Exhibit 4.7
[TRANSLATED FROM THE HEBREW ORIGINAL]
SHARE TRANSFER DEED
Made and signed on the 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
---------------
AND
ELBIT SYSTEMS LTD.
Public Company No. 00-000000-0
of the Advanced Technology Center, Haifa 31053
("Elbit")
of the other part
-----------------
WHEREAS Koor is the holder of 3,944,276 Ordinary Shares of the
issued and paid up share capital of Tadiran Communications
Ltd., a public company duly incorporated in Israel, whose
number with the Companies Registrar is Public Company No.
00-000000-0 (hereinafter the "Company");
AND WHEREAS Koor wishes to sell and transfer to Elbit, in three
stages, 3,944,276 Ordinary Shares, which on the date of
signing this Deed constitute approximately 32% of the
Company's issued and paid-up share capital, while in the
first stage Koor will sell and transfer to Elbit 1,700,000
Ordinary Shares, which on the date of signing this Deed
constitute approximately 13.8% of the Company's issued and
paid-up share capital, in the second stage, Koor will sell
and transfer to Elbit 623,115 Ordinary Shares, constituting
approx. 5% of the
Company's issued and paid-up share capital and in the third
stage Koor will sell and transfer to Elbit 1,621,161
Ordinary Shares, which on the date of signing this Deed
constitute approximately 13.2% of the Company's issued and
paid-up share capital, subject to and in accordance with the
provisions of this Deed;
AND WHEREAS Elbit wishes to purchase and receive from Koor the
Shares Being Sold, subject to and in accordance with the
provisions of this Deed;
AND WHEREAS the performance of this Deed, in all its stages, is
subject to the Conditions Precedent as set out below in this
Deed;
AND WHEREAS Koor is interested in the performance of the
transaction contemplated by this Deed as part of an overall
transaction, in the scope of which Koor will purchase shares
of Elbit from Federmann Enterprises Ltd, as set out in the
Xxxx-Xxxxxxxxx Deed and this Deed;
AND WHEREAS the parties wish to set forth their relationship in
respect of the sale and purchase of the Shares Being Sold in
the context of this Deed.
NOW, THEREFORE, THE PARTIES HEREBY WARRANT, PROVIDE AND AGREE BETWEEN THEM AS
FOLLOWS:
1. Preamble, Appendices and Interpretations
----------------------------------------
1.1 The preamble and Appendices hereto constitute an integral
part hereof.
1.2 The clause headings in this Deed are solely for the sake
of convenience and shall not be applied in the
interpretation hereof.
2. Definitions
-----------
2.1 In this Deed, the following expressions shall have the
meanings herein ascribed to them, unless expressly stated
otherwise:
"Elbit" means as defined in the preamble hereto;
"Elisra" means Elisra Electronic Systems Ltd. , Private
Company No. 00-000000-0;
"General Meeting" means as defined in the Companies Law,
and any adjourned meeting;
"U.S. dollar" or "$" means United States dollars;
"Stock Exchange" means the Tel-Aviv Stock Exchange Ltd.;
"Company" means as defined in the preamble hereto;
"Shareholders Agreement" means an agreement between Koor
and Elbit in the form of Appendix "10.7" hereto, which is
to be signed contemporaneously with the signature of this
Deed and will take effect on the First Closing Date,
including the amendments thereto;
"Stage `A' Conditions Precedent" means the Conditions
Precedent for Stage `A' of the Transaction, as set out in
Appendix "9.2" hereto;
"Stage `C' Conditions Precedent" means the Conditions
Precedent for Stage `C' of the Transaction, as set out in
Appendix "12.2" hereto;
"Conditions Precedent" means the Stage `A' Conditions
Precedent and the Stage `C' Conditions Precedent;
"Companies Law" means the [Israel] Companies Law, 5759-1999;
"Business Day" means a day on which the two major banks in
Israel are open for business, other than Fridays and
holiday eves, which shall not be treated as a Business
Day;
"Koor" means as defined in the preamble hereto;
"First Closing Date" means the third Business Day after
the date on which all the Stage `A' Conditions Precedent
have been fulfilled or such later date as may be agreed by
the parties, as provided in Clause 20.3 below;
"Xxxx-Xxxxxxxxx Deed First Closing Date" means the First
Closing Date as the term is defined in the Xxxx-Xxxxxxxxx
Deed;
"Second Closing Date" means the third Business Day after
the date of receiving the due approvals of Elbit's General
Meeting for Elbit's execution of the Amendment and for
Elbit's execution of the Elisra Transaction or such later
date as may be agreed by the parties, as provided in
Clause 20.3 below;
"Third Closing Date" means the third Business Day after
the date on which all the Stage `C' Conditions Precedent
have been fulfilled or such later date as may be agreed by
the parties, as provided in Clause 20.3 below;
"Stage `A' Completion Deadline" means as defined in Clause
9.1 below;
"Stage `C' Completion Deadline" means as defined in Clause
12.1 below;
"Confidential Information" means all information relating
to the parties hereto or to 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 Deed
and (b) information the disclosure of which is required in
accordance with the provisions of applicable law;
"Ordinary Share" or "Ordinary Shares" means ordinary
shares of 1 NIS par value each of the Company's issued
capital;
"Stage `A' Shares" mean 1,700,000 (one million seven
hundred thousand) Ordinary Shares;
"Stage `B' Shares" mean 623,115 (six hundred and twenty
three thousand one hundred and fifteen) Ordinary Shares;
"Stage `C' Shares" mean 1,621,161 (one million six hundred
and twenty one thousand one hundred and sixty one)
Ordinary Shares;
"Xxxx-Xxxxxxxxx Deed Stage `A' Shares" means the Stage `A'
Shares as the term is defined in the Xxxx-Xxxxxxxxx Deed;
"Shares Being Sold" means the Stage `A' Shares, the Stage
`B' Shares and the Stage `C' shares;
"Federmann Enterprises" means Federmann Enterprises Ltd.,
Private Company No. 00-000000-0;
"Free and Clear" means free and clear of any charge,
pledge, attachment, levy, debt, lien, claim, right of
pre-emption, right of refusal, option, lock-up arrangement
or any additional or other third party right whatsoever;
"Elisra Transaction" means a transaction pursuant to which
Elbit will purchase shares from Koor constituting 70% of
Elisra's issued capital;
"Interest" means three-month LIBOR at Bank Leumi Le-Israel
B.M., plus annual interest at the rate of 1.5%, compounded
every three months;
"Deed" or "this Deed" means this Share Transfer Deed
together with all the Appendices hereto, including its
amendments;
"Xxxx-Xxxxxxxxx Deed" means the Share Transfer Deed
together with all the Appendices thereto made between Koor
and Federmann Enterprises contemporaneously with the
signature of this Deed, including its amendments ;
"Koor-Elbit Deed for the Sale of Shares in Elisra" means
the deed for the transfer of shares in Elisra, including
its appendices, made between Koor and Elbit,
contemporaneously with the signature of the Amendment, in
connection with the Elisra Transaction;
"Stage `A' of the Transaction" means as defined in Clause
8.1 below;
"Stage `B' of the Transaction" means as defined in Clause
10A below;
"Stage `C' of the Transaction" means as defined in Clause
11 below;
"Xxxx-Xxxxxxxxx Deed Stage `A'" means Stage `A' of the
transaction contemplated by the Xxxx-Xxxxxxxxx Deed as the
term is defined in the Xxxx-Xxxxxxxxx Deed;
"Stage `A' Consideration" means US$37 (thirty-seven U.S.
dollars) for each of the Stage `A' Shares, totalling
US$62,900,000 (sixty-two million
nine hundred thousand U.S. dollars), and insofar as all or
part of that amount is actually paid after April 1, 2005,
such amount shall be subject to the addition of Interest
from April 1, 2005 until the time of actual payment, all
subject to the adjustments as set out in Clause 15 below;
"Stage `B' Consideration" means US$37 (thirty-seven U.S.
dollars) for each of the Stage `B' Shares, totalling
US$23,055,255 (twenty three million fifty five thousand
two hundred and fifty five U.S. dollars), and insofar as
all or part of that amount is actually paid after April 1,
2005, such amount shall be subject to the addition of
Interest from April 1, 2005 until the time of actual
payment, all subject to the adjustments commencing on 27th
December 2004, as set out in Clause 15 below;
"Stage `C' Consideration" means US$37 (thirty-seven U.S.
dollars) for each of the Stage `C' Shares, totalling
US$59,982,957 (fifty nine million nine hundred and eighty
two thousand nine hundred and fifty seven U.S. dollars),
and insofar as all or part of that amount is actually paid
after April 1, 2005, such amount shall be subject to the
addition of Interest from April 1, 2005 until the time of
actual payment, all subject to the adjustments commencing
on 27th December 2004, as set out in Clause 15 below;
"Consideration" means the Stage `A' Consideration, the
Stage `B' Consideration and the Stage `C' consideration
together;
"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;
"Amendment" means the amendment to this Deed and to the
Shareholders' Agreement executed on 6th July 2005.
2.2 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".
2.3 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", "act" and
"Company Registrar".
