Exhibit B
SHARE TRANSFER DEED
BETWEEN
FEDERMANN ENTERPRISES LTD.
AND
KOOR INDUSTRIES LTD.
B-1
[TRANSLATED FROM THE HEBREW ORIGINAL]
SHARE TRANSFER DEED
-------------------
Made in Tel Aviv this 27th day of December 2004
BETWEEN
FEDERMANN ENTERPRISES LTD.
(Public Company No. 51 - 227839-1)
of 00 Xxxxxxxx Xxxxxx, Xxx Xxxx
("Federmann")
of the one part
---------------
AND
KOOR INDUSTRIES LTD.
(Public Company No. 52 - 001414-3)
of 00 Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000
("Koor")
of the other part
-----------------
(hereinafter the "Parties")
WHEREAS Federmann is the holder of 19,915,448 Ordinary
Shares of the issued and paid up share capital of
Elbit Systems 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 Federmann wishes to sell and transfer to Koor, in
two stages, 4,000,000 (four million) Ordinary
Shares, which on the date of signing this Deed
constitute approximately 9.8% of the Company's
issued and paid-up share capital, while in the first
stage Federmann will sell and transfer to Koor
2,160,000 (two million one hundred and sixty
thousand) Ordinary Shares, which
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on the date of signing this Deed constitute
approximately 5.3% of the Company's issued and
paid-up share capital, and in the second stage
Federmann will sell and transfer to Koor 1,840,000
(one million eight hundred and forty thousand)
Ordinary Shares, which on the date of signing this
Deed constitute approximately 4.5% of the Company's
issued and paid-up share capital, subject to and in
accordance with the provisions of this Deed;
AND WHEREAS Koor wishes to purchase and receive from Federmann
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 Conditions Precedent as provided below
in this Deed;
AND WHEREAS The Parties wish to set forth their relationship
with respect to the sale and purchase of the Shares
Being Sold in the context of this Deed;
AND WHEREAS Koor is interested in the performance of the
Transaction contemplated by this Deed as part of an
overall Transaction, in the scope of which Koor
will sell to the Company shares of Tadiran
Communications, as set out in the Elbit-Koor Deed
and this Deed.
NOW, THEREFORE, IT IS WARRANTED, PROVIDED AND AGREED BETWEEN THE PARTIES AS
FOLLOWS:
1. Preamble, Appendices and Interpretation
---------------------------------------
1.1 The preamble and appendices hereto constitute an integral
part hereof.
1.2 The clause headings in this Deed are solely for the sake of
convenience and shall not be applied in the interpretation
hereof.
2. Definitions
2.1 In this Deed, the following terms shall have the meanings
herein ascribed to them, unless expressly stated otherwise:
"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;
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"U.S. Dollar" or "$" means United States dollars;
"Company" means as defined in the preamble hereto;
"Shareholders Agreement" means the Agreement between
Federmann and Koor in the form of Appendix "10.7" hereto,
which is to be signed on the signature of this Deed and
will enter into effect on the First Closing Date;
"Stage 'A' Conditions Precedent" means the Conditions
Precedent for Stage 'A' of the Transaction, as provided in
Appendix "9.2" hereto;
"Stage 'B' Conditions Precedent" means the Conditions
Precedent for Stage 'B' of the Transaction, as provided 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;
"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 agreed by the Parties,
as provided in Clause 20.3 below;
"Elbit-Koor Deed First Closing Date" means the First
Closing Date as the term is defined in the Elbit-Koor Deed;
"Second Closing Date" means the third Business Day after
the date on which all the Stage 'B' Conditions Precedent
have been fulfilled or in the event that the Stage 'B'
Conditions Precedent are deemed wholly fulfilled in
accordance with the provisions of Clause 12.4 or 12.5
below, as the case may be, the 14th Business Day after 30th
June 2005 or after the date of receiving Koor's notice
pursuant to Clause 12.5, as the case may be, or such later
date as agreed by the Parties, as provided in Clause 20.3
below;
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"Elbit-Koor Deed Second Closing Date" means the Second
Closing Date as the term is defined in the Elbit-Koor 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;
"Elbit-Koor Deed Stage 'B' Completion Deadline" means the
Stage 'B' Completion Deadline as the term is defined in the
Elbit-Koor 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 law;
"Ordinary Share" or "Ordinary Shares" means Ordinary Shares
of 1 NIS par value each of the Company's issued share
capital;
"Stage 'A' Shares" mean 2,160,000 (two million one hundred
and sixty thousand) Ordinary Shares;
"Stage 'B' Shares" mean 1,840,000 (one million eight
hundred and forty thousand) Ordinary Shares;
"Shares Being Sold" means the Stage 'A' Shares and the
Stage 'B' Shares;
"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 further or other third party right whatsoever, other
than restrictions with respect to the transfer and/or
negotiability of shares that are imposed pursuant to U.S.
securities law (shares which are not registered under U.S.
securities laws);
"Elisra Transaction" means a transaction pursuant to which
Tadiran Communications will purchase shares constituting at
least 70% of Elisra's issued share capital;
"Federmann" means as defined in the preamble to this Deed;
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"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" means this Share Transfer Deed together with all the
appendices hereto;
"Elbit-Koor Deed" means the Share Transfer Deed together
with all the appendices thereto made between the Company
and Koor on the signature of this Deed, subject to and in
accordance with the conditions of which Koor will sell and
transfer to the Company, in two stages, 3,944,276 (three
million nine hundred forty-four thousand two hundred and
seventy-six) Ordinary Shares of 1 NIS par value each of
Tadiran Communications, which on the date of signing this
Deed constitute approximately 32% of Tadiran
Communication'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;
"Elbit-Koor Deed Stage 'A'" means Stage 'A' of the
Transaction contemplated by the Elbit-Koor Deed as the term
is defined in the Elbit-Koor Deed;
"Elbit-Koor Deed Stage 'B'" means Stage 'B' of the
Transaction contemplated by the Elbit-Koor Deed as the term
is defined in the Elbit-Koor Deed;
"Tadiran Communications" means Tadiran Communications Ltd.
(Private [sic] Company No. 51-207441-0);
"Stage 'A' Consideration" means US$24.70 (twenty-four U.S.
dollars and seventy cents) for each of the Stage 'A'
Shares, totaling US$53,352,000 (fifty-three million three
hundred and fifty-two thousand U.S. dollars), and insofar
as all or part of that amount is actually paid after April
1, 2005, such amount as aforesaid shall be subject to the
addition of the Interest from April 1, 2005 until the time
of actual payment, all subject to the adjustments as
provided in Clause 15 below;
"Stage 'B' Consideration" means US$24.70 (twenty-four U.S.
dollars and seventy cents) for each of the Stage 'B'
Shares, totaling US$- 45,448,000 (forty-five million four
hundred and forty-eight
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thousand U.S. dollars), and insofar as all or part of that
amount is actually paid after April 1, 2005, such amount as
aforesaid shall be subject to the addition of the Interest
from April 1, 2005 until the time of actual payment, all
subject to the adjustments as provided 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, but
excluding the conditions for an Independent Director;
"Independent Director" means a director who meets the
independence criteria in accordance with U.S. securities
law, including the Xxxxxxxx-Xxxxx Act and the rules and
regulations that have been and are in future issued by
virtue thereof, including rules of the Nasdaq.
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", the "Companies Registrar" and "share
certificate".
3. Appendices
The following appendices, which constitute an integral part hereof,
are annexed to this Deed:
3.1 Appendix "9.2" - the Stage 'A' Conditions Precedent;
3.2 Appendix "10.7" - the Shareholders Agreement between
Federmann and Koor, which is to be signed contemporaneously
with the signature of this Deed and will enter into effect
on the First Closing Date;
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3.3 Appendix "12.2" - the Stage 'B' Conditions Precedent.
4. The Elbit-Koor Deed
Contemporaneously with the signing of this Deed, the Elbit-Koor Deed
is also being signed. The Elbit-Koor 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 the Company is not
a Party to this Deed, and the provisions of the Elbit-Koor Deed do not
impose any duty on Koor to Federmann or on Federmann to Koor that is
not expressly provided in this Deed.
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 provided in this Clause 5 and in Clauses
6 and 7 below, as the case may be.
5.2 The Parties' warranties and undertakings as provided in
this Clause 5 and in Clauses 6 and 7 below, as the case may
be, will continue to be correct, complete and accurate on
the First Closing Date and the Second Closing Date, and
they shall be deemed as having been provided again by each
of the Parties on both the First Closing Date and on the
Second Closing Date.
6. Federmann's Warranties and Undertakings
Federmann hereby warrants and undertakes to Koor as follows:
6.1 That it is a duly incorporated private 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 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
Lien, as will be modified, amended as provided in Clause
10.4 below), that it will not grant 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
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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 it holds 19,915,448 Ordinary
Shares.
6.3 That the Shares Being Sold are fully paid and Free and
Clear, except for a first ranking fixed lien and an
assignment by way of charge, of unlimited amount, which are
registered in favor of Bank Leumi Le-Israel B.M. (in this
Deed the "Bank") over the Shares Being Sold and over
Federmann's rights in the Shares Being Sold (in this Deed
the "Lien") and that pursuant to the Lien the Shares Being
Sold are held by and registered in the name of Bank Leumi
Le-Israel Trust Co. Ltd., and that on the First Closing
Date, upon the Stage 'A' Consideration being received in
Federmann'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 Federmann's Account,
the Stage 'B' Shares will be Free and Clear.
6.4 That apart from approval by Federmann's General Meeting and
board of directors, Federmann 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 Federmann's General Meeting
and board of directors, the signatories on Federmann's
behalf to this Deed and the documents ancillary hereto are
the persons who are empowered, on Federmann's behalf, to
sign this Deed and the documents ancillary hereto and/or
necessary for the performance hereof and to obligate
Federmann by their signature, and this Deed, together with
all its terms and conditions, obligates Federmann in all
respects.
6.6 That subject to the approval of Federmann's General Meeting
and board of directors and the fulfillment 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 Federmann is a party, to its
incorporation documents or to any other obligation of
Federmann, whether by virtue of an contract (oral, by
conduct or written) or by virtue of law.
6.7 That apart from the approval of Federmann's General Meeting
and board of directors and the Conditions Precedent, all
the approvals, consents and permits have been obtained and
all the necessary
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proceedings have been performed, including with any
authorities, government entities or any other body, for the
purpose of Federmann's entering into this Deed and
performing its obligations pursuant hereto, including
transferring the Shares Being Sold to Koor.
6.8 That neither the Company nor any of its subsidiaries is
party to any transaction or agreement in which Federmann
and/or its subsidiaries and/or the controlling shareholders
and/or officers of Federmann and/or the companies
controlled by any of them has a personal interest, other
than (1) payment of remuneration to directors of the
Company, in the same amounts as paid to the Company's
external directors; (2) arrangements for the grant of
relief, insurance and indemnity by the Company to the
Company's directors; and (3) apart from, for the avoidance
of doubt, Federmann's holding of securities of companies
whose securities are also held by the Company.
7. Koor's Warranties and Undertakings
Koor hereby warrants and undertakes to Federmann 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 the 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 provided in this Deed.
7.3 That apart from approval by Koor's board of directors, 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.
7.4 That subject to ratification by Koor's board of directors,
the signatories on behalf of Koor to this Deed and the
documents ancillary hereto are those 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 signatures, and this
Deed, including all its terms and conditions, obligates
Koor in all respects.
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7.5 That subject to the approval of Koor's board of directors
and the fulfillment 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 Koor,
whether by virtue of a contract (oral, by conduct or
written) or by virtue of law.
7.6 That except for the approval of Koor's board of directors
and except for 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 the
acquisition from Federmann of the Shares Being Sold.
7.7 That subject only to Federmann'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 Federmann
and that the Consideration, as agreed between the Parties,
has been fixed having regard also to the fact that the
purchase is on such a "As Is" basis as aforesaid.
8. Stage 'A' of the Transaction
8.1 On the First Closing Date and subject to the fulfillment of
the Stage 'A' Conditions Precedent by the Stage 'A'
Completion Deadline, Federmann shall sell and transfer to
Koor, on and against payment of the full amount of the
Stage 'A' Consideration, 2,160,000 (two million one hundred
and sixty thousand) Ordinary Shares (the Stage 'A' Shares),
fully paid and Free and Clear, and Koor shall purchase and
receive from Federmann the Stage 'A' Shares and pay
Federmann the full amount of the Stage 'A' Consideration
(in this Deed "Stage 'A' of the Transaction").
8.2 Furthermore, on the First Closing Date, the Company shall
purchase from Koor 1,700,000 (one million seven hundred
thousand) Ordinary Shares of 1 NIS par value each of
Tadiran Communications, which on the date of signing this
Deed constitute approximately 13.8% of Tadiran
Communication's issued share capital, in accordance with
the Elbit-Koor Deed, which is being signed
contemporaneously with this Deed. The Elbit-Koor Deed Stage
'A' and Stage 'A' of the Transaction contemplated by this
Deed shall be performed
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contemporaneously and Stage 'A' of the Transaction
(contemplated by this Deed) shall not be performed without
the Elbit-Koor 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 March 31, 2005; or
9.1.2 if by March 31, 2005 all the Stage 'A'
Conditions Precedent have been fulfilled, other
than the approval of the [Israel] Commissioner
of Restrictive Trade Practices, as provided in
Clause 1 of Appendix "9.2", the Stage 'A'
Completion Deadline shall be automatically
deferred until May 31, 2005 or to such later
date as agreed by the Parties as provided in
Clause 20.3 below.
9.2 The Stage 'A' Conditions Precedent are provided 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 for the provisions of Clause 17
hereof, without either of the Parties having any complaint
and/or claim and/or demand against the other. The foregoing
provisions of this Clause 9.3 shall not derogate from any
right or other remedy pursuant to this Deed or by law that
is available to the Parties with respect to a breach of any
of the provisions of this Deed (insofar as breached).
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 Koor shall remit the Stage 'A' Consideration by bank
transfer to Federmann's bank account at the Bank, the
details of which shall be provided to it in writing by
Federmann by the First Closing Date (in this Deed
"Federmann's Account"), and confirmation from the Bank
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that the Stage 'A' Consideration has been received in
Federmann's Account shall be provided to Federmann.
10.2 Federmann shall deliver to the Company a share transfer
deed pursuant whereto the Stage 'A' Shares are being
transferred from Bank Leumi Le-Israel Trust Co. Ltd to
Federmann, signed by Bank Leumi Le-Israel Trust Co. Ltd and
Federmann, and the Company shall enter Federmann in its
shareholder registry as the holder of the Stage 'A' Shares.
10.3 Federmann shall provide Koor confirmation from the Bank,
according to which the Bank agrees that, on and against
receipt of the Stage 'A' Consideration in Federmann's
Account, it will discharge the Lien from the Stage 'A'
Shares.
10.4 Federmann shall provide Koor written 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 Lien to the effect
that the Lien will be discharged from the Stage 'A' Shares.
10.5 Federmann and Koor shall deliver this Deed to the Company,
and Federmann shall procure that Koor is entered in the
Company's shareholder registry as the holder of the Stage
'A' Shares and that Koor receives a share certificate from
the Company, in the Company's standard form, attesting to
Koor's ownership of the Stage 'A' Shares.
10.6 Federmann shall provide Koor a copy of the Company's board
of directors' resolution to the effect that, subject to the
performance of Stage 'A' of the Transaction, as of the
First Closing Date there shall be added to the Company's
board of directors and serve thereon as a director one
nominee who shall be nominated for office by Koor and who
meets the Qualification Conditions. Federmann undertakes
that there will be a vacancy on the Company's board of
directors so that it will be possible to add Koor's nominee
as aforesaid to the Company's board of directors. Koor
shall provide Federmann and the Company prior written
notice of the name of such nominee or of another nominee,
as nominated by Koor, in his place, and Koor (with
Federmann's assistance) shall coordinate with the Company's
corporate secretary such nominee's compliance with the
Qualification Conditions, all no later than 14 days prior
to the earlier of: (1) the Stage 'A' Completion Deadline or
(2) the First Closing Date.
If for any reason it is not possible to appoint the nominee
nominated by Koor as aforesaid as a director of the
Company, another nominee nominated by Koor, who meets the
Qualification Conditions, shall be
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appointed in his place. Without derogating from the
foregoing, if the nominee nominated by Koor as aforesaid is
not added to the Company's board of directors on the First
Closing Date, Federmann shall call a General Meeting of the
Company as soon as possible, on the agenda of which shall
be the appointment of the nominee nominated by Koor as
aforesaid as a director of the Company. Federmann
undertakes to vote in favor of the appointment of the
nominee nominated by Koor, who was not appointed as
aforesaid but does meet the Qualification Conditions.
10.7 The Shareholders Agreement, in the form annexed hereto as
Appendix "10.7", shall become effective.
10.8 Federmann shall provide Koor a written declaration, duly
signed by Federmann, according to which all the warranties
and representations of Federmann as provided in Clauses 5
and 6 of this Deed are also correct, complete and accurate
as of the First Closing Date.
10.9 Koor shall provide Federmann a written declaration, duly
signed by Koor, according to which all the warranties and
representations of Koor as provided in Clauses 5 and 7 of
this Deed are also correct, complete and accurate as of the
First Closing Date.
10.10 The Elbit-Koor Deed Stage 'A' shall be completed, namely
all the acts that are to be performed on the Elbit-Koor
Deed First Closing Date shall be performed, as provided in
Clause 10 of the Elbit-Koor 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 being made concurrently, no individual act shall
be deemed as completed and no individual document shall be
deemed as delivered until all the concurrent acts have been
completed and all the documents have been delivered.
11. Stage 'B' of the Transaction
11.1 On the Second Closing Date:
11.1.1 subject to the fulfillment of the Stage 'B'
Conditions Precedent by the Stage 'B'
Completion Deadline; or
11.1.2 in the event that the Stage 'B' Conditions
Precedent are treated as wholly fulfilled in
accordance with the provisions
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of Clause 12.4 below or Clause 12.5 below, as
the case may be;
Federmann shall sell and transfer to Koor, on and against
payment of the full amount of the Stage 'B' Consideration,
1,840,000 (one million eight hundred and forty thousand)
Ordinary Shares (the Stage 'B' Shares), fully paid and Free
and Clear, and Koor shall purchase and receive from
Federmann the Stage 'B' Shares and pay Federmann the full
amount of the Stage 'B' Consideration (in this Deed "Stage
'B' of the Transaction").
11.2 On the Second Closing Date the Company shall purchase from
Koor 2,244,276 Ordinary Shares of 1 NIS par value each of
Tadiran Communications, constituting approximately 18.2% of
Tadiran Communication's issued share capital in accordance
with the Elbit-Koor Deed, which is being signed
contemporaneously with this Deed, so that Stage 'B' of the
Transaction (contemplated by this Deed) and the Elbit-Koor
Deed Stage 'B' shall be performed contemporaneously, and
Stage 'B' of the Transaction (contemplated by this Deed)
shall not be performed without the performance of the
Elbit-Koor Deed Stage 'B'. This Clause 11.2 shall not apply
if Federmann provides notice to Koor as provided in Clause
12.1.3 below or Clause 12.1.5 below, 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 30th June 2005; or -
12.1.2 subject to the provisions of Clause 12.1.3 and
Clause 12.1.4 below, if all the Stage 'B'
Conditions Precedent have not been fulfilled by
30th June 2005, the Stage 'B' Completion
Deadline shall be automatically deferred until
30th September 2005;
12.1.3 notwithstanding as provided in Clause 12.1.2
above, it is agreed that Federmann may provide
notice to Koor, to be received by Koor by 21st
June 2005, that Federmann is not willing to
extend the Stage 'B' Completion Deadline as
provided in Clause 12.1.2 above, and in such
event the Stage 'B' Completion Deadline shall
be the date specified in Clause 12.1.1 above,
namely 30th June 2005;
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12.1.4 notwithstanding as provided in Clause 12.1.2
above, if Koor provides notice to the Company
as provided in Clause 12.1.3 of the Elbit-Koor
Deed, and Federmann does not provide notice as
provided in Clause 12.1.3 of this Deed, the
Stage 'B' Completion Deadline shall be deferred
until April 30, 2006;
12.1.5 notwithstanding as provided in Clause 12.1.4
above, if Koor provides notice to the Company
as provided in Clause 12.1.3 of the Elbit-Koor
Deed, Federmann may provide notice to Koor, to
be received by Koor within seven Business Days
after the date on which Koor's notice is
received by the Company as aforesaid, that
Federmann is not willing to extend the Stage
'B' Completion Deadline as provided in Clause
12.1.4 above, and in such event the Stage 'B'
Completion Deadline shall be the date specified
in Clause 12.1.2, namely September 30, 2005,
even if Federmann's notice as aforesaid is
provided to Koor after September 30, 2005.
12.2 The Stage 'B' Conditions Precedent are provided in Appendix
"12.2".
12.3 Subject to Clauses 12.4 and 12.5 below, 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
Stage 'B' of the Transaction in this Deed shall be deemed
null and void and be of no effect and, inter alia,
Federmann shall not sell to Koor the Stage 'B' Shares and
Koor shall not pay the Stage 'B' Consideration to
Federmann, and neither Party shall have any demand, claim
or complaint against the other in connection with Stage 'B'
of the Transaction. It is clarified that the provisions of
this Clause 12.3 are not such as to derogate from the
validity of any other provision of this Deed and/or from
the effect of the Shareholders Agreement, which shall enter
into effect on the First Closing Date, or to derogate from
any other right or remedy pursuant to this Deed or by law
that is available to the Parties with respect to a breach
of any of the provisions of this Deed (if and insofar as
breached).
12.4 Notwithstanding as provided in Clause 12.3 above, it is
agreed that if the Stage 'B' Completion Deadline is
determined in accordance with the provisions of Clause
12.1.3 above, and insofar as Koor wishes to perform Stage
'B' of the Transaction despite the non-fulfillment of all
the Stage 'B' Conditions Precedent, Koor may provide
written notice to Federmann, to be received by Federmann by
no later than 30th June
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2005, that Koor waives the fulfillment of the Stage 'B'
Conditions Precedent. In such event and provided that all
the Conditions Precedent for the completion of Stage 'B'
detailed in Appendix "12.2" of this Deed, other than the
Conditions Precedent in Clauses 3 and 4 of Appendix "12.2",
have been fulfilled by the Stage 'B' Completion Deadline,
all the Stage 'B' Conditions Precedent shall be treated as
though wholly fulfilled, and the Parties shall perform and
complete Stage 'B' of the Transaction on the Second Closing
Date. The foregoing is without the Elbit-Koor Deed Stage
'B' being performed and completed at the same time and
without the provisions of Clause 11.2 above and Clause 13.9
below applying and without Clauses 3 and 4 of Appendix
"12.2" constituting Conditions Precedent for Stage 'B'. The
foregoing shall not preclude the performance of the
Elbit-Koor Deed Stage 'B' pursuant to and subject to the
provisions of the Elbit-Koor Deed on the Elbit-Koor Deed
Second Closing Date if and when the Elbit-Koor Deed Stage
'B' Conditions Precedent (as defined in the Elbit-Koor
Deed) are fulfilled by the deadline fixed for their
performance in the Elbit-Koor Deed.
12.5 Notwithstanding as provided in Clause 12.3 above, it is
agreed that if the transaction's Stage 'B' Completion
Deadline is fixed in accordance with the provisions of
Clause 12.1.5 and insofar as Koor wishes to perform Stage
'B' of the Transaction despite the non-fulfillment of all
the Stage 'B' Conditions Precedent, Koor may provide
Federmann written notice (in this Deed "Koor's Notice
Pursuant to Clause 12.5"), to be received by Federmann
within seven Business Days after the date on which Koor
receives Federmann's notice as provided in Clause 12.1.5
above, that it waives the fulfillment of the Stage 'B'
Conditions Precedent. In such event and provided that all
the Stage 'B' Conditions Precedent detailed in Appendix
"12.2" of this Deed, other than the Conditions Precedent in
Clauses 3 and 4 of Appendix "12.2", have been fulfilled by
the Stage 'B' Completion Deadline, all the Stage 'B'
Conditions Precedent shall be deemed as wholly fulfilled
and the Parties shall perform and complete Stage 'B' of the
Transaction on the Second Closing Date. The foregoing is
without the Elbit-Koor Deed Stage 'B' being performed and
completed at the same time and without the provisions of
Clause 11.2 above and Clause 13.9 below applying and
without Clauses 3 and 4 of Appendix "12.2" constituting
Conditions Precedent for Stage 'B'. The foregoing shall not
preclude the performance of the Elbit-Koor Deed Stage 'B'
pursuant to and subject to the provisions of the Elbit-Koor
Deed on the Elbit-Koor Deed Second Closing Date, if and
when the Elbit-Koor Deed Stage 'B' Conditions Precedent (as
defined in the Elbit-Koor Deed) are fulfilled by the
deadline fixed for their performance in the Elbit-Koor
Deed.
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13. The Second Closing Date
Subject to the fulfillment of the Stage 'B' Conditions Precedent by
the Stage 'B' Completion Deadline or if they are deemed as wholly
fulfilled in accordance with the provisions of Clause 12.4 above or
Clause 12.5 above, as the case may be, the Parties and the Company
shall meet on the Second Closing Date at such place as determined by
the Parties and the Company, and they shall perform the following
interdependent acts contemporaneously:
13.1 Koor shall remit the Stage 'B' Consideration by bank
transfer to Federmann's Account, and confirmation from the
Bank that the Stage 'B' Consideration has been received in
Federmann's Account shall be provided to Federmann.
13.2 Federmann shall deliver to the Company a share transfer
deed pursuant to which the Stage 'B' Shares are being
transferred from Bank Leumi Le-Israel Trust Co. Ltd. to
Federmann, signed by Bank Leumi Le-Israel Trust Co. Ltd.
and Federmann, and the Company shall enter Federmann in its
shareholders registry as the holder of the Stage 'B'
Shares.
13.3 Federmann shall provide Koor confirmation from the Bank,
according to which the Bank agrees that on and against
receipt of the Stage 'B' Consideration in Federmann's
Account, it will discharge the Lien from the Stage 'B'
Shares.
13.4 Federmann shall provide Koor a letter of instructions from
the Bank, in the Bank's standard terms, addressed to the
Companies Registrar pursuant whereto the Bank applies to
the Companies Registrar to amend the Lien to the effect
that the Lien will be discharged from the Stage 'B' Shares.
13.5 Federmann and Koor shall deliver this Deed to the Company,
and Federmann shall procure the entry of Koor in the
Company's shareholder registry as the holder of the Stage
'B' Shares and that Koor receives a share certificate from
the Company in the Company's standard form attesting to
Koor's ownership of the Stage 'B' Shares.
13.6 Federmann shall provide Koor a copy of the Company's board
of directors' resolution that, subject to the performance
of Stage 'B' of the Transaction, there shall be added to
the Company's board of directors and serve on it an
additional director or directors another nominee or such
number of other nominees who is or are nominated for office
by Koor to the effect that after his or their addition to
the board of directors, the number of the Company's
directors who have been nominated for office by Koor and
meet the Qualification
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Requirements, including the director added to the Board of
Directors as provided in Clause 10.6 above, shall be the
greater of:
(1) two directors; or
(2) a number of directors equal to 20% of the
number of the Company's directors (including
external directors and including the director
or directors added on Koor's nomination as
aforesaid), rounded up to the nearest whole
number.
Said board of directors' resolution shall provide that
Koor's nominee or nominees as aforesaid shall be added to
the Company's board of directors on the Second Closing
Date.
Federmann undertakes that there will be sufficient
vacancies on the Company's board of directors to make the
addition of Koor's nominee or nominees as aforesaid
possible.
Koor shall arrange to provide Federmann and the Company
prior written notice of the name or names of its nominee or
nominees as aforesaid or of another nominee or other
nominees, as nominated by Koor in his or their place, and
Koor (with Federmann's assistance) shall coordinate with
the Company's corporate secretary those nominees'
compliance with the Qualification Requirements, all by no
later than 14 days prior to the earlier of (i) the Stage
'B' Completion Deadline; or (ii) the Second Closing Date.
If for any reason it is not possible to appoint the nominee
or nominees that Koor proposes as aforesaid as a director
or directors of the Company, another nominee or nominees,
meeting the Qualification Requirements, shall be appointed
on Koor's nomination in his or their place.
If and insofar as according to U.S. securities laws,
including the U.S. Xxxxxxxx-Xxxxx Act and the rules and
regulations that have been and are in future issued by
virtue thereof, including the rules of Nasdaq, it is
required that a majority of the Company's directors be
Independent Directors, then there shall be appointed as
additional directors of the Company, on Koor's nomination
as aforesaid, such number of nominees who fulfill the
requirements for Independent Directors, equal to one half
(50%) of the total number of directors who are elected to
office on Koor's nomination as provided in Clause 10.6
above and in this Clause 13.6, that number being rounded up
to the nearest whole number.
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13.7 Federmann shall provide Koor a written declaration duly
signed by Federmann that all Federmann's warranties and
representations as provided in Clauses 5 and 6 of this Deed
are also correct, complete and accurate as of the Second
Closing Date.
13.8 Koor shall provide Federmann a written declaration duly
signed by Koor that all Koor's warranties and
representations as provided in Clauses 5 and 7 of this Deed
are also correct, complete and accurate as of the Second
Closing Date.
13.9 The Elbit-Koor Deed Stage 'B' shall be completed, namely
all the acts that are to be performed on the Elbit-Koor
Deed Second Closing Date as provided in Clause 13 of the
Elbit-Koor Deed shall be performed. Nevertheless, this
Clause 13.9 shall not apply if Federmann provides notice as
provided in Clause 12.1.3 or as provided in Clause 12.1.5
above.
13.10 Each Party undertakes to perform all the acts for which it
is responsible pursuant to this Clause 13.
13.11 All the acts mentioned above in this Clause 13 shall be
deemed as being performed concurrently, no individual act
shall be deemed as completed and no individual document
shall be deemed as delivered until all the concurrent acts
have been 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 for the fulfillment of
all the Conditions Precedent, including obtaining all the
certificates, permits and consents necessary, 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 contemplated by 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 fulfillment 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, is
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hereinafter a "Fulfillment Payment"), provided that if a
Party to this Deed refuses to make a Fulfillment Payment,
the other Party may make it for the fulfillment of all or
any of the Conditions Precedent, provided that the first
Party shall not be responsible to indemnify the other Party
in respect of a Fulfillment Payment and the Party that
makes the Fulfillment Payment shall have no demand, claim
or right of recourse against the other Party with respect
to the making of such payment.
14.3 Without prejudice to the provisions of Clauses 15 and 16
below, Federmann hereby undertakes that from the date of
signing this Deed until the earlier of:
14.3.1 the Stage 'A' Completion Deadline, if the Stage
'A' Conditions Precedent have not been
fulfilled by that time; or
14.3.2 the Stage 'B' Completion Deadline, if the Stage
'B' Conditions Precedent have not been
fulfilled by that time; or
14.3.3 the Second Closing Date;
Federmann and/or its subsidiaries and/or the controlling
shareholders and/or officers of Federmann 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, other than the transactions
contemplated by this Deed and the Elbit-Koor Deed.
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; Federmann 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 that concerns: (a) the making of any
distribution whatsoever, whether in cash, in kind or by a
distribution of bonus shares, to the Company's
shareholders, apart from the distribution of a current
dividend in cash of not more than $ 0.23 per Ordinary Share
in any calendar quarter; (b) an rights offering for the
acquisition of any securities of the Company; (c) any
modification to the Company's incorporation documents that
is such as to affect Koor's rights pursuant to the
Company's incorporation documents in a way that is
prejudicial to Koor in comparison with Federmann, all
unless Koor's consent is
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provided thereto by written notice to be signed by two
officers of Koor 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
following 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 Federmann will
be entitled to receive in respect of the Shares
Being Sold (gross) (namely that 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 Consideration
shall be adjusted for the bonus element
embodied (if at all) in the rights, unless Koor
instructs Federmann in writing prior to the
exercise date in respect of those rights to
exercise the rights and in such event Federmann
shall exercise the rights by virtue of the
Shares Being Sold which have not yet been
transferred to Koor as at that time, and it
shall transfer to Koor, 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 whole exercise price
paid by Federmann to the Company for the
exercise thereof, plus Interest from the date
of Federmann's paying the exercise price to the
date of actual payment to Federmann by Koor.
15.2.3 If the Company distributes bonus shares or
dividend in kind to its shareholders prior to
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 dividend in kind (gross) in respect of
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the Shares Being Sold, Free and Clear, without
Koor 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 number of
Shares Being Sold shall be adjusted pro rata to
the consolidation or sub-division and the
Consideration shall not be modified.
16. Koor'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 Koor's consent,
Koor 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 prior to the
performance of Stage 'A' of the Transaction, Koor may only
rescind this Deed in full). Such rescission shall be
effected by Koor by written notice, to be received by
Federmann within 10 Business Days of the date on which Koor
learns of the occurrence of one of the events set out in
Clause 16.2 below. Should Koor 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
Koor shall not be set aside, Koor shall not return to
Federmann the Stage 'A' Shares and Federmann shall not
refund to Koor the Stage 'A' Consideration. Nevertheless,
all the Parties' other obligations and rights pursuant to
this Deed and the appendices hereto, except for the
Shareholders Agreement, shall be void.
16.2 The events are as follows:
16.2.1 If a temporary or permanent 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.
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16.3 Subject to applicable law, Federmann shall provide written
notice to Koor of the occurrence of any of the events set
out in Clause 16.2 above, immediately upon its publication.
16.4 The foregoing provisions of this Clause 16 shall not
derogate from any other right or remedy pursuant to this
Deed or by law that is available to Koor with respect to a
breach of any of the provisions of this Deed (if and
insofar as breached).
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
fulfillment 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 term of this Deed or if this Deed is cancelled or
rescinded for any reason.
17.2 If and insofar as possible and subject to applicable law
and to the time periods mandated by law, the Parties shall
coordinate in advance the wording of every report,
communication or notice published by either of them in
connection with their entering into this Deed, its
performance and the fulfillment of the terms 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 taxes at source,
the tax shall be duly withheld by the paying Party unless
the recipient Party produces a valid tax withholding
exemption certificate issued by the tax authorities.
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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 from Federmann's General Meeting and
board of directors for it to enter into this
Deed and the Shareholders Agreement and for
performance thereof by Federmann in accordance
with their terms and conditions, including
ratification of the signatures of Messrs
Xxxxxxx Xxxxxxxxx and Xxx Ninveh to this Deed
and the Shareholders Agreement.
