Exhibit A
---------
TRANSLATION OF THE AMENDED TADIRAN DEED
[TRANSLATED FROM THE HEBREW ORIGINAL]
[Marked to show changes from 27 December 2004 original]
SHARE TRANSFER DEED
Made and signed on the 27th day of December 2004
as amended on 6 July 2005
BETWEEN KOOR INDUSTRIES LTD.
Public Company No. 00-000000-0
of 00 Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000("Xxxx")
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 two 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, and in the second stage, Koor will
sell and transfer to Elbit 623,115 Ordinary Shares, constituting approximately
..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 2,244,276 Ordinary Shares, which
on the date of signing this Deed constitute approximately 13.82% 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 both stages, is subject to
the Conditions Precedent as set out below in this Deed;
AND WHEREAS Elbit believes, without placing Elbit under any obligation prior to
the transaction contemplated by this Deed being duly approved, if at all, by
Elbit's General Meeting of shareholders, that there should be a consolidation
of defense industries in Israel and that in that context the transaction
contemplated by this Deed as well as the Elisra Transaction, on appropriate
terms and conditions, are in the interest of Elbit and the Company, from the
perspective of Elbit as a shareholder of the Company;
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
2. The preamble and Appendices hereto constitute an integral part hereof.
3. The clause headings in this Deed are solely for the sake of convenience
and shall not be applied in the interpretation hereof.
4. Definitions
4.1 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 means the Conditions Precedent for Stage 'A' of
Precedent" the Transaction, as set out in Appendix "9.2"
hereto;
"Stage 'CB' Conditions means the Conditions Precedent for Stage 'CB'
Precedent" of the Transaction, as set out in Appendix "12.2"
hereto;
"Conditions Precedent" means the Stage 'A' Conditions Precedent and the
Stage 'CB' 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 means the First Closing Date as the term is
Closing Date" 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 on which all the Stage 'B' Conditions
Precedent have been fulfilled 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;
"Xxxx-Xxxxxxxxx Deed Second means the Second Closing Date as the term is
Closing Date" defined in the Xxxx-Xxxxxxxxx Deed;
"Stage 'A' Completion means as defined in Clause 9.1 below;
Deadline"
"Stage 'CB' Completion means as defined in Clause 12.1 below;
Deadline"
"Xxxx-Xxxxxxxxx Deed Stage means the Stage 'B' Completion Deadline as the
'B' Completion Deadline" term is defined in the Xxxx-Xxxxxxxxx Deed;
"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 means ordinary shares of 1 NIS par value each of
"Ordinary Shares" the Company's issued capital;
"Stage 'A' Shares" mean 1,700,000 (one million seven hundred
thousand) Ordinary Shares;
"Stage 'B' Shares" mean 623,1152,244,276 (six hundred and
twenty-three thousand one hundred and fifteen)
two million two hundred forty-four thousand two
hundred and seventy-six) 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 means the Stage 'A' Shares as the term is defined
'A' Shares" in the Xxxx-Xxxxxxxxx Deed;
"Xxxx-Xxxxxxxxx Deed Stage means the Stage 'B' Shares as the term is defined
'B' Shares" in the Xxxx-Xxxxxxxxx Deed;
"Shares Being Sold" means the Stage 'A' Shares, the Stage and 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 the Elbit
Company will purchase shares from Koor purchase
shares constituting at least 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
subject to the terms thereof pursuant to which
Federmann Enterprises will sell and transfer to
Koor, in two stages, 4,000,000 (four million)
ordinary shares of 1 NIS par value each of Elbit,
which on the date of signing this Deed constitute
approximately 9.8% of Elbit's issued share
capital;
"Koor-Elbit Deed for the means the deed for the transfer of shares in
Sale of Shares in Elisra" Elisra, including its appendices, made between
Koor and Elbit, in connection with the Elisra
Transaction, contemporaneously with the signature
of the Amendment, in connection with the Elisra
Transaction;
"Stage 'A' of the means as defined in Clause 8.1 below;
Transaction"
"Stage 'B' of the means as defined in Clause 10A below;
Transaction"
"Stage 'CB' of the means as defined in Clause 111.1 below;
Transaction"
"Xxxx-Xxxxxxxxx Deed Stage means Stage 'A' of the transaction contemplated
'A'" by the Xxxx-Xxxxxxxxx Deed as the term is defined
in the Xxxx-Xxxxxxxxx Deed;
"Xxxx-Xxxxxxxxx Deed Stage means Stage 'B' of the transaction contemplated
'B'" 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$23,055,25583,038,212 (twenty-eighty-three
million fifty-five thirty-eight thousand two
hundred and fifty-five twelve 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 27
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 27 December 2004, as set out in
Clause 15 below;
"Consideration" means the Stage 'A' Consideration, and 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 6 July 2005.