3. Appendices
----------
The following Appendices, which constitute an integral part hereof,
are annexed to this Deed:
3.1 Appendix 9.2 - the Stage `A' Conditions Precedent;
3.2 Appendix 10.7 - the Shareholders Agreement between Koor
and Elbit, which is to be entered into contemporaneously
with the signature of this Deed and will take effect on
the First Closing Date;
3.3 Appendix 12.2 - the Stage `C' Conditions Precedent.
4. The Xxxx-Xxxxxxxxx Deed
-----------------------
Contemporaneously with the signing this Deed, the Xxxx-Xxxxxxxxx Deed
is also being signed. The Xxxx-Xxxxxxxxx Deed and this Deed are
separate and unrelated deeds, except as expressly provided in this
Deed. For the avoidance of doubt it is hereby clarified that Elbit is
not a party to the Xxxx-Xxxxxxxxx Deed, and the provisions of the
Xxxx-Xxxxxxxxx Deed do not impose any obligation, that is not
expressly provided in this Deed, on Koor to Elbit or on Elbit to
Koor.
5. The Parties' Warranties and Undertakings
----------------------------------------
The parties hereby warrant and undertake to each other as follows:
5.1 The representations and warranties of the parties in this
Deed are solely as set out in this Clause 5 and in Clauses
6 and 7 below, as the case may be.
5.2 The parties' warranties and undertakings as set out in
this Clause 5 and in Clauses 6 and 7 below, as the case
may be, will continue to be correct, complete and accurate
as of the First Closing Date, the Second Closing Date and
the Third Closing Date, and they shall be deemed as having
been given again by each of the parties on the First
Closing Date, the Second Closing Date and the Third
Closing Date.
6. Koor's Warranties and Undertakings
----------------------------------
Koor hereby warrants and undertakes to Elbit as follows:
6.1 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 threatened against it.
6.2 That on signing this Deed and until the completion of
Stage `A' of the Transaction it is and shall be the sole
owner of the Shares Being Sold (subject to the Fixed
Lien), and after the completion of Stage `A' of the
Transaction and until the completion of Stage `B' of the
Transaction it is and shall be the sole owner of the Stage
`B' Shares (subject to the Fixed Lien, as will be modified
as provided in Clause 10.3 below), after the completion of
Stage `B' of the Transaction and until the Stage `C'
Completion Deadline it is and shall be the sole owner of
the Stage `C' Shares (subject to the Fixed Lien, as
amended in accordance with clauses 10.3 and 10.3A below)
and that prior to completion of the Additional Stage of
the transaction, it shall be the sole owner of the
Additional Stage Shares (subject to the Fixed Lien, as
amended in accordance with clauses 10.3 and 10.3A), that
it has not granted any person or entity an option or right
to purchase all or any of the Shares Being Sold, that it
has not undertaken to grant such an option or right as
aforesaid, that no person or entity has any right of first
refusal or tag-along right in connection with all or any
of the Shares Being Sold and that on the date of signing
this Deed, apart from the Shares Being Sold, it does not
hold securities of the Company or any rights to receive or
acquire securities of the Company.
6.3 That the Shares Being Sold are fully paid and Free and
Clear, save for a fixed lien in favor of Bank Hapoalim
B.M.. (in this Deed the "Bank") over all the Shares Being
Sold, including all the rights, income and proceeds that
Koor now or in future has from them (in this Deed the
"Fixed Lien") and that in the context of the Fixed Lien
the Shares Being Sold are held in a trust account at the
Bank in the name of Poalim Trust Services Ltd. (in this
Deed the "Trust Account") and that on the First Closing
Date, upon the Stage `A' Consideration being received in
Koor's account, the Stage `A' Shares will be Free and
Clear and that on the Second Closing Date, upon the Stage
`B' Consideration being received in Koor's account, the
Stage `B' Shares will be Free and Clear, that on the Third
Closing Date, upon receipt of the Stage `C' Consideration
in Koor's Account, the Stage `C' Shares will be Free and
Clear and that on the Additional Closing Date, upon
receipt of the Additional Stage Consideration in Koor's
Account, the Additional Stage Shares shall be Free and
Clear.
6.4 That apart from Koor's board of directors' approval, Koor
has no need, including pursuant to its incorporation
documents and applicable law, in
Israel or abroad, to obtain any other approvals from any
of its organs for the purpose of entering into this Deed
and performing all its obligations pursuant hereto.
6.5 That subject to ratification by Koor's board of directors,
the signatories on Koor's behalf to this Deed and the
documents ancillary hereto are the persons who are
empowered, on Koor's behalf, to sign this Deed and the
documents ancillary hereto and/or necessary for the
performance hereof and to obligate Koor by their
signature, and this Deed, together with all its terms and
conditions, obligates Koor in all respects.
6.6 That subject to the approval of Koor's board of directors
and the fulfilment of the Conditions Precedent, there is
no legal or other impediment to its entering into this
Deed and the performance hereof and that this Deed 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 Koor
is a party, to its incorporation documents or to any other
obligation of Koor, whether by virtue of contract (oral,
by conduct or written) or by virtue of law.
6.7 That apart from Koor's board of directors' approval and
the Conditions Precedent, all the approvals, consents and
permits have been obtained and all the necessary
proceedings have been performed, including with any
authorities, government entities or any other body, for
the purpose of Koor's entering into this Deed and
performing its obligations pursuant hereto, including
transferring the Shares Being Sold to Elbit.
6.8 That from the time of Koor's acquisition of the Shares
Being Sold, Koor and/or its controlling shareholders
and/or officers have not entered into a transaction in
which any of them has a personal interest with the Company
and/or its subsidiaries, apart from the payment of
remuneration to the Company's directors, as customary with
the Company, and apart from arrangements for the grant of
relief, insurance and indemnity by the Company to the
Company's directors.
Nothing in this Clause 6.8 shall be deemed to prevent Koor
and the Company from entering into transactions to which
Elbit has given its consent by written notice signed by
two officers of Elbit, without any further approval being
necessary.
6.9 That as at the time of signing this Deed, the Company
and/or its subsidiaries have not entered into a
transaction in which Koor and/or its subsidiaries and/or
Koor's controlling shareholders and/or officers and/or
companies controlled by any of them have a personal
interest, other than:
(1) transactions in the ordinary course of business with
Elisra and its subsidiaries, the total financial value of
which does not exceed $5,000,000; (2) a transaction in
connection with the provision of warehousing services by
the Company to subsidiaries of Elisra; (3) payment of
remuneration to the Company's directors; (4) arrangements
for the grant of relief, insurance and indemnity by the
Company to the Company's directors; and that from the time
of signing this Deed until the Second Closing Date, the
Company and/or its subsidiaries will not enter into a
transaction in which Koor and/or its subsidiaries and/or
controlling shareholders and/or officers of Koor and/or
the companies controlled by any of them have a personal
interest, other than: (1) transactions in the ordinary
course of business with Elisra and its subsidiaries; (2)
transactions not in the ordinary course of business, the
total financial value of which does not exceed $5,000,000;
(3) a transaction in connection with the provision of
warehousing services by the Company to subsidiaries of
Elisra; (4) payment of remuneration to the Company's
directors as customary in the Company; and (5)
arrangements for the grant of relief, insurance and
indemnity by the Company to the Company's directors.
Nothing in this Clause 6.8 [sic] shall be deemed to
prevent Koor and the Company from entering into
transactions to which Elbit has granted its consent by
written notice signed by two officers of Elbit, without
any further approval being necessary.
6.10 That from the time the Shares Being Sold were acquired by
Koor until the time of signing this Deed, the Company had
not brought to Koor's attention nor given any report to
the public that any material agreement to which the
Company is a party had been terminated or modified or that
there was any intent to terminate or modify any material
agreement to which the Company is a party.
7. Elbit's Warranties and Undertakings
-----------------------------------
Elbit hereby warrants and undertakes to Koor as follows:
7.1 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.
7.2 That it has the ability and resources to perform its
obligations pursuant to this Deed in full and on time and
that it is in possession of the financial resources
sufficient for payment of the Consideration in full and at
the times set out in this Deed.
7.3 That apart from approval by Elbit's audit committee and
board of directors, Elbit has no need, including pursuant
to its incorporation documents and law, in Israel or
abroad, to obtain any other approvals from any of its
organs for the purpose of entering into this Deed and
performing all its obligations pursuant hereto, except for
approval by Elbit's General Meeting in accordance with
Section 275 of the Companies Law, if and insofar as not
yet obtained. At the time of signing this Deed, Elbit's
General Meeting's approval had not yet been obtained.
7.4 That subject to the approvals of Elbit's audit committee
and board of directors, the signatories on behalf of Elbit
to this Deed and the documents ancillary hereto are those
who are empowered, on Elbit's behalf, to sign this Deed
and the documents ancillary hereto and/or necessary for
the performance hereof, and to obligate Elbit by their
signatures, and this Deed, including all its terms and
conditions, obligates Elbit in all respects, subject to
obtaining Elbit's General Meeting's approval.
