EXHIBIT 9
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(1) RADA ELECTRONIC INDUSTRIES LIMITED
(2) HORSHAM ENTERPRISES LIMITED
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LOAN STOCK CALL OPTION EXIT AGREEMENT
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Solicitors
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THIS OPTION AGREEMENT is made the day of ▇▇▇▇
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(1) RADA ELECTRONIC INDUSTRIES LIMITED whose registered office is situated at
12 Medinat Hayehudin Street, P O Box 2059, Herliya B, Israel, (the
"Grantor"); and
(2) HORSHAM ENTERPRISES LIMITED a Company existing and operated under the laws
of the British Virgin Islands whose registered office is at Columbus Centre
Building, Wickhams Cay, Road Town, Tortola, British Virgin Islands (the
"Grantee").
1. Interpretation
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1.1. In this Agreement unless the context otherwise requires the following
words and expressions shall bear the meaning set opposite them:-
"Consideration" means the total consideration to be
paid by the Grantor to the Grantee as
calculated in accordance with Clause
3.1 upon the completion of the Option;
"Grantees Associates" such person, company or other entity
that the Grantee shall nominate from
time to time to subscribe for or hold
Initial Loan Stock;
"Condition Precedent" the meaning assigned to the term in the
Loan Stock Option Agreement;
"the Initial Loan Stock" means the secured Loan Stock of $4.625
million US
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Dollars created by the Loan Stock
Instrument;
"JVC" means NEW REEF HOLDINGS LIMITED a
company existing and operated under the
law of the British Virgin Islands whose
registered office is at Columbus Centre
Building, Wickhams Cay, Road Town,
Tortola, British Virgin Islands;
"JVC Agreement" means the agreement dated 11 October
1996 made between the Grantor (1)
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (2) the JVC (3)
KTS Corp (4) and Grantee (5);
"Loan Stock" means the Initial Loan Stock which is
from time to time in issue to and fully
paid up by the Grantee and/or the
Grantees Associates;
"Loan Stock Option Agreement" means the loan stock option agreement
dated 11 October 1996 made between the
Grantor (1) and the Grantee (2) a copy
of which is attached hereto in Part 1
of the Schedule as varied, modified and
altered in accordance with a Deed of
Amendment made between the Grantor and
the Grantee a copy of which is set out
in Part 2 of the Schedule;
"the Loan Stock Instrument" means the Loan Stock Instrument
constituting
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$4,625,000 US Dollars Secured Initial
Loan Stock of the JVC set out in the
Schedule of the Loan Stock Agreement;
"Loan Stock Option" The option set out in the Loan Stock
Option Agreement;
"Long Stop Date" the meaning assigned to the term in the
Loan Stock Option Agreement;
"Market Value" the average of all closing values for
the purchase of each Rada Share on
NASDAQ on the 10 working days prior to
the date upon which the Loan Stock
Option is exercised;
"NASDAQ" and "NASDAQ
Regulations" means the definitions ascribed to such
terms in the JVC Agreement;
"Rada Shares" means Ordinary Shares of 0.002 NIS (New
Israeli Shekels) each of the Grantor
which are for the time being quoted on
NASDAQ;
"Option" means the right granted pursuant to
Clause 2.1 for the Grantee to call for
the Grantor to elect for either itself
and/or the JVC to purchase the Loan
Stock from the
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Grantee and/or the Grantee's Associates
upon the Grantee and/or Grantees
Associates exercising the Option;
"Option Period" means the period of 7 years from the
date of the JVC Agreement;
"working days" means those days of the year on which
Rada Shares are traded on NASDAQ.
1.2 References to statutory provisions shall be construed as references to
any statutory modification or re-enactment thereof (whether before on
or after the date hereof) for the time being in force and to any
former statutory provision replaced (with or without modification) by
the provision referred to and shall include all statutory instruments
or orders from time to time made pursuant thereto.
1.3 References to persons shall include references to bodies corporate and
unincorporated associations to the singular shall include references
to the plural and vice versa and to the masculine shall include
references to the feminine and neuter and vice versa.
1.4 References to Clauses and the Schedule are to Clauses and the Schedule
of this Agreement.
1.5 The headings in this Agreement and the use of underlining are included
for convenience only and shall not affect the interpretation or
construction of this Agreement.
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2. Option for the Grantee to call for the Grantor and/or the JVC to purchase
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the Loan Stock
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2.1 In consideration of the sum of one dollar ($1) paid by the Grantee to
the Grantor (receipt of which is acknowledged by the Grantor) the
Grantor grants to the Grantee subject to Clause 2.2 the right
exercisable at any time during the Option Period to call subject to
Clause 2.3 for the Grantor to elect for either itself and/or the JVC
to purchase the Loan Stock in accordance with the terms and conditions
of this Agreement.
2.2 The Option shall be exercisable only if the Grantee has validly
exercised the Loan Stock Option and the Grantor and the Grantee have
been unable to fulfil the Condition Precedent by the Long Stop Date or
if the Grantor has failed to complete the Loan Stock Option Agreement
upon the fulfillment of the Condition Precedent by the latest day
provided for the completion of the Loan Stock Option pursuant to the
terms of the Loan Stock Option Agreement (in which case the exercise
of the Option by the Grantee hereunder shall be without prejudice to
any of the rights or remedies under the Loan Stock Option Agreement).
2.3 The Grantee may only elect for the JVC to purchase that portion of the
Loan Stock the JVC is in funds to purchase in cash by way of
redemption of Loan Stock at the date for completion of the Option as
determined in accordance with Clause 2.5. The Grantee hereby
acknowledges and agrees that it shall be responsible for purchasing
that part of the Loan Stock which the JVC is unable or unwilling to
purchase as at completion.
