EXHIBIT 10.23
Share Pledge Agreement, dated as of June 15, 2000, by and among Xxxxxxx Xxxxx,
Xxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx, a civil partnership and the
Registrant.
Notar
Xx. Xxxx Xxxxx
[LOGO]
Beglaubigte Abschrift
Die Ubereinstimmung nachstehender Abschrift mit der Urschrift
wird beglaubigt.
Stuttgart, den 21. Juni 2000
Notar
- Xx. Xxxxx -
Deed Roll No. 957/2000J
S T U T T G A R T
done this 15th day of June 2000
(in words: fifteenth day of June two thousand)
Before me,
Notary Xx. Xxxx Xxxxx with offices at XxxxxxxxxxxxxXx 0X, 00000 Xxxxxxxxx, is
appearing today at XxxxxxxxxxxXx 0, 00000 Xxxxxxxxx, whence I was summoned:
Mr. Xxxxxxx Xxxxx, managing director, born on 11 September 1941, resident at
Xxxxxxxxx 0, 00000 Xxxxxxxxxxxx, who proved his identity by means of his
German passport.
Mr. Xxxxxxx Xxxxx declares that he is acting
a) in his own name,
b) as shareholder of the civil partnership under the German Civil Code (GbR)
consisting of Xxxxxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx
Xxxxx (hereinafter referred to as the "Civil Partnership").
Mr. Xxxxxx Xxxxxx Xxxxx, student, born on 26 June 1973, resident at
Xxxxxxxxx 0, 00000 Xxxxxxxx, who proved his identity by means of his German
passport.
Mr. Xxxxxx Xxxxxx Xxxxx declares that he is acting
a) in his own name,
b) as shareholder of the Civil Partnership.
Mr. Xxxxxxx Xxxxxxx Xxxxx, student, born on 4 July 1974, resident at
Xxxxxxx-xxx-Xxxxx-Xxx 0, 00000 Xxxxxxxxx, who proved his identity by means
of his German passport.
Mr. Xxxxxxx Xxxxxxx Xxxxx declares that he is acting
a) in his own name,
b) as shareholder of the Civil Partnership.
Share Pledge Agreement
BETWEEN
1. On Track Innovations Limited
Z.H.R.I.Z.
Xxxx Xxxx 00000
Xxxxxx
- hereinafter referred to as "Pledgor" -
AND
2. Mr. Xxxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxxxxxx
- hereinafter referred to as "Xxxxxxx Xxxxx" -
3. Mr. Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx-xxx-Xxxxx-Xxx 0
00000 Xxxxxxxxx
- hereinafter referred to as "Xxxxxxx Xxxxx" -
4. Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxx
- hereinafter referred to as "Xxxxxx Xxxxx" -
5. The partnership under the German Civil Code (BGB) consisting of
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx and Xxxxxx Xxxxxx Xxxxx
- hereinafter referred to as "Civil Partnership" -
- Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx and the Civil
Partnership hereinafter collectively referred to as the "Pledgee" -
DATED JUNE 15, 2000
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I.
1. Reference is made to a share sale and purchase agreement between the
Pledgor (as Purchaser) and Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, and Xxxxxx Xxxxx
(as Sellers) dated June 15, 2000 (hereinafter "Sale and Purchase
Agreement");
2. InterCard GmbH Kartensysteme is a German limited liability company
registered with the commercial register at the local court (Amtsgericht) of
Villingen-Schwenningen under HRB 603 (hereinafter referred to as "InterCard
K"). By means of the Sale and Purchase Agreement of June 15, 2000 between
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxx Xxxxx and Xxxxxx Xxxxxx Xxxxx (as Sellers)
and Pledgor (as Purchaser), Pledgee acquired shares in InterCard K in the
aggregate nominal amount of DM 561,000.00, representing 51% of the nominal
capital of InterCard K (hereinafter referred to as the "InterCard K
Shares").
