Exhibit 1
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made as of July 28th, 2003,
by and among ViryaNet Ltd., a company organized under the laws of the State of
Israel (the "Company" and Telvent GIT, S.A., a company organized under the laws
of Spain (the "Purchaser")
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company to
raise additional capital by means of the issuance of Ordinary
Shares of the Company, nominal value NIS 1.0 per share (each,
an "Ordinary Share" and collectively, the "Ordinary Shares";
all Ordinary Shares purchased by the Purchaser under this
Agreement shall be referred to as the "Purchased Shares"), at
a price per Purchased Share of US$1.8544 (the "Purchase Price
Per Share") (unless otherwise explicitly indicated, all
monetary amounts herein designated by the symbol "$" are in
United States dollars) as set forth below.
WHEREAS, The Purchaser wishes to invest in the Company an amount of
$1,000,000 (such aggregate amount, the "Purchase Price") by
the purchase of Purchased Shares from the Company pursuant to
the terms and conditions more fully set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties hereby agree as follows:
1. Issuance and Purchase of Ordinary Shares. Subject to the terms and
conditions hereof and the payment of the Purchase Price by the
Purchaser, the Company shall, as of the Closing, issue and allot to the
Purchaser 539,258 Ordinary Shares of the Company.
2. Closing.
2.1. Closing. The sale and purchase hereunder shall take place at
closing (the "Closing") at the offices of Meitar, Liquornik,
Geva & Co., at 00 Xxxx Xxxxxx Xxxxxx Xx. Xxxxx-Xxx, Xxxxxx
00000 or at such other time and place as shall be mutually
agreed upon by the Purchaser and the Company. The Closing will
take place as soon as the closing conditions are met.
2.2. Transactions at Closings. At the Closing, the following
transactions shall occur, which transactions shall be deemed
to take place simultaneously, and no transactions shall be
deemed to have been completed or any document delivered until
all such transactions have been completed and all required
documents delivered:
2.2.1. The Company shall deliver to the Purchaser the
following documents at the Closing:
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(a) True and correct copies of resolutions of
the Company's Board of Directors (the "Board
Resolutions") (i) authorizing the execution
of the Agreement, the Registration Rights
Agreement and the Lock-up Agreement
(collectively, the "Transaction Documents")
and the consummation of the transactions set
forth in such Transaction Documents, and
(ii) issuing and allotting to the Purchaser
the Ordinary Shares, all in accordance with
the form of the Board Resolution set forth
in Exhibit 2.2.1(a) hereto;
(b) If required and applicable, executed minutes
of the Company's special general meeting of
shareholders, signed by the Chairman of the
Board of the Company, which certify that (i)
the Board Resolutions were ratified and
approved, and (ii) the execution and
delivery of the Transaction Documents and
the consummation of all the transactions
contemplated thereby were ratified and
approved.
2.2.2. The Company shall deliver to the Purchaser the
following documents at the Closing:
(a) Validly executed share certificates
representing the Purchased Shares, issued in
the name of the Purchaser;
(b) A certificate duly executed by the Chairman
of the Board of the Company, dated as of the
Closing, in a form attached as Exhibit
2.2.2(b) hereto;
(c) A legal opinion of Meitar, Liquornik, Geva &
Co., Israeli counsel to the Company, in a
form attached as Exhibit 2.2.2(c) hereto;
and
(d) A directors and officers liability insurance
policy in form and with coverage
satisfactory to Purchaser (the "D&O
Policy").
2.2.3. The Purchaser shall deliver to the Company an
undertaking to the Chief Scientist of the Ministry of
Trade and Commerce of the State of Israel, duly
executed by the Purchaser, in the form attached
hereto as Exhibit 2.2.3.
2.2.4. The Purchaser shall cause the transfer to the Company
of the applicable Purchase Price in immediately
available funds, by wire transfer to the following
bank account of the Company Bank Name: Silicon Valley
Bank; Account Name: ViryaNet Inc, 0 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000; Account Number: 3300041451;
Bank ABA Number: 000000000; The payment of the
Purchase Price at the Closing shall be in US dollars.
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2.2.5. At the Closing, the Company and the Purchaser shall
enter into the Registration Rights Agreement, in the
form attached hereto as Exhibit 2.2.4 hereto.
