obligation of the Underwriters
to purchase Offered Shares on the Additional Closing Date shall terminate
without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 11 shall be without
liability on the part of the Company, except that the Company will continue to
be liable for the payment of expenses as set forth in Section 12 hereof and
except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its
default.
12.
Payment of
Expenses
.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and
expenses incident to the performance of each of their respective obligations
hereunder, including without limitation, (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Offered Shares
and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any
Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the
fees and expenses of the Company’s counsel and independent accountants; (v) the
fees and expenses incurred in connection with the registration or qualification
and determination of eligibility for investment of the Offered Shares under the
state or foreign securities or blue sky laws of such jurisdictions as the
Representatives may designate and the preparation, printing and distribution of
a Blue Sky Memorandum and Canadian “wrapper” (including the related reasonable
fees and expenses of counsel for the Underwriters); (vi) the cost of
preparing stock certificates; (vii) the costs and charges of any transfer
agent and any registrar; (viii) all expenses and application fees incurred in
connection with any filing with, and clearance of the offering by, FINRA; (ix)
all expenses incurred by the Company in connection with any “road show”
presentation to potential investors; (x) all expenses and application fees
related to the listing of the Offered Shares on the Nasdaq Stock Market, and
(xi) all reasonable fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp duties,
similar taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program. It is understood, however,
that except as provided in this Section 12 and of Section 7 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on the resale of any of the Shares owned by
them, any advertising expenses connected with any offers they may make and all
travel, lodging and other expenses of the Underwriters or any of their employees
incurred by them in connection with the road show.
(b) If
(i) this Agreement is terminated pursuant to Section 10, (ii) the Company for
any reason fails to tender the Offered Shares for delivery to the Underwriters
or (iii) the Underwriters decline to purchase the Offered Shares for any reason
permitted under this Agreement, the Company agrees to reimburse the Underwriters
for all out-of-pocket costs and expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
13.
Persons Entitled to Benefit
of Agreement
. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof.
Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of Offered
Shares from any Underwriter shall be deemed to be a successor merely by reason
of such purchase.
14.
Survival
. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or
made by or on behalf of the Company or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Offered Shares and shall remain in full force
and effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company or the Underwriters.
15.
Certain Defined
Terms
. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405
under the Securities Act; (b) the term “business day” means any day other than a
day on which banks are permitted or required to be closed in New York City; (c)
the term “subsidiary” has the meaning set forth in Rule 405 under the Securities
Act ; and (d) the term “significant subsidiary” has the meaning set forth in
Rule 1-02 of Regulation S-X under the Exchange Act.
16.
Miscellaneous
.
(a)
Authority of J.P. Morgan Securities
LLC and Deutsche Bank Securities Inc.
Any action by the
Underwriters hereunder may be taken by J.P. Morgan Securities LLC and Deutsche
Bank Securities Inc. on behalf of the Underwriters, and any such action taken by
J.P. Morgan Securities LLC or Deutsche Bank Securities Inc. shall be binding
upon the Underwriters.
(b)
Notices.
All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York,
New York 10179 (fax: (212) 622-8358); Attention Equity Syndicate Desk. Notices
to the Company shall be given to it at SodaStream International Ltd., Gilboa
Street, Airport City, Ben Gurion Airport 70100, Israel (fax:
011-972-3-973-6673); Attention: Chief Financial Officer.
(c)
Governing Law.
This
Agreement and any claim, controversy or dispute arising under or related to this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such
state.
(d)
Agent for Service; Submission to
Jurisdiction; Waiver of Immunities
. The Company hereby irrevocably
designates and appoints SodaStream USA, Inc. as the authorized agent of the
Company upon whom process may be served in any suit, proceeding or other action
against the Company instituted by any Underwriter or by any person controlling
an Underwriter as to which such Underwriter or any such controlling person is a
party and based upon this Agreement, or in any other action against the Company
in any federal or state court sitting in the County of New York, arising out of
the offering made by the Prospectus or any purchase or sale of Offered Shares in
connection therewith. The Company expressly accepts jurisdiction of any such
court in respect of any such suit, proceeding or other action and, without
limiting other methods of obtaining jurisdiction, expressly submits to
nonexclusive personal jurisdiction of any such court in respect of any such
suit, proceeding or other action. Such designation and appointment shall be
irrevocable, unless and until a successor authorized agent in the County and
State of New York reasonably acceptable to the Underwriters shall have been
appointed by the Company, such successor shall have accepted such appointment
and written notice thereof shall have been given to the Underwriters. The
Company further agrees that service of process upon its authorized agent or
successor shall be deemed in every respect personal service of process upon the
Company in any such suit, proceeding or other action. In the event that service
of any process or notice of motion or other application to any such court in
connection with any such motion in connection with any such action or proceeding
cannot be made in the manner described above, such service may be made in the
manner set forth in conformance with the Hague Convention on the Service Abroad
of Judicial and Extrajudicial Documents on Civil and Commercial Matters or any
successor convention or treaty. The Company hereby irrevocably waives any
objection that it may have or hereafter have to the laying of venue of any such
action or proceeding arising out of or based on the Offered Shares, or this
Agreement or otherwise relating to the offering, issuance and sale of the
Offered Shares in any Federal or state court sitting in the County of New York
and hereby further irrevocably waives any claim that any such action or
proceeding in any such court has been brought in an inconvenient forum. The
Company agrees that any final judgment after exhaustion of all appeals or the
expiration of time to appeal in any such action or proceeding arising out of the
sale of the Offered Shares or this Agreement rendered by any such Federal court
or state court shall be conclusive and may be enforced in any other jurisdiction
by suit on the judgment or in any other manner provided by law. Nothing
contained in this Agreement shall affect or limit the right of the Underwriters
to serve any process or notice of motion or other application in any other
manner permitted by law or limit or affect the right of the Underwriters to
bring any action or proceeding against the Company or any of its property in the
courts of any other jurisdiction. The Company further agrees to take any and all
action, including the execution and filing of all such instruments and
documents, as may be necessary to continue such designations and appointments or
such substitute designations and appointments in full force and effect. The
Company hereby agrees with the Underwriters to the nonexclusive jurisdiction of
the courts of the State of New York, or the Federal courts sitting in the County
of New York in connection with any action or proceeding arising from the sale of
the Offered Shares or this Agreement brought by the Company or the
Underwriters.
