Exhibit A
SHARE TRANSFER DEED
BETWEEN
KOOR INDUSTRIES LTD.
AND
ELBIT SYSTEMS LTD.
[TRANSLATED FROM THE HEBREW ORIGINAL]
SHARE TRANSFER DEED
-------------------
Made in Tel Aviv this 27th day of December 2004
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 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
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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 2,244,276 Ordinary Shares, which
on the date of signing this Deed constitute
approximately 18.2% 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 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
----------------------------------------
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.
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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;
"Stage 'A' Conditions Precedent" means the Conditions
Precedent for Stage 'A' of the Transaction, as set out in
Appendix "9.2" hereto;
"Stage 'B' Conditions Precedent" means the Conditions
Precedent for Stage 'B' of the Transaction, as set out in
Appendix "12.2" hereto;
"Conditions Precedent" means the Stage 'A' Conditions
Precedent and the Stage 'B' 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;
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"First Closing Date" means the third Business Day after the
date on which all the Stage 'A' Suspending Conditions 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 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;
"Xxxx-Xxxxxxxxx Deed Second Closing Date" means the Second
Closing Date as the term is defined in the Xxxx-Xxxxxxxxx
Deed;
"Stage 'A' Completion Deadline" means as defined in Clause
9.1 below;
"Stage 'B' Completion Deadline" means as defined in Clause
12.1 below;
"Xxxx-Xxxxxxxxx Deed Stage 'B' Completion Deadline" means
the Stage 'B' Completion Deadline as the 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 "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 2,244,276 (two million two hundred
forty-four thousand two hundred and seventy-six) Ordinary
Shares;
"Xxxx-Xxxxxxxxx Deed Stage 'A' Shares" means the Stage 'A'
Shares as the term is defined in the Xxxx-Xxxxxxxxx Deed;
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"Xxxx-Xxxxxxxxx Deed Stage 'B' Shares" means the Stage 'B'
Shares as the term is defined in the Xxxx-Xxxxxxxxx Deed;
"Shares Being Sold" means the Stage 'A' Shares and the
Stage 'B' 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 Company will 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;
"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, 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;
"Stage 'A' of the Transaction" means as defined in Clause
8.1 below;
"Stage 'B' of the Transaction" means as defined in Clause
11.1 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;
"Xxxx-Xxxxxxxxx Deed Stage 'B'" means Stage 'B' of the
transaction contemplated by the Xxxx-Xxxxxxxxx Deed as the
term is defined in the Xxxx-Xxxxxxxxx Deed;
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"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$83,038,212 (eighty-three million thirty-eight thousand
two hundred and 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 as set out in Clause 15 below;
"Consideration" means the Stage 'A' Consideration and the
Stage 'B' 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.
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;
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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 'B' 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 and the Second Closing Date, and
they shall be deemed as having been given again by each of
the parties as of both the First Closing Date and on the
Second 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), that it will not grant any person or
entity an option or right to purchase all or any of
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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.
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
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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 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.
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 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.
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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,
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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 signing this Deed it is the holder of 518,488
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.
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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 March 2005;
or -
9.1.2 If by 31 March 2005 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.
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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:
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(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
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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.
11. Stage 'B' of the Transaction
11.1 On the Second Closing Date and subject to the fulfilment of
the Stage 'B' Conditions Precedent by the Stage 'B'
Completion Deadline, Koor shall sell and transfer to Elbit,
on and against payment of the full Stage 'B' Consideration,
2,244,276 (two million two hundred forty-four thousand two
hundred and seventy-six) Ordinary Shares (the Stage 'B'
Shares), fully paid and Free and Clear, and Elbit shall
purchase and receive from Koor the Stage 'B' Shares and pay
Koor the full amount of the Stage 'B' Consideration
(hereinafter in this Deed "Stage 'B' 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
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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 'B' Completion Deadline and the Stage 'B' Conditions
Precedent
12.1 In this Deed the "Stage 'B' Completion Deadline" means:
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 'B' Conditions Precedent are set out in Appendix
"12.2".
12.3 Should all the Stage 'B' Conditions Precedent not be
fulfilled by the Stage 'B' Completion Deadline, Stage 'B'
of the Transaction shall not be performed, the provisions
in connection with the performance of Stage 'B' of the
Transaction in this Deed shall be deemed null and void and
be of no effect and, inter alia, Koor shall not sell Elbit
the Stage 'B' Shares and Elbit shall not pay the Stage 'B'
Consideration to Koor, and neither party shall have any
demand, claim or complaint against the other in connection
with Stage 'B' 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) or 14.5 of this Deed or as provided in
the Shareholders Agreement, which shall enter into effect
on the First Closing Date, or from
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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).
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 Second Closing Date
Subject to the fulfilment of the Stage 'B' Conditions Precedent by the
Stage 'B' Completion Deadline, the parties shall meet on the 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 '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.
13.2 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.
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 'B' Shares.
13.4 Koor shall provide Elbit a written certificate from Poalim
Trust Services Ltd. in which it provides instructions to
transfer the Stage 'B' Shares from the Trust Account to
Elbit's Account.
13.5 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.
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13.6 Koor shall cause the addition to the Company's board of
directors on the 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 10.6 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 'B' Completion
Deadline or (2) the 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 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 Second
Closing Date.
13.9 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.
13.10 Each party undertakes to perform all the acts for which it
is responsible pursuant to this Clause 13.
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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.
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
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 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.
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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 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 as
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 30
April 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.
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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 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 'B' 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 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, 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
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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, 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, 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, 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, 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, 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
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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, 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, 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 its stages 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. 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.
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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.
16.2.7 If the Elisra Transaction has been completed
for consideration that has been paid by the
Company and reflects a company value for Elisra
in excess of US$225 million.
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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
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(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
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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 fulfilment of all the
Stage 'B' Conditions Precedent.
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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
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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.
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
---------------------------- ----------------------------------
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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.
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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.
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Appendix 12.2
The Conditions Precedent for the Performance of Stage 'B' of the Transaction
Set out below are the Conditions Precedent and approvals required, insofar as
necessary, for the completion of Stage 'B' 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.
(2) The completion of the Elisra Transaction.
(3) Obtaining all the consents and approvals necessary and the fulfilment
of all the Xxxx-Xxxxxxxxx Deed Stage 'B' Conditions Precedent, as set
out in the Xxxx-Xxxxxxxxx Deed. Nevertheless, this condition will not
apply if 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.
(4) Insofar as necessary, obtaining the [Israel] Commissioner of
Restrictive Trade Practices' approval of the parties' to enter into to
this Deed and perform Stage 'B' of the Transaction contemplated by
this Deed, insofar as such approval is not given in Stage 'A' of the
Transaction.
(5) 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 'B' of the Transaction contemplated
by this Deed, insofar as said authority's approval is not given in
Stage 'A' of the Transaction.
(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 'B' 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 to enter into in Stage '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.
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