2.2.6. At the Closing, the Company and the Purchaser shall
enter into the Lock-Up Agreement, in the form
attached hereto as Exhibit 2.2.5 hereto.
3. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and, where appropriate, covenants
with the Purchaser at the Closings, except as set forth in the Company
Disclosure Schedule attached as Exhibit 3 hereto, which exceptions
shall be deemed to be representations and warranties as if made
hereunder, as follows:
3.1. Organization. The Company is duly organized and validly
existing under the laws of the State of Israel, and has full
corporate power and authority to own, lease and operate its
properties and assets and to conduct its business as now being
conducted and as proposed to be conducted. The Company has all
requisite power and authority to execute and deliver this
Agreement and other agreements contemplated hereby or which
are ancillary hereto, including the Transaction Documents, and
to consummate the transactions contemplated hereby and
thereby. The Company has not taken any action or failed to
take any action, which action or failure would preclude or
prevent the Company from conducting its business after the
Closing in the manner heretofore conducted. The Company has
all franchises, permits, licenses and any similar authority
necessary for the conduct of its business as now being
conducted and as proposed to be conducted, the lack of which
could materially adversely affect the business, properties,
prospects or financial condition of the Company.
3.2. Share Capital. Immediately after the Closing, the authorized
share capital of the Company shall be NIS 4,200,000 divided
into 4,200,000 Ordinary Shares, of which 2,707,400 are issued
and outstanding, all as specified in the capitalization table
set forth in Section 3.2 of the Company Disclosure Schedule
(the "Capitalization Table"). Except as set forth in the
Capitalization Table, the transactions contemplated by this
Agreement, the Transaction Documents and in the Articles of
Association, there are no other share or equity capital,
preemptive rights, convertible securities, outstanding
warrants, options or other rights to subscribe for, purchase
or acquire from the Company any share or equity capital of the
Company and there are not any contracts or binding commitments
providing for the issuance of, or the granting of rights to
acquire, any share or equity capital of the Company or under
which the Company is, or may become, obligated to issue any of
its securities. All issued and outstanding share capital of
the Company is duly authorized, validly issued and outstanding
and fully paid and non-assessable.
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3.3. The Purchased Shares. The Purchased Shares, when and if issued
and allotted in accordance with this Agreement, will be duly
authorized, validly issued, fully paid, non-assessable and
free of any preemptive rights, and will have the rights,
preferences, privileges and restrictions set forth in the
Articles of Association and will be free and clear of any
liens, claims, encumbrances or third party rights of any kind
and duly registered in the name of the Purchaser in the
Company's share transfer register.
3.4. Subsidiaries. Other than the subsidiaries set forth in Section
3.4 of the Company Disclosure Schedule (the "Subsidiaries"),
the Company has no subsidiaries or affiliated companies and
does not otherwise own or control, directly or indirectly, any
equity interest in any corporation, association or business
entity. ViryaNet, Inc. is duly organized and validly existing
under the laws of the State of Delaware, and has full
corporate power and authority to own, lease and operate its
properties and assets and to conduct its business as now being
conducted and as proposed to be conducted and is duly
qualified to do business and is in good standing in each
jurisdiction in which the nature of its business and its
ownership or leasing of property require it to be so
qualified. The Company holds title to all shares of the
Subsidiaries free of any preemptive rights and free and clear
of any liens, claims, encumbrances or third party rights of
any kind.
3.5. SEC Filings; Financial Statements.
3.5.1. The Company has timely or within the extensions
granted by the U.S. Securities and Exchange
Commission ("SEC"), filed all required forms, reports
and documents with the SEC since becoming a SEC
reporting company on September 19, 2000, and (except
as set forth in Section 3.5.1 of Company Disclosure
Schedule) has complied with all applicable
requirements of the Securities Act of 1933, as
amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act")
and the rules and regulations promulgated thereunder,
each as in effect on the dates such forms, reports,
and documents were filed. The Company has made
available to the Purchaser accurate and complete
copies (excluding copies of exhibits) of each report,
registration statement and definitive proxy statement
filed by the Company with the SEC between such date
and the date of this Agreement (the "Company SEC
Documents"). As of the time it was filed with the SEC
(or, if amended or superseded by a filing prior to
the date of this Agreement, then on the date of such
filing) each of the Company SEC Documents, including
any financial statements or schedules included or
incorporated by reference therein, complied in all
material respects with the applicable requirements of
the Securities Act or the Exchange Act and the rules
and regulations promulgated thereunder (as the case
may be).