(e)
Judgment Currency
. The
obligation of the Company in respect of any sum due to any Underwriter under
this Agreement shall, notwithstanding any judgment in a currency other than U.S.
dollars or any other applicable currency (the “Judgment Currency”), not be
discharged until the first business day, following receipt by such Underwriter
of any sum adjudged to be so due in the Judgment Currency, on which (and only to
the extent that) such Underwriter may in accordance with normal banking
procedures purchase U.S. dollars or any other applicable currency with the
Judgment Currency; if the U.S. dollars or other applicable currency so purchased
are less than the sum originally due to such Underwriter hereunder, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Underwriter against such loss. If the U.S. dollars or other
applicable currency so purchased are greater than the sum originally due to such
Underwriter hereunder, such Underwriter agrees to pay to the Company an amount
equal to the excess of the U.S. dollars or other applicable currency so
purchased over the sum originally due to such Underwriter
hereunder.
(f)
Counterparts.
This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
(g)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties
hereto.
(h)
Headings.
The headings
herein are included for convenience of reference only and are not intended to be
part of, or to affect the meaning or interpretation of, this
Agreement.
If the
foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
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Very
truly yours,
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SODASTREAM
INTERNATIONAL LTD.
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By:
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Name:
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Title:
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Accepted: __________,
2010
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J.P.
MORGAN SECURITIES LLC
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For
itself and on behalf of the several Underwriters listed in Schedule 1
hereto.
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By:
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Authorized
Signatory
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DEUTSCHE
BANK SECURITIES INC.
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For
itself and on behalf of the several Underwriters listed in Schedule 1
hereto.
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By:
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Authorized
Signatory
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By:
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Authorized
Signatory
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Schedule
1
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Underwriter
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Number of Offered Shares
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J.P.
Morgan Securities LLC
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Deutsche
Bank Securities Inc.
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Oppenheimer
& Co. Inc.
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Roth
Capital Partners, LLC
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Stifel
Nicolaus & Company, Incorporated
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William
Blair & Company, LLC
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Total
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Schedule
2
Significant
Subsidiaries
SodaStream
International B.V.
SodaStream
Industries Ltd.
SodaStream
GmbH
SodaStream
USA, Inc.
SodaStream
(Switzerland) AG
Annex
A
Form of
Opinion of U.S. Counsel for the Company
Annex
B
Form of
Opinion of Israeli Counsel for the Company
Annex
C
a.
Pricing Disclosure
Package
b.
Pricing Information Provided Orally
by Underwriters
Exhibit
A
LOCK-UP
AGREEMENT
______,
2010
J.P.
MORGAN SECURITIES INC.
DEUTSCHE
BANK SECURITIES INC.
As Representatives of
the several Underwriters listed
in
Schedule 1 to the
Underwriting
Agreement referred to
below
c/o J.P.
Morgan Securities Inc.
383
Madison Avenue
New York,
NY 10179
Re: SodaStream
International Ltd. – Initial Public Offering
Ladies
and Gentlemen:
The
undersigned understands that you, as Representatives of the several
Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with SodaStream International Ltd., an Israel corporation (the
“Company”), providing for the initial public offering (the “Public Offering”) by
the several Underwriters named in Schedule 1 to the Underwriting Agreement (the
“Underwriters”), of ordinary shares, of the Company (the “Securities”).
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In
consideration of the Underwriters’ agreement to purchase and make the Public
Offering of the Securities, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of J.P. Morgan Securities Inc. and Deutsche
Bank Securities Inc. on behalf of the Underwriters, the undersigned will not,
commencing on the date hereof and ending 180 days after the date of the
prospectus relating to the Public Offering (the “Prospectus”), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
ordinary shares, par value NIS 0.10 per share, of the Company (the “Ordinary
Shares”) or any securities convertible into or exercisable or exchangeable for
Ordinary Shares (including without limitation, Ordinary Shares or such other
securities which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission (the “SEC”) and securities which may be issued upon exercise of a
stock option or warrant) (“Lock-Up Securities”), or publicly disclose the
intention to make any offer, sale, pledge or disposition, (2) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of Lock-Up Securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Ordinary
Shares or such other securities, in cash or otherwise or (3) make any demand for
or exercise any right with respect to the registration of any shares of Ordinary
Shares or any security convertible into or exercisable or exchangeable for
Ordinary Shares without the prior written consent of the Representatives, in
each case other than (A) the Securities to be sold by the undersigned pursuant
to the Underwriting Agreement, (B) transactions relating to Lock-Up Securities
acquired in open market transactions after the completion of the Public
Offering, (C) transfers of Lock-Up Securities as a bona fide gift or gifts, (D)
distributions of Lock-Up Securities to limited partners, members or stockholders
of the undersigned, (E) transfers to any immediate family of the undersigned or
a trust for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned (for purposes of this Letter Agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin), and (F) transfers of Lock-Up Securities to an
affiliate of the undersigned (for the purposes of this Letter Agreement,
“affiliate” shall have the meaning ascribed thereto in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”);
provided
that in the
case of any transfer or distribution pursuant to clause (C), (D), (E) or (F)
each donee or distributee shall execute and deliver to the Representatives a
lock-up letter in the form of this paragraph; and
provided
,
further
, that in the
case of any transaction, transfer or distribution pursuant to clause (B), (C),
(D), (E) and (F), no filing by any party (donor, donee, transferor or
transferee) under the Securities Act of 1933, as amended, or the Exchange Act,
or other public announcement shall be required or shall be made voluntarily in
connection with such transfer or distribution (other than a filing on a Form 5
made after the expiration of the 180-day period referred to above).