4.2 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". 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".
5. Appendices
5.1 The following Appendices, which constitute an integral part hereof,
are annexed to this Deed:
5.1.1 Appendix 9.2 -- the Stage 'A' Conditions Precedent;
5.1.2 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;
5.1.3 Appendix 12.2 -- the Stage 'CB' Conditions Precedent. 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.
6. The Parties' Warranties and Undertakings.
6.1 The parties hereby warrant and undertake to each other as follows:
6.1.1 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.
6.2 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, and 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 as of both
the First Closing Date, and on the Second Closing Date and the Third
Closing Date.
6.3 Koor's Warranties and Undertakings Koor hereby warrants and undertakes
to Elbit as follows:
6.3.1 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.
6.4 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.
6.5 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
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 the Elisra Transaction or into transactions
to which Elbit has given its consent by written notice signed by two
officers of Elbit, without any further approval being necessary.
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 the Elisra Transaction or 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 is 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 31 April March 2005 [extended by consent in the past]; or
9.1.2 If by 15 April 31 March 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 andaccepton transferthe 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 [Israel]
Commissioner of Restrictive Trade Practices' approval of the Elisra
Transaction, but except 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 'CB' of the Transaction
11.1 On the Third Second Closing Date and subject to the fulfilment of the
Stage 'CB' Conditions Precedent by the Stage 'CB' Completion
Deadline, Koor shall sell and transfer to Elbit, on and against payment
of the full Stage 'CB' Consideration, 1,621,161 (one million six
hundred and twenty-one thousand one hundred and sixty-one)2,244,276
(two million two hundred forty-four thousand two hundred and
seventy-six)Ordinary Shares (the Stage 'CB' Shares), fully paid and
Free and Clear, and Elbit shall purchase and receive from Koor the
Stage 'CB' Shares and pay Koor the full amount of the Stage 'CB'
Consideration (hereinafter in this Deed "Stage 'CB' of the
Transaction").
11.2 On the Second Closing Date Koor shall purchase from Federmann
Enterprises 1,840,000 (one million eight hundred and forty thousand)
ordinary shares of 1 NIS par value each of Elbit, constituting
approximately 4.51% of Elbit's issued and paid up share capital in
accordance with the Xxxx-Xxxxxxxxx Deed, which is being signed
contemporaneously with this Deed, and Stage 'B' of the Transaction and
the Xxxx-Xxxxxxxxx Deed Stage 'B' shall be performed together, and
Stage 'B' of the Transaction (contemplated by this Deed) shall not be
performed without the performance of the Xxxx-Xxxxxxxxx Deed Stage 'B'.
Nevertheless, it is agreed that the provisions of this Clause 11.2
shall not apply if Federmann gives notice as provided in Clause 12.1.3
of the Xxxx-Xxxxxxxxx Deed or as provided in Clause 12.1.5 of the
Xxxx-Xxxxxxxxx Deed, as the case may be.