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3.5.2. The consolidated financial statements contained in
the Company SEC Documents: (i) complied as to form in
all material respects with the published rules and
regulations of the SEC applicable thereto; (ii) were
prepared in accordance with US generally accepted
accounting principles applied on a consistent basis
throughout the periods covered; and (iii) fairly
present the consolidated financial position of
Company and its subsidiaries as of the respective
dates thereof and the consolidated results of
operations of Company and its subsidiaries for the
periods covered thereby.
3.6. Authority; Binding Nature of the Transaction Documents. The
Company has the rights, power and authority to perform its
obligations under the Transaction Documents. The execution,
delivery and performance by Company of each of the Transaction
Documents have been duly authorized by all necessary action on
the part of the Company. Each of the Transaction Documents
constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms,
subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii)
rules of law governing specific performance, injunctive relief
and other equitable remedies.
3.7. Consents and Approvals. Except as set forth on Section 3.7 of
the Company Disclosure Schedule, no filing or registration
with, no notice to and no permit, authorization, consent or
approval of any third party or any governmental body is
necessary for the consummation by the Company of the
transactions contemplated by the Transaction Documents.
3.8. No Violation. Neither the execution and delivery of the
Transaction Documents by the Company, the performance by it of
its obligations hereunder nor the consummation by the Company
of the transactions contemplated hereby will (a) violate,
conflict with or result in any breach of any provision of the
Articles of Association or Memorandum of Association of the
Company, or (b) violate any order, writ, judgment, injunction,
decree, statute, rule or regulation of any court or domestic
or foreign governmental body applicable to the Company, or (c)
constitute a default under any material contract to which the
Company is party.
3.9. Additional Representations. Until the expiration of the
Survival Period (defined below), any additional
representations which may be made by the Company in the next
financing round after the Closing hereunder shall be deemed to
be, for all intents and purposes, incorporated by reference
into this Agreement and apply to the investment of Purchaser
under this Agreement.
3.10. No Brokers. No broker's or finder's or placement fee or
commission will be payable by the Company in connection with
the transactions under the Transaction Documents and the
Company will hold the Purchaser harmless from any claim,
demand or liability for broker's or finder's or
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placement fees or commissions alleged to have been incurred by
such Purchaser in connection with the issuance of such
securities.
3.11. The Research and Development Law. The consummation of the
transaction contemplated under this Agreement shall not
derogate from the Company's rights in any grant extended to
the Company under the Encouragement of Industrial Research and
Development Law, 5744 - 1984, as amended (the "LAW") and the
regulations promulgated thereunder.
3.12. The Company hereby covenants and agrees with the Purchaser
that at all times from and after the Closing, provided that
the Purchaser and its Affiliates (as such term is defined in
Section 8.4 below) hold at least 269,687 Ordinary Shares, the
Company shall cause the size of the Board of Directors of the
Company to be and remain at least six (6) members.
3.13. The Company hereby covenants and agrees with the Purchaser as
follows:
3.13.1. The Board of Directors of the Company immediately
after the Closing and thereafter so long as the
Purchaser and its Affiliates hold at least 269,687
Ordinary Shares shall (i) nominate as a Director of
the Company such representative of Purchaser as the
Purchaser shall elect; and (ii) recommend in each
proxy statement of the Company pursuant to which
directors are to be elected that the shareholders of
the Company elect such representative as a Director.
3.13.2. For so long as a Director of the Company elected by
the Purchaser pursuant to Section 3.12.1 above, shall
be and remain a Director of the Company, the Company
shall (i) enter into and maintain in full force and
effect an indemnity agreement with such Director that
provides such Director with the fullest
indemnification available under applicable law; and
(ii) maintain in full force and effect the D&O
Policy.