Nothing
in this Letter Agreement shall prevent the establishment by the undersigned of
any contract, instruction or plan (a “Plan”) that satisfies all of the
requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act;
provided
that it
shall be a condition to the establishment of any such Plan that no sales of the
Company’s capital stock shall be made pursuant to such a Plan prior to the
expiration of the 180-day period referred to above; and
provided
,
further
, such a Plan
may only be established if no public announcement of the establishment or the
existence thereof, and no filing with SEC or any other regulatory authority
shall be required or shall be made voluntarily by the undersigned, the Company
or any other person, prior to the expiration of the 180-day period referred to
above.
Notwithstanding
the foregoing, if (1) during the last 17 days of the 180-day restricted period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day period, the
restrictions imposed by this Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
In
furtherance of the foregoing, the Company, and any duly appointed transfer agent
for the registration or transfer of the securities described herein, are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Letter Agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Letter Agreement. All authority herein
conferred or agreed to be conferred and any obligations of the undersigned shall
be binding upon the successors, assigns, heirs or personal representatives of
the undersigned.
The
undersigned understands that, (i) if the Company notifies the Representatives in
writing that it does not intend to proceed with the public offering of the
Securities prior to the execution of the Underwriting Agreement or (ii) if the
Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery
of the Ordinary Shares to be sold thereunder, the undersigned shall be released
from all obligations under this Letter Agreement. In addition, the
undersigned shall be released from all obligations under this Letter Agreement
if the registration statement related to the Public Offering does not become
effective by December 31, 2010. The undersigned understands that the
Underwriters are entering into the Underwriting Agreement and proceeding with
the Public Offering in reliance upon this Letter Agreement.
[Remainder
of the page intentionally left blank.]
This Letter Agreement and any claim,
controversy or dispute arising under or related to this Letter Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
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Very
truly yours,
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[NAME
OF STOCKHOLDER]
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By:
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Name:
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Title:
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EXHIBIT
10.4
EXECUTION
COPY
AMENDED
AND RESTATED
SHAREHOLDERS
AGREEMENT
SODASTREAM
INTERNATIONAL LTD.
OCTOBER
21, 2010
THIS
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (this “
Agreement
”) is made as of the
21st day of October 2010, and shall be effective only upon the closing of the
Company’s Qualified Public Offering (as defined below), by and among SodaStream
International Ltd., a company incorporated under the Laws of the State of Israel
(the “
Company
”); and
certain of the holders of the Company’s Ordinary Shares (the “
Ordinary Shares
”)
(collectively, the “
Holders
”).
WITNESSETH:
WHEREAS,
Soda Club Enterprises N.V. and its shareholders entered into a Shareholder
Agreement, dated March 26, 2007, with regard to their shareholdings in the
Company (the “
Previous
Shareholder Agreement
”).
WHEREAS,
pursuant to the terms of the Previous Shareholder Agreement, an exchange offer
took place where all of the outstanding shares of Soda Club Enterprises were
exchanged for shares of the Company and after such exchange, the Previous
Shareholder Agreement was deemed to apply
mutatis mutandis
to the
Company.
WHEREAS,
pursuant to the terms of the Previous Shareholder Agreement, such agreement may
be amended upon the signature of the Company and Fortissimo Capital Fund GP,
L.P. (“
Fortissimo
”) who
have executed this Agreement and through such signatures shall be deemed to
amend and restate the Previous Shareholder Agreement.
WHEREAS,
this Agreement shall supersede the Previous Shareholder Agreement and any
obligations in any previous shareholder agreement is deemed to be
fulfilled.
WHEREAS,
the parties hereto desire to amend and restate the prior Shareholders Agreement
in its entirety by entering into this Agreement; and
NOW, THEREFORE
, in
consideration of the mutual promises and covenants set forth herein, the parties
hereby agree as follows:
1.
Definitions
.
As used herein, the following terms have the following meanings:
1.1. “
A1 Holders
” shall mean the
holders of the Company’s Ordinary Shares converted from the Company’s Series A1
Convertible Preferred Shares (the “
A1 Shares
”) listed on
Schedule 1
hereto.
1.2. “
A2 Holders
” shall mean the
holders of the Company’s Ordinary Shares converted from Company’s Series A2
Convertible Preferred Shares (the “
A2 Shares
”) listed on
Schedule 1
hereto.
1.3. “
Board
” shall mean the Board of
Directors of the Company.
1.4. “
Commission
” or “
SEC
” shall mean the Securities
and Exchange Commission or any other federal agency at the time administering
the Securities Act.
1.5. “
Exchange Act
” shall mean the
Securities Exchange Act of 1934, as amended, or any similar federal statute and
the rules and regulations thereunder, all as the same shall be in effect at the
time.
1.6. “
Form F-3
” shall mean Form F-3
or S-3 under the Securities Act (as defined below), as in effect on the date
hereof or any registration form under the Securities Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
1.7. “
Incorporation Documents
” shall
mean the Articles of Association of the Company.
1.8. “
Initiating Holders
” shall mean
the Preferred Holders holding at least 30% of the A1 Shares then outstanding,
assuming for purposes of such determination the conversion of all securities
convertible into or exercisable for A1 Shares.
1.9. “
IPO
” shall
mean the closing of the
sale of the Ordinary Shares of the Company to the public in a bona fide firm
commitment underwriting pursuant to a registration statement under the
Securities Act or similar law of another applicable jurisdiction.
