Exhibit 4.8
[TRANSLATED FROM THE HEBREW ORIGINAL]
SHAREHOLDERS AGREEMENT
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Made in Tel Aviv this 27th day of December 2004
As amended on 6th July 2005
BETWEEN
KOOR INDUSTRIES LTD.
Public Company No. 00-000000-0
of 00 Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000
("Koor")
of the one part
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AND
ELBIT SYSTEMS LTD.
Public Company No. 00-000000-0
of the Advanced Technology Center, Haifa 31053
("Elbit")
of the other part
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WHEREAS Koor and Elbit have on signing this Agreement (27th December
2004) entered into a share transfer deed (hereinafter
referred to as the "Share Transfer Deed"), pursuant to which
Elbit will purchase from Koor and Koor will sell to Elbit,
in Stage `A' of the Transaction, 1,700,000 Ordinary Shares
of 1 NIS par value each of Tadiran Communications Ltd.,
which is a public company duly incorporated in Israel
(hereinafter the "Company");
AND WHEREAS after the completion of Stage `A' of the Transaction (as
defined in the Share Transfer Deed), Koor will be the holder
of at least 2,244,276 Ordinary Shares of 1 NIS par value
each of the Company's issued share capital and Elbit will be
the holder of at least 2,218,488 Ordinary Shares of 1 NIS
par value each of the Company's issued share capital;
AND WHEREAS in accordance with the Share Transfer Deed Elbit will
purchase from Koor and Koor will sell to Elbit in Stage `B'
of the Transaction, as defined in the Share Transfer Deed,
after the Amendment thereto, 623,115 Ordinary Shares,
although there is a possibility that Stage `B' of the
Transaction will not be completed or that, even if Stage `B'
of the Transaction is completed, Elbit and Koor will both
remain shareholders of the Company;
AND WHEREAS according to the Share Transfer Deed, Elbit will purchase
from Koor and Koor will sell to Elbit in Stage `C' of the
Transaction, as defined in the Share Transfer Deed, after
the Amendment thereto, 1,621,161 Ordinary Shares, although
there is a possibility that Stage `C' of the Transaction
will not be completed or that, even if Stage `C' of the
Transaction is completed, Elbit and Koor will both remain
shareholders of the Company;
AND WHEREAS the parties wish to set forth the overall relationship
between them as shareholders of the Company, as provided
below in this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY WARRANT, PROVIDE AND AGREE BETWEEN THEM AS
FOLLOWS:
1. Preamble, Headings and Interpretation
-------------------------------------
1.1 The preamble to this Agreement constitutes an integral
part hereof and one of its terms.
1.2 The clause headings in the Agreement are solely for the
sake of convenience and are not to be applied in the
interpretation hereof.
1.3 In this Agreement, the following expressions shall have
the meanings ascribed to them, unless expressly stated
otherwise:
"Shares" or "Shares of the Company" means ordinary shares
of 1 NIS par value each in the Company's issued share
capital;
"Cumulative Holdings" means all the Shares of the Company
that the parties to this Agreement hold from time to time;
"Transfer" means a sale, gift, realization of a lien (but
not the creation of a lien), loan and any other transfer
of any kind of a Share and/or any right vested in the
Share's owner and/or holder, whether or not for
consideration and whether voluntary or involuntary;
"Stock Exchange Sale" means a sale in trading on the Stock
Exchange or a sale in a transaction outside the Stock
Exchange, through a broker to purchasers whose identities
are not known to the seller or a sale to mutual funds in
Israel or abroad or provident funds or provident fund
management companies;
"Qualification Conditions" means all the requirements in
accordance with applicable law and pursuant to the
Company's incorporation documents for a person to serve as
a director of the Company, including security clearance as
required in Israel for the purpose of such service;
"Core Shares" means 4,462,764 Shares, constituting all the
Shares that are held by Koor and/or Elbit on 27th December
2004, together with all the bonus shares that may be
issued in the future in respect thereof and together with
all the Shares that are acquired on issue by virtue of
rights that are vested in the context of a rights offering
of the Company to its shareholders in respect of those
Shares.