3.14. The Purchaser shall have the right to participate (totally or
partially, in the discretion of the Purchaser) in any future
private financings of the Company consummated during the
Survival Period, whether by way of issuance of share capital
or other rights or securities convertible into or exchangeable
for share capital by the Company, and to maintain its
ownership percentage in the Company. The Company shall provide
the Purchaser with a notice containing the material terms and
conditions of said financing and the Purchaser may participate
and purchase its portion of the securities offered in said
financing under the same terms and conditions by providing the
Company within seven (7) following the receipt of the
Company's notice a written notice of its intention, provided,
however, that the participation right set forth in this
Section shall not apply to any issuance of securities to
employees, officers or consultants of the Company, financial
institutions or lessors in connection with commercial
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credit arrangements, equipment financing etc., strategic
investors or to securities issued in connection with an
acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets, or other
reorganization.
3.15. The Board of Directors of the Company will neither approve nor
submit to the shareholders of the Company any amendment to the
Articles of Association or other organizational documents of
the Company that modifies rights of the Ordinary Shares.
4. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows:
4.1. Authorization. The execution, delivery and performance of the
Transaction Documents by the Purchaser have been duly
authorized by all necessary corporate or other action.
4.2. The Purchaser (i) is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the
Securities Act, (ii) is acquiring the Purchased Shares for its
own account and not with a present view to the distribution of
any part thereof, and (iii) the Purchaser does not have any
contract, undertaking, agreement or arrangement with any
person to sell, transfer, or grant participations to such
person or to any third person, with respect to any of the
Purchased Shares.
4.3. No broker's or finder's or placement fee or commission will be
payable by the Purchaser in connection with the transactions
under the Transaction Documents and the Purchaser will hold
the Company harmless from any claim, demand or liability for
broker's or finder's or placement fees or commissions alleged
to have been incurred by the Company in connection with the
issuance of such securities.
4.4. The Purchaser has been furnished by the Company with, and
reviewed, the Company's Form 20-F for the fiscal years ended
December 31, 2001 and December 31, 2002, and the Forms 6-K for
the fiscal quarters ended March 31, 2003. The Company shall
furnish to the Purchaser the Form 6-K for the fiscal quarter
ended June 30, 2003 promptly after filing such Form with the
SEC.
4.5. The Purchaser has been furnished access to the business
records of the Company and such additional information and
documents as such Purchaser has requested and has been
afforded an opportunity to ask questions of and receive
answers from representatives of the Company concerning the
terms and conditions of this Agreement and the Transaction
Documents, the purchase of Purchased Shares, the Company's
business, operations, market potential, capitalization,
financial condition and prospects, and all other matters
deemed relevant by such purchase.
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4.6. The Purchaser has sought independent legal, investment and tax
advice to the extent that it has deemed necessary and
appropriate in connection with such Purchaser's decision to
purchase the Purchased Shares and the transactions set forth
in the Transaction Documents, and has not relied on the
representations of any party other than the Company.
4.7. The Purchaser understands that the Purchased Shares, shall
bear legends in the form set forth in this Agreement.
4.8. The Purchaser understands that the Purchased Shares are being
offered and sold to it in reliance upon specific exemptions
from the registration requirements of United States federal
and state securities laws and that the Company is relying upon
the truth and accuracy of, and such Purchaser's compliance
with, the representations, warranties, agreements,
acknowledgments and understandings of such Purchaser set forth
herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser thereunder.
4.9. The Purchaser understands that no United States federal or
state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of
the Purchased Shares.
5. Conditions of Closing of the Purchaser. The obligations of the
Purchaser to consummate the Closing and transfer funds at the Closing
are subject to the fulfillment at or before each Closing of the
following conditions precedent, any one or more of which may be waived
in whole or in part by such Purchaser, which waiver shall be at the
sole discretion of such Purchaser:
5.1. Representations and Warranties. The representations and
warranties made by the Company in this Agreement shall have
been true and correct when made, and shall be true and correct
as of the Closing as if made on the date of the Closing.
5.2. Covenants. All covenants, agreements, and conditions contained
in this Agreement to be performed or complied with by the
Company prior to the Closing shall have been performed or
complied with by the Company prior to or at the Closing.
