Exhibit 4a
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ELECTRIC FUEL CORPORATION
COMMON STOCK PURCHASE AGREEMENT
January 5, 2000
TO THE PURCHASERS SET FORTH ON EXHIBIT A
Ladies and Gentlemen:
Electric Fuel Corporation, a Delaware corporation (the "Company"), proposes
to sell (the "Offering") to the purchasers set forth on Exhibit A (the
"Purchasers") 385,000 shares (the "Shares") of its common stock, $.01 par value
per share (the "Common Stock"), in the amounts and for the price set forth
opposite each Purchaser's name on Exhibit A. In connection with and in
consideration for the sale and purchase of the Shares, the Company and the
Purchasers agree to abide by the mutual covenants contained herein.
1. Sale and Purchase of the Shares. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Common Stock purchase agreement (the "Agreement"), the Company agrees
to sell to the Purchasers, and the Purchasers agree to purchase from the
Company, the Shares. The purchase price per share shall be $2.50.
2. Delivery and Payment.
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(a) On the Closing Date, the Purchasers will pay to Yigal Arnon & Co., as
escrow agent (the "Escrow Agent"), for the benefit of the Company, an aggregate
of U.S.$962,500 (the "Purchase Price") and the Company shall deliver the Shares
to the Escrow Agent for the benefit of the Purchasers. Payment of the Purchase
Price shall be made by wire transfer in immediately available funds in U.S.
dollars to account number 716383 in the name of Yigal Arnon & Co. Trust Account,
at Israel Discount Bank, Shlomzion Hamalka Branch, branch number 11-063,
provided, however, that the Purchasers may, at their option wire New Israeli
Shekels in lieu of U.S. dollars at the Bank HaPoalim U.S. dollar cash sell rate
(i.e. the rate at which the bank sells to buyers) as of the close of business on
January 9, 2000. The Closing of the Offering shall take place at the offices of
the Company, Western Industrial Zone, Bet Shemesh, Israel on January 10, 2000 or
at such place and time on such other date as shall be agreed upon by the Company
and the Purchasers. The day on which the Closing takes place shall be referred
to herein as the "Closing Date."
(b) Pursuant to the terms of an Escrow Agreement to be entered into in
connection with the Closing in form and substance reasonably satisfactory to the
Company the Purchasers and the Escrow Agent (the "Escrow Agreement"), the Escrow
Agent shall pay the Purchase Price to the Company and deliver the Shares to the
Purchasers upon receiving written notice from the Company to the effect that the
Securities and Exchange Commission has declared effective a Form S-3
registration statement (the "Form S-3") filed by the Company to register the
resale of the Shares (the "Effective Date") pursuant to the terms of Section 8
below. The Escrow Agent shall hold the Purchase Price and the Securities in
escrow until the Effective Date.
(c) Immediately after the Closing, the Company shall file a registration
statement on form S-3 for resale of the Shares (the "Form S-3") in accordance
with Section 8 below, provided, however, that if so necessary, in the opinion of
the Company's counsel, to delay the filing of the Form S-3 until after receipt
of stockholder approval for the Offering pursuant to the rules of the Nasdaq
National Market, the Company shall file the Form S-3 only after securing such
approval or after the earliest time that the Company may so file in the opinion
of the Company's counsel.
3. Offering of Shares. The Shares will be offered and sold to the
Purchasers without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance on the exemption therefrom provided by
Section 4(2) of the Securities Act.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchasers as follows:
(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Delaware. The
Company's wholly-owned Israeli subsidiary, Electric Fuel (E.F.L.) Limited
("EFL"), is duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation. Each
of the Company and EFL is qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of its
assets or properties (owned, leased or licensed) or the nature of its
business makes such qualification necessary, except for such jurisdictions
where the failure to so qualify, individually or in the aggregate, would
not have a material adverse effect on the assets or properties, business,
results of operations or financial condition, taken as a whole, of the
Company and EFL.
(b) All necessary corporate action has been duly and validly taken to
authorize the execution, delivery and performance of this Agreement and the
Escrow Agreement by the Company. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles. The Escrow Agreement
has been duly and validly authorized, and when executed and delivered, will
constitute the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
and the Escrow Agreement by the Company nor the consummation of any of the
transactions contemplated hereby or thereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any material lien,
charge or encumbrance upon any properties or assets of the Company pursuant
to the terms of, any material indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which the
Company or any of its properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation
applicable to the Company, or violate any provision of the charter or
by-laws of the Company or EFL, except for such consents or waivers that
have already been obtained and are in full force and effect, or, except for
approval by the Company's stockholders pursuant to the rules of the Nasdaq
National Market, if so required, and in connection with the Form S-3,
require any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official, or such consents or
waivers the failure to so obtain would not individually or in the
aggregate, have a material adverse effect upon the assets or properties,
business, results of operations or financial condition, taken as a whole,
of the Company and EFL.
