EXHIBIT 4.18
EXECUTION COPY ▇▇▇▇▇ ▇▇▇▇ Espensen
advokat (H), LL.M
S H A R E PURCHASE A G R E E M E N T
BETWEEN
▇▇▇▇▇▇▇ CHEESE EXPORT A/S
RODKILDE ▇▇▇▇▇▇▇▇ ▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
DANISH COMPANY REGISTRATION NO. 78 49 82 18
AND
GOLD FROST LTD.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
ISRAELI COMPANY REGISTRATION NO.520034824
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement is made as of February 13, 2008
Between ▇▇▇▇▇▇▇ CHEESE EXPORT A/S
RODKILDE ▇▇▇▇▇▇▇▇ ▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("KCE")
and GOLD FROST LTD.
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ("GF")
1. INTRODUCTION
1.1. KCE is the sole nominal and beneficial owner of the entire
issued and outstanding share capital of the company ▇▇▇▇▇▇▇
International Foods A/S, CVR-nr. 31055296 ("COMPANY"), comprising nom.
DKK 1,000,000 shares (the "SHARES"). Except for the rights granted to
GF in this Agreement, there are no share warrants or other rights of
any kind to acquire any of the share capital of the Company, whether
from the Company, KCE or any third party.
1.2. KCE and GF desire to establish a Danish limited company in
respect of which GF shall have 'Effective Control' in accordance with
appropriate accounting principles and which shall market and sell,
inter alia, kosher dairy products world-wide, including certain kosher
products produced by the daughter company of KCE, Haarby
Mejeri/▇▇▇▇▇▇▇ Dairy ApS ("▇▇▇▇▇▇▇ DAIRY").
1.3. KCE has transferred to the Company upon establishment, 35 of
its customers as designated in Appendix 1 annexed hereto (the
"DESIGNATED CUSTOMERS") and transferred all the issued and outstanding
share capital of ▇▇▇▇▇▇▇ Inc., a corporation established in the US,
which KCE represents is a registered US import company, pursuant to
the Agreement annexed hereto as EXHIBIT A. The parties intend that
following the closing of the transactions pursuant hereto, the Company
shall market and sell kosher and other dairy products world-wide,
including certain kosher products produced by ▇▇▇▇▇▇▇ Dairy.
2. DEFINITIONS
2.1. The following definitions will be used unless another meaning is
clearly stated in the text.
Side 2.
2.1.1. "Agreement" means this Share Purchase Agreement and all exhibits and
appendices hereto.
2.1.2. "December Budget" means the budget of 1st of December 2007 annexed
hereto as EXHIBIT B.
2.1.3. "Due Diligence Examination" means the examination of the assets and
liabilities of the Company, which is made by GF and described in point
6.
2.1.4. "Letter of Intent" means the agreement, and intentions and frames,
made between the parties, concerning the co-operation and GF buying
of shares in the Company, dated October 2007 annexed hereto as
Appendix 2.
2.1.5. "Purchase Price" means the amount which GF shall pay for the Purchased
Shares in the Company, cf. point 4.
2.1.6. "The Company" means ▇▇▇▇▇▇▇ International Foods A/S, Rodkilde ▇▇▇▇▇▇▇▇
▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇. Nr. 31055296.
2.1.7. "Shareholder Agreement" means the agreement annexed hereto as EXHIBIT
C between KCE and GF about their respective rights as shareholders in
the Company, i.e. the direction of the Company, the strategy business
policy, dividend, sale of shares, going on the stock exchange, etc.
3. PURCHASE AND SALE OF SHARES
3.1. On the basis of the conditions mentioned in this Agreement and
in reliance on the representations, warranties, guarantees and
commitments of the parties herein, KCE hereby transfers to GF 51% of
the Shares, comprising nom. Dkr. 510,000.00 shares in the Company
(the "PURCHASED SHARES") together with all rights attached to or
accruing to the Purchased Shares, free and clear of all encumbrances
or third party rights of any kind and GF hereby purchases the
Purchased Shares as aforesaid.
3.2. The total registered share capital in the Company which is
transferred to GF, nom. DKK 510,000, is paid in full.
4. PURCHASING PRICE
4.1. The purchase price for the Purchased Shares is USD 400,000.00
(the "PURCHASE PRICE") which will be transferred to the bank account
of KCE with Nordea Bank (account number to be provided by KCE)
following the Closing (as defined below) of this Agreement.
Side 3.
5. DAY OF TAKE OVER
5.1. The rights of GF in the Purchased Shares shall relate to all
rights in the Company as from 1st of January 2008.