12. The Stage 'CB' Completion Deadline and the Stage 'CB' Conditions
Precedent
12.1 In this Deed the "Stage 'CB' 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.
12.1.1 30 June 2005; or
12.1.2 if all the Stage 'B' Conditions Precedent have not been
fulfilled by 30 June 2005, the Stage 'B' Completion Deadline
shall automatically be deferred until 30 September 2005; or
12.1.3 if by 30 September 2005 all the Stage 'B' Conditions Precedent
have been fulfilled, except for the completion of the Elisra
Transaction as set out in Clause (2) of Appendix "12.2", Koor
shall be entitled to provide written notice to Elbit, to be
received by Elbit by said date, of the Stage 'B' Completion
Deadline's deferral until 30 April 2006 or such later date as
may be determined by the parties, as provided in Clause 20.3
below.
12.2 The Stage 'CB' Conditions Precedent are set out in Appendix "12.2".
12.3 Should all the Stage 'CB' Conditions Precedent not be fulfilled by the
Stage 'CB' Completion Deadline, Stage 'CB' of the Transaction shall
not be performed, the provisions in connection with the performance of
Stage 'CB' of the Transaction in this Deed ( except 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 'CB' Shares and
Elbit shall not pay the Stage 'CB' Consideration to Koor, and neither
party shall have any demand, claim or complaint against the other in
connection with Stage 'CB' 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 14.5 of this Deed or the provisions of the as
provided in 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.
12.4 Should Federmann act as provided in Clause 12.1.3 of the Xxxx-Xxxxxxxxx
Deed or as provided in Clause 12.1.5 of the Xxxx-Xxxxxxxxx Deed, and
should the Stage 'B' Conditions Precedent be fulfilled by the Stage 'B'
Completion Deadline, the parties shall perform and Complete Stage 'B'
of the Transaction pursuant to this Deed on the Second Closing Date,
and the provisions of Clause 11.2 above and Clause 13.9 below shall not
apply.
13. The Third Second Closing Date
Subject to the fulfilment of the Stage 'CB' Conditions Precedent by the
Stage 'CB' Completion Deadline, except 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 Second 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 'CB' Consideration by bank transfer to
Koor's Account, and confirmation from the Bank shall be provided to
Koor that the Stage 'CB' 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 'CB'
Consideration in Koor's Account, it will discharge the Fixed Lien from
the Stage 'CB' 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 'CB'
Shares.
13.4 Koor shall provide Elbit a written certificate from Poalim Trust
Services Ltd. in which it provides instructions to transfer the Stage
'CB' Shares from the Trust Account to Elbit's Account.
13.5 Koor shall provide the Bank an irrevocable instruction to transfer the
Stage 'CB' 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 'CB' Shares have been received in Elbit's Account
shall be provided to Elbit.
13.6 The parties shall act to cause Koor shall cause the addition to the
Company's board of directors on the Third Second 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 Clause s 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 'CB' Completion Deadline or (2) the Third Second 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 Second 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 Second 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 foregoing , 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 foregoing 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 foregoing ,
if on the Stage 'C' Completion Deadline any impediment exists to the
completion of the Elisra Transaction resulting from 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 The Xxxx-Xxxxxxxxx Deed Stage 'B' shall be completed, namely all the
acts that are to be performed on the Xxxx-Xxxxxxxxx Deed Second Closing
Date as provided in Clause 13 of the Xxxx-Xxxxxxxxx Deed shall be
performed. Nevertheless, it is agreed that this Clause 13.9 shall not
apply if Federmann acts as provided in Clause 12.1.3 or as provided in
Clause 12.1.5 of the Xxxx-Xxxxxxxxx Deed.
13.11 Each party undertakes to perform all the acts for which it is
responsible pursuant to this Clause 13.
13.12 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 [Israel] Commissioner 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 ofUS$37 (thirty-seven US dollars) plus the Interest, from 1
April 2005 until the actual payment date, all subject to adjustments
from 27 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 ("lternative 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 sole
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 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 on 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 13 A.