7.5 That subject to the approvals of Elbit's audit committee
and board of directors and the fulfilment of the
Conditions Precedent, there is no legal or other
impediment to its entering into and performing this Deed
and that this Deed 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 obligation of Elbit, whether by
virtue of contract (oral, by conduct or written) or by
virtue of law.
7.6 That apart from the approvals of Elbit's audit committee
and board of directors and apart from the Conditions
Precedent, including Elbit's General Meeting's approval,
all the approvals, consents and permits have been obtained
and all the necessary proceedings have been performed,
including with any authorities, government entities or any
other body, for the purpose of Elbit's entering into this
Deed and performing its obligations pursuant hereto,
including the acquisition from Koor of the Shares Being
Sold.
7.7 That on the date of signing this Deed it was the holder of
518,488 Ordinary Shares, and that on the date of signing
the Amendment, it holds 2,536,302 Ordinary Shares.
7.8 That subject only to Koor's warranties and representations
in Clauses 5 and 6 of this Deed, the Shares Being Sold are
being purchased in their actual condition, and the actual
condition of the Company and its assets, and they are "As
Is", without any other representations or warranties being
received from or on behalf of Koor and that the
Consideration, as agreed between the parties, has been
fixed having regard also to the fact that the purchase is
on such an "As Is" basis.
8. Stage `A' of the Transaction
----------------------------
8.1 On the First Closing Date and subject to the fulfilment of
Stage `A' Conditions Precedent by the Stage `A' Completion
Deadline, Koor shall sell and transfer to Elbit, on and
against payment of the whole of Stage `A' Consideration,
1,700,000 (one million seven hundred thousand) Ordinary
Shares (the Stage `A' Shares), fully paid and Free and
Clear, and Elbit shall purchase and receive from Koor the
Stage `A' Shares and pay Koor the full amount of the Stage
`A' Consideration (in this Deed "Stage `A' of the
Transaction").
8.2 Furthermore, on the First Closing Date, Koor shall
purchase from Federmann Enterprises 2,160,000 (two million
one hundred and sixty thousand) ordinary shares of 1 NIS
par value each of Elbit, which on the date of signing this
Deed constitute approximately 5.3% of Elbit's issued share
capital, in accordance with the Xxxx-Xxxxxxxxx Deed, which
is being signed contemporaneously with this Deed. The
Xxxx-Xxxxxxxxx Deed Stage `A' and Stage `A' of the
Transaction shall be performed contemporaneously, and
Stage `A' of the Transaction (contemplated by this Deed)
shall not be performed without the Xxxx-Xxxxxxxxx Deed
Stage `A' being performed.
8.3 For the avoidance of doubt, after the performance and
completion of Stage `A' of the Transaction, Stage `A' of
the Transaction will not be revoked, even if Stage `B' of
the Transaction is not performed or completed for any
reason.
9. The Stage `A' Completion Deadline and the Stage `A' Conditions
Precedent
--------------------------------------------------------------
9.1 In this Deed the "Stage `A" Completion Deadline" means:
9.1.1 15 April 2005 [extended by consent in the past];
or -
9.1.2 If by 15 April 2005 [extended by consent in
the past] all the Stage `A' Conditions
Precedent have been fulfilled, other than the
approval of the [Israel] Commissioner of
Restrictive Trade Practices, as set out in
Clause (3) of Appendix "9.2", the Stage `A'
Completion Deadline shall be automatically
deferred until
31 May 2005 or to such later date as may be
fixed by the parties as provided in Clause
20.3 below.
9.2 The Stage `A' Conditions Precedent are set out in Appendix
"9.2".
9.3 Should all the Stage `A' Conditions Precedent not have
been fulfilled by the Stage `A' Completion Deadline, this
Deed shall be void - except, if and insofar as Elbit's
General Meeting's approval for its entering into the
transaction contemplated by this Deed has been obtained,
the provisions of Clauses 14.3 (except insofar as concerns
the acquisition of Ordinary Shares), 14.5 and 17 hereof,
without either of the parties having any complaint and/or
claim and/or demand against the other. For the avoidance
of doubt, it is clarified that if the Stage `A' Conditions
Precedent have not been fulfilled by the Stage `A'
Completion Deadline, neither of the parties shall be
subject to any restriction as regards the acquisition of
Ordinary Shares.
Nothing in the provisions of this Clause 9.3 above shall
be deemed to derogate from any right or other remedy
pursuant to this Deed or by law that is available to the
parties in respect of a breach of any of the provisions of
this Deed (insofar as breached). Without prejudice to the
above provisions of this Clause 9.3, it is clarified that
no provision of this Deed shall obligate Elbit in any
manner whatsoever, prior to obtaining the approval of its
General Meeting, to enter into the transactions
contemplated by this Deed.
10. The First Closing Date
----------------------
Subject to the Stage `A' Conditions Precedent being fulfilled by the
Stage `A' Completion Deadline, the parties shall meet on the First
Closing Date at such place as determined by the parties and the
following interdependent acts shall be performed contemporaneously:
10.1 Elbit shall remit the Stage `A' Consideration by bank
transfer to Koor's bank account at the Bank, the details
of which shall be provided to it in writing by Koor by the
First Closing Date (in this Deed "Koor's Account") and
confirmation from the Bank shall be provided to Koor that
the Stage `A' Consideration has been received in Koor's
Account.
10.2 Koor shall provide Elbit confirmation from the Bank,
according to which the Bank agrees that on and against
receipt of the Stage `A' Consideration in Koor's Account,
it will discharge the Fixed Lien from the Stage `A'
Shares.
10.3 Koor shall provide Elbit a letter of instructions from the
Bank, in the Bank's standard form, addressed to the
Companies Registrar, pursuant to which the Bank applies to
the Companies Registrar to amend the Fixed Lien to the
effect that the Fixed Lien will be discharged from the
Stage `A' Shares.
10.4 Koor shall provide Elbit a written certificate from Poalim
Trust Services Ltd., in which Poalim Trust Services Ltd.
gives instructions to transfer the Stage `A' Shares from
the Trust Account to Elbit's securities account, the
details of which shall be provided to Koor by Elbit in
writing by the First Closing Date (hereinafter "Elbit's
Account").
10.5 Koor shall provide the Bank an irrevocable instruction to
transfer the Stage `A' Shares, by means of a transaction
outside the Stock Exchange, from the Trust Account to
Elbit's Account, and confirmation from the Bank that the
Stage `A' Shares have been received in Elbit's Account
shall be provided to Elbit.
10.6 Koor shall provide Elbit a copy of the Company's board of
directors' resolution to the effect that, subject to the
performance of Stage `A' of the Transaction, there shall
be added to the Company's board of directors and serve
thereon as directors such number of nominees as proposed
for office by Elbit, who meet the Qualification
Conditions, such that after their addition to the board of
directors, the number of directors proposed for office by
Elbit shall be the greater of:
(1) three directors; or
(2) a number of directors equal to 20% of the
number of the Company's directors (including
external directors and the directors who are
added in accordance with Elbit's nomination as
aforesaid), rounded up to the nearest whole
number (for example, if the number of
directors who are serving in the Company
immediately after the addition of Elbit's
nominees is 11, three nominees who have been
proposed by Elbit shall be added as
directors).
In said board of directors' resolution it shall be
provided that Elbit's nominees as aforesaid shall be added
to the Company's board of directors on the First Closing
Date.
Koor undertakes that there shall be sufficient vacancies
on the Company's board of directors to enable the addition
of Elbit's nominees as aforesaid.
If for any reason any of the nominees proposed by Elbit as
aforesaid cannot be appointed as a director or directors
of the Company, another nominee or nominees, as proposed
by Elbit, shall be appointed in his or their place.
Elbit shall give prior written notice to Koor and the
Company of the name of such nominees as aforesaid or of
the other nominees in their place, and Elbit (with the
assistance of Koor) shall coordinate with the Company's
corporate secretary such nominees' compliance with the
Qualification Conditions, all by no later than 14 days
prior to the earlier of (1) the Stage `A' Completion
Deadline or (2) the First Closing Date. Without prejudice
to the foregoing, if any of the nominees proposed by Elbit
as aforesaid is not added to the Company's board of
directors on the First Closing Date, Koor shall hold a
General Meeting of the Company as soon as possible, the
agenda of which shall be the appointment of the nominees
proposed by Elbit, who have not been appointed as
aforesaid, as directors of the Company. Koor undertakes to
vote in favor of the appointment of the nominees proposed
by Elbit who have not been appointed as aforesaid but who
do meet the Qualification Requirements. If and insofar as
it is required by law that a majority of the Company's
directors meet any Qualification Requirements, then if the
number of directors appointed in accordance with Elbit's
nomination is an equal number, one half of the directors
appointed in accordance with Elbit's nomination as
aforesaid shall meet said conditions, and if the number of
directors appointed in accordance with Elbit's nomination
is an odd number, the majority of the Company's directors
who are appointed in accordance with Elbit's nomination as
aforesaid shall meet the above conditions.
10.7 The Shareholders Agreement, in the terms annexed hereto as
Appendix "10.7", shall become effective.