6. DUE DILIGENCE
6.1. Up to the signing of this Agreement, GF has had an opportunity
for at least 60 days, to make a Due Diligence Examination of the
Company, during which it has been given access to copies of specific
documentation concerning the Company, including copies of the
Company's charter documents, annexed hereto as EXHIBIT D and the
indication of value made by the public authorized accountancy company
KPMG A/S, annexed hereto as EXHIBIT E.
6.2. GF has in connection with the Due Diligence Examination had
access to all the documents requested by GF, as it has to be mentioned
that the Company is newly established.
6.3. GF declares by the signature on this Agreement that it has
received answers from KCE on all questions asked in regards to the Due
Diligence Examination.
6.4. The statements made by GF do not derogate from the obligations
and undertakings of KCE under this Agreement, including, without
limitation, pursuant to Section 9 below.
7. DAY OF SIGNING AND CLOSING
7.1. Closing of the purchase and sale of the Purchased Shares (the
"CLOSING") will take place son February 28, 2008 at the address of the
Company, Rodkilde ▇▇▇▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
7.2. At the Closing KCE shall give the following to GF:
(i) A transcript of the Danish Commerce and Companies Agency
evidencing the continuing existence of the Company, as of a recent
date.
(ii) Copy of the Company Share book, certified by the Managing
Director of the Company, in which it is stated that GF has purchased
and is the sole owner of nom. Dkr. 510,000.00 shares in the Company,
representing 51% of the shares in the Company.
(iii) Copy of all minutes and all resolutions of the Board of
Directors of the Company, including approval of the transfer of the
Purchased Shares to GF, minutes of all meetings and resolutions of the
shareholders of the Company and Auditor's record.
Side 4.
(iv) A copy of the minutes of a duly held meeting of the board of
directors of KCE authorising the execution by KCE of this Agreement
and the consummation of the necessary transactions under this
Agreement and authorizing the persons who sign the Agreement to sign
for KCE.
(v) The Shareholder Agreement, signed by KCE.
(vi) Evidence of the transfer to the Company of the shares of ▇▇▇▇▇▇▇
Inc.
(vii) Legal opinion of counsel to KCE in form agreed by GF.
7.3. At the Closing KCE shall receive the following:
(i) Proof that the person who signs the Agreement for GF is
authorized to sign for GF.
(ii) The Shareholder Agreement, signed by GF.
(iii) Evidence that GF has instructed its bank to transfer the
Purchase Price in accordance with Section 4 above.
7.4. Immediately upon receipt by KCE of the Purchase Price it will
transfer the amount of USD 200,000.00 to the account of the Company.
8. KCE'S REPRESENTATIONS, WARRANTIES AND GUARANTEES
KCE represents, warrants and guarantees, as of the date of this
Agreement and the Closing, as follows:
8.1. COMPANY JUDICIAL CONDITIONS
8.1.1. KCE's parent company and any other shareholders of KCE have fully
approved this Agreement and the transactions contemplated under this
Agreement, including, without limitation, transfer of the Shares to
GF. This Agreement has been duly executed and delivered by KCE and
represents the legal, valid and binding obligation of KCE, enforceable
in accordance with its terms.
8.1.2. The Company is legal established and registered and is in good
standing.
8.1.3. That the articles for the Company, annexed hereto as EXHIBIT D, and
the resume of the Company, made by the Public Company Registration
Office, annexed hereto as EXHIBIT F, gives a correct and fully picture
of the decisions made by the general meetings in the Company. There
are as so no changes at the Public Company Registration Office
concerning the registration conditions for the Company.
Side 5.
8.1.4. The Company is not under dissolvation, splitting, liquidation or
merging.
8.1.5. The Company has not given any announcement of suspension of payments
or request of open forcible voluntary arrangement or insolvency, and
the Company is not declared insolvent. The Company has not take
initiative to free creditor arrangement.
8.1.6. The Company has the power and is duly qualified to carry on business
in all jurisdictions in which it carries on business.
8.1.7. KCE is the sole nominal and beneficial owner, without encumbrance or
other third party right, of all the Purchased Shares which are to be
transferred to GF in accordance to this Agreement.
8.1.8. The Purchased Shares in the Company are free and without debt and can
be transferred to GF without permission from any third party.
8.1.9. The share book of the Company shows in a correct way the present and
former shareholders in the Company and contains also all the
information a share book shall contain.
8.1.10. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity is
required in relation to the execution and delivery of this Agreement,
or the consummation of the transactions contemplated hereby.