5.3. Consents, etc. The Company shall have secured all permits,
consents, authorizations and approvals that shall be necessary
or required lawfully to consummate the transactions to be
consummated prior to the Closing pursuant to the Transaction
Documents and to issue the Purchased Shares to be purchased by
the Purchaser at the Closing.
5.4. Delivery of Documents. All of the documents to be delivered by
the Company pursuant to Section 2.2 shall have been delivered
to the Purchaser.
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5.5. Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such
transactions shall be satisfactory in substance and form to
the Purchaser and their counsel, and the Purchaser and their
counsel shall have received all such counterpart originals or
certified or other copies of such documents as the Purchaser
or their counsel may request.
5.6. Expenses; Stamp Duty. The Company shall have paid all legal
and other fees, costs and out-of-pocket expenses incurred by
the Purchaser in connection with this Agreement and the
transactions contemplated hereby, including in connection with
the due diligence process and the negotiation and preparation
of the agreements, in an aggregate amount not to exceed
$15,000 plus any applicable value added tax.
6. Conditions of Closing of the Company. The Company's obligations to sell
and issue the Purchased Shares at the Closing are subject to the
fulfillment at or before such Closing of the following conditions,
which may be waived in whole or in part by the Company, and which
waiver shall be at the sole discretion of the Company:
6.1. Representations and Warranties. The representations and
warranties made by the Purchaser in this Agreement shall have
been true and correct when made, and shall be true and correct
as of the date of the Closing.
6.2. Covenants. All covenants, agreements and conditions contained
in this Agreement to be performed, or complied with, by the
Purchaser prior to the Closing shall have been performed or
complied with by the Purchaser prior to the Closing.
6.3. Consents, etc. The Company shall have secured all permits,
consents, authorizations and approvals that shall be necessary
or required lawfully to consummate the transactions
contemplated by the Transaction Documents and to issue the
Purchased Shares to be purchased by the Purchaser at the
Closing.
6.4. Purchase Price. The Purchaser shall have transferred to the
Company the applicable Purchase Price.
7. Affirmative Covenants.
7.1. Use of Proceeds. The Company shall use the proceeds of the
issuance and sale of the Purchased Shares in accordance with
the Company's budget as approved by the Company's Board.
7.2. Stamp Tax. The Company shall pay all stamp duty applicable in
connection with this Agreement and the Transaction Documents
and the issuance of the Purchased Shares, if and when
applicable.
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7.3. Approval of Company's Shareholders. If required by law the
approval of Company's Shareholders, Company agrees that it
will use its best efforts to draft and submit to its
shareholders, as quickly as practical (but in no event later
than ninety (90) days after the date hereof), a Proxy
Statement describing the transactions set forth in this
Agreement, including, without limitations the issuance of the
Purchased Shares. At the request of the Purchaser, the Company
shall keep the Purchaser informed and provide the Purchaser
any reasonable information in connection with such Proxy
Statement. In the event that the Company's shareholders do not
approve the transactions contemplated by this Agreement, the
Company promptly shall reimburse the Purchaser for all costs
and expenses incurred by the Purchaser in relation to this
transaction, in an aggregate amount not to exceed $25,000 plus
any applicable value added tax.
7.4. Conduct of Business. During the period from the date hereof
and prior to the Closing, the Company shall conduct its
business solely in the ordinary course of business and, among
other things, shall not declare or make any distribution of
any kind to shareholders or enter into any related party
transaction out of the ordinary course of business.
7.5. Legends. Any stock certificates representing Purchased Shares,
if and when issued, shall bear a legend reading substantially
as follows:
THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSE ONLY AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS. NEITHER SECURITY
MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
8. Miscellaneous.
8.1. 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 the Transaction Documents and the intentions
of the parties as reflected thereby.
8.2. Survival of Representations. All representations and
warranties made by any party to this Agreement or pursuant
hereto shall survive the Closing and shall remain in full
force and effect for a period of one (1) year following the
date of the Closing (the "Survival Period"). The
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representation of the Company set forth in Section 3.1. of
this Agreement shall survive the Closing indefinitely.