1.4 The following terms shall have the meanings ascribed to
them in the Share Transfer Deed: the "First Closing Date",
the "Second Closing Date", the "Third Closing Date", the
"Stage `A' Completion Deadline", the "Stage `C' Completion
Deadline", the "Stage `A' Shares", the "Stage `B' Shares",
the "Stage `C' Shares", the "Shares Being Sold", "Stage
`A' of the Transaction", "Stage `B' of the Transaction",
"Stage `C' of the Transaction", the "Additional Stage",
the "Companies Law", the "Stock Exchange", "General
Meeting", "Free and Clear", the "Amendment" and "Business
Day".
1.5 The following terms shall have the meanings defined in
Section 1 of the [Israel] Securities Law, 5728-1968
"securities", "company", "subsidiary", "acquisition of
securities", "holding and acquisition" and "control".
1.6 The following terms shall have the meanings defined in
Section 1 of the Companies Law:
"dividend", "director", "external director", "public
company", "distribution", "bonus shares", "officer",
"personal interest", "transaction", "extraordinary
transaction" and "act".
2. The Parties' Warranties and Undertakings
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Each party hereby respectively warrants and undertakes to the other
as follows:
2.1 That it is a duly incorporated public company, that its
number with the Companies Registrar is as appears in the
preamble hereto and that no actions or proceedings for
delisting, liquidation, winding-up, receivership or like
acts have been taken or are being threatened against it.
2.2 That there is no legal or other impediment to its entering
into this Agreement and that this Agreement and the
performance of its obligations pursuant hereto are not
contrary to any judgment, order or direction of a court,
to any contract, understanding or agreement to which it is
a party, to its incorporation documents or to any other of
its obligations, whether by virtue of a contract (oral, by
conduct or written) or by virtue of law.
2.3 That by the time this Agreement enters into effect as
provided in Clause 7 below, all the approvals, consents
and permits will be obtained and all the necessary
proceedings will have been performed, including the
approvals of any authorities, government entities or any
other body, for its entering into this Agreement and
performing its obligations pursuant hereto, and that the
signatories on its behalf are those who are empowered to
sign this Agreement on its behalf, subject in all cases to
obtaining the approval of Elbit's audit committee, board
of directors and General Meeting and obtaining the
approval of Koor's board of directors to the parties'
entering into and performing this Agreement and the Share
Transfer Deed.
2.4 That it is not a party to any voting agreement or other
arrangement concerning the Company's Shares with other
shareholders of the Company, save for the other party
hereto, and it will not enter into any such agreement
and/or arrangement so long as this Agreement is in force,
except in accordance with the provisions of this Agreement
and subject to the provisions of Clause 5.11 below.
3. Arrangements after the Completion of Stage `A' of the Transaction
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After the completion of Stage `A' of the Transaction, as provided in
the Share Transfer Deed, and until the Second Closing Date, and
without derogating from the provisions of the Share Transfer Deed,
the following arrangements shall apply between the parties in
connection with the Company's management:
3.1 On completion of Stage `A' of the Transaction, directors
shall be appointed to the Company's board of directors in
accordance with
Elbit's nomination, as provided in Clause 10.6 of the
Share Transfer Deed, and the provisions of Clause 10.6 of
the Share Transfer Deed shall be deemed part of this
Agreement's provisions.
3.2 Subject to applicable law, the parties shall act so that
on every board of directors' committee of the Company,
other than the audit committee, there shall serve at least
one director nominated by Elbit, as provided in Clause 3.1
above.
3.3 Subject to applicable law, the parties shall act so that a
director of the Company, who has been nominated for the
office by Elbit, shall serve as chairperson of the
Company's finance committee.