(d) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, the Company's Form 10-Qs for the fiscal periods ended
March 31, 1999, June 30, 1999 and September 30, 1999 and all documents
filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (such documents are hereinafter referred to as the "Exchange Act
Documents") were filed in a timely manner and, when they were filed (or, if
any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects to the
requirements of the Exchange Act, and the rules and regulations thereunder,
and did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Subsequent to the respective dates
as of which information was given in the Exchange Act Documents, except as
described therein, there has not been any material adverse change, and, to
the Company's knowledge, no event has occurred which with notice or lapse
of time or both, that would
constitute such a material adverse change, in the assets or properties,
business, results of operations or financial condition of the Company taken
as a whole.
(e) Other than as previously disclosed to the Purchasers, there are no
claims for brokerage commissions or finder's fees on similar compensation
in connection with the transactions by this Agreement based on any
arrangement or agreement made by or on behalf of the Company other than as
previously disclosed to the Purchasers, and the Company agrees to indemnify
and hold the Purchasers harmless against any damages incurred as a result
of any such claims.
5. Representations and Warranties of the Purchasers. Each Purchaser
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represents and warrants to Company that:
(a) Such Purchaser has full power and authority to execute, deliver
and perform each of this Agreement and the Escrow Agreement. This Agreement
constitutes a valid and legally binding obligation of such Purchaser,
enforceable against such Purchaser in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
(b) The Shares, to be received by such Purchaser will be acquired for
investment for such Purchaser's own account, and not with a view to the
distribution of any part thereof. Such Purchaser has no present intention
of selling, granting any participation in, or otherwise distributing the
same. Such Purchaser does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participation to
such person or to any third person, with respect to any of the Shares.
(c) Such Purchaser understands that the Shares may not be sold,
transferred, or otherwise disposed of without registration under the
Securities Act, or an exemption therefrom, and that in the absence of an
effective registration statement covering the Shares or an available
exemption from registration under the Securities Act, the Shares must be
held indefinitely. In the absence of an effective registration statement
covering the Shares, such Purchaser will sell, transfer, or otherwise
dispose of the Shares only in a manner consistent with its representations
and agreements set forth herein.
(d) Such Purchaser understands that until the Shares are registered
under the Securities Act, the certificates evidencing the Shares may bear
substantially the following legends:
(i) "THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND APPLICABLE
STATE LAW, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM (IN EACH CASE BASED UPON DOCUMENTATION SATISFACTORY TO
THE COMPANY, INCLUDING AN OPINION OF COUNSEL SATISFACTORY TO IT
THAT REGISTRATION UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE LAWS IS NOT REQUIRED) OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT."
(ii) Any legend required by the Escrow Agreement or any
applicable law.
(e) Such Purchaser is an "accredited investor" as such term is defined
in Rule 501(a)(1) promulgated pursuant to the Securities Act.
(f) Such Purchaser's financial condition is such that he is able to bear
the risk of holding the Shares for an indefinite period of time.
(g) Such Purchaser has such knowledge and experience in financial and
business matters and in making high risk investments of this type that he is
capable of evaluating the merits and risks of the purchase of the Shares.
(h) Such 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 business, operations,
market potential, capitalization, financial condition and prospects, and all
other matters deemed relevant by such Purchaser.
(i) Other than as previously disclosed to the Company, there are no claims
for brokerage commissions or finder's fees or similar compensation in connection
with the transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of such Purchaser, and such Purchaser agrees to
indemnify and hold the Company harmless against any damages incurred as a result
of any such claims.
(j) Such Purchaser acknowledges that the Company will rely upon the truth
and accuracy of the foregoing acknowledgments, representations and agreements
and agrees that, if any of the acknowledgments, representations and agreements
are no longer accurate, he shall promptly notify the Company.
6. Conditions of the Purchaser's Obligations. The obligation of the
Purchasers to purchase the Shares is subject to each of the following terms and
conditions:
(a) The representations and warranties of the Company contained in
this Agreement shall be true and correct when made and on and as of the
Closing Date as if made on such date and the Company shall have performed
all covenants and agreements and satisfied all the conditions contained in
this Agreement required to be performed or satisfied by it at or before the
Closing Date.
(b) The Company shall have executed and delivered the Escrow Agreement
and delivered the Shares to the Escrow Agent.