1.10. “
Preferred Holders
” shall mean
the A1 Holders and the A2 Holders.
1.11. “
Qualified Public Offering
”
shall mean the Company’s initial public offereing of the Company’s ordinary
shares to be traded on the Nasdaq Global Market.
1.12. “
Register
”, “
Registered
” and “
Registration
” shall refer to a
registration affected by filing a registration statement in compliance with the
Securities Act and the declaration or ordering by the Commission of
effectiveness of such registration statement, or the equivalent actions under
the laws of another jurisdiction.
1.13. “
Registrable Securities
” shall
mean all of the following to the extent the same have not been sold to the
public (i) the Ordinary Shares of the Company issued upon conversion of the A1
Shares and A2 Shares, previously held by A1 or A2 holders; (ii) shares issued in
respect of the A1 Shares and A2 Shares, previously held by A1 or A2 holders
issued as a result of a share split, share dividend, recapitalization or
combination. Notwithstanding the foregoing, Registrable Securities shall not
include otherwise Registrable Securities (i) sold by a person in a transaction
in which the rights under this Agreement are not properly assigned; or (ii) (A)
sold to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction, or (B) the registration rights of which have
been terminated pursuant to this Agreement.
1.14. “
Rule 144
” shall mean Rule 144
under the Securities Act or any successor or similar rule as may be enacted by
the Commission from time to time, but shall not include Rule 144A.
1.15. “
Rule 144A
” shall mean Rule
144A under the Securities Act or any successor or similar rule as may be enacted
by the Commission from time to time, but shall not include Rule
144.
1.16. “
Securities Act
” shall mean the
U.S. Securities Act of 1933, as amended, or any similar federal statute and the
rules and regulations thereunder, all as the same shall be in effect at the
time.
1.17. “
Shareholders
” shall mean (i)
the holders of the Company’s Ordinary Shares not registered for trading on any
securities exchange or quotation system on which the Company’s shares are
otherwise traded; (ii) the A1 Holders; and (iii) the A2 Holders (collectively,
the “
Shareholders
” and
individually, a “
Shareholder
”).
1.18.
“
Transfer
” shall mean:
offer to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or
grant any rights with respect to any share capital of the Company (including any
options or warrants to purchase any capital Share or any securities convertible
into or exchangeable for share capital) now owned or hereafter acquired by such
person or with respect to which such person has or hereafter acquires the power
of disposition, other than by will or the laws of intestacy.
2.
Registration
.
The following provisions, shall govern the registration of the Company’s
securities:
2.1.
Incidental (“
Piggyback
”) Registration
. If
the Company or any Shareholder (other than the Initiating Holders) at any time
after the Qualified Public Offering proposes to register any of its securities,
other than (i) in a registration relating solely to employee benefit plans, or
(ii) a registration relating solely to an SEC Rule 145 transaction, the Company
will give notice to the holders of Registrable Securities of such intention.
Upon the written request of any holder of the Registrable Securities given
within twenty (20) days after receipt of any such notice, the Company shall take
all actions under its power and control to include in such registration all of
the Registrable Securities indicated in such request, so as to permit the
disposition of the shares so registered. Notwithstanding any other provision of
this Section, if in an underwritten offering the managing underwriter advises
the Company in writing that marketing factors require a limitation of the number
of shares to be underwritten, then there shall be excluded from such
registration and underwriting to the extent necessary to satisfy such
limitation, shares held by any Shareholder (other than the Preferred Holders),
and then to the extent necessary, shares held by the Preferred Holders other
than the A1 Holders and then to shares held by the A1 Holders (in each case, pro
rata to the respective number of Registrable Securities held by such
Shareholders), provided, that in all registrations (except for the initial
underwritten public offering where the underwriters may completely restrict
piggyback registration) the Registered Holders holding A1 Shares can not be cut
back in a way that will permit them to sell any less than 30% of the amount of
shares such Holders propose to register on a pro rata basis. The Company shall
have the right to withdraw or terminate any registration initiated by it under
this Section
2.1
prior to the effectiveness of such
registration whether or not any Shareholder has elected to include securities in
such registration. The Registration expenses of such withdrawn registration
(including for avoidance of doubt of such Shareholders) shall be solely borne by
the Company in accordance with Section
2
hereof.
2.2.
Demand
Registration
.
2.2.1. At
any time after six (6) months following the closing of the Company’s Qualified
Public Offering, the Initiating Holders may request in writing that all or part
of the Registrable Securities held by such Initiating Holders shall be
registered for trading on any securities exchange or quotation system on which
the Company’s shares are otherwise traded. Within twenty (20) days after receipt
of any such request, the Company shall give written notice of such request to
the other holders of Registrable Securities and shall take all actions under its
power and control to include in such registration all Registrable Securities
held by all such holders of Registrable Securities who wish to participate in
such demand registration and who provide the Company with written requests for
inclusion therein within fifteen (15) days after the receipt of the Company’s
notice. Thereupon, the Company shall have the registration statement become
effective of all Registrable Securities as to which it has received requests for
registration with an underwriter acceptable to the holders of a majority of the
participating Registrable Securities of such Preferred Holders. The Company
shall not be required to (i) effect more than two (2) registrations under this
Section 2.2.1, (ii) effect a registration for the sale of shares with an
anticipated sales price of less than five million dollars ($5,000,000) or (iii)
effect a registration during the period beginning sixty (60) days before and
extending until 180 days after the effective date of the IPO. If the Initiating
Holders intend to distribute the Registrable Securities covered by their request
by means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2.2 or any request pursuant to Section
2.3, and the Company shall include such information in the written notice
referred to in Section 2.2 or 2.3, as applicable. In such event, the
right of any Shareholder to include its Registrable Securities in such
registration shall be conditioned upon such Shareholder’s participation in such
underwriting and the inclusion of such Shareholder’s Registrable Securities in
the underwriting (unless otherwise mutually agreed by the Initiating Holders,
such Shareholder and the underwriter) to the extent provided
herein. All Shareholders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters designated pursuant to
Section 2.5 below. Notwithstanding any other provision of this
Section 2.2.1, if the managing underwriter advises the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then there shall be excluded from such registration and
underwriting to the extent necessary to satisfy such limitation, first
Registrable Securities held by Shareholders other than the A1 Holders and then
to the extent necessary, and then to the extent necessary, shares held by A1
Holders other than Initiating Holders, and then to the extent necessary,
Registrable Securities held by the Initiating Holders (in each case, pro rata to
the respective number of Registrable Securities held by such Shareholders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
2.2.2.