3.4 After the First Closing Date, the parties shall cooperate
at every General Meeting of the Company on the agenda of
which is the appointment of directors to the Company, and
they shall vote at every such meeting in favor of
appointing directors in accordance with Elbit's
nomination, as provided in Clause 3.1 of this Agreement,
and in favor of the appointment of all the other directors
of the Company, including the external directors, in
accordance with Koor's nomination.
4. Arrangements after Completion of Stage `C' of the Transaction or After
Completion of the Additional Stage
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After and subject to completion of Stage `C' of the
Transaction or after completion of the Additional Stage as
provided in the Share Transfer Deed, and without
derogating from the provisions of the Share Transfer Deed,
if and to the extent that after completion of Stage `C' of
the Transaction or of the Additional Stage Koor is a
shareholder of the Company, Koor undertakes to participate
in every General Meeting and vote in respect of all the
Shares held by it on every matter and/or decision that is
referred for a resolution of the Company's shareholders in
accordance with written instructions that are given to it
by Elbit at least seven days before the date the
applicable resolution is to be voted on by the Company's
shareholders, unless the parties otherwise agree in
writing. Koor's said undertaking shall not apply with
respect to a resolution of the shareholders concerning the
approval of a transaction of the Company in which Elbit or
Elbit's controlling shareholders or officers, or any of
them, has a personal interest, if such voting as required
by Elbit would cause Koor to breach any obligations
imposed on it by law. For the avoidance of doubt, it is
hereby clarified that Koor shall not be entitled to
appoint directors on its own behalf by virtue of its
holding those Shares.
5. Arrangements between the Parties after Completion of Stage `B' of the
Transaction
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After completion of Stage `B' of the Transaction as provided in the
Share Transfer Deed and for so long as Stage `C' of the Transaction
or the Additional Stage has not been completed, including if Stage
`C' of the Transaction is rescinded or not performed or if the
Additional Stage is rescinded or not performed, the following
arrangements shall apply as between the parties in connection with
the management of the Company and in respect of all the Cumulative
Holdings:
Board of Directors
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5.1 So long as the holdings of each of the parties hereto are
not less than the Minimum Holding Percentage, the parties
shall act and vote by virtue of all the cumulative
Holdings so that there shall be 12 directors on the board
of the Company including five who are nominated for office
by Elbit, five who are nominated for office by Koor and
two external directors, provided that all the directors
shall meet the Qualification Conditions. The parties shall
also act subject to applicable law so that on all the
board of directors' committees there shall be equal
representation of the directors who are nominated for
office by each party. The parties undertake to act so that
this provision is implemented, including, if necessary, by
calling a shareholders' meeting of the Company as soon as
possible in accordance with applicable law, on the agenda
of which shall be the appointment of directors as
aforesaid, and they undertake to support the appointment
of directors as aforesaid at that meeting.
For the purpose of the provisions of this clause 5, the
"Minimum Holding Percentage" is 1,478,181 Ordinary Shares,
together with all the bonus shares that are allotted in
respect of such quantity of shares and all the shares that
are acquired on allotment by virtue of rights that are
vested in the scope of a rights offer by the Company to
its shareholders in respect of such quantity of shares as
from the date the Amendment to this Shareholders Agreement
becomes effective.
5.2 (a) When the term of office of the first of the two
external directors serving on the Company's board
of directors on the date of signing this
Agreement comes to an end, Elbit shall be
entitled to nominate a different candidate for
the office of external director in his place.
When the term of office of the other of the two
external directors serving on the Company's board
of directors on the date of signing this
Agreement comes to an end, Koor shall be entitled
to nominate another candidate for the position of
external director in his place. Each party shall
act and vote by virtue of all the Shares of the
Company that are held by it in favor of the
appointment of the candidate nominated by the
other party to the position of external director
as aforesaid. Said arrangement shall also
continue in similar fashion in respect of the
appointment to the Company's board of directors
of the subsequent external directors so long as
there is a legal duty to appoint external
directors.