3. InterCard GmbH Systemelectronic is a German limited liability company
registered with the commercial register at the local court (Amtsgericht)
Villingen-Schwenningen under HRB 532 (hereinafter referred to as "InterCard
S"; together with InterCard K hereinafter referred to as the "Companies").
By means of the Sale and Purchase Agreement of June 15, 2000 between
Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxx (as Sellers) and Pledgor (as
Purchaser), Pledgee acquired shares in InterCard S in the aggregate nominal
amount of DM 306,000.00, representing 51% of the nominal capital of
InterCard S (hereinafter referred to as the "Intercard S Shares").
- the InterCard K Shares and the InterCard S Shares,
hereinafter collectively referred to as the "Shares" -
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4. Mr. Xxxx Xxxxxx, businessman, born on 16 November 1946, who proved his
identity by means of his Israeli passport.
Mr. Xxxx Xxxxxx declares that he is acting not on his own behalf but as
President and CEO with power of sole representation of On Track Innovations
Ltd., a public company duly organized and existing under the laws of the
State of Israel (Reg. No.: 52-004268-2), whose ordinary shares are admitted
for trading in the Neuer Markt of the Frankfurt Stock Exchange (Frankfurter
Wertpapierborse) (hereinafter referred to as "Neuer Markt"), having its
principal place of business at Z.H.R. I.Z., Xxxx Xxxx 00000, Xxxxxx
(hereinafter referred to as "OTI"). As proof of his power of sole
representation, Mr. Bashan presents a [legal opinion] issued by the law
offices of Bach, Arad, Scharf & Co. which was presented at the notarisation
in the original and will be submitted, in certified copy, to the protocol.
The persons appearing deny on question any prior involvement in the sense of
section 3 para. 1 sentence 1 no. 7 BeurkG (law pertaining to notarial
authentications).
The persons appearing hereby request this Notarial Deed to be executed in the
English language for the convenience of the party represented by the person
appearing at 4, and waive the presence of an interpreter. The Notary who himself
has a sufficient command of the English language verified that the persons
appearing also have a sufficient command of the English language.
The persons appearing hereby declare for notarisation:
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II.
1. OBLIGATIONS SECURED
The Security Interest (as defined in Section 2 below) shall secure the due and
punctual payment of the consideration as provided for under the Sale and
Purchase Agreement (the "Obligations").
2. SECURITY INTEREST (PFANDRECHT)
2.1 To secure the due and punctual payment by Pledgor of the Obligations,
Pledgor hereby grants to Pledgee and Pledgee accepts, with immediate effect,
a Security Interest (Pfandrecht) in and to all Shares held by the Pledgor
and all additional future shares in the Companies the Pledgor may acquire
after the date of this Agreement (i) in the event of any increase of the
share capital of the Companies or (ii) in the event of any further
acquisition of shares in the Companies in the future (hereinafter referred
to as the "Future Shares" and together with the Shares also referred to as
the "Pledged Shares"), together with all ancillary rights and claims
referred to under sub-Section 2.2 hereof (hereinafter referred to as the
"Security Interest").
2.2 The pledge constituted by this Agreement includes the present and future
rights to receive:
(i) profits payable on the Shares and on the Future Shares, if any;
(ii) liquidation proceeds, consideration for redemption of shares
(Einziehungsentgelt), repaid capital in case of a capital decrease, any
compensation in case of termination (Kundigung) and/or withdrawal (Austritt)
of a shareholder of the Companies as well as any other substitute received
by the Pledgor in lieu of the Shares or, as the case may be, the Future
Shares.
2.3 Pledgor shall be entitled to receive dividend payments and to exercise the
voting rights in respect of the Shares and the Future Shares, if any.
2.4 Any and all consents and approvals required under the Articles of
Association of the Companies have been granted and have been appended to
this Deed (Exhibit [Beilage] 1 and 2).
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3. REPRESENTATIONS AND WARRANTIES
Pledgor represents and warrants that Pledgor has good title to the Shares, free
and clear of all claims, mortgages, pledges, liens, encumbrances and security
interests of every nature whatsoever.