10.8 Koor shall provide Elbit a written declaration, duly
signed by Koor, according to which all the warranties and
representations of Koor as set out in Clauses 5 and 6 of
this Deed are also correct, complete and accurate as of
the First Closing Date.
10.9 Elbit shall provide Koor a written declaration, duly
signed by Elbit, according to which all the warranties and
representations of Elbit as set out in Clauses 5 and 7 of
this Deed are also correct, complete and accurate as of
the First Closing Date.
10.10 The Xxxx-Xxxxxxxxx Deed Stage `A' shall be completed,
namely all the acts that are to be performed on the
Xxxx-Xxxxxxxxx Deed First Closing
Date shall be performed, as provided in Clause 10 of the
Xxxx-Xxxxxxxxx Deed.
10.11 Each party undertakes to do all the acts for which it is
responsible pursuant to this Clause 10.
10.12 All the acts mentioned above in this Clause 10 shall be
deemed as having been performed contemporaneously, no
individual act shall be deemed as completed and no
individual document shall be deemed as delivered until all
such acts have been completed and all the documents have
been delivered.
10A. Stage `B' of the Transaction
----------------------------
On the Second Closing Date, Koor shall sell and transfer to Elbit,
against payment of the full Stage `B' Consideration, 623,115 (six
hundred and twenty three thousand one hundred and fifteen) Ordinary
Shares (Stage `B' Shares), fully paid and Free and Clear, and Elbit
shall purchase and accept on transfer the Stage `B' Shares from Koor
and pay Koor the full Stage `B' Consideration (hereinafter in this
Deed referred to as "Stage `B' of the Transaction"), and the parties
shall meet at such place as determined by them and the following
interdependent acts shall be performed contemporaneously:
10A.1 Elbit shall remit the Stage `B' Consideration by bank
transfer to Koor's Account, and confirmation from the Bank
shall be provided to Koor that the Stage `B' Consideration
has been received in Koor's Account.
10A.2 Koor shall provide Elbit confirmation from the Bank,
according to which the Bank agrees that on and against
receipt of the Stage `B' Consideration in Koor's Account,
it will discharge the Fixed Lien from the Stage `B'
Shares.
10A.3 Koor shall provide Elbit a letter of instructions from the
Bank, in the Bank's standard form, addressed to the
Companies Registrar, pursuant to which the Bank applies to
the Companies Registrar to strike out the Fixed Lien from
the Stage `B' Shares.
10A.4 Koor shall provide Elbit a written certificate from Poalim
Trust Services Ltd., in which Poalim Trust Services Ltd.
gives instructions to transfer the Stage `B' Shares from
the Trust Account to Elbit's Account.
10A.5 Koor shall provide the Bank an irrevocable instruction to
transfer the Stage `B' Shares, by means of a transaction
outside the Stock Exchange,
from the Trust Account to Elbit's Account, and
confirmation from the Bank that the Stage `B' Shares have
been received in Elbit's Account shall be provided to
Elbit.
10A.6 Koor shall provide Elbit a written declaration, duly
signed by Koor, according to which all the warranties and
representations of Koor as set out in clauses 5 and 6 of
this Deed are also correct, complete and accurate as of
the Second Closing Date.
Elbit shall provide Koor a written declaration, duly
signed by Elbit, according to which all the warranties and
representations of Elbit as set out in Clauses 5 and 7 of
this Deed are also correct, complete and accurate as of
the Second Closing Date.
10A.7 Each party undertakes to do all the acts for which it is
responsible pursuant to this Clause 10A.
10A.8 All the acts mentioned above in this Clause 10A shall be
deemed as having been performed contemporaneously, no
individual act shall be deemed as completed and no
individual document shall be deemed as delivered until all
such acts have been completed and all the documents have
been delivered.
10A.9 From the date of completion of Stage `B' of the
Transaction, the arrangements between the parties set
forth in clause 5 of the Shareholders' Agreement, with all
its sub-clauses, shall apply and in such context directors
will be appointed to the Company's board of directors in
accordance with Elbit's recommendation, as provided in
clause 5 of the Shareholders' Agreement, and the chairman
shall be appointed for the Company's board of directors in
accordance with Elbit's recommendation, as provided in
clause 5 of the Shareholders' Agreement.
10A.10 For the avoidance of doubt, the approvals required and the
conditions precedent for the Elisra Transaction, including
the Director of Restrictive Trade Practices' approval of
the Elisra Transaction, but save for the approval of
Elbit's General Meeting for Elbit's execution of the
Elisra agreement, that shall constitute a condition for
the entry into force of the Amendment and will accordingly
constitute a condition for the completion of Stage `B', do
not constitute conditions for the completion of Stage `B'
of the Transaction.
11. Stage `C' of the Transaction
----------------------------
On the Third Closing Date and subject to the fulfilment of the Stage
`C' Conditions Precedent by the Stage `C' Completion Deadline, Koor
shall sell and transfer to Elbit, on and against payment of the full
Stage `C' Consideration, 1,621,161 (one million six hundred and
twenty one thousand one hundred and sixty one) Ordinary Shares (the
Stage `C' Shares), fully paid and Free and Clear, and Elbit shall
purchase and receive from Koor the Stage `C' Shares and pay Koor the
full amount of the Stage `C' Consideration (hereinafter in this Deed
"Stage `C' of the Transaction").
12. The Stage `C' Completion Deadline and the Stage `C' Conditions
Precedent
---------------------------------------------------------------
12.1 In this Deed the "Stage `C' Completion Deadline" means:
6 September 2005; however, this date shall be
automatically extended if and insofar as the Deadline for
Completion of the Elisra Transaction is extended as
provided in the Koor-Elbit Deed for the Sale of Shares in
Elisra - and to the extended date.
12.2 The Stage `C' Conditions Precedent are set out in Appendix
"12.2".
12.3 Should all the Stage `C' Conditions Precedent not be
fulfilled by the Stage `C' Completion Deadline, Stage `C'
of the Transaction shall not be performed, the provisions
in connection with the performance of Stage `C' of the
Transaction in this Deed (save for the provisions of
Clause 13A below) shall be deemed null and void and be of
no effect and, inter alia, Koor shall not sell Elbit the
Stage `C' Shares and Elbit shall not pay the Stage `C'
Consideration to Koor, and neither party shall have any
demand, claim or complaint against the other in connection
with Stage `C' of the Transaction. For the avoidance of
doubt, it is clarified that the foregoing provisions of
this Clause 12.3 shall not be deemed to derogate from the
validity of any other provision, including the provisions
of Clauses 14.3 (except insofar as concerns the
acquisition of Ordinary Shares) and the provisions of
Clause 13A below or the provisions of the Shareholders
Agreement, which shall enter into effect on the First
Closing Date, or from any other right or remedy pursuant
to this Deed or by law that is available to the parties in
respect of a breach of any of the provisions of this Deed
(if and insofar as breached); however, it is expressed
that the non-completion of Stage `C' as aforesaid, shall
not cancel the acts done in the framework of the
completion of Stage `A' of the Transaction or Stage `B' of
the Transaction.
13. The Third Closing Date
----------------------
Subject to the fulfilment of the Stage `C' Conditions Precedent by
the Stage `C' Completion Deadline, save for completion of the Elisra
Transaction, which - subject to Clause 13.9 below - will be performed
contemporaneously and together with the completion of Stage `C' as
set forth below, the parties shall meet on the Third Closing Date at
such place as determined by them, and the following interdependent
acts shall be performed contemporaneously:
13.1 Elbit shall remit the Stage `C' Consideration by bank
transfer to Koor's Account, and confirmation from the Bank
shall be provided to Koor that the Stage `C' Consideration
has been received in Koor's Account.
13.2 Koor shall provide Elbit confirmation from the Bank,
according to which the Bank agrees that on and against
receipt of the Stage `C' Consideration in Koor's Account,
it will discharge the Fixed Lien from the Stage `C'
Shares.
13.3 Koor shall provide Elbit a letter of instructions from the
Bank, in the Bank's standard terms, addressed to the
Companies Registrar pursuant to which the Bank applies to
the Companies Registrar to discharge the Fixed Lien from
the Stage `C' Shares.
13.4 Koor shall provide Elbit a written certificate from Poalim
Trust Services Ltd. in which it provides instructions to
transfer the Stage `C' Shares from the Trust Account to
Elbit's Account.
13.5 Koor shall provide the Bank an irrevocable instruction to
transfer the Stage `C' Shares by means of a transaction
outside the Stock Exchange from the Trust Account to
Elbit's Account, and confirmation from the Bank that the
Stage `C' Shares have been received in Elbit's Account
shall be provided to Elbit.
13.6 The parties shall act towards the addition to the
Company's board of directors on the Third Closing Date of
such number of nominees who are proposed for their office
by Elbit and meet the Qualification Requirements so that
on the appointment of those nominees to the Company's
board of directors those nominees will, together with the
directors appointed to their office per Elbit's nomination
as provided in Clauses 10.6 and 10A.9 above, constitute
more than 50% of the total directors of the Company at
that time, including external directors and directors who
are appointed to their position per Elbit's nomination as
aforesaid. Without prejudice to the generality of the
foregoing, Koor undertakes that there will be sufficient
vacancies on the Company's board of directors for the
performance of its foregoing obligations.