In the event that the Initiating Holders request to effect a registration under
this Section and the Company decides to join and register any of its securities
thereunder, such registration shall be regarded as an Incidental (“Piggyback”)
Registration under Section 2.1 and not a Demand Registration under this Section
2.2.
2.2.3. If
all Registrable Securities requested to be registered by the Preferred Holders
are not registered in the Registration, such Registration shall not be counted
as one of the two demand registrations.
2.3.
Form F-3
Registration
. If the Company shall receive from any Shareholder holding
Registrable Securities a written request or requests that the Company effect a
registration on Form F-3 (if the Company qualifies), and any related
qualification or compliance, with respect to Registrable Securities, the Company
will within twenty (20) days after receipt of any such request give written
notice of the proposed registration, and any related qualification or
compliance, to all other Shareholders, and shall take all actions under its
power and control to include in such registration all Registrable Securities
held by all such Shareholders who wish to participate in such registration and
who provide the Company with written requests for inclusion therein within
fifteen (15) days after the receipt of the Company’s notice. Thereupon, the
Company shall take all actions under its power and control to effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Shareholder’s or Shareholders’ Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Shareholder or Shareholders joining in such request as
are specified in a written request given within fifteen (15) days after receipt
of such written notice from the Company. The right to request such F-3
registration statement shall be unlimited, and such F-3 registrations shall not
be counted as a demand registration under Section 2.2 above. If requested by the
requesting Shareholder, the Company shall file a shelf registration statement
and the Company shall endeavor to keep it effect for nine (9) months unless the
Registrable Shares are completely sold thereunder.
2.4. Notwithstanding
Sections 2.2 and 2.3 above, the Company shall not be required to effect any
registration during the pending period of any Demand Blackout Period (as
hereinafter defined).
“
Blackout Periods
”: If the
Company determines in good faith that the registration and distribution of
Registrable Securities (or the use of a registration statement or related
prospectus) would interfere with any pending financing, acquisition, corporate
reorganization or any other material corporate development involving the Company
(or would require premature disclosure thereof), and promptly gives the
Shareholders written notice of such determination following their request to
register any Registrable Securities, the Company shall be entitled to postpone
(but not more than once in any twelve (12) month period) the filing of the
registration statement otherwise required to be prepared and filed by the
Company pursuant to Sections 2.2 or 2.3 for a reasonable period of time,
but not to exceed 90
days (a “
Demand
Blackout Period
”). The Company
shall promptly notify the Shareholders of the expiration or earlier termination
of any Demand Blackout Period.
In the
event of a Demand Blackout Period, the Company shall undertake to extend the
effectiveness of any then current registration statement on Form F-3 beyond the
anticipated nine (9) month period or any then current registration statement on
other forms (including F-1) beyond the anticipated five (5) month period for the
respective periods of such Demand Blackout Period.
2.5.
Designation of
Underwriter
.
2.5.1. In
the case of any registration effected pursuant to Section 2.2 or 2.3, a majority
of the Initiating Holders that submitted requests for registration shall have
the right to designate the managing underwriter(s) in any underwritten offering
which shall be a prominent and reputable underwriter, subject to the consent of
the Company, which consent shall not unreasonably withheld.
2.5.2. In
the case of any registration initiated by the Company, the Company shall have
the right to designate the managing underwriter in any underwritten
offering.
2.6.
Expenses
. All
expenses, including but not limited to SEC registration and blue sky fees and
all legal, accounting and printing fees, including all legal fees and expenses
of one special counsel for the selling Shareholders, shall be borne by the
Company;
provided
,
however
, that each of
the Shareholders participating in such registration shall pay its pro rata
portion of the fees, discounts or commissions payable to any
underwriter.
2.7.
Indemnities
. In the
event of any registered offering of Ordinary Shares pursuant to this Section
2:
2.7.1. The
Company will indemnify and hold harmless, to the fullest extent permitted by
law, any Shareholder (including any officer, director or partner of such
Shareholder) and any underwriter for such Shareholder, and each person, if any,
who controls (within the meaning of the Exchange Act) the Shareholder or such
underwriter, from and against any and all losses, damages, claims, liabilities,
joint or several, costs and expenses (including any amounts paid in any
settlement effected with the Company’s consent) to which the Shareholder or any
such underwriter or controlling person may become subject under applicable law
or otherwise, insofar as such losses, damages, claims, liabilities (or actions
or proceedings in respect thereof), costs or expenses arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the registration statement or included in the prospectus, as
amended or supplemented, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they are made,
not misleading, or (iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act or any rule or regulation promulgated
thereunder applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse the Shareholder,
such underwriter and each such controlling person of the Shareholder or the
underwriter, promptly upon demand, for any reasonable legal or any other
expenses incurred by them in connection with investigating, preparing to defend
or defending against or appearing as a third-party witness in connection with
such loss, claim, damage, liability, action or proceeding;
provided
,
however
, that the
Company will not be liable in any such case to the extent that any such loss,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission so made in conformity with
information furnished in writing by a Shareholder, to such underwriter or such
controlling persons specifically for inclusion therein;
provided
,
further
, that this
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations;
provided
,
further
, that the
indemnity agreement contained in this subsection 2.7.1 shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Company. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the selling Shareholder, the underwriter or any
controlling person of the selling Shareholder or the underwriter, and regardless
of any sale in connection with such offering by the selling Shareholder. Such
indemnity shall survive the transfer of securities by a selling
Shareholder.