(b) In addition, during the period until the Stage
`C' Completion Deadline, if one or two of the
five directors who have been appointed on the
recommendation of Elbit meet the qualification
conditions of an external director, Elbit shall
be entitled to propose that the same number of
directors (namely one or two) of the five who
have been appointed on the recommendation of Koor
shall meet the qualification conditions of an
external director, and Koor will use its best
efforts, subject to the law, to implement Elbit's
proposal.
5.3 Subject to applicable law, the parties shall act so that
the Company's articles of association are amended to the
effect that the chairperson of the Company's board of
directors shall be elected by the Company's General
Meeting from among the directors who are then in office,
whose office will not expire before the end of that
General Meeting or from among the new directors who are
elected to office at that General Meeting. It is agreed
that the chairperson of the Company's board of directors,
for the period of the first 24 months after completion of
Stage `B' of the Transaction, shall be a director
recommended to that post by Elbit and thereafter for a
term of 12 months, the post shall be held by a director
recommended to the post by Koor and so on and so forth.
The parties shall act by virtue of the Cumulative Holdings
to vote in favor of nominees as aforesaid.
5.4 Subject to applicable law, the parties shall act so that
so long as a director recommended by one of the parties
hereto serves as chairperson of the Company's board of
directors, the Company's finance committee shall be
chaired by a director recommended to the post by the other
party hereto.
5.5 If either of the parties wishes the Company to prepare its
financial statements also in accordance with US Generally
Accepted Accounting Principles (U.S. GAAP), the other
party undertakes, subject to the law, to support the same
and also to support passing any resolution required for
the same by any organ of the Company whose resolution in
such respect is necessary.
5.6 Should the holdings of either of the parties fall below
the Minimum Holding Percentage and provided that its
holdings do not fall to less than 9% of the Company's
issued share capital, that party shall be entitled to a
number of directors equal to its percentage holdings in
the Company divided by the total Cumulative Holdings
multiplied by the number of directors serving in the
Company (rounded to the nearest whole number), provided
that the number of directors who are appointed on the
recommendation of that party shall not be less than 20% of
the number of directors serving in the Company (rounded up
to a whole number).
5.7 Should the holdings of either of the parties fall below
the Minimum Holding Percentage and also below 9% of the
issued share capital of the Company, provided that its
holdings have not fallen below 5% of the Company's issued
share capital, that party shall be entitled to a number of
directors equal to its percentage holdings in the Company
divided by the total Cumulative Holdings multiplied by the
number of directors serving in the Company (rounded to the
nearest whole number).
5.8 Should the holdings of either of the parties fall below
the Minimum Holding Percentage and also below 5% of the
issued share capital of the Company, that party shall not
be entitled, pursuant to this Agreement, to representation
on the Company's board of directors.
5.9 It is hereby clarified that if the holdings of a party to
the Agreement fall below the percentages specified in
Clauses 5.5 to 5.8 above and as a result thereof the
number of directors appointed on its recommendation is
reduced, as the case may be, that party shall not be
entitled to reinstate representation in addition to the
representation retained by it, if at all, on the Company's
board of directors, even if it subsequently acquires
Shares of the Company and again increases its holdings
beyond said percentages.
General Meeting
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5.10 The parties shall coordinate between them in advance the
manner in which they will vote on every resolution in the
Company's General Meeting. Subject to the provisions of
Clauses 5.1 to 5.9 above, the parties shall act and vote
by virtue of all the Cumulative Holdings against any
proposed resolution in the Company's General Meeting,
unless it is first agreed in writing between them to vote
in its favor.
5.11 Should the holdings of a party fall below the Minimum
Holding Percentage, provided that its holdings have not
fallen below 9% of the
Company's issued share capital, the provisions of Clause
5.10 above shall not apply between the parties.