4. FURTHER ASSURANCES
Pledgor agrees that at any time and from time to time as its expense, it will
execute all further documents, and take all further action Pledgee may
reasonably request, in order to perfect, evidence or further document the
Security Interest or to enable Pledgee to exercise and enforce its rights and
remedies hereunder with respect to the Pledged Shares.
5. VOTING RIGHTS
As long as there shall exist no condition, event or act which constitutes, or
with notice or lapse of time, or both, would constitute, a default under the
agreements, Pledgor shall be entitled to exercise, as it shall think fit, but
not inconsistent with the terms hereof or of the Sale and Purchase Agreement,
the voting power with respect to the Pledged Shares.
6. EVENTS OF DEFAULT/PLEDGEE'S REMEDIES UPON DEFAULT
6.1 If the Pledgor is in default of complying with the Obligations, Pledgee may
arrange to have the Pledged Shares sold at a public auction or any other
sale conducted in accordance with German law. Pledgee may exercise (in
compliance with all applicable laws in effect in Germany in respect of the
Pledged Shares), in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party (Pfandglaubiger) on default under German law.
6.2 Pledgee shall give Pledgor at least two weeks' prior notice of its intention
to realise the Pledged Shares. Following the realisation of the Pledged
Shares, Pledgee shall use the proceeds to discharge the Obligations.
6.3 After all Obligations have been discharged, the Security Interest in the
Pledged Shares and all ancillary rights and claims referred to under
sub-Section 2.2 shall expire automatically. Any surplus of the cash proceeds
remaining after payment in full to Pledgee of all the Obligations shall be
paid over to Pledgor, at its address specified in sub-Section 12.2 or to
whomsoever may be lawfully entitled to receive such surplus.
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7. COSTS AND EXPENSES
Each party shall bear its own costs incurred or to be incurred in connection
with the preparation, negotiations and implementation of this Agreement. The
costs incurred in connection with the notarization of this Agreement shall be
borne by Pledgor 50% and the Pledgee 50% equally.
8. SECURITY INTEREST ABSOLUTE
All rights of Pledgee hereunder, the Security Interest and all obligations of
Pledgor hereunder shall be absolute and unconditional irrespective of any change
in the time, manner or place of payment of, or in any other terms of, all or any
of the Obligations, or any other amendment or waiver of or any consent to any
departure from the Sale and Purchase Agreement.
9. AMENDMENTS
No amendment or waiver of any provision of this Agreement nor consent to any
departure by Pledgor herefrom shall in any event be effective unless the same
shall be in writing and signed by Pledgee, and then such waiver or consent shall
be effective only for the specific purpose for which given.
10. NO WAIVER; CUMULATIVE REMEDIES
Any failure on the part of Pledgee to exercise, and any delay in exercising, any
right, power or remedy hereunder shall not operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or remedy by Pledgee
preclude any other or further exercise thereof or the exercise of any other
right, power, or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
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11. TERMINATION; RELEASE OF SECURITY INTEREST
11.1 This Agreement shall terminate upon payment of the Fifth Instalment by
Pledgor under section 5.2 of the Sale and Purchase Agreement provided that
the Parties do not enter into any further agreement for the acquisition by
OTI of shares in the Companies prior to December 31, 2001 (hereinafter
referred to as "Future Agreements"); in the latter event, this Agreement
shall terminate upon complete payment of the consideration provided for in
any such Future Agreements (hereinafter referred to as "Termination Date").
11.2 The Shareholders are obliged to gradually release the Security Interest in
correspondence with the gradual payment of the Shareholders Amount as
defined under the Sale and Purchase Agreement or the gradual payment of the
consideration of any Future Agreement, if any. It is understood by the
parties that (i) upon complete payment of any Instalment as defined by the
Sale and Purchase Agreement, Shares corresponding as closely as possible to
20% of the Shares will be released and (ii) upon payment of the Fifth
Instalment or a Sixth Instalment, if any, the Shares will be released.