8.1.11. The Company has obtained all public approvals, permissions,
authorisations and licenses necessary for the conduct of the business
of the Company and is in all material respects in compliance with the
terms of such permits and or laws, acts and regulations applicable to
it and/or its business.
8.1.12. All the Company's assets are free and clear of all claims or
encumbrances and any right whatsoever of any third party.
8.1.13. KCE has transferred to the Company all rights in respect of the
Designated Customers and ▇▇▇▇▇▇▇ Inc.
8.2. INTANGIBLE PROPERTY RIGHTS
8.2.1. The Company has the full ownership of the intangible property rights
which are relevant for the current and future operation of the
Company. As it is mentioned in the Co-operation Agreement between KCE,
▇▇▇▇▇▇▇ Dairy and the Company, the Company has the right, without
further payment, to use the registered trade ▇▇▇▇ "SOL", belonging to
KCE, for kosher products. GF is familiar with this right and accept
the limitation of time, as there will be no payment. GF is also
familiar with that the right cannot be handed over from the Company to
a third party.
Side 6.
8.3. CONDITIONS OF CONTRACTS
8.3.1. The Company has not made any agreement or taken any commitments except
pursuant to this Agreement.
8.4. ACCOUNTING CONDITIONS
8.4.1. The Company is established recently and has not had any significant
activities before the present Agreement has been signed. There is no
auditor report or annual reports from the Company and the future
earnings will alone come as mentioned in the December Budget.
8.4.2. The forecasts, estimates, or assessments, etc. on future developments,
events, figures, etc. contained in the December Budget and in the
documentation provided in the Due Diligence Examination, or other
expressions of the estimates and expectations of the Company have
been prepared in good faith in the ordinary course of business.
8.4.3. The Company is not liable for any debts, liabilities or contingent
liabilities which are not provided for in the December Budget. The
Company is not a guarantor of any indebtedness to any person or entity
and has never undertaken to give any such guarantee.
8.5. LAWSUITS AND INSURANCE CONDITIONS
8.5.1. The Company is not part in any lawsuit of any kind and there is no
risk that the Company will be involved in lawsuits of any kind, or
claims or action for damages or similar, except what can come from
ordinary operation.
8.5.2. The Company has not announced demands under product responsibility
insurance and the Company is not familiar with any such demands from
third party.
8.6. OTHER REPRESENTATIONS
8.6.1. Without derogating from the other representations in this Agreement,
the representations and undertakings of the parties contained in
Section 5 of the Letter of Intent shall be incorporated herein.
Side 7.
9. KCE GUARANTEE
9.1. KCE confirms to GF that the representations, warranties and
guarantees or information made or given by KCE in this Agreement are
true and shows a correct picture of the Company. All information given
by KCE in the course of the Due Diligence Examination and/or
negotiations leading to the signing and Closing of this Agreement is
true and accurate in all respects and not misleading. KCE has
fulfilled its obligations under Danish law to loyally inform GF of any
facts material to the Company and its business (in Danish "saelgers
loyale oplysningspligt).
9.2. If one or more of the representations, warranties and guarantees
or information in this Agreement are not true and GF or the Company
will suffer from this circumstance, GF is entitled to receive
compensation from KCE.
9.3. If one of the parties in general violates this Agreement, the
other party can demand compensation.
9.4. GF may demand compensation if any of the given representations,
warranties or guarantees or information provided in the Due Diligence
Examination are not correct or complete and the Company or GF suffers
any loss, unless there has been taken correct reservations on the
information in point 8 & 9.
10. ACCEPTANCE FROM COMPETITION AUTHORITY
10.1. Both parties declare that the transaction do not require the
acceptance from the competition authority in their respective
jurisidctions.
11. COMPETITION CLAUSE AND THE PARTIES
11.1. KCE, Haarby Mejeri/▇▇▇▇▇▇▇ Dairy ApS, Saabygaard Holding ApS and
director Mr. Per Kildegaard hereby undertake from date of signature of
this Agreement, without further compensation, not to, directly or
indirectly, either upon employment by or other engagement on behalf of
any third party or establishing of own company or otherwise on their
own behalf or on behalf of any third party, including, without
limitation, respectively joining a company, to run, participate in or
to have any ownership interest in (other than a less than two percent
(2%) interest held solely as a financial investment in public
companies listed on a recognized foreign stock exchange) or serve as a
director or officer of any kind of business which competes with the
activity of the Company, that will be sales and marketing of dairy
products within the market for kosher products and/or the marketing of
any products to the Designated Customers. At that time where none of
KCE, Saabygaard Holding ApS or Mr. Per Kildegaard or any affiliate of
any of them owns shares in the Company, they are committed to take the
same competition clause for an additional 3 (three) years period,
starting from the day the last share in the Company owned by any of
them is assigned.