5.12 Notwithstanding the provisions of Clause 5.11 above, if
the holdings of a party fall below the Minimum Holding
Percentage and also below 9% of the Company's issued share
capital (in this Clause the "First Party"), the First
Party undertakes to vote with all its Shares in the
Company at every General Meeting in accordance with the
other party's instructions, to be given to it in writing
at least four days prior to the date of each meeting,
except in connection with a shareholders' resolution
concerning the approval of a transaction of the Company in
which the other party or its controlling shareholders or
officers, or any of them, has a personal interest, if so
voting would cause the First Party to breach duties
imposed on it by law. The other party shall not require
the First Party's prior consent as regards its voting by
virtue of the Company's shares. Moreover, if the holdings
of a party fall below the Minimum Holding Percentage and
below 9% of the Company's issued share capital, that party
alone shall be bound by the provisions of Clause 2.4 of
this Agreement, without the other party being so bound,
provided that said party's rights pursuant to this
Agreement are not impaired.
Right of First Refusal
----------------------
5.13 A Transfer of Company Shares from the Core Shares by
either of the parties shall not be effective unless made
in accordance with the provisions of this Agreement
(including a forced sale in receivership or execution
proceedings).
5.14 If either of the parties (in this Clause the "Offeror")
wishes to Transfer all or any of the Core Shares it holds
to a third party, it shall first offer them to the other
party (in this Clause the "Offeree") on the terms and in
the manner set out below (in this Clause the "Offer"). The
parties hereby give their consent to the granting of a
temporary and/or permanent injunction against the making
of a transaction that does not comply with the terms of
the Clause, and they agree that any transaction whereby
either of the parties purports to Transfer the Company's
Shares otherwise than in accordance with these provisions
shall be null and void.
5.15 The Offer shall be made in writing and sent to the Offeree.
5.16 In the Offer, the Offeror shall detail the number of Core
Shares that are offered for Transfer (in this Clause the
"Offered Shares"), their class, the price requested for
each Share (which shall be payable only in cash) and all
the material commercial terms in connection with the
Transfer, together with the identity of the purchaser (in
this Clause the "Purchaser"), and insofar as the Purchaser
is a company, the identity of its controlling
shareholders, to the best of the Offeror's knowledge,
through the private individuals who control the Purchaser
and/or to the companies that control the Purchaser, whose
shares are listed for trading on a stock exchange in
Israel or the United States. Without derogating from the
provisions of Clause 5.22 below, in the case of a sale to
an insurance company in Israel, which is purchasing the
Shares for investments that are not for its "nostro"
and/or to a provident fund and/or trust fund and/or
pension fund in Israel, the Offeror shall be entitled to
detail a number of insurance companies that are purchasing
the Shares otherwise than for their "nostro", and/or
provident funds and/or trust funds and/or pension funds,
one of which will be the Purchaser. Moreover, in the event
of a sale to a provident fund or trust fund or pension
fund in Israel, the Offeror need not detail the identity
of their controlling shareholders. The Offeree shall keep
the contents of the Offer confidential, except as may be
necessary in order to exercise its rights pursuant to this
Agreement.
5.17 The Offeree shall be entitled to give written notice to
the Offeror within a period of 21 Business Days from the
date of receiving the Offer (in this Clause the "Notice
Period") that it wishes to accept the Offer and purchase
all the Shares offered at the price and on the terms of
the Offer (in this Clause the "Acceptance Notice") or that
it does not accept the Offer.
5.18 Should Acceptance Notice be given by the Offeree during
the Notice Period, the Shares offered shall be transferred
to the Offeree within 14 Business Days of the end of the
Notice Period (in this Clause the "Exercise Period"), Free
and Clear, in consideration for payment of the price
specified in the Offer and on the terms specified in the
Offer. Notwithstanding the foregoing if an approval
required by law for the Transfer of the Shares offered to
the Offeree cannot be obtained during the Exercise Period,
the Exercise Period shall be extended by a further period
of not more than 21 Business Day (hereinafter in this
Clause the "Additional Period"), provided that on
obtaining all the approvals required by law during the
Additional Period, the Shares offered shall be transferred
and the consideration for them shall be paid within two
Business Days of the end of the Additional Period.