8.3. Governing Law; Jurisdiction. The transactions contemplated
under the Transaction Documents shall be governed by the laws
of the state of Israel; all disputes arising of the
transactions contemplated under the Transaction Documents or
any interpretation controversies regarding the Transaction
Documents or the transactions contemplated thereto shall be
brought before the International Chamber of Commerce in
Geneva, Switzerland.
8.4. Successors and Assigns; Assignment. Except as otherwise
expressly limited herein, the provisions hereof shall inure to
the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
None of the rights, privileges or obligations set forth in,
arising under or created by this Agreement may be assigned or
transferred by Purchaser without the consent of the Company,
except for any transfers or assignments to any Affiliate of
Purchaser. For purposes of this Agreement, the term
"Affiliate" shall mean (a) any general, special or limited
partner, member, shareholder or any other person or entity
that holds a beneficial interest in Purchaser, or (b) an
"affiliate" as defined in Rule 144 promulgated under the U.S.
Securities Act of 1933.
8.5. Entire Agreement; Amendment and Waiver. This Agreement, the
recitals hereto, the Schedules and the Exhibits attached
hereto constitute 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 by written agreement
specifically referring to this Agreement and signed by the
Company and the Purchaser.
8.6. Notices. All notices and other communications required or
permitted hereunder to be given to a party to this Agreement
and any of the Transaction Documents shall be in writing and
shall be delivered by hand or by messenger, addressed to such
party's address as set forth on Exhibit 8.6, or such other
address with respect to a party as such party shall notify
each other party in writing as provided herein and on Exhibit
8.6. Any notice sent in accordance with this Section 8.6 shall
be effective (i) if sent by messenger, upon delivery, and (ii)
if sent via overnight courier, upon delivery of such
internationally recognized overnight courier service,
including, but not limited to, DHL or Federal Express.
8.7. 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
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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.
8.8. 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.
8.9. 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.
8.10. Further Actions. Each of the parties hereto shall, from time
to time after the Closing, upon the request of the other party
hereto and at the expense of such requesting party, duly
execute, acknowledge and deliver or cause to be duly executed,
acknowledged and delivered, all such further instruments and
documents reasonably requested by the other party to further
effectuate the intents and purposes of this Agreement.
8.11. Confidentiality. The Purchaser agrees that any information
obtained by such Purchaser from or on behalf of the Company
which has been marked as confidential (including the contents
of all of the Transaction Documents) will not be disclosed to
any person other than such Purchaser's officers, directors,
and employees, professional advisors, consultants, or agents,
each on a need-to-know basis only, without the prior written
consent of the Company and will not be used by such Purchaser
other than in connection with the transactions contemplated by
this Agreement (including all reporting obligations that such
Purchaser may be obligated to undertake as a result of such
transactions); provided, however, that such Purchaser may
disclose such information in connection with periodic reports
to their shareholders, partners, members, professional
advisors and potential acquirer(s) and such acquirer's
professional advisors, subject to such third parties being
under confidentiality obligations to such Purchaser that cover
the disclosed confidential information. The Company agrees
that the contents of this Agreement and the Transaction
Documents shall be treated by it as confidential information,
and shall not be disclosed to any person except as required by
law. Confidential information as referred to in this Section
8.11 shall not
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include information, with respect to the Purchaser, (i) which
is or becomes public knowledge through no fault of the
Purchaser; (ii) which was or is known by the Purchaser prior
or at the time of disclosure by the disclosing party as can be
evidenced by the Purchaser; (iii) is or has become lawfully
available to the Purchaser from a source (other than the
Company) which the Purchaser does not know or reasonably
believe to be under an obligation of confidentiality; (iv) is
disclosed with the prior written consent of the Company; or
(v) is legally required to be disclosed by judicial as other
governmental action, provided, however, that prompt notice of
such judicial or other governmental action shall have been
given to the Company, provided that if Purchaser receives a
subpoena or similar document requiring it to disclose the
Confidential information, the Purchaser shall notify the
Company so that the Company can take appropriate action to
suppress the disclosure of its Confidential Information or
else insure that its Confidential information is disclosed
under confidentiality provisions only.