7. Conditions of the Company's Obligations. The obligation of the Company
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to sell the Shares is subject to each of the following terms and conditions:
(a) The representations and warranties of the Purchasers contained in
this Agreement shall be true and correct when made and on and as of the
Closing Date as if made on such date and the Purchasers shall have
performed all covenants and agreements and satisfied all the conditions
contained in this Agreement required to be performed or satisfied by it at
or before the Closing Date.
(b) Receipt by the Escrow Agent of the Purchase Price from the
Purchasers.
(c) The Purchasers shall have executed and delivered the Escrow
Agreement.
8. Registration Rights. Promptly following the Closing, the Company shall
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file and use its reasonable best efforts to have declared effective, the
Form S-3 registering for resale of the Shares. Notwithstanding anything in this
Agreement to the contrary, if so necessary, in the opinion of the Company's
counsel, to delay the filing of the Form S-3 until after receipt of the
stockholder approval referred to in Section 2, the Company shall file the
Form S-3 only after securing such approval or after the earliest time that the
Company may so file in the opinion of the Company's counsel. The Company shall
use its reasonable efforts to maintain the effectiveness of the Form S-3 until
the date that is eighteen months after the date of effectiveness of the
Form S-3.
9. Covenant of the Company. The Company covenants and agrees as follows:
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The Company shall use its reasonable best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date, and to satisfy all conditions precedent
to the delivery of the Purchase Price.
10. Covenants of the Purchaser. The Purchasers covenant and agree as
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follows:
(a) The Purchasers shall use their reasonable best efforts to do and
perform all things required or necessary to be done and performed under
this Agreement by the
Purchasers prior to the Closing Date, and to satisfy all conditions
precedent to the delivery of the Shares.
(b) The Purchasers agree that from the date hereof until the fifth
anniversary of the Closing Date, they will not, and will not permit any of his
Affiliates, as defined in the Securities Act, to directly or indirectly or in
conjunction with or through any Associate (as defined in Rule 12b-2 of the
Exchange Act), (i) solicit proxies with respect to any capital stock or other
voting securities of the Company under any circumstances, or become a
"participant" in any "election contest" relating to the election of directors of
the Company (as such terms are used in Rule 14a-11 of Regulation 14A of the
Exchange Act) or (ii) make an offer for the acquisition of substantially all of
the assets or capital stock of the Company or induce or assist any other person
to make such an offer or (iii) form or join any "group" within the meaning of
Section 13(d)(3) of the Exchange Act with respect to any capital stock or other
voting securities of the Company for the purpose of accomplishing the actions
referred to in clauses (i) and (ii). The covenant contained in this section
10(b) shall expire in relation to a Purchaser upon the sale by such Purchaser of
the Shares issued to such Purchaser hereunder.
11. Miscellaneous. This Agreement has been and is made for the benefit of
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the Purchasers and the Company, and their respective successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchasers of
Shares from the Purchasers merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph if subsequently confirmed in writing, (a)
if to the Purchasers to the address set forth on Exhibit A; and (b) if to the
Company, to Yehuda Harats, Electric Fuel Ltd., Western Industrial Zone, P.O. Box
641, Bet Shemesh 99000, Israel, with a copy to Jane D. Goldstein, Esq., Ropes &
Gray, One International Place, Boston, MA 02110 and David S. Glatt, Adv.,
Meitar, Liquornik, Geva & Co., 16 Abba Hillel Silver Road, Ramat Gan 52506,
Israel.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to any conflicts or choice of law
principles which would cause the application of the internal laws of any
jurisdiction other than the State of Delaware.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among us.
Very truly yours,
ELECTRIC FUEL CORPORATION
By___________________________
Title:
Agreed and accepted:
THE PURCHASERS
Annex I
Wire Transfer Instructions
Details of the Electric Fuel Corporation account at Republic National Bank are
as follows:
Republic National Bank
452 Fifth Avenue
New York, NY
ABA # 021-004823
For credit to : Electric Fuel corporation
Account #: 310303559
Or to a bank located in Israel as shall be deteremined by
the Company and communicated in writing to the Purchasers
NAME/FIRM Shares
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J.M. Holdings Ltd. 20,000
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Keren Zaav Mutual Fund 45,000
Management Company Ltd.
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Estival Limited 57,500
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Maatag Investments Ltd. 100,000
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David Dafni 47,500
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Nisim Ben Asuli 15,000
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Even Ari - Law Office 45,000
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Merlion Underwriters ltd. 35,000
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Avraham Namdar 20,000
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TOTAL: 385,000
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