5.19 Should Acceptance Notice not be given at the end of the
Notice Period or should notice be given to the effect that
the Offeree is not accepting the Offer (in this Clause the
"Rejection Notice") or should the transaction not be
completed within two Business Days of the end of the
Additional Period otherwise than due to the Offeror's
breach, the Offeror may Transfer to the Purchaser the
Shares offered
in consideration for the price specified in the Offer or
at a higher price and on the material commercial terms
prescribed in the Offer or commercial terms more favorable
to the seller, provided that the Shares offered shall be
transferred to the Purchaser and all the rights and
obligations in accordance with the provisions of this
Agreement shall be assigned to it, and provided that the
Purchaser assumes all the rights and obligations in
accordance with the provisions of this Agreement, subject
to the provisions of Clause 5.23 below, within a period of
90 Business Days from the end of the Notice Period or from
the time the Rejection Notice is given, whichever is
earlier.
5.20 For the purposes of Clauses 5.15 - 5.19 above, a Transfer
of Shares from the Core Shares by way of a distribution of
a dividend in kind by Koor to its shareholders shall be
treated as a Share Transfer made on the date determining
the rights to receive the dividend in kind by Koor's
shareholders, and such Transfer shall be treated as though
made at the average closing price of the Company's Share
on the Stock Exchange during the 12 trading days before,
and during the 12 trading days after, the date of giving
Koor's written Offer as provided in Clause 5.14 above.
5.21 Notwithstanding the provisions of this Clause 5, a
Transfer of Shares from the Core Shares by a party hereto
to a related entity shall not be subject to the provisions
of this Clause but such a Transfer shall be prohibited and
shall be ineffective unless the transferor and transferee
have jointly and severally assumed all the transferor's
obligations pursuant to this Agreement and confirmed the
same in a written notice given in advance to the other
party hereto, duly signed by the transferor and the
transferee. In this Agreement a "related entity" to a
party to the Agreement means a person or entity that
controls it or is controlled by it or is under the same
control as it, and also an entity to which Shares in the
Company are transferred by a party hereto in the course of
the transferor party's merger into that entity, pursuant
to which the transferor's legal personality is nullified.
5.22 Notwithstanding the provisions of this Clause 5, a sale on
the Stock Exchange of Shares from the Core Shares by a
party hereto shall not be subject to the provisions of
this Clause 5, provided that it meets all the following
conditions: (a) a party to this Agreement shall not sell
more than 3% of the Company's issued share capital during
a period of 12 months; and (b) a party to the Agreement
shall not sell more than 1.5% of the Company's issued
share capital in the course of one transaction or one act.
Nevertheless, if a party's total holdings of the Company's
Shares fall below 5% of the Company's issued share
capital, that party may sell the Shares in the course of
trading on the Stock Exchange without the application of
the provisions of Clauses
5.13 to 5.21. For the avoidance of doubt, the provisions
of this Clause 5 shall apply in full to a sale outside the
Stock Exchange of Shares from the Core Shares but they
shall not apply to a sale on the Stock Exchange or off the
Stock Exchange of Shares that are not Core Shares.
5.23 Condition for Transferring Shares and Joining the
Shareholders Agreement
--------------------------------------------------
Without derogating from the other provisions of this
Agreement, including this Clause 5, it is agreed that on
any Transfer of Shares from the Core Shares by a party
hereto (in this Clause the "Transferor Party") the
following provisions shall apply:
If the Transferor Party wishes to Transfer all or any of
the Core Shares it holds, the Transferor Party may not do
so and such a Transfer shall be ineffective unless the
recipient of the Shares being transferred (in this Clause
the "Acquiror") assumes all the rights and obligations
pursuant to this Agreement so that the Transferor Party
and the Acquiror shall be jointly entitled to the rights
of the Transferor Party pursuant to this Agreement (but
not more) and so that the Transferor Party and the
Acquiror shall be jointly and severally liable for all the
Transferor Party's obligations pursuant to this Agreement,
and provided that the number of shareholders that hold the
Transferor Party's rights and obligations pursuant to this
Agreement shall not exceed two.