Elbit shall provide Koor and the Company prior written
notice of its nominees as aforesaid or of the other
nominees in their place as provided below in this Clause,
and Elbit shall coordinate with the Company's corporate
secretary such nominees' compliance with all the
conditions required of the Company's directors, all by no
later than 14 days from the earlier of (1) the Stage `C'
Completion Deadline or (2) the Third Closing Date. If for
any reason any of such nominees as aforesaid cannot be
appointed as a director or directors of the Company,
another nominee or nominees, as proposed by Elbit, who
meet the Qualification Requirements, shall be appointed in
his or their place.
13.7 Koor shall provide Elbit a written declaration duly signed
by Koor according to which all Koor's warranties and
representations as set out in Clauses 5 and 6 of this Deed
are also correct, complete and accurate as of the Third
Closing Date.
13.8 Elbit shall provide Koor a written declaration duly signed
by Elbit according to which all Elbit's warranties and
representations as set out in Clauses 5 and 7 of this Deed
are also correct, complete and accurate as of the Third
Closing Date.
13.9 All the acts required for the execution and completion of
the Elisra Transaction, as prescribed in the Koor-Elbit
Deed for the Sale of Shares in Elisra, shall be performed,
and Stage `C' of this Transaction, shall be performed
contemporaneously and together with the completion of the
Elisra Transaction, and Stage `C' of this Transaction
shall not be completed without the completion of the
Elisra Transaction and vice versa. Notwithstanding the
aforesaid, if any impediment arises to the completion of
the Elisra Transaction and the other Stage `C' Conditions
Precedent have been fulfilled, Koor may, in its
discretion, decide that Stage `C' of the Transaction will
be completed without the completion of the Elisra
Transaction. The aforesaid does not derogate from the
parties' obligations pursuant to Clause 14.1 below, or
from the parties' rights pursuant to the Koor-Elbit Deed
for the Sale of Shares in Elisra; however, notwithstanding
the aforesaid, if on the Stage `C' Completion Deadline any
impediment exists to the completion of the Elisra
Transaction in consequence of a breach of the Koor-Elbit
Deed for the Sale of Shares in Elisra by Koor, Stage `C'
of this Transaction shall be completed, even though it is
not possible to complete the Elisra Transaction on the
Third Closing Date.
13.10 Each party undertakes to perform all the acts for which it
is responsible pursuant to this Clause 13.
13.11 All the acts mentioned above in this Clause 13 shall be
deemed as having been performed contemporaneously, no
individual act shall be deemed as having been completed
and no individual document shall be construed as delivered
until all such acts are completed and all the documents
are delivered.
13A. The Additional Stage
--------------------
If the Elisra Transaction has not been completed by the Stage `C'
Completion Deadline and the provisions of Clause 12.3 above apply,
the following provisions shall apply:
13A.1 If all the following conditions have been fulfilled:
(a) all the consents and approvals required have been
received and all the conditions precedent for the
Elisra Transaction, as set forth in the
Koor-Elbit Deed for the Sale of Shares in Elisra,
have been fulfilled, including the approval of
Elbit's General Meeting for the Elisra
Transaction, by the Completion Deadline (as
defined in the Koor-Elbit Deed for the Sale of
Shares in Elisra), but it is not possible to
complete the Elisra Transaction because of (1)
the objection of the Director of Restrictive
Trade Practices or (2) the cancellation of the
Koor-Elbit Deed for the Sale of Shares in Elisra
in accordance with the provisions of clause 7.5
of the Koor-Elbit Deed for the Sale of Shares in
Elisra;
(b) Elbit has made every possible effort to bring
about completion of the Elisra Transaction;
(c) a transaction has been completed in the framework
of which Koor sold to a third party all its
holdings in Elisra, for a consideration and on
terms and conditions equal to those prescribed in
the Koor-Elbit Deed for the Sale of Shares in
Elisra ("Original Transaction Consideration"), or
better than them, and such transaction was
completed within 16 months of the date of signing
the Amendment,
on the Additional Closing Date, as defined below, Koor
shall sell and transfer to Elbit and Elbit shall purchase
all the Stage `C' Shares held at such time by Koor
("Additional Stage Shares"), against payment of a sum of
US$ 37 (thirty seven US dollars) plus the Interest, from 1
April 2005 until the actual payment date, all subject to
adjustments from 27th December 2004 as set forth in clause
15 below ("Additional Stage Consideration") for each of
the Additional Stage Shares ("Additional Stage"), and the
provisions of Clause 13A.3 shall apply.
13A.2 If the conditions set forth in sub-clauses 13A.1(a) and
(b) above have been fulfilled, and a transaction has been
completed in the framework of which Koor sold to a third
party all its holdings in Elisra, for a consideration and
on terms and conditions inferior to the Original
Transaction Consideration ("Alternative Transaction
Consideration"), and such transaction was completed within
16 months from the date of the signing the Amendment,
Elbit shall have the right, in its exclusive discretion,
to pay Koor within 10 (ten) business days from the date of
completion of the Elisra Transaction as aforesaid, an
amount equal to the difference between the Original
Transaction Consideration and the Alternative Transaction
Consideration, and against this payment and payment of the
Additional Stage Consideration, Koor shall sell and
transfer to Elbit and Elbit shall purchase all the
Additional Stage Shares, and the provisions of Clause
13A.3 shall apply.
13A.3 On the third business day after the day of fulfilment of
all the conditions mentioned in Clause 13A.1 or all the
conditions mentioned in Clause 13A.2 ("Additional Closing
Date"), the parties shall meet at such place as determined
by them, and the following interdependent acts shall be
performed contemporaneously:
(a) Elbit shall transfer the Additional Stage
Consideration by bank transfer to Koor's Account,
and confirmation from the Bank shall provided to
Koor that the Additional Stage Consideration has
been received in Koor's Account.
(b) Koor shall provide Elbit confirmation from the
Bank, according to which the Bank agrees that on
and against receipt of the Additional Stage
Consideration in Koor's Account, it will
discharge the Fixed Lien from the Additional
Stage Shares.
(c) Koor shall provide Elbit a letter of instructions
from the Bank, in the Bank's standard form,
addressed to the Companies Registrar, pursuant to
which the Bank applies to the Companies Registrar
to strike out the Fixed Lien over the Additional
Stage Shares.
(d) Koor shall provide Elbit a written certificate
from Poalim Trust Services Ltd., in which Poalim
Trust Services Ltd. gives instructions to
transfer the Additional Stage Shares from the
Trust Account to Elbit's Account.
(e) Koor shall provide the Bank an irrevocable
instruction to transfer the Additional Stage
Shares, by means of a transaction outside the
Stock Exchange, from the Trust Account to Elbit's
Account, and confirmation from the Bank that the
Additional Stage Shares have been received in
Elbit's Account shall be provided to Elbit.
(f) Koor shall provide Elbit a written declaration,
duly signed by Koor, according to which all the
warranties and representations of Koor as set out
in clauses 5 and 6 of this Deed are also correct,
complete and accurate as of the Additional
Closing Date.
(g) Elbit shall provide Koor a written declaration,
duly signed by Elbit, according to which all the
warranties and representations of Elbit as set
out in Clauses 5 and 7 of this Deed are also
correct, complete and accurate as of the
Additional Closing Date.
(h) Each party undertakes to do all the acts for
which it is responsible pursuant to this Clause
13A.
(i) All the acts mentioned above in this Clause 13A
above shall be deemed as having been performed
contemporaneously, no individual act shall be
deemed as completed and no individual document
shall be deemed as delivered until all such acts
have been completed and all the documents have
been delivered.
It is agreed that the provisions of this Clause 13A do not
impose any obligation on Koor to sell the Elisra shares,
and that the provisions of this clause 13A do not impose
any additional restriction, or establish any additional
obligation, over and beyond as provided in this Deed and
in the Shareholders Agreement, insofar as existing, in
connection with the purchase or sale of shares in Tadiran
Communications, including Stage `C' Shares, by Koor or
Elbit.
14. Acts and Obligations after the Signature of this Deed
-----------------------------------------------------
14.1 Immediately after the signature of this Deed, the parties
shall act and use their best efforts to cause the
fulfilment of all the Conditions Precedent, including
obtaining all the required certificates, permits and
consents, as early as possible. In such connection and
without derogating from the generality of the foregoing,
the parties shall apply to every competent authority and
to every other entity whose approval is necessary for the
performance of the transaction involved in this Deed, in
all its stages, they shall submit all the applications and
deliver all the information, data and particulars in their
possession, without delay, and act to resolve or avoid a
disapproval, if any, by the various government authorities
in any respect relating to or arising out of this Deed.