Side 8.
11.2. GF and Willi Foods Ltd., is at same time committed, directly or
indirectly, except through the Company, not to sell their products
under the trade ▇▇▇▇ "SOL", except in Israel. This commitment is valid
as long as KCE or Saabygaard Holding ApS or any affiliate of either of
them is a shareholder in the Company, and for a period of 3 (years)
years period, thereafter. GF and Willi Foods Ltd. confirm the
undertaking under the Cooperation Agreement between KCE, and ▇▇▇▇▇▇▇
Dairy that Foods has no rights to use the trade ▇▇▇▇ "SOL", unless
expressly agreed in a separate agreement.
11.3. Determination of the period of the clause is made under
reference to the Purchase Price, agreed between the parties.
11.4. Upon each offence against this competition clause, the offender
part shall pay an amount of USD 50,000.00, as additional too and not
instead of compensation, to the injured part. Further more the
offender part shall pay a fine of USD 10,000.00 per month, if the
offence is kept active.
11.5. If one party becomes acquainted with an activity or a
circumstance which is a breach of the competition clause, and the
injured party wishes to exercise the competition clause, the party
shall inform the other party, which the injured party thinks is in
breach of the competition clause, in writing. If the breaching party
brings the activity or circumstance to an end within 3 days after
receipt of the written information from the injured party, and at same
time in writing declare the injured part about this, the breaching
part is not committed to pay any fine to the injured part.
11.6. If the parties under this competition clause wish to take part
in an activity which can be included in the competition clause, they
are committed to inform the other part in order to obtain acceptance.
11.7. The obligation to pay liquidated damages shall not exclude the
Company from any other statutory relief including injunction and a
breach of non-compete obligation may be ended by the issue of a
prohibitory injunction without provision of security. The injured
party is justified to submit Injunction against competitive business
without security.
11.8. The obligations under this Section 11 shall survive any
termination of this Agreement for the period set forth in this Section
11.
Side 9.
12. SECRECY
12.1. Both parties are committed to keep secret and not to use for any
purpose except operation of the Company, the contents of this
Agreement as well as the knowledge they have had or have obtained
about the other party or the Company, through the negotiations of this
Agreement, unless under circumstances required by applicable laws,
regulations or stock exchange rules.
12.2. The parties are committed to try to coordinate the information
about the transfer, in special in regards to their respective
employees. Neither party shall (and KCE shall cause the Company not
to) issue any press release or otherwise make any public statement
with respect to this agreement without the prior written consent of
the other party; except as required by law or any regulatory, stock
exchange or governmental body.
13. LAW CHOICE AND VENUE
13.1. Any dispute which may occur between the parties in accordance to
this Agreement has to be settled after Danish law and with the Danish
Commercial law as first instance.
13.2. Any dispute or claim arising out of or in connection with this
Agreement, or the breach, termination or invalidity thereof, shall be
subject to arbitration in accordance with the rules of procedure of
the Danish Institute of Arbitration. The arbitration clause does not
imply a waiver of preliminary remedies such as prohibitory
injunction.
The arbitration shall be in Copenhagen. The language of the
Arbitration shall be English.
14. COUNTERPARTS
14.1. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together
shall constitute one and the same instrument. Any party may enter into
this Agreement by signing any such counterpart and each counterpart
may be signed and executed by the parties and transmitted by facsimile
transmission and shall be as valid and effective as if executed as an
original.
14. ENCLOSURES
Appendix 1 - Designated Customers
Appendix 2 - Letter of intent
A: Transfer of ▇▇▇▇▇▇▇ Inc.
Side 10.
B: December Budget
C: Shareholder Agreement
D: Charter Documents
E: Accountant's Valuation
F: Abstract from Danish Commerce and Companies Agency
Side 11.
SIGNATURE:
For ▇▇▇▇▇▇▇ Cheese Export A/S:
_________________________________ __________________
Direktor Per Kildegaard Espensen Chairman ▇▇▇▇▇ ▇.
For Gold Frost Ltd.
______________________ _________________
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ Hochboim
As to the competitions clause in the agreement point 11:
For Saabygard Holding ApS
______________________
Mr. Per Kildegaard
______________________
Mr. Per Kildegaard
For Haarby Mejeri/▇▇▇▇▇▇▇ Dairy ApS
______________________
Mr. Per Kildegaard
For Willi Foods Ltd.
______________________ _________________
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ Hochboim
Signature Page - Share Purchase Agreement
Side 12.
