Exhibit 4.9
[TRANSLATED FROM THE HEBREW ORIGINAL]
SHARE TRANSFER DEED
Made in Tel Aviv this 27th day of December 2004
as amended on 6th July 2005
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, 3,160,000 (three million one hundred and sixty
thousand) Ordinary Shares, which on the date of signing this
Deed constituted approximately 7.75% 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 on the date of signing
this Deed constituted 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 1,000,000 (one
million) Ordinary Shares, which on the date of signing this
Deed constituted approximately 2.45% 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 Stage `A' of the Transaction, 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;
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:
"General Meeting" means as defined in the Companies Law,
and any adjourned meeting;
"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,
including its amendments;
"Stage `A' Conditions Precedent" means the Conditions
Precedent for Stage `A' of the Transaction, as provided in
Appendix "9.2" hereto;
"Conditions Precedent" means the Stage `A' 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 4 October 2005 or such earlier
date as may be agreed in writing by the parties;
"Stage `A' Completion Deadline" means as defined in Clause
9.1 below;
"Confidential Information" means all information relating
to the Parties hereto or to the Company, other than (a)
information that was in the public domain or came into the
public domain otherwise than due to a breach of this Deed
and (b) information the disclosure of which is required in
accordance with the provisions of 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 1,000,000 (one million) 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);
"Federmann" means as defined in the preamble to this Deed;
"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, including its amendments;
"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 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$24,700,000 (twenty four million seven
hundred 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;
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 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 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.
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
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 April 15, 2005 [extended by consent in the
past]; or
9.1.2 if by April 15, 2005 [extended by consent in
the past] all the Stage `A' Conditions
Precedent have been fulfilled, other than the
approval of the [Israel] Commissioner of
Restrictive Trade Practices, as 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
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 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
----------------------------
On the Second Closing Date, Federmann shall sell and
transfer to Koor, on and against payment of the full
amount of the Stage `B' Consideration, 1,000,000 (one
million) 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").
For the avoidance of any doubt, the performance of Stage
`B `of the Transaction is not conditioned upon any
condition precedent, and is not connected in any way or
form whatsoever with the Elbit-Koor Deed and/or Stage `B'
of the Elbit-Koor Deed.
12. REVOKED [including the extension of certain deadlines, in accordance
with the protocol dated 18 April 2005]
13. The Second Closing Date
-----------------------
On the Second Closing Date, the Parties and the Company shall meet 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 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 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.
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 Each Party undertakes to perform all the acts for which it
is responsible pursuant to this Clause 13.
13.10 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
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 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; or (2) 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 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
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 any of the stages of this Deed before it
has been completed and performed (provided that if one of
the events set out in Clause 16.2 below occurs 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.
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.
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
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: 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
19.4 The performance and completion of Stage `B' of the
Transaction is not conditioned upon any condition
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.
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
By: /s/ Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxxx /s/ Dor Ninveh
------------------- --------------- --------------------- --------------
KOOR INDUSTRIES LTD. FEDERMANN ENTERPRISES LTD.
Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx Dov Ninveh
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.