2.7.2. Each
Shareholder participating in a registration hereunder will indemnify and hold
harmless the Company, its officers and directors, any underwriter for the
Company, and each person, if any, who controls the Company or such underwriter,
from and against any and all losses, damages, claims, liabilities, costs or
expenses (including any amounts paid in any settlement effected with the selling
Shareholder’s consent) to which the Company, its officers or directors, or any
such controlling person and/or any such underwriter may become subject under
applicable law or otherwise, insofar as such losses, damages, claims,
liabilities (or actions or proceedings in respect thereof), costs or expenses
arise out of or are based on (i) any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
included in the prospectus, as amended or supplemented, or (ii) the
omission or to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, and each such Shareholder will reimburse
the Company, its officers and directors, any underwriter and each such
controlling person of the Company or any underwriter, promptly upon demand, for
any reasonable legal or other expenses incurred by them in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with such loss, claim, damage, liability,
action or proceeding; in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission was so made in
strict conformity with written information furnished by such Shareholder
specifically for inclusion therein. The foregoing indemnity agreement is subject
to the condition that, insofar as it relates to any such untrue statement or
alleged untrue statement or omission made in the preliminary prospectus but
eliminated or remedied in the amended prospectus at the time the registration
statement becomes effective or in the final prospectus, such indemnity agreement
shall not inure to the benefit of (i) the Company and (ii) any underwriter, if a
copy of the final prospectus was not furnished to the person or entity asserting
the loss, liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act;
provided
,
further
, that this
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations;
provided
,
further
, that the
indemnity agreement contained in this subsection 2.7.2 shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Shareholders, as the
case may be, which consent shall not be unreasonably withheld. In no event shall
the liability of a Shareholder exceed the net proceeds received by such
Shareholder from the sale of its securities under the applicable
registration.
2.7.3. Promptly
after receipt by an indemnified party pursuant to the provisions of Sections
2.7.1 or 2.7.2 of notice of the commencement of any action involving the subject
matter of the foregoing indemnity provisions, such indemnified party will, if a
claim thereof is to be made against the indemnifying party pursuant to the
provisions of said Sections 2.7.1 or 2.7.2, promptly notify the indemnifying
party of the commencement thereof; but the omission to notify the indemnifying
party will not relieve the indemnifying party from any liability which it may
have to any indemnified party. In case such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party;
provided
,
however
, that if the
defendants in any action include both the indemnified party and the indemnifying
party and there is a conflict of interests which would prevent counsel for the
indemnifying party from also representing the indemnified party, the indemnified
party or parties shall have the right to select one separate counsel to
participate in the defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of said Sections
2.7.1 or 2.7.2 for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed counsel in accordance with the provision
of the preceding sentence, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the notice of the commencement
of the action and within fifteen (15) days after written notice of the
indemnified party’s intention to employ separate counsel pursuant to the
previous sentence, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
No indemnifying party will consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
2.7.4. If
recovery is not available under the foregoing indemnification provisions, for
any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution to
liabilities and expenses as more fully set forth in an underwriting agreement to
be executed in connection with such registration, if any. In any
event, in determining the amount of contribution to which the respective parties
are entitled, there shall be considered the parties’ relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission, and
any other equitable considerations appropriate under the circumstances,
provided
,
however
, that in any
such case, no person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
2.7.5. Notwithstanding
the foregoing, to the extent that the provisions on indemnification contained in
the underwriting agreements entered into among the selling Shareholders, the
Company and the underwriters in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall be controlling as to the Registrable Securities
included in the public offering;
provided
,
however
, that if, as
a result of this Section 2.7.5, any Shareholder, its officers, directors, and
partners and any person controlling such Shareholder is held liable for an
amount which exceeds the aggregate proceeds received by such Shareholder from
the sale of Registrable Securities included in a registration, as provided in
Section 2.7.2 above, pursuant to such underwriting agreement (the “
Excess Liability
”), the
Company shall reimburse any such Shareholder for such Excess
Liability.
2.8.
Obligations of the
Company
. Whenever required under this Section 2 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as possible, take all actions under its power and control in order to effect and
retain such registration, including but not limited to:
2.8.1. giving
each shareholder entitled to written notice thereof pursuant to this Agreement
as soon as practicable prior to filing the registration statement;
2.8.2. preparing
and filing with the SEC a registration statement with respect to such
Registrable Securities and to use its best efforts to cause such registration
statement to become effective, and, upon the request of the holders of a
majority of the Registrable Securities registered thereunder, keeping such
registration statement effective for a period of up to five (5) months or, if
sooner, until the distribution contemplated in the Registration Statement has
been completed, provided, however, that in the case of any registration of
Registrable Securities on Form F-3 which are intended to be offered on a
continuous or delayed basis, such registration statement be kept effective for a
nine (9) month period and shall be extended to keep the registration statement
effective until all such Registrable Securities are sold.
