Exhibit 4.3
UNOFFICIAL TRANSLATION
TRUST DEED
MADE AND ENTERED INTO IN TEL AVIV, THIS 23 DAY OF AUGUST, 2006
BY AND BETWEEN: ELBIT MEDICAL IMAGING LTD.
00, XXXXX XXXXX XX., XXX XXXX
TEL.: 00-0000000; FAX: 6953080-03
(HEREINAFTER: THE "COMPANY")
OF THE FIRST PART;
AND: AURORA FIDELITY TRUST COMPANY LTD.
0, XXXXXXX XX., RAMAT GAN
TEL.: 00-0000000; FAX: 7510902-03
(HEREINAFTER: THE "TRUSTEE").
OF THE OTHER PART;
WHEREAS the Company wishes to raise funds against a public issue of the
Company's (Series C) Bonds which are rated A2 by Midrug Ltd., and
rated A by Maalot the Israeli Securities Rating Co. Ltd. as of the
date of this Deed, all as set out in, and subject to, the provisions
of section 2 of this Trust Deed; and
WHEREAS the Company hereby declares that there is no impediment under any law
and/or agreement to effect a public placement of the Company's (Series
C) Bonds; and
WHEREAS the Trustee is a company registered in Israel, engaged in trusts; and
WHEREAS the Trustee has declared that there is no impediment under law to its
entering into this Trust Deed with the Company and that it complies
with the requirements and capacity conditions laid down in the Law, as
defined below, to serve as trustee pursuant to this Trust Deed; and
WHEREAS the Company has applied to the Trustee to serve as trustee for the
Bondholders and the Trustee has agreed thereto, all subject and
pursuant to the terms of this Trust Deed;
NOW, THEREFORE, IT IS AGREED, DECLARED AND STIPULATED BY AND BETWEEN THE PARTIES
AS FOLLOWS:
1. INTRODUCTION, INTERPRETATION AND DEFINITIONS
1.1 The preamble to this Trust Deed and the appendixes attached hereto,
constitute an integral part hereof.
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1.2 The division of this Trust Deed into sections as well as the section
headings herein are for convenience and ease of reference purposes
only and shall not be used for the purpose of interpretation.
1.3 Everything stated in this Trust Deed in the plural shall also mean the
singular and vice versa; everything stated in the masculine shall also
mean the feminine and vice versa; and the term "person" shall also
mean a corporation, all unless there is any contrary expressed and/or
implied provision and/or unless the context or the contents otherwise
require.
1.4 In this Trust Deed and in the Bonds, the following terms shall have
the meaning set out opposite them, unless the contents or the context
otherwise require.
"THIS DEED" - This Trust Deed, including the appendixes attached
hereto, constituting an inseparable part hereof;
"(SERIES C) BONDS" or "SERIES BONDS" or the "BONDS" - up to
458,605,000 (Series C) Bonds, unlimited in amount, of NIS 1 par value
each of the Company, the terms of which are set out in this Deed, to
be issued from time to time at the Company's exclusive discretion.
The "TRUSTEE" - The Trustee referred to at the beginning of this Deed
and/or anyone serving from time to time as trustee for the Bondholders
hereunder;
"REGISTER" - The Register of Bondholders as set forth in section 23
herein;
"BONDHOLDER" or "BONDOWNER" - the person named at such time in the
Register as owner of a Bond of the Series Bonds, and in the event of a
number of joint holders, the joint holder whose name appears first in
the Register;
"BOND CERTIFICATE" - A (Series C) Bonds Certificate in such wording as
set out in Appendix A hereto.
The "LAW" or the "SECURITIES LAW" - the Securities Law, 5728 - 1968
and its regulations as shall be in effect from time to time.
"PRINCIPAL" - the total par value amount of (Series C) Bonds to be
issued by the Company under this Deed.
"CONSUMER PRICE INDEX" or "INDEX" - The price index known as the
Consumer Price Index including fruit and vegetables and which is
published by the Central Bureau of Statistics, including such index
even if published by any other official entity or institution, as well
as any official index superseding the same, whether or not it is based
on the same data on which the existing index is based. If another
index supersedes it, published by such body or institution, where such
body or institution has not prescribed the ratio
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between it and the index that has been superseded, such ratio shall be
prescribed by the Central Bureau of Statistics. In the event of such
ratio not being prescribed as aforesaid, then the Trustee, in
consultation with such economic experts as it shall select, shall fix
the ratio between the other index and the superseded index.
The "KNOWN INDEX" at any given time - the Index last published before
such date.
"BASE INDEX" - the index for July 2006, as published on August 15,
2006.
"PAYMENT INDEX" - The index known on the due date of any payment on
account of principal and/or interest.
"BUSINESS DAY" - A day on which most of the banks in Israel are open
for the execution of transactions.
"SPECIAL RESOLUTION" - As defined in section 6(e) of Appendix B
hereto.
"STOCK EXCHANGE" - The Tel Aviv Stock Exchange Ltd.
"RATING COMPANY" - A company approved by the Supervisor of the Capital
Market at the Ministry of Finance.
"PROSPECTUS" - The Prospectus for the issuance to the public of the
Company, including, the issuance of Bonds, to be published in August
2006.
2. ISSUE OF BONDS
The Company will issue 458,605,000 registered (Series C) Bonds, payable in
10 equal semi-annual installments, on September 1 of each of the years 2009
to 2018, inclusive (the first installment to be effected on September 1,
2009 and the last installment to be effected on September 1, 2018), bearing
interest at the Uniform Interest Rate or at the New Uniform Interest rate
(as such terms are defined in the Prospectus of the issuance of the Company
of August 24, 2006), which shall paid in semi-annual installments on March
1 and September 1 of each of the years 2007 to 2018 (the first installment
to be effected on March 1, 2007 and the last installment to be effected on
September 1, 2018), linked (principal and interest) to the Consumer Price
Index, all pursuant to the terms set forth in the Bond attached as Appendix
A hereto.
The Bonds are offered within a transaction that does not constitute a
public offering in the United States, within the meaning thereof in the
1933 US Securities Law, as may be amended from time to time (hereinafter:
the "US LAW"). The Bonds will not be submitted for registration with the US
Securities Authority or any other securities authority of any state in the
United States. The Bonds may not be offered or sold under US Law by any
holder other than in accordance with exemption from the registration
requirements in the United States, or within a transaction which is not
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subject to the registration requirements, under the US Law, or any
securities law applicable in the pertinent state in the United States.
Increase in the series - The Company may issue, at any time and from time
to time, without the approval of either the Bondowners or the Trustee,
including to the Company's subsidiary, pursuant to the provisions of any
law, additional Bonds with identical terms to those of the (Series C)
Bonds, at such a price and in such a manner as the Company finds fit.
Provided that this Deed will apply to all such additional Bonds to be
issued by the Company and that they shall be deemed as the (Series C) Bonds
first issued. Notwithstanding anything to the contrary anywhere in this
Deed, an additional issue of (Series C) Bonds exceeding the scope rated by
a Rating Company within the framework of this Series (as of the date of
this Deed, the sum totals approximately NIS 470 million), shall be effected
subject to another rating by a Rating Company and subject further that such
additional issue of Bonds of the same Series shall not adversely affect the
rating of the Bonds first issued under this Deed, as then in effect. The
Company shall obtain the Stock Exchange's approval for such an increase and
shall publish an immediate report of any increase in the Series Bonds.
Issuance of additional securities - The Company reserves the right to
issue, at any time, without approval of the Trustee and/or the Bondholders,
other Bonds or Series Bonds or other securities of any nature or type
whatsoever, at such terms as the Company shall find fit, whether
preferable, equal or inferior to the terms of the Bonds.
3. ACQUISITION OF BONDS ON THE PART OF THE COMPANY AND A SUBSIDIARY
3.1 The Company reserves the right to acquire, at any time, Bonds of the
Series Bonds at any price it finds fit, without prejudice to the duty
to settle the Bonds held by others apart from the Company.
3.2 The Bonds that will be acquired by the Company will be cancelled, and
shall be delisted from trading on the Stock Exchange and the Company
shall not be entitled to reissue them.
3.3 The Company's subsidiary may acquire and/or sell Bonds of the Series
Bonds, from time to time, either on the Stock Exchange or off-floor,
including by means of an issue by the Company. The Bonds to be held as
aforesaid by a subsidiary will be deemed as being an asset of the
subsidiary, and they will not be delisted from trading on the Stock
Exchange, and will be transferable similar to the other (Series C)
Bonds. The votes to which such subsidiary will be entitled, by virtue
of its holdings in the Bonds, will not be counted for the purpose of
determining the existence of a quorum at general meetings of
Bondholders, and the Bonds held by the subsidiary will not confer on
it voting rights at such general meetings, so long as the Bonds are
held by such subsidiary.
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3.4 Nothing in the foregoing section 3 above, per se, shall bind the
Company and/or the Company's subsidiary and/or the Bondholders, to
acquire Bonds or sell the Bonds in their possession.
4. THE COMPANY'S UNDERTAKINGS
The Company hereby undertakes to pay, on the designated dates, the
principal, interest and linkage differentials payable under the terms of
the Bond and to comply with all the other terms and obligations imposed on
it, pursuant to the terms of the Bond and hereunder. The Company hereby
undertakes to pay, on the designated dates, the principal, the interest and
the linkage differentials (including arrears interest, if any, pursuant to
the provisions of section 6 of the terms listed overleaf of the Bond
attached hereto as Appendix A), payable under the terms of the Bonds and to
comply with all other terms and obligations imposed on it under the terms
of the Bonds and hereunder. Where the designated date for payment of the
(Series C) Bonds or the designated date for any interest installment occurs
on any day other than a business day, the payment date or the date of such
installment shall be postponed to the business day immediately subsequent
thereto, and no interest shall be paid with respect to such delay.
5. SECURITIES:
5.1 The Bonds are not secured by means of any lien.
5.2 The Company may encumber all or any of its property, by means of any
encumbrance and in any fashion whatsoever, in favor of any third party
whatsoever, without having to obtain any approval from the Trustee
and/or the Bondholders.
6. RATING OF THE BONDS
The Bonds shall be equal inter se, (pari passu) without any preference or
priority of one over the other.
7. IMMEDIATE SETTLEMENT
7.1 Subject to the provisions of subsection 7.2 below, the Trustee may
declare all or any part of the unsettled balance of the Bonds
immediately due and payable, and shall be compelled to do so if so
required by a special resolution adopted by the general meeting of the
Bondholders, all upon the occurrence of one or more of the following:
7.1.1 Should the Company fail to settle any sum payable by it under
the Bonds up to the end of seven (7) days from the due date
thereof.
7.1.2 If a temporary liquidator has been appointed by a court or if a
court has entered a temporary liquidation order to the Company
and such appointment or order is not cancelled by the end of 45
days from its commencement date, or if the Company adopts a valid
resolution of
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the winding up thereof (other than winding up for the purpose of
a merger with another company and/or a change in the Company's
structure, provided that the Trustee is satisfied that the
Bondholders' rights are secured), or where a permanent liquidator
has been appointed for the Company or if a final winding up order
has been entered against it.
7.1.3 Upon the occurrence of any of the following, where the Trustee
or a special resolution adopted at a general meeting of the
Bondholders determine that same poses a risk to the rights of the
Bondholders:
(a) Lienholders on the Company's property realize their liens on
all, or on a substantial part of the Company's assets, at
the discretion of the Trustee.
(b) An attachment is imposed on substantial assets of the
Company, at the discretion of the Trustee, and such lien is
not removed by the end of forty five (45) days from the date
of the imposition thereof.
(c) An act of execution is instituted against substantial assets
of the Company, at the discretion of the Trustee, and such
act is not cancelled by the end of forty five (45) days from
the date of the institution thereof.
(d) A receiver is appointed to all and/or a substantial part of
the Company's assets, at the discretion of the Trustee, and
such appointment is not cancelled by the end of forty five
(45) days from the commencement thereof.
(e) The Company discontinues its installments and/or gives
notice of its intention to discontinue its installments
and/or there is a material concern that it is liable to
discontinue its installments and/or terminate its business
and/or intends to terminate its business and/or where it is
reasonable that it would terminate its business.
(f) A motion for stay of proceedings against the Company under
Section 350 of the Companies Law, 5759 - 1999, is submitted
to the court by a third party that is not the Company, and
such motion is not cancelled within forty five (45) days
from the commencement date thereof.
(g) Should the Company violate or fail to comply with any
material conditions or obligations incorporated in the Bonds
and/or in this Deed, where the Trustee deems same as
prejudicing the rights of the Bondholders, and the Company
has not fulfilled such
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condition within seven (7) days from the Date the Trustee
has given it a written warning to that effect.
(h) Another series of the Bonds issued by the Company is
declared due and payable.
(i) All the Company's securities are delisted from trading on
the Stock Exchange and from trading on the Nasdaq
concurrently.
7.2 Notwithstanding the contents of subsection 7.1 above, the Trustee
shall not declare the Bonds immediately due and payable, unless the
following conditions are satisfied:
7.2.1 The Trustee has given a prior written warning to the Company of
its intention to act as aforesaid, and the Company failed to
comply with the contents of such warning by the end of fifteen
(15) days from the date of receipt thereof. In the said warning,
the Company is required to cause the cancellation and/or
termination of the occurrence, as set out in subsection 7.1
above, in connection with which the said warning was given. It is
to be clarified that the warning period is counted from after the
periods stipulated in subsection 7.1.3 above have expired.
7.2.2 The Trustee at its reasonable discretion believes that any delay
in declaring the Company's debt payable puts the rights of the
Bondholders at risk.
7.2.3 Notwithstanding the contents