6. Provisions Regarding the Appointment and Replacement of Directors
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6.1 If a party to this Agreement requests to replace or bring
to an end the term of office of a director nominated to
the Company's board of directors by that party, the
parties shall act insofar as necessary to hold a General
Meeting of the Company and vote in favor of a proposal to
remove such a director from office and appoint another
director in his place in accordance with the nomination of
the party seeking to remove such director from office as
aforesaid.
6.2 The parties shall vote against a proposal to remove a
member of the Company's board of directors from office, if
his nomination for the office was proposed by Koor or
Elbit, unless the party to this Agreement that nominated
said director's appointment directs otherwise in advance
and in writing.
6.3 If the position of a member of the board of directors who
was elected in accordance with the nomination of Koor or
Elbit is vacated for any reason, the parties shall act
insofar as necessary to hold a General
Meeting of the Company and vote in favor of removing from
office a director who has been appointed by the Company's
board of directors in place of the board member whose
position has been vacated, if so appointed, and in favor
of appointing the candidate nominated by Koor or Elbit, as
the case may be, for the position of board member instead
of the board member whose position has been vacated,
provided that such nominee meets the Qualification
Conditions.
6.4 Before any General Meeting of the Company on the agenda of
which is the appointment of directors in the Company, and
in accordance with the provisions of the Company's
articles of association and applicable law, each party
shall give written notice to the Company, with a copy to
the other, of the candidates nominated by it for the
position of director in the Company.
7. The Term of the Agreement
-------------------------
7.1 This Agreement shall enter into effect on the First
Closing Date and remain in force so long as the parties
hereto together hold Shares of the Company entitling them
to at least 15% of the voting rights in the Company,
provided that each party hereto holds Shares of the
Company.
7.2 Should the holdings of a party or the parties to this
Agreement, as the case may be, fall below the percentages
set out in Clause 7.1 above, this Agreement shall
automatically expire and not vest any rights in either of
the parties hereto or impose any obligations on either of
them. The provisions of the Agreement shall not be renewed
or again become effective, even if the holdings of a party
or parties to this Agreement increase after it has expired
as provided in this Clause.
8. Confidentiality and Notices
---------------------------
8.1 Subject to applicable law and the provisions of Clause 8.2
below, the parties shall not publish or provide
information to any third party in connection with this
Agreement without the other party's prior written consent
to the publication and its contents.
8.2 The parties shall provide all the reports required by
applicable law concerning entering into and performing
this Agreement as required by applicable law, by prior
coordination, if and insofar as legally possible, with the
other party hereto.
8.3 The parties shall use Confidential Information that comes
into their possession in connection with this Agreement or
the Company solely for the performance of their
obligations pursuant to this Agreement,
and they shall not in any manner provide Confidential
Information to any third party.
8.4 For the purpose of this Clause 8.3, "Confidential
Information" - means any information relating to the
parties hereto and/or the Company, other than (a)
information that was in the public domain or came into the
public domain otherwise than due to a breach of this
Agreement by a party hereto; and (b) information the
disclosure of which is required by law.
8.5 The obligations pursuant to Clauses 8.1 to 8.4 of this
Agreement are not limited in time.
9. Miscellaneous
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9.1 Any modification, amendment and/or addendum, waiver,
extension, concession or failure to exercise a right
pursuant to this Agreement shall only be effective if done
in an express document signed by all the parties hereto
and shall only apply to the case specified in such
document as aforesaid and shall not derogate from other
rights of a party pursuant to this Agreement.