2.8.3. preparing
and filing with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement;
2.8.4. furnishing
to the Shareholders participating in this registration such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
2.8.5. in
the event of any underwritten public offering, entering into and performing its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. Each shareholder participating in
such underwriting shall also enter into and perform its obligations under such
an agreement;
2.8.6. notifying
each holder of Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement or alleged untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and then, as expeditiously as possible, correcting such omission or
misstatement;
2.8.7. causing
all Registrable Securities registered pursuant hereunder to be listed on each
securities exchange and/or quotation system on which similar securities issued
by the Company are then listed;
2.8.8. providing
a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration;
2.8.9. furnishing,
at the request of any Shareholder requesting registration of Registrable
Securities pursuant to this Section 2, on the date that such Registrable
Securities are delivered to the underwriters for sale in connection with a
registration pursuant to this Section 2, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Shareholders
requesting registration of Registrable Securities and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Shareholders requesting registration of
Registrable Securities and (iii) such other documents, certificates and
instruments as are customarily provided in underwritten offerings;
2.8.10. using
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment;
2.8.11. using
reasonable best efforts to register or qualify such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
any Shareholder or underwriter reasonably requires, and keeping such
registration or qualification effective during the period set forth in Section
2.8.2 above, except that the Company shall not for any such purpose be required
to qualify to do business as a foreign Company in any jurisdiction wherein it is
not so qualified or intends to be so qualified prior to the effective date of
the applicable registration statement;
2.8.12. causing
its accountants to issue to the underwriter, if any, or the Shareholders, if
there is no underwriter, comfort letters and updates thereof, in customary form
and covering matters of the type customarily covered in such letters with
respect to underwritten offerings;
2.8.13. making
available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and causing the Company’s officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
2.8.14. notifying
each Shareholder, at any time a prospectus covered by such registration
statement is required to be delivered under the Securities Act, of the happening
of any event of which it has knowledge as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; and
2.8.15. taking
such other related actions as shall be reasonably requested by any
Shareholder.
2.9.
Lock-Up
. Each
Shareholder hereby agrees in connection with the public offering of the
Company’s securities not to sell or otherwise dispose of any share capital of
the Company owned (beneficially or of record) by such Shareholder (other than
shares of Registrable Securities or other Ordinary Shares of being registered in
such offering), without the consent of such managing underwriters, for a period
of not more than (i) in the case of such an initial public offering, one hundred
eighty (180) days following the effective date of the registration statement
relating to such initial public offering (or such other date that the Company’s
officers and directors have agreed to), (ii) in the case of such subsequent
public offerings, ninety (90) days following the effective date of the
registration statement relating to such offering (or such other date that the
Company’s officers and directors have agreed to) or (iii) in either case, for
such shorter period requested by the underwriters;
provided
,
however
, all persons
holding in excess of 1% of the share capital of the Company on a fully diluted
basis (calculated assuming the conversion of all outstanding convertible
securities and the exercise of all outstanding rights to acquire Ordinary
Shares) and all officers and directors of the Company are also bound by or shall
have agreed to the same terms. In any case, in the event the underwriters
release any of the above from such “lock-up” restrictions prior to the scheduled
expiration date, the Shareholders shall be released from their “lock-up”
obligations hereunder on a proportionate basis. The Shareholders shall promptly
execute a customary agreement to such effect with any managing underwriters if
so requested.
2.10.
Foreign Offerings
.
The provisions of this Section 2 shall apply, mutatis mutandis, to any
registration of the securities of the Company outside of the United States and
any reference to the US laws or rules shall be deemed to be applicable to the
applicable rules of any other jurisdiction that the Company has registered in to
the extent required to achieve the purpose of the aforementioned
rights.
2.11.
Rule 144 and 144A
Reporting
. With a view to making available to Shareholders the benefits
of certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees at
all times after ninety (90) days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public to:
(a) make
and keep public information available, as those terms are understood and defined
in Rule 144 and Rule 144A; and
(b) use
its best efforts to file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act.
For
purposes of facilitating sales pursuant to Rule 144A, so long as the Company is
not subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, each Shareholder and any transferee of such Shareholder’s securities shall
have the right to obtain from the Company, upon request of the Shareholder prior
to the time of sale, a brief statement of the nature of the business of the
Company and the products and services it offers; and the Company’s most recent
balance sheet and profit and loss and retained earnings statements, and similar
financial statements for the two (2) preceding fiscal years (the financial
statements should be audited to the extent reasonably available).
2.12.
Termination
. The
obligations of the Company to register shares of Registrable Securities under
Sections 2.1, 2.2 or 2.3 shall terminate immediately with respect to any
Shareholder who holds one percent (1%) or less of the aggregate outstanding
shares of the Company’s share capital,
provided
that all of
the shares of Registrable Securities held by such Shareholder may be publicly
sold within any three (3) month period pursuant to Rule 144 of the Securities
Act.
2.13.
Limitations on Subsequent
Registration Rights
. The Company shall not, without the prior written
consent of Fortissimo enter into any agreement with any holder or prospective
holder of any securities of the Company to grant registration
rights.
2.14.
Obligations of the holders
of Registrable Securities
. Holders of Registrable Securities desiring to
sell in a registration statement will furnish to the Company such information as
the Company may reasonably require from such holders of Registrable Securities
in connection with the registration statement (and the prospectus included
therein). No Shareholder may participate in any offering unless such holder (i)
agrees to sell his Registrable Securities on the basis provided in any agreement
governing the offering and (ii) completes and executes all reasonable and
customary questionnaires, indemnities, and other documents required in
connection with the offering.
2.14.1. Failure
of a Shareholder to furnish the information and agreements described in this
Agreement shall not affect the obligations of the Company under this Agreement
to the remaining holders of Registrable Securities to furnish such reasonable
and customary information and agreements unless, in the reasonable opinion of
counsel to the Company, such failure impairs or may impair the viability of the
entire offering or the legality of the registration or the underlying
offering.
