Item 1.01 Entry into a Material Definitive Agreement.
On December 31, 2017, CooliSys Technologies Inc. (“Coolisys”), a Delaware corporation and wholly owned subsidiary of DPW Holdings, Inc. (the “Company”), a Delaware corporation, entered into a Share Purchase Agreement (the “Agreement”) with Micronet Enertec Technologies, Inc. (“MICT”), a Delaware corporation, Enertec Management Ltd., an Israeli corporation and wholly owned subsidiary of MICT (“EML” and, together with MICT, the “Seller Parties”), and Enertec Systems 2001 Ltd. (“Enertec”), an Israeli corporation and wholly owned subsidiary of EML, pursuant to which Coolisys shall acquire Enertec, subject to the terms and conditions set forth in the Agreement (the “Acquisition”). Enertec is Israel’s largest private manufacturer of specialized electronic systems for the military market.
The purchase price shall be $5,250,000, as adjusted for any closing debt surplus or deficit (the “Purchase Price”). If Enertec’s outstanding debt owed to certain creditors (the “Bank Debt”) at the closing shall be less than $4,000,000, then the Purchase Price shall be increased by the difference between $4,000,000 and such lower Bank Debt. If Enertec’s outstanding Bank Debt at the closing shall be greater than $4,000,000, then the Purchase Price shall be reduced by the difference between $4,000,000 and the higher Bank Debt.
Either party may terminate the Agreement if the Acquisition has not been consummated within the later of 60 days following signing or 15 days following the Seller Parties’ delivery to Coolisys of Enertec’s audited financial statements for the year ending December 31, 2017 (the “End Date”), provided however, that the End Date shall be extended by an additional 30 days if Enertec’s Bank Debt is accelerated as a result of the Agreement and such accelerated Bank Debt is greater than $2,000,000. Coolisys shall be required to pay the Seller Parties a termination fee of $300,000 in the event that Coolisys fails to consummate the Acquisition by the End Date following satisfaction of all of its closing conditions, or upon termination by the Seller Parties due to Coolisys’s breach of its representations and warranties that have not been cured for 15 days.
Consummation of the Acquisition is subject to customary closing conditions, including, without limitation: (i) the absence of applicable law or litigation that seeks to prohibit the Acquisition, (ii) confirmation by the Israeli Tax Authority certifying that no tax withholdings are required with respect to the Purchase Price, and (iii) the absence of a Material Adverse Effect (as defined in the Agreement). Enertec has made customary representations and warranties and covenants in the Agreement, including, among other things, covenants that, during the interim period between the execution of the Agreement and the closing of the Acquisition, (i) Enertec will conduct its business in all material respects in the ordinary course and (ii) Enertec will not engage in certain kinds of transactions or take certain actions as described in the Agreement.
At the closing of the Acquisition, the Company, Coolisys, Enertec, MICT and David Lucatz, Chairman, President and Chief Executive Officer of MICT, shall enter into a three year consulting agreement (the “Consulting Agreement”) pursuant to which MICT, through Mr. Lucatz, shall provide certain services to Enertec on a part-time basis. Enertec shall pay MICT an annual fee of $150,000 and issue to MICT an aggregate of 150,000 restricted shares of the Company’s Class A common stock, of which 50,000 shall vest one day following the closing (the “Grant Date”), 50,000 shall vest one year following the Grant Date, and 50,000 shall vest two years following the Grant Date. The issuance of the restricted shares shall be subject to the approval of the NYSE American. Upon a change of control of MICT, or if Mr. Lucatz shall no longer serve as an officer or director of, or consultant to, MICT, all vested and unvested restricted shares and the rights and obligations under the Consulting Agreement shall be assigned to Mr. Lucatz.
The foregoing descriptions of the Agreement and the Consulting Agreement do not purport to be complete and are qualified in their entirety by reference to the Agreement and the form of Consulting Agreement which are annexed hereto as Exhibits 2.1 and 10.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. The Agreement has been included to provide investors and stockholders with information regarding its terms. It is not intended to provide any other factual information about the Company, Coolisys, Enertec, EML or MICT. The Agreement contains representations and warranties that the parties to the Agreement made to and solely for the benefit of each other, and the assertions embodied in such representations and warranties are qualified by information contained in confidential disclosure schedules that the parties exchanged in connection with signing the Agreement. Accordingly, investors and stockholders should not rely on such representations and warranties as characterizations of the actual state of facts or circumstances, since they were only made as of the date of the Agreement (or such other date as specified therein) and are modified in important part by the underlying disclosure schedules.