11.3 Pledgee shall be obliged to confirm to the Pledgor each release by issue of
a confirmation letter.
12. NOTICES
12.1 Immediately following the notarization of this Agreement, Pledgor shall
send notices ("the Notices") to InterCard K and InterCard S substantially
in the form set forth in Annexes 1 and 2 hereto. After the Notice has been
countersigned by InterCard K and InterCard S and returned to Pledgor,
Pledgor shall promptly forward copies of the Notices to Pledgee.
12.2 All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered at or sent to the
respective addresses below:
To Pledgee: Mr. Xxxxxxx Xxxxx
Xxxxxxxxx 0
00000 Xxxxxxxxxxxx
Xxxxxxx
Fax: 00000-000000]
8
To Pledgor: On Track Innovations Limited
Z.H.R.I.Z.
Xxxx Xxxx 00000
Xxxxxx
Fax: 00000-0000000
12.3 Either party may by 5 days' prior notice to the other party change the
address or facsimile number at which notices or other communications are to
be given to it.
13. CONTINUING SECURITY INTEREST; AGREEMENTS
This Agreement shall create a continuing security interest in the Pledged Shares
and shall
(i) remain in full force and effect until the termination of this Agreement;
(ii) be binding upon Pledgor, their successors and assigns, and
(iii) inure, together with the rights, powers and remedies of Pledgee hereunder,
to the benefit of Pledgee and its successors, transferees and assigns.
Notwithstanding the foregoing clause (ii), Pledgor shall not, except with
the prior written consent of Pledgee or, as otherwise provided in this
Agreement, be permitted to assign this Agreement or any interest herein.
Without limiting the generality of the foregoing clause (iii), Pledgee may
assign or otherwise transfer all or any portion of its rights, benefits
and obligations under the Obligations or any agreement relating thereto to
any other person or entity.
14. GOVERNING LAW
This Agreement shall be governed by and construed exclusively in accordance with
the substantive laws of the Federal Republic of Germany (i.e. under exclusion of
its conflict-of-laws provisions).
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15. SEVERABILITY
In case any provisions of this Agreement or any security interest or other right
of Pledgee hereunder shall be held to be invalid, illegal or unenforceable, such
invalidity, illegality and/or unenforceability shall not affect any other
provisions herein or any security interest or any other right granted hereby.
Any invalid, illegal or unenforceable provision shall be replaced retroactively
with that valid and enforceable provision which approaches most closely the
economic purpose sought to be achieved by the invalid, illegal or unenforceable
provision.
This record (including the Annexes) has been read aloud
in the presence of the persons appearing and the
Notary, approved by the persons appearing and signed by
the persons appearing and the Notary in their own
handwriting as follows:
/s/ Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
ON TRACK INNOVATIONS LTD.
10
Annex 1 to
Notarial Deed
Notary ____________
Deed Roll No. /2000
Annex 1 to
Pledge Agreement
Gentlemen:
The purpose of this letter is to notify you that as shareholder of InterCard
GmbH Kartensysteme, we have executed a pledge agreement, dated as of June 15,
2000 (the "Pledge Agreement"), pursuant to which we granted to Pledgee a
security interest (Pfandrecht) in and to all the Pledged Shares as defined in
the Pledge Agreement (the "Security Interest"). This Security Interest secures
the due and punctual payment and performance of certain obligations by On Track
Innovations Ltd to Mr. Xxxxxxx Xxxxx, Mr. Xxxxxxx Xxxxx, Mr. Xxxxxx Xxxxx and
the partnership under German Civil Code (BGB) consisting of Xxxxxxx Xxxxx,
Xxxxxxx Xxxxx and Xxxxxx Xxxxx described more fully in Section 2 of the Pledge
Agreement.
Our delivery to you of this letter and the enclosed copy of the Pledge Agreement
constitutes formal notice of the grant of the Security Interest.
If the foregoing is satisfactory to you, please acknowledge by signing below.