8.12. Indemnification by Company. During the Survival Period and
subject to Section 8.14 below, the Company shall and hereby
does indemnify and hold the Purchaser harmless from and
against and in respect of any and all actual loss, damage and
expense incurred (other than losses that the Purchaser may
incur as a stockholder of the Company) by the Purchaser
resulting from, arising out of, attributable to, or in any
manner connected with:
(a) Any misrepresentation or breach of any representation
or warranty made by the Company pursuant to this
Agreement or failure to fulfill any covenant or
agreement on the part of the Company contained in
this Agreement or in any certificate or other
document delivered, or to be delivered, by the
Company to the Purchaser in connection with this
Agreement; and
(b) Any and all actions, suits, proceedings, demands,
assessments or judgments, costs and expenses
(including reasonable legal and accounting fees and
investigation costs) incident to the foregoing and
the enforcement thereof.
If any event shall occur or any circumstance arise which might
give rise to a claim in respect of any matter against which
the Company has indemnified the Purchaser hereunder, the
Purchaser promptly shall give notice thereof to the Company.
Such notice shall be given within fifteen (15) days after said
claim shall have been presented to the Purchaser. Unless the
parties otherwise agree in writing, the Company shall defend
against all such third-party claims or otherwise satisfy said
claims, at its sole cost and expense, through counsel and
accountants designated by it, which approval shall not be
delayed or withheld unreasonably. The Purchaser shall have the
right to participate with the Company in the
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defense of any such matter. The Company shall not be liable
for any settlement of a claim by the Purchaser without the
Company's consent. Notwithstanding anything to the contrary
herein, the Purchaser shall not lay claim and the Company
shall not be liable under this Section for any action,
proceeding or investigation in respect of which indemnity may
be sought as provided above, amounting to less than $50,000 in
the aggregate, provided that such persons shall be liable from
the first dollar for any claim or claims exceeding such
amount.
8.13. Indemnification by Purchaser. During the Survival Period and
subject to Section 18.14 below, the Purchaser shall and hereby
does indemnify and hold the Company harmless from and against
and in respect of any and all actual loss, damage and expense
incurred by the Company resulting from, arising out of,
attributable to, or in any manner connected with:
(a) Any misrepresentation or breach of any representation
or warranty made by the Purchaser pursuant to this
Agreement or failure to fulfill any covenant or
agreement on the part of the Purchaser contained in
this Agreement or in any certificate or other
document delivered, or to be delivered, by the
Purchaser to the Company in connection with this
Agreement; and
(b) Any and all actions, suits, proceedings, demands,
assessments or judgments, costs and expenses
(including reasonable legal and accounting fees and
investigation costs) incident to the foregoing and
the enforcement thereof.
If any event shall occur or any circumstance arise which might
give rise to a claim in respect of any matter against which
the Purchaser has indemnified the Company hereunder, the
Company promptly shall give notice thereof to the Purchaser.
Such notice shall be given within fifteen (15) days after said
claim shall have been presented to the Company. Unless the
parties otherwise agree in writing, the Purchaser shall defend
against all such third-party claims or otherwise satisfy said
claims, at its sole cost and expense, through counsel and
accountants designated by it, which approval shall not be
delayed or withheld unreasonably. The Company shall have the
right to participate with the Purchaser in the defense of any
such matter. The Purchaser shall not be liable for any
settlement of a claim by the Company without the Purchaser's
consent. Notwithstanding anything to the contrary herein, the
Company shall not lay claim and the Purchaser shall not be
liable under this Section for any action, proceeding or
investigation in respect of which indemnity may be sought as
provided above, amounting to less than $50,000 in the
aggregate, provided that such persons shall be liable from the
first dollar for any claim or claims exceeding such amount.
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8.14. Limitation of Liability. In no event shall either the Company
or the Purchaser be liable to the other party for any
consequential, indirect, special or incidental costs, damages
or loss (including, without limitation, lost profits, loss of
business), regardless of the nature, arising out of or
relating in any way to this Agreement.
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IN WITNESS WHEREOF the parties hereto have signed this Agreement as of
the date first set forth above.
VIRYANET LIMITED TELVENT GIT, S.A.
By: /s/ Xxxxxx X. XxXxxxx By: /s/ Xxxxxx Xxxxxxx
--------------------- -------------------
Its: Chairman Date: July 28, 2003
-------------------- -----------------
Date: July 28, 2003
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