(i) All the acts mentioned above in this Clause 13 A 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 above 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 both 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 30 April 2006 (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. Subject to the provisions in
Clause 9.3 above, Elbit shall vote in the Company's General Meeting by
virtue of all the Shares in the Company that are held by it at that
time in favor of approving the Elisra Transaction, whether or not all
or any of the transactions involved in this Deed are actually
implemented, provided that: (a) the Elisra Transaction consideration is
established in reliance on an evaluation by an outside independent
appraiser obtained for the purpose of the Elisra Transaction, and the
consideration and terms and conditions of the Elisra Transaction have
been duly approved by the Company's audit committee and board of
directors and by every independent committee of the Company that is
established for the purpose of considering the Elisra Transaction,
insofar are established, and the Company's audit committee and board of
directors have determined that the Elisra Transaction is not contrary
to the Company's interests; (b) the consideration for the Elisra
Transaction, as payable by the Company, reflects a company value for
Elisra of up to US$225 million; and (c) the Elisra Transaction has been
referred to the Company's General Meeting for a vote by 30April 2006.
Elbit's said obligation shall expire on the earlier of: (1) 1 May 2006,
or (2) the completion of the Elisra Transaction, or (3) on the
rescission of this Deed due to its breach by Koor, whichever is
earlier.
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, the Stage 'B' Completion Deadline,
if the Stage 'B' Conditions Precedent have not been fulfilled by that
time; or (3) the Second 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, except for the Elisra Transaction .
14.7 From the date of obtaining Elbit's General Meeting's approval of its
entering into the transaction contemplated by this Deed until the
Second Closing Date, Koor's president shall from time to time, in his
discretion, update Elbit's president regarding the status of the
Company's business, all subject to applicable legal requirements
(including antitrust laws).
14.8 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 'CB'
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; the Stage 'B' Completion Deadline, if the
Stage 'B' Conditions Precedent have not been fulfilled by that time; or
(3) the Second 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, except--for the purpose of
sub-clauses (c), (e) and (f)--a resolution with regard to the Elisra
Transaction, which concerns: (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, excluding the Elisra Transaction; (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 this
Deed or any of the its 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 and the provision of Clause 14.5 above , shall
be void. If Elbit ha s 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, except 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.
16.2.7 If the Elisra Transaction has been completed for consideration
that has been paid by the Company and reflects a company value
forElisra in excess of US$225 million.
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.
19.1.2 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 the performance and completion of Stage 'B' of the Transaction
are conditional upon the fulfilment of all the Stage 'B'
Conditions Precedent by the Stage 'B' 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 'B' of the
Transaction before the fulfillment of all the Stage 'B'
Conditions Precedent; and
19.3.4 the performance and completion of Stage 'C' of the Transaction
are conditioned upon the fulfillment 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 fulfillment 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. 20.8Subject 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.
20.8 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.
20.9 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 f or 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, except 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 cause of action 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:
(signed) --------------------------------------------
(signed) --------------------------------------------
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. C-1-25
Appendix 12.2
The Conditions Precedent for the Performance of Stage 'CB' of the Transaction
Set out below are the Conditions Precedent and approvals required, insofar as
necessary, for the completion of Stage 'CB' 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) The completion of the Elisra Transaction.
(3) Obtaining all the consents and approvals necessary and the fulfilment
of all the conditions precedent for the Elisra Transaction,
Xxxx-Xxxxxxxxx Deed Stage 'B' Conditions Precedent, as set out in the
Koor- Elbit Federmann 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. Federmann gives notice as set out
in Clause 12.1.3 of the Xxxx-Xxxxxxxxx Deed or in Clause 12.1.5 of the
Xxxx-Xxxxxxxxx Deed. (Insofar as necessary, obtaining the [Israel]
Commissioner of Restrictive Trade Practices' approval of the parties'
to enter into to this Deed and perform Stage '4C)B' of the Transaction
contemplated by this Deed , insofar as such approval is not given in
Stage . 'A' of the Transaction. (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 '5C)B' of the Transaction contemplated by this Deed, insofar as
said authority's approval is not given in Stage 'A' of the Transaction.
(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 '6C)B ' of the Transaction contemplated by this Deed, insofar
as required. (Obtaining approvals from Bank Hapoalim B.M., Bank Leumi
Le-Israel B.M., United Mizrahi Bank Ltd., Israel Discount Bank Ltd.,
BNP6Paribas or other banks or financial institutions to enter into in
Stage '7C)B' 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. C-1-26