By: ____________________
Name:
Title:
Agreed to and accepted
this __ day of ________ 2000
By: ____________________
Name:
Title:
Annex 2 to
Notarial Deed
Notary ____________
Deed Roll No. /2000
Annex 2 to
Pledge Agreement
Gentlemen:
The purpose of this letter is to notify you that as shareholder of InterCard
GmbH Systemelectronic, we have executed a pledge agreement, dated as of June 15,
2000 (the "Pledge Agreement"), pursuant to which we granted to Pledgee, the
grant of a security interest (Pfandrecht) in and to all the Pledged Shares as
defined in the Pledge Agreement (the "Security Interest"). This Security
Interest secures the due and punctual payment and performance by On Track
Innovations Ltd of certain obligations to Mr. Xxxxxxx Xxxxx, Mr. Xxxxxxx Xxxxx,
Mr. Xxxxxx Xxxxx and the partnership under German Civil Code (BGB) consisting of
Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxx described more fully in Section 2
of the Pledge Agreement.
Our delivery to you of this letter and the enclosed copy of the Pledge Agreement
constitutes formal notice of the grant of the Security Interest.
If the foregoing is satisfactory to you, please acknowledge by signing below.
By: ____________________
Name:
Title:
Agreed to and accepted
this __ day of ________ 2000
By: ____________________
Name:
Title:
BACH, ARAD, SCHARF & CO.
LAW OFFICES
XXXXXX XXXX LL.B. [HEBREW TEXT]
UD ARAD LL.B. [HEBREW TEXT]
I'V SCHARF LL.B. [HEBREW TEXT]
IAN LIRAZ* LL.B. [HEBREW TEXT]
XXXX XXXX-XXXXX LL.B. [HEBREW TEXT]
AT CHERPACK LL.B. [HEBREW TEXT]
EN TENENBOIM LL.B. [HEBREW TEXT]
XXXX XXX-HAIM LL.B. [HEBREW TEXT]
EHRLICH LL.B. [HEBREW TEXT]
XX XXXXX LL.B. [HEBREW TEXT]
RIV ABRAMOVICH LL.B. [HEBREW TEXT]
EL NACHMAN LL.B. [HEBREW TEXT]
NOACH LL.B., M.B.A. [HEBREW TEXT]
HAR UZDIN LL.B., X.Xx. [HEBREW TEXT]
SI ROSENBLUM LL.B., M.B.A. [HEBREW TEXT]
AR OREN LL.B. [HEBREW TEXT]
____________________________________
Member of the Israeli and Geneva Bar
June 13th, 2000
635/95
Mssrs. Xxxxxxx Xxxxx
Xxxxxx Xxxxx Hand Delivery
Xxxxxxx Xxxxx
Dear Sirs,
Purchase of 51% interest in InterCard GmbH Kartensysteme and InterCard GmbH
Systemelectronic (collectively "InterCard") by On Track Innovations Ltd. ("OTI")
(the "SPA") and Options to sell and purchase the remaining ownership interest of
49% of Intercard (the "OA") (collectively the "Transaction").
As OTI's legal counsels, we hereby certify that Mr. Xxxx Xxxxxx, holder of
Israeli Passport No. 9008439, is duly authorized by OTI to negotiate and
conclude detailed agreements regarding the Transaction and to sign all
agreements in connection with the Transaction and all ancillary documents
(including, inter alia, a share pledge agreement and an escrow agreement) on
OTI's behalf. The signature of Xxxx Xxxxxx together with the stamp or printed
name of OTI, is binding upon OTI.
Sincerely yours,
/s/ Nir Ehrlich
---------------
Nir Ehrlich, Adv.
Bach, Arad Scharf & Co.
Die Ubereinstimmung vorstehender Abschrift mit der mir heute vorliegenden
Urschrift wird beglaubigt.
Stuttgart, den 15. Juni 2000
Notar
/s/ Xx. Xxxxx
-------------
- Xx. Xxxxx -
EXHIBIT 1
[GERMAN TEXT]
EXHIBIT 2
[GERMAN TEXT]