2.14.2. The
Shareholders holding shares included in the registration will not (until further
notice by the Company) effect sales thereof (or deliver a prospectus to any
purchaser) after receipt of telegraphic or written notice from the Company to
suspend sales to permit the Company to correct or update a registration
statement or prospectus. At the end of the period during which the Company is
obligated to keep the registration statement current and effective as described
in Section 2.8.2 the Shareholders holding shares of Registrable Securities
included in the registration shall discontinue sales of shares pursuant to such
registration statement upon receipt of written notice from the Company of its
intention to remove from registration the shares of Registrable Securities
covered by such registration statement that remain unsold, and such holders
shall notify the Company of the number of such shares registered that remain
unsold promptly upon receipt of such written notice from the
Company.
2.14.3. In
connection with any offering, each holder who intends to sell Registrable
Securities will not use any offering document, offering circular or other
offering materials with respect to the offer or sale of Registrable Securities,
other than the prospectuses provided by the Company and any documents
incorporated by reference therein.
3.
Shareholder
Loans
.
The
shareholders loans listed on
Schedule 2
hereto
shall be repaid within 30 days after the Qualified Public Offering.
4.
Miscellaneous
.
4.1.
Supersede other Shareholder
Agreements
. Certain shareholders of the Company have
previously executed the Previous Shareholder Agreement. When
effective pursuant to Section 4.12 hereof, this Agreement hereby supersedes the
Previous Shareholder Agreement and such shareholder agreement shall be null and
void and this Agreement shall govern the relationship among the shareholders who
are signatories thereto and hereto. At such time, any obligations
under any other shareholder agreement with respect to the shares of the Company
shall be deemed to be fulfilled.
4.2.
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 thereby.
4.3.
Governing Law;
Jurisdiction
. This Agreement shall be governed by and construed in
accordance with the laws of Israel, without regard to principles of conflict of
law provisions thereof and the competent courts in Tel Aviv shall have exclusive
jurisdiction in all matters pertaining to this Agreement.
4.4.
Successors and Assigns;
Assignment
. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and are 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 each party to this Agreement, with the
exception of: (i) assignments and transfers among the Preferred Holders; (ii)
assignments and transfers from a Preferred Holder to any other entity which
controls, is controlled by or is under common control with, such Preferred
Holder; and (iii) as to any Preferred Holder which is a limited partnership,
assignments and transfers to its partners or members and to affiliated limited
partnerships managed by the same management Company or managing partner or by an
entity which controls, is controlled by, or is under common control with, such
management Company or managing general partner;
provided
,
however
, that no such
assignment or transfer shall become effective unless each such transferee has
provided the Company with a confirmation in writing that it is bound by all
terms and conditions of this Agreement as if it were an original party to
it.
4.5.
Entire Agreement; Amendment
and Waiver
. This Agreement, together with the Incorporation Documents of
the Company, constitutes the full and entire understanding and agreement between
the parties with regard to the subject matters hereof and thereof. 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 Company and
Fortissimo.
4.6.
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 faxed or mailed,
postage prepaid, or otherwise delivered by hand or by guaranteed courier,
addressed to such party’s address as set forth below or at such other address as
the party shall have furnished to each other party in writing in accordance with
this provision:
|
if
to the Company:
|
address
on the signature pages hereto
|
|
|
|
|
With
a copy to
(such
copy not constituting notice)
Gornitzky
& Co.
45
Rothschild Blvd.
Tel
Aviv
Attention:
Chaim Friedland, Adv.
Fax:
972-3-560-6555
|
|
|
If
the Ordinary Shareholders
|
address
on the signature pages
hereto
|
or such
other address with respect to a party as such party shall notify each other
party in writing as above provided. Any notice sent in accordance with this
Section shall be effective (i) if mailed, seven (7) business days after mailing,
(ii) if sent by guaranteed courier, the second day after pick-up by the
guaranteed courier, and (iii) if sent via fax, upon transmission and electronic
confirmation of receipt or (if transmitted and received on a non-business day)
on the first business day following transmission and electronic confirmation of
receipt.
4.7.
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.
4.8.
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.
4.9.
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.
4.10.
Attorneys’ Fees.
In
the event that any dispute among the parties to this Agreement should result in
litigation, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
4.11.
Third
Parties
. Nothing express or implied in this Agreement is
intended or shall be construed to confer upon or give any person other than the
parties hereto and their respective permitted assigns any rights or remedies
under or by reason of this Agreement or the transactions contemplated
hereby.
4.12.
Effectiveness
; Enforceability
.
This Agreement shall be effective concurrently with the closing of the Company's
Qualified Public Offering of its shares on the Nasdaq Global
Market. It shall also be enforceable by or against any other
shareholders of the Company who are parties to the Previous Shareholders
Agreement after such Qualified Public Offering and delivery to the Company and
its acceptance thereof.
[
REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK
]
IN
WITNESS WHEREOF the parties have signed this Amended and Restated Shareholders
Agreement as of the date first hereinabove set forth.
|
SodaStream
International Ltd.
|
|
Fortissimo
Capital Fund GP, L.P.
|
|
|
|
|
|
By:
|
/s/ Eyal Shohat
|
|
By:
|
/s/ Yuval Cohen
|
|
|
|
|
|
Name:
|
Eyal
Shohat
|
|
Name:
|
Yuval
Cohen
|
|
|
|
|
|
Title:
|
General
Counsel
|
|
Title:
|
Partner
|
Schedule
1
A1
Holders
Fortissimo
Capital Fund (Israel), L.P
,
Fortissimo
Capital Fund, L.P
Fortissimo
Capital Fund (Israel-DP), L.P.
Kendray
Properties Ltd.
Keswick
Properties Ltd.
A2
Holders
Real
Property Investments Ltd.
Clemente
Corsini
Schedule
2
Shareholder
Loans
|
Real
Property Investments Ltd
|
|
$
|
1,274,117
|
|
|
Clemente
Corsini
|
|
$
|
422,584
|
|
|
|
|
$
|
85,577
|
|