2.4 The Option shall be exercisable at any time during the Option Period,
by notice in writing served upon the Grantor.
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2.5 The parties shall be bound to complete the purchase of the Loan Stock
as soon as reasonably practical but in no event no later than one
month after the date of service of the notice of exercise (or on the
next succeeding working day if completion would otherwise fall on a
non-working day).
3. The Consideration
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3.1 The Consideration payable by the Grantor to the Grantee for the Loan
Stock shall be, applying the Market Value, a sum equal to the
aggregate value of each Rada Share the Grantee would have been
entitled to receive (applying the calculation for the exchange of Loan
Stock into Rada Shares set out in clause 3 of the Loan Stock Option
Agreement) upon completion of the Loan Stock Option Agreement if the
Grantor and the Grantee had been able to complete the Loan Stock
Option by the Long Stop Date following the fulfilment of the
Condition Precedent (the "Consideration").
3.2 The Consideration shall be paid in accordance with Clause 4.3.
4. Completion
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4.1 Completion of the sale of the Loan Stock to the Grantor shall take
place at the offices of the JVC's Solicitors or at such other place as
the parties shall mutually agree not later than 3.00pm on the relevant
date.
4.2 At Completion the Grantee shall deliver to the Grantor and/or the JVC
(as applicable) the Grantee's certificate for the Loan Stock.
4.3 At Completion the Grantor shall procure that the Grantor and the JVC
either alone or
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together shall forthwith pay the Consideration by telegraphic transfer
to the Grantee.
4.4 The Grantee shall procure that the Grantor is registered as the holder
of that portion of the Loan Stock to be transferred to the Grantor
hereunder.
5. Grantor's warranties
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5.1 The Grantor warrants to the Grantee that:-
5.1.1 the Grantor has and will have full power and authority to
grant the Option upon the terms and conditions of this
Agreement;
5.1.2 the Grantor has obtained all necessary, consents of its
members, directors and NASDAQ to enter into and complete this
Agreement;
5.1.3 this Agreement complies in all respect with the NASDAQ
Regulations and that the Grantor is not aware of any proposals
by any competent authority to alter, vary or modify any NASDAQ
Regulations;
5.1.4 None of the NASDAQ Regulations will directly or indirectly
apply so as to abrogate, vary, modify or otherwise render void
or voidable any of the terms and conditions of this Agreement;
5.1.5 No rule of Israeli law or rule of law of New York State or of
the United States of America will directly or indirectly apply
so as to abrogate, vary, modify, alter or otherwise render
void or voidable any of the terms and conditions of this
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Agreement;
5.1.6 The Grantor is lawfully able to enter into this Agreement;
5.1.7 The Grantor will issue and be responsible for issuing all
notices, circulars, resolutions, and press releases which are
required to be issued by NASDAQ Regulations upon:-
5.1.7.1 the Grantor and Grantee entering into this Agreement;
5.1.7.2 the Grantee serving a notice on the Grantor
exercising the Option;
5.1.7.3 Completion of the Option.
5.2 Each of the Warranties contained in each sub-clause of Clause 5.1
shall be separate and independent.
5.3 The Warranties contained in each sub-clause of Clause 5.1 shall
continue in full force and effect at and after the execution of this
Agreement.
6. Value of Rada Shares
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6.1 The Grantor will provide to the Grantee upon request written details
of the closing value for the purchase of each Rada Share for any
particular previous days' trading on NASDAQ. A statement issued by the
Grantor stating the closing value of Rada Shares for any particular
previous days trading shall (in the absence of manifest error) be
conclusive evidence as to the closing purchase value of Rada Shares.
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7. Entire Agreement
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This Agreement represents the entire agreement between the parties in
relation to the subject matter. No variation to this Agreement shall be
effective unless in writing and signed by or on behalf of each of the
parties hereto.
8. No Waiver
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No waiver of any breach of this Agreement, whether by conduct or otherwise,
nor any failure forbearance or delay in exercising any rights or remedies
in relation thereto shall be deemed a waiver of any such breach nor shall
it prevent any part from subsequently taking any action or
9. Announcements
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No announcement concerning the matters herein provided for or referred to
or any ancillary matter shall be made by any party hereto other than as
required by law or the NASDAQ Regulations without the prior approval of the
other parties hereto (such approval not to be unreasonably withheld or
delayed).
10. Notices
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Any notice required to be given by any party hereto or to any other shall
be deemed validly served if delivered by hand or sent by first class
prepaid letter through the post or by facsimile to the address of the party
to be served herein given or (being a company) the registered office of
such party for the time being and any notice so served at the time of
delivery or (as the case may be) transmission and any notice so served
through the post shall be deemed to have been served forty eight hours
after the time it was posed and in proving such service it shall be
sufficient to prove that the notice was properly delivered, transmitted or
(as the case may be) addressed prepaid and posted.
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11. Proper Law
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This Agreement and the documents to be entered into as provided herein
shall be governed and construed in accordance with English Law and the
parties hereto submit to the non-exclusive jurisdiction of the English
Courts.
12. Counterparts
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12.1 This Agreement may be executed in any number of counterparts, and by
the parties hereto on separate counterparts, but in the case shall
not be effective until each party has executed at least one
counterpart.
12.2 Each counterpart shall constitute the original of this Agreement, but
all the counterparts shall together constitute one and the same
instrument.
IN WITNESS whereof the parties have hereunto set their hands the day and year
first before written.
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