9.2 The parties hereto may extend or reduce any time specified
in this Agreement and waive the performance of any of this
Agreement's provisions, either once or several times, by
written notice signed by two officers of Koor and of
Elbit, without any further authority being necessary.
9.3 No conduct by either of the parties shall be construed as
a waiver of any of its rights pursuant to this Agreement
and/or by law or as its waiver of or acquiescence in any
breach or non-performance of the terms of the Agreement by
the other party or as granting a postponement or extension
or as a modification, cancellation or addition of any
condition, unless done expressly and in writing.
9.4 This Agreement fully contains, embodies, merges, expresses
and exhausts all the understandings of the parties hereto
solely in respect of the matters mentioned herein. Any
promises, guarantees, undertakings or representations with
regard to the subject matter of this Agreement that were
given or made by the parties prior to entering into this
Agreement, in writing or orally, that are not specifically
expressed herein, shall not augment, modify or derogate
from the rights and obligations prescribed herein, and the
parties shall not be bound by them, insofar as they were
bound, as from the date of this Agreement. Without
derogating from the generality of the foregoing, the
documents exchanged between the parties before the
signature hereof, including the drafts exchanged between
them, shall have no significance in the interpretation of
this Agreement. For the avoidance of doubt, the terms of
the shareholders agreement made between Koor, Federmann
Enterprises Ltd. and HERIS AKTIENGESELLSCHAFT,
contemporaneously with the signature of this Agreement
shall not be applied in the interpretation of this
Agreement.
9.5 Unless otherwise expressly provided in this Agreement, the
parties hereto may not assign or transfer their rights or
obligations under this Agreement to any third party or
perform this Agreement through any third party, unless the
other party's prior written consent has been obtained, and
nothing in this Agreement shall be deemed to vest any
right in anyone who is not a party hereto.
9.6 Should either of the parties not enforce or delay in
enforcing any of the rights vested in it pursuant to this
Agreement and/or by law, in a particular case or series of
cases, such shall not be construed as a waiver of said
right or of any other rights.
9.7 This Agreement shall be governed by the laws of the State
of Israel. Sole and exclusive jurisdiction in all matters
relating to this Agreement is vested only in the courts of
the District Court in the City of Tel Aviv - Jaffa and in
them alone, and no other court shall have jurisdiction.
9.8 Notices under this Agreement shall be given in writing to
the parties' addresses as set out in the preamble hereto
and/or to such other addresses of which the parties give
notice in accordance with the provisions of this Clause.
Any notice sent by one party to the other by registered
mail shall be deemed to have reached the addressee
following the passage of three days from the date of being
posted and notice that is delivered in person by 17:00
hours on any Business Day shall be treated as received on
delivery, or if delivered after 17:00 hours on any
Business Day, then on the first Business Day after its
delivery.
9.9 The provisions of the Amendment shall become effective
immediately after obtaining (1) due approval of the
General Meeting of Elbit for Elbit to enter into the
Amendment and also (2) due approval of the General Meeting
of Elbit for Elbit to enter into the Elisra Transaction,
as defined in the Share Transfer Deed. If the approvals of
the General Meeting of Elbit as mentioned in (1) and (2)
above are not obtained by 6th September 2005 or if it is
not possible to complete Stage `B' of the Transaction on
the Second Closing Date (as those terms are defined in the
Share Transfer Deed after the Amendment) for any reason
save for
an impediment due to a breach of the Share Transfer Deed,
the provisions of the Amendment shall be ineffective and
neither of the parties shall have any claim or suit
against the other, without the same derogating from the
validity of the provisions of the Share Transfer Deed and
the provisions of this Agreement, as existing prior to
making the Amendment, and the original provisions of the
Share Transfer Deed and this Agreement, prior to the
Amendment, shall remain in force.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS AGREEMENT:
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxx
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KOOR INDUSTRIES LTD. ELBIT SYSTEMS LTD.