14.2 It is hereby agreed that the provisions of this Deed are
not such as to place either of the parties under a duty to
make any payment for the fulfilment of the Conditions
Precedent or any of them, other than official fees and
other reasonable expenses (such payment as aforesaid,
excluding official fees and other reasonable expenses as
aforesaid, a "Fulfilment Payment"), provided that if a
party to this Deed refuses to make a Fulfilment Payment,
the other party may make it for the fulfilment of all or
any of the Conditions Precedent, provided that the first
party shall not be liable to
indemnify the other party in respect of a Fulfilment
Payment, and the party that makes the Fulfilment Payment
shall have no demand, claim or right of recourse against
the other party in respect of the making of such payment.
14.3 Subject to the provisions of Clause 9.3 above and Clause
14.4 below, from the date of signing this Deed until the
earlier between the Third Closing Date or the Stage `C'
Completion Deadline (the "Lock-up Period"), Koor and Elbit
shall not conduct any transaction (including any transfer,
sale or acquisition) in Ordinary Shares, either on or
outside the Stock Exchange, unless otherwise agreed
between the parties, by written notice signed by two
officers of each of Koor and Elbit, without any further
approval being necessary. Said obligation shall continue
in force even if this Deed is cancelled for any reason,
save for rescission due to its breach by Koor and except
if Elbit exercises its right to rescind the Deed pursuant
to the provisions of Clause 16.1 below.
For the avoidance of doubt, Koor shall not sell or
transfer the Stage `C' Shares prior to the Third Closing
Date or the Stage `C' Completion Deadline, whichever is
earlier. In addition, Koor shall not sell or transfer the
Stage `B' Shares prior to the Second Closing Date or the
Stage `B' Completion Deadline, whichever is earlier.
14.4 Notwithstanding as provided in Clause 14.3 above, during
the Lock-up Period each party may purchase, either on or
outside the Stock Exchange, up to 350,000 Ordinary Shares
(the "Acquirable Quantity") without the other party's
consent, provided that it gives written notice to the
other party of the purchase of the shares and the quantity
of shares purchased within 48 hours of making each
purchase. Should one party purchase 350,000 Ordinary
Shares (in this Clause the "Purchasing Party") and the
other party not purchase 350,000 Ordinary Shares, the
Purchasing Party may send written notice to the other
party (in this Clause the "Purchase Notice") stating that
it wishes to purchase additional shares of the Company in
a quantity not exceeding the difference between 350,000
Ordinary Shares and the quantity of shares purchased under
this Clause by the other party (in this Clause the
"Acquirable Shares"). Should 14 days elapse from the date
of providing the Purchase Notice (in this Clause the
"Other Party's Purchase Period") and the other party not
have purchased all the Acquirable Shares in trading on the
Stock Exchange, the Purchasing Party may purchase the
Acquirable Shares in trading on the Stock Exchange within
14 days of the end of the other party's Purchase Period.
Should the Purchasing Party not purchase the Acquirable
Shares during said period, it shall be responsible to
provide the other party Purchase Notice in order to
purchase additional shares.
14.5 Notwithstanding the provisions of Clauses 14.3 and 14.4
above and in addition to the provisions of Clause 14.4, as
of the Second Closing Date, and subject to completion of
Stage `B' of the Transaction, Elbit may purchase Ordinary
Shares subject to (1) the provisions of the Shareholders
Agreement; (2) the provisions of any law governing a
purchase as aforesaid; and (3) the joint holdings as
defined in the Shareholders Agreement, after the purchase
as aforesaid, not exceeding 55% of the Company's issued
share capital.
14.6 Without prejudice to Clauses 15 and 16 below, Koor hereby
undertakes that from the date of the signature of this
Deed until the earlier of: (1) the Stage `A' Completion
Deadline, if the Stage `A' Conditions Precedent have not
been fulfilled by that time; or (2) the Second Closing
Date, if Stage `B' of the Transaction has not been
completed by the Second Closing Date; or (3) the Stage `C'
Completion Deadline, if the Stage `C' Conditions Precedent
have not been fulfilled by such time; or (4) the Third
Closing Date, Koor and/or its subsidiaries and/or the
controlling shareholders and/or officers of Koor and/or
companies under the control of any of them shall not enter
into an extraordinary transaction with the Company, in
which any of them has a personal interest.
14.7 Subject to applicable law and except for the purpose
mentioned in Clause 3.4.3 of the Shareholders Agreement,
Koor, as a shareholder of the Company, undertakes that
after the Company's annual General Meeting that is held
after the date of signing this Deed, it will not act to
hold an annual General Meeting of the Company before the
Stage `C' Completion Deadline, unless Elbit consents
thereto by written notice signed by two officers of Elbit,
without any further approval being necessary.
15. Modifications to the Consideration or the Number of Shares Being Sold
---------------------------------------------------------------------
15.1 During the period from the date of signing this Deed until
the earlier of: (1) the Stage `A' Completion Deadline, if
the Stage `A' Conditions Precedent have not been fulfilled
by that time; (2) the Second Closing Date, if Stage `B" of
the Transaction has not been completed by the Second
Closing Date; or (3) the Stage `C' Completion Deadline, if
the Stage `C' Conditions Precedent have not been fulfilled
by such time; or (4) the Third Closing Date; Koor shall,
insofar as it is able, oppose and vote by virtue of all
the Company's Shares that it holds at that time against
any resolution concerning: (a) the making of any
distribution whatsoever, whether in cash or in kind, or by
a distribution of bonus shares, to the Company's
shareholders, except from the distribution of a regular
cash dividend of not more than 1.5 NIS per Ordinary Share
in any calendar quarter; (b) a rights offering for the
acquisition of any securities of the Company; (c) a sale
of the Company's shares that are held by the Company or
its subsidiaries; (d) any modification to the Company's
incorporation documents, except for the purpose of
increasing the Company's authorized share capital; (e)
transactions that are not in the ordinary course of the
Company's business and transactions that concern an
investment or acquisition of rights in entities and/or the
acquisition of businesses (Asset Transactions) (in this
Deed the "New Transactions"), the aggregate financial
amount of which exceeds $25,000,000; (f) any allotment of
the Company's securities except for an allotment of shares
deriving from the exercise of options existing at the time
of signing this Deed and, without derogating from the
provisions of Clause 14.5 above, except for an allotment
of options to employees of the Company or its subsidiaries
in a proportion not exceeding 2% of the Company's issued
share capital and on the Company's customary terms, all
unless Elbit's consent thereto is provided by written
notice to be signed by two officers of Elbit, without any
further approval being necessary.
15.2 Insofar as during the period from the date of signing this
Deed until the First Closing Date or until the Second
Closing Date or until the Third Closing Date or until the
Additional Closing Date, as the case may be, one or more
of the below-mentioned events occurs, despite or in
accordance with the provisions of Clause 15.1 above, the
Consideration or number of the Shares Being Sold, as the
case may be, shall be adjusted in accordance with the
following provisions:
15.2.1 If the Company resolves to make any
distribution to its shareholders, the
Consideration shall be subject to the
deduction of any amount (translated into
dollars at the representative exchange rate on
the earlier of the date of actually making the
distribution or the First Closing Date or the
Second Closing Date or the Third Closing Date
or the Additional Closing Date, as the case
may be) that Koor will be entitled to receive
in respect of the Shares Being Sold (gross)
(namely the record date for its distribution
is prior to the First Closing Date or the
Second Closing Date or the Third Closing Date
or the Additional Closing Date, as the case
may be).
15.2.2 If the Company offers its shareholders rights
for the acquisition of any securities, the
record date for the exercise of which is prior
to the First Closing Date or the Second
Closing Date or the Third Closing Date or the
Additional Closing Date, as the case may be,
the amount of the Consideration shall be
adjusted for the bonus element embodied (if at
all) in the rights, unless Elbit instructs
Koor in writing prior to the exercise date in
respect of
those rights to exercise the rights and in
such event Koor shall exercise the rights by
virtue of the Shares Being Sold which have not
yet been transferred to Elbit as of that time
and it shall transfer to Elbit, immediately on
the occurrence of the earlier of (1) the
exercise date or (2) the First Closing Date,
or after the Second Closing Date, or after the
Third Closing Date or after the Additional
Closing Date, as the case may be, the
securities exercised as aforesaid on and
against payment of the entire exercise amount
paid by Koor to the Company for the exercise
thereof, plus Interest from the date of Koor's
paying the exercise price to the date of
actual payment to Koor by Elbit.
15.2.3 If the Company distributes bonus shares or
dividends in kind to its shareholders before
the First Closing Date or the Second Closing
Date or the Third Closing Date or the
Additional Closing Date, as the case may be,
the Consideration shall not be adjusted but
the Shares Being Sold shall be subject to the
addition of the bonus shares, Free and Clear,
or of assets received as dividends in kind
(gross) in respect of the Shares Being Sold,
Free and Clear, without Elbit being required
to pay additional consideration for them.
15.2.4 If the Company makes a consolidation,
reduction or sub-division of its share capital
or does any other act of similar effect, the
Stage `A' Consideration and/or the Stage `B'
Consideration and/or the Stage `C'
Consideration and/or the Additional Stage
Consideration, as the case may be, shall be
adjusted and the number of Shares Being Sold
shall also be adjusted pro rata to the
consolidation or sub-division.
16. Elbit's Right to Rescind the Deed
---------------------------------
16.1 On the occurrence of one or more of the events set out in
Clause 16.2 below, unless it occurs with Elbit's consent,
Elbit may rescind any of the stages of this Deed before it
has been completed and performed (provided that if one of
the events set out in Clause 16.2 below occurs before the
performance of Stage `A' of the Transaction, Elbit may
only rescind this Deed in full). Such rescission shall be
effected by Elbit by written notice, to be received by
Koor within 10 Business Days of the date on which Elbit
learns of the occurrence of one of the events set out in
Clause 16.2 below. Should Elbit provide such notice of the
rescission of this Deed after the completion of Stage `A'
of the Transaction, the sale of the Stage `A' Shares to
Elbit shall not be rescinded, Elbit shall not return to
Koor the Stage `A' Shares and Koor shall not refund to
Elbit the Stage `A'
Consideration, and nevertheless, all the parties' other
obligations and rights pursuant to this Deed and the
Appendices hereto, except for the Shareholders Agreement,
shall be void. If Elbit has given notice as aforesaid of
this Deed's rescission, after the completion of Stage `A'
of the Transaction or Stage `B' of the Transaction, as the
case may be, the sale of the Stage `A' Shares or the Sale
of the Stage `B' Shares to Elbit as the case may be shall
not be rescinded, and Elbit shall not return the Stage `A'
Shares or the Stage `B' Shares, as the case may be, to
Koor, and Koor shall not return the Stage `A'
Consideration or the Stage `B' Consideration, as the case
may be, to Elbit; however, all the other rights and
obligations of the parties pursuant to this Deed and its
appendices, save for the Shareholders Agreement, shall be
rescinded.
For the avoidance of doubt, it is clarified that after
Elbit has given notice in accordance with this Clause
16.1, Elbit may sell Ordinary Shares held by it or
purchase Ordinary Shares without any restriction.
16.2 The events are as follows:
16.2.1 If a receiver or temporary receiver and/or
temporary liquidator and/or liquidator and/or
trustee is appointed for the Company and/or if
a winding-up order and/or receivership order
and/or suspension of proceedings order is
awarded against it and/or if any of the
Company's material assets is attached,
provided that such appointment, order or
attachment is not set aside within 30 days.
16.2.2 If the Company enters into merger proceedings
as provided in Chapter Eight of the Companies
Law or compromise or arrangement proceedings
in accordance with Section 350 of the
Companies Law or restructuring and/or merger
proceedings in accordance with Section 351 of
the Companies Law.
16.2.3 If any alteration is made to the Company's
incorporation documents, except for the
purpose of increasing the Company's authorized
share capital.
16.2.4 If the Company makes a private placement that
vests a right to more than 1,500,000 Ordinary
Shares, except for an issuance of shares
deriving from the exercise of options existing
on the date of signing this Deed and except
for an issuance of options to employees of the
Company and its subsidiaries in a amount of
not more than 2% of the Company's issued and
paid up share capital as customary in the
Company, at an exercise price per share that
is not materially less than the market price.
16.2.5 If the Company enters into New Transactions,
as defined in Clause 15.1 above, insofar as
their aggregate amount exceeds US$35 million,
except for the Elisra Transaction.
16.2.6 If the Company makes a distribution, either in
cash or in kind (except for a distribution of
bonus shares or rights offering) in an
aggregate amount exceeding 2.5 NIS per share
in any calendar quarter commencing on 1
January 2005.
and all unless Elbit has given its consent to one of the
events mentioned in Clause 16.2 above, by written notice
signed by two of Elbit's officers.
16.3 Koor shall provide Elbit written notice immediately on the
occurrence of any of the events set out in Clause 16.2
above, all in accordance with applicable legal
requirements.
17. Confidentiality and Notices
---------------------------
17.1 The parties shall use Confidential Information that comes
into their possession in connection with this Deed and the
Company solely for the performance of their obligations
pursuant to this Deed, and they shall not disclose or
transfer in any manner whatsoever Confidential Information
to any third party, other than to their employees or
independent advisors and except insofar as required for
the fulfilment of the Conditions Precedent and insofar as
possible by prior coordination with the other party.
Without derogating from the foregoing, if the transaction
contemplated by this Deed is not actually implemented,
each party shall return to the other party hereto all
Confidential Information that has come into its possession
in connection with this Deed, if any. This obligation is
not limited in time and shall continue in force even after
the end of the term of this Deed or if this Deed is
annulled or rescinded for any reason.
17.2 If and insofar as possible, and subject to applicable
legal requirements and to the time periods mandated by
law, the parties shall coordinate in advance the wording
of every report, application, communication or notice
published by either of them in connection with their
entering into this Deed, its performance and the
fulfilment of the conditions pursuant hereto.
18. Taxes and Mandatory Payments
----------------------------
18.1 Unless otherwise provided in this Deed, each party shall
bear the mandatory payments and taxes that may be imposed
on it by law (if and insofar as charged) in respect of the
sale or acquisition of the Shares Being Sold pursuant to
this Deed.
18.2 If any amount payable in accordance with the provisions of
this Deed is subject to a duty to withhold tax at source,
tax shall be duly withheld by the paying party unless the
party receiving the payment produces a valid tax
withholding exemption certificate issued by the tax
authorities.
18.3 Each party shall bear its own expenses, including the
professional fees of its legal advisers in connection with
the preparation and performance of this Deed.
18.4 If any amount paid by one party to the other in accordance
with the provisions of this Deed is subject under
applicable law to value added tax (VAT), the paying party
shall, at the same time and in the same manner as it pays
that amount, also pay the VAT at its legal rate on and
against a duly issued tax invoice.
19. Entry into Effect
-----------------
19.1 This Deed shall enter into effect upon the receipt of all
the following approvals:
19.1.1 Approval of Koor's board of directors for Koor
to enter into this Deed and the Shareholders
Agreement and for performance thereof by Koor
in accordance with their terms and conditions,
including ratification of the signatures of
Messrs. Xxxxxxxx Xxxxxx and Xxxxx Xxxxx to
this Deed and the Shareholders Agreement.
19.2.1 Approval of Elbit's audit committee and board
of directors for Elbit to enter into this Deed
and the Shareholders Agreement and for
performance thereof by Elbit in accordance
with their terms and conditions, including
ratification of the signatures of Messrs.
Xxxxxx Xxxxxxxx and Xxxxxx Xxxxxx to this Deed
and the Shareholders Agreement.
Provided that:
(1) such approvals as mentioned in Clauses 19.1.1
and 19.1.2 have been obtained by no later than
January 6, 2005 by 17:00 (in this Clause the
"Effective Date");
(2) by the Effective Date, a copy of Koor's board
of directors' resolution, as mentioned in
Clause 19.1.1 above, has been received at
Elbit's offices together with written
confirmation from Koor's legal counsel that
the said resolutions were duly adopted and
Messrs. Xxxxxxxx Xxxxxx and Xxxxx Xxxxx were
empowered jointly to sign, on behalf of Koor,
this Deed and the documents ancillary hereto
or those necessary for the purpose of its
performance, and also the Shareholders
Agreement, and to obligate Koor thereunder;
(3) by the Effective Date, copies of the
resolutions of Elbit's audit committee and
board of directors, as mentioned in Clause
19.1.2 above, have been received at Koor's
offices, together with written confirmation
from Elbit's attorneys that the resolutions
were duly adopted and Messrs. Xxxxxx Xxxxxxxx
and Xxxxxx Xxxxxx were empowered jointly to
sign, on Elbit's behalf, this Deed and the
documents ancillary hereto or those necessary
for the purpose of its performance and also
the Shareholders
Agreement and to obligate Elbit thereunder,
subject to the approval of Elbit's General
Meeting; and
(4) all the approvals, as mentioned in Clause 19.1
of the Xxxxxxxxx-Xxxx Deed, have been obtained
by the Effective Date.
19.2 Should all the approvals as mentioned in Clauses 19.1.1
and 19.1.2 not have been obtained by the Effective Date,
and without derogating from the provisions of Clause 20.3
below, this Deed shall automatically expire and be null
and void, without either of the parties having any
complaint, claim or demand against the other.
19.3 This Deed shall become effective, if and insofar as it
becomes effective, at such time as mentioned in Clause
19.1 above, nevertheless:
19.3.1 none of the provisions of this Deed shall
obligate Elbit in any way until Elbit's
General Meeting duly approves its entering
into the transaction contemplated by this
Deed; and
19.3.2 the performance and completion of Stage `A' of
the Transaction are conditioned upon the
fulfilment of all the Stage `A' Conditions
Precedent by the Stage `A' Completion Deadline
and, apart from the obligations in Clauses 14
to 18 above and Clause 20.8 below, neither
party shall be liable to do any act for the
performance and completion of Stage `A' of the
Transaction before the fulfilment of all the
Stage `A' Conditions Precedent; and
19.3.3 apart from the obligations in Clauses 14 to 18
above and Clause 20.8 below, neither party
shall be liable to do any act for the
performance and completion of Stage `B' of the
Transaction before the fulfilment of all the
Stage `B' Conditions Precedent; and
19.3.4 the performance and completion of Stage `C' of
the Transaction are conditional upon the
fulfilment of all the Stage `C' Conditions
Precedent by the Stage `C' Completion
Deadline, and apart from the obligations in
Clauses 14 to 18 above and Clause 20.8 below,
neither party shall be liable to do any act
for the performance and completion of Stage
`C' of the Transaction before the fulfilment
of all the Stage `C' Conditions Precedent.