19.1.2 Approval by Koor's board of directors for it 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.
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 hours (in this Clause
referred to as the "Effective Date");
(2) by the Effective Date copies of the resolutions
of Federmann's General Meeting and board of
directors, as mentioned in Clause 19.1.1 above,
have been received at Koor's offices jointly
with written confirmation from Federmann's
attorneys that the said resolutions were duly
adopted and Messrs Xxxxxxx Xxxxxxxxx and Xxx
Ninveh were together empowered to sign, on
behalf of Federmann, this Deed and the
documents ancillary hereto or those necessary
for the purpose of its performance, and also the
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Shareholders Agreement, and to obligate it
thereunder; and written confirmation from the
attorneys of Heris Aktiengesellschaft that the
competent organs of Heris Aktiengesellschaft
have approved its entering into the
Shareholders Agreement and Xx. Xxxxxxx
Xxxxxxxxx has been empowered to sign, on behalf
of Heris Aktiengesellschaft, the Shareholders
Agreement and obligate it by virtue thereof;
(3) by the Effective Date a copy of the resolution
of Koor's board of directors, as mentioned in
Clause 19.1.2 above, has been received at
Federmann's offices, together with written
confirmation from Koor's legal counsel that the
resolution was duly adopted and Messrs Xxxxxxxx
Xxxxxx and Xxxxx Xxxxx were together empowered
to sign, on Koor'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 it
thereunder; and
(4) all the approvals, as mentioned in Clause 19.1
of the Koor-Elbit 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 the performance and completion of Stage 'A' of
the Transaction are conditional upon the
fulfillment of all the Stage 'A' Conditions
Precedent by the Stage 'A' Completion Deadline
and, except for 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 fulfillment of all the
Stage 'A' Conditions Precedent; and
19.3.2 the performance and completion of Stage 'B' of
the Transaction are conditional upon the
fulfillment of all the Stage 'B' Conditions
Precedent by the Stage 'B' Completion Deadline
and, except for the obligations in Clauses 14
to 18 above and Clause 20.8 below, neither
Party shall be liable to
B-26
do any act for the performance and completion of
Stage 'B' of the Transaction before the fulfillment
of all the Stage 'B' 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 Federmann
and Koor, 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 provided 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 existed, 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 Elbit-Koor Deed shall
not be applied in the interpretation hereof.
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
its waiver of or acquiescence to 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.
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20.6 Unless otherwise expressly provided in this Deed, the
Parties hereto may not assign or transfer their rights or
obligations pursuant to this Deed to any third party or
perform this Deed through any third party, unless the other
Party's prior written consent has been obtained, and
nothing in this Deed shall be deemed to vest any right in
anyone who is not a Party hereto.
20.7 Should either of the Parties not enforce or delay in
enforcing any of the rights vested in it pursuant to this
Deed or by law in a particular case or series of cases,
such shall not be deemed a waiver of said right or of any
other rights.
20.8 Subject to 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 provided in writing
to the Parties' addresses as set out in the preamble hereto
or to such other addresses of which the Parties may provide
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 immediately
on delivery, or if delivered after 17:00 hours on any
Business Day, it shall be treated as received on the first
Business Day after its delivery.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS AGREEMENT
(signed) (signed)
-------------------------- ---------------------------------
KOOR INDUSTRIES LTD. FEDERMANN ENTERPRISES LTD.
By: Xxxxxxxx Xxxxxx By: Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx Dov Ninveh
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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 the [Israel] Commissioner of Restrictive Trade Practices'
approval of the Parties' contracting pursuant to this Deed and the
performance of Stage 'A' of the Transaction, provided that the
Commissioner's disapproval of Stage 'B' of the Transaction is not
received.
2. Obtaining all the consents and approvals necessary and the fulfillment
of all the Conditions Precedent for the Elbit-Koor Deed Stage 'A' to
become effective, as provided in the Elbit-Koor Deed.
3. Obtaining the [Israel] Ministry of Defense's approval of the Parties'
contracting pursuant to this Deed and the performance of all their
obligations pursuant hereto, including in connection with Stage 'B' of
the Transaction, all insofar as necessary.
4. Obtaining the [Israel] Chief Scientist's approval of the Parties'
contracting pursuant to this Deed and the performance of all their
obligations pursuant hereto, including in connection with Stage 'B' of
the Transaction, all insofar as necessary.
5. Obtaining the [Israel] Investment Center's approval of the Parties'
contracting pursuant to this Deed and the performance of all their
obligations pursuant hereto, including in connection with Stage 'B' of
the Transaction, all insofar as necessary.
6. Obtaining approval from banks, all insofar as necessary.
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, as existing at the
time of signing this Deed or as may arise in the future in accordance with
resolutions that have been adopted by Elbit prior to signing this Deed, or the
way in which Elbit conducts its business.
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Appendix 12.2
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. Insofar as necessary, obtaining the [Israel] Commissioner of
Restrictive Trade Practices' approval of the Parties' contracting
pursuant to this Deed and the performance of Stage 'B' of the
Transaction contemplated by this Deed, insofar as such approval is not
provided in Stage 'A' of the Transaction.
2. The completion of Stage 'A' of the Transaction contemplated by this
Deed.
3. The completion of the Elisra Transaction.
4. Obtaining all the consents and approvals necessary and the fulfillment
of all the Koor-Elbit Deed Stage 'B' Conditions Precedent, as provided
in the Koor-Elbit Deed, except for completion of the Elisra
Transaction.
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, as existing at the
time of signing this Deed or as may arise in the future in accordance with
resolutions that have been adopted by Elbit prior to signing this Deed, or the
way in which Elbit conducts its business.