20. Miscellaneous
-------------
20.1 This Deed shall be governed by the laws of the State of
Israel. Sole and exclusive jurisdiction in all respects
relating to this Deed shall be vested only in the courts
of the District Court in the City of Tel Aviv-Jaffa, and
no other court shall have jurisdiction thereover.
20.2 Any modification, addendum or addition, waiver, extension,
concession or failure to exercise a right pursuant to this
Deed 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 and shall not
derogate from other rights of any party pursuant to this
Deed.
20.3 The parties hereto may extend or reduce any time specified
in this Deed and waive the performance of any of the
provisions of this Deed, either once or several times, by
written notice signed by two officers of each of Koor and
Elbit, without any further authority being necessary.
20.4 This Deed 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 or agreements, whether written or
oral, undertakings or representations concerning the
subject matter of this Deed given or made by the parties
prior to entering into this Deed, orally or in writing,
that are not specifically expressed herein, shall not be
deemed to augment the rights and obligations prescribed in
this Deed or to derogate from or modify them, and the
parties shall not be bound by them, insofar as they were
bound, as from the date of this Deed. Without derogating
from the generality of the foregoing, the documents
exchanged between the parties prior to the signature
hereof, including the drafts exchanged between them, shall
have no significance in the interpretation of this Deed.
For the avoidance of doubt, the terms of the
Xxxx-Xxxxxxxxx Deed shall not be applied in the
interpretation of this Deed.
20.5 No conduct by either of the parties shall be construed as
a waiver of any of its rights pursuant hereto or by law or
as a waiver on its behalf of or acquiescence in any breach
or non-performance of a condition of the Deed 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.
20.6 Unless otherwise expressly provided in this Deed, the
parties hereto may not assign or transfer their rights or
obligations pursuant to this Deed to any third party or
perform this deed through any third party, unless the
other party's prior written consent has been obtained, and
nothing in this
Deed shall be deemed to vest any right in anyone who is
not a party hereto.
20.7 Should either of the parties not enforce or delay in
enforcing any of the rights vested in it pursuant to this
Deed or by law in a particular case or series of cases,
such shall not be deemed a waiver of said right or of any
other rights.
20.8 Subject in the provisions of Clause 14.2 above in
connection with the Conditions Precedent, the parties
shall cooperate between them in the implementation of the
provisions of this Deed, and they shall assist each other
insofar as reasonable and necessary, and in such
connection they shall sign every reasonable document,
application and approval necessary for such purpose.
20.9 Notices pursuant to this Deed shall be given in writing to
the parties' addresses as set out in the heading hereto or
to such other addresses of which the parties may 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 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.
20.10 The provisions of the Amendment shall enter into force
immediately after receipt of (1) the due approval of
Elbit's General Meeting for Elbit's execution of the
Amendment and (2) the due approval of Elbit's General
Meeting for Elbit's execution of the Elisra Transaction.
If the approvals of Elbit's General Meeting as aforesaid
in (1) and (2) above are not received by 6 September 2005
or if it is not possible to complete Stage `B' of the
Transaction on the Second Closing Date, after the
Amendment, for any reason, save for an impediment
resulting from a breach of this Deed, the Amendment shall
be null and void, its provisions shall not be of any force
and effect and none of the parties shall have any claims
or pleas against the other, without such derogating from
the validity of the provisions of this Deed (prior to the
Amendment) and the provisions of the Shareholders
Agreement, as existing prior to the signature of the
Amendment, and the original provisions of this Deed and of
the Shareholders 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
------------------- --------------- ------------------- -----------------
KOOR INDUSTRIES LTD. ELBIT SYSTEMS LTD.
By: Xxxxxxxx Xxxxxx By: Xxxxxx Xxxxxxxx
------------------- --------------------
By: Xxxxx Xxxxx By: Xxxxxx Xxxxxx
------------------- --------------------
Appendix 9.2
------------
The Conditions Precedent for the Performance of Stage `A' of the Transaction
----------------------------------------------------------------------------
Set out below are the Conditions Precedent and approvals required, insofar as
necessary, for the Completion of Stage `A' of the Transaction contemplated by
the Deed of which this Appendix is an integral part ("this Deed"):
(1) Obtaining all the consents and approvals necessary and the fulfilment
of all the Xxxx-Xxxxxxxxx Deed Stage `A' Conditions Precedent, as set
out in the Xxxx - Xxxxxxxxx Deed,
(2) Obtaining approval from Elbit's General Meeting for Elbit's entering
into this Deed, in both its stages, as required by law and after the
transaction contemplated by the Xxxx-Xxxxxxxxx Deed has also been
presented to Elbit's General Meeting, and also written confirmation
from Elbit's attorneys that such approval has been duly obtained.
(3) Insofar as necessary, obtaining the [Israel] Commissioner of
Restrictive Trade Practices' approval, after the entire framework of
the transaction contemplated by this Deed has been provided to him,
for the parties' to enter into this Deed and perform Stage `A' of the
Transaction, provided that the said authority's disapproval of Stage
`B' of the Transaction is not received.
(4) Insofar as necessary, obtaining approval from the antitrust authority
in the United States and/or Europe, after the entire framework of the
Transaction contemplated by this Deed has been provided to it, for
the parties' to enter into this Deed and to perform Stage `A' of the
Transaction, provided that the disapproval of any such authorities as
aforesaid to approve Stage `B' of the Transaction is not received.
(5) Obtaining approval from the [Israel] Ministry of Defense for the
parties' to enter into this Deed and perform the transaction
contemplated by this Deed, insofar as required.
(6) Obtaining approval from the [Israel] Investment Center and/or the
[Israel] Chief Scientist in respect of the terms and conditions of
grants or benefits that the Company has obtained, for the performance
of Stage `A' of the Transaction contemplated by this Deed, insofar as
required.
(7) Obtaining approvals from Bank Hapoalim B.M., Bank Leumi Le-Israel
B.M., United Mizrahi Bank Ltd., Israel Discount Bank Ltd., BNP
Paribas or other banks or financial institutions for the performance
of Stage `A' of the Transaction contemplated by this Deed, insofar as
required.
In this Appendix 9.2, "approval" means - including an approval that is subject
to conditions but excluding an approval that is subject to conditions that are
such as to materially alter the business activity of Elbit and/or the Company,
as existing at the time of signing this Deed or that may arise in the future,
in accordance with resolutions that have been passed by Elbit and/or the
Company, as the case may be, prior to signing this Deed, or the way in which
Elbit and/or the Company conducts its business.
Appendix 12.2
-------------
The Conditions Precedent for the Performance of Stage `C' of the Transaction
----------------------------------------------------------------------------
Set out below are the Conditions Precedent and approvals required, insofar as
necessary, for the completion of Stage `C' of the Transaction contemplated by
the Deed of which this Appendix is an integral part ("this Deed"):
(1) The completion of Stage `A' of the Transaction contemplated by this
Deed and the completion of Stage `B' of the Transaction contemplated
by this Deed.
(2) Obtaining all the consents and approvals necessary and the fulfilment
of all the conditions precedent for the Elisra Transaction, as set
out in the Koor-Elbit Deed for the Sale of Shares in Elisra,
nevertheless, this condition will not apply if Koor exercises its
right pursuant to Clause 13.9 of this Deed.
(3) Insofar as necessary, obtaining the [Israel] Commissioner of
Restrictive Trade Practices' approval of the parties' to enter into
to this Deed and perform Stage `C' of the Transaction contemplated by
this Deed.
(4) Insofar as necessary, obtaining approval from the antitrust authority
in the United States and/or Europe of the parties' to enter into this
Deed and the performance of Stage `C' of the Transaction contemplated
by this Deed, insofar as said authority's approval is not given in
Stage `A' of the Transaction.
(5) Obtaining approval from the [Israel] Investment Center and/or the
[Israel] Chief Scientist in respect of the terms and conditions of
grants or benefits that the Company has obtained, for the performance
of Stage `C' of the Transaction contemplated by this Deed, insofar as
required.
(6) Obtaining approvals from Bank Hapoalim B.M., Bank Leumi Le-Israel
B.M., United Mizrahi Bank Ltd., Israel Discount Bank Ltd., BNP
Paribas or other banks or financial institutions to enter into in
Stage `C' of the Transaction contemplated by this Deed, insofar as
required.
In this Appendix 12.2, "approval" means - including an approval that is
subject to conditions but excluding an approval that is subject to conditions
that are such as to materially alter the business activity of Elbit and/or the
Company, as existing at the time of signing this Deed or that may arise in the
future, in accordance with resolutions that have been passed by Elbit and/or
the Company, as the case may be, prior to signing this Deed, or the way in
which Elbit and/or the Company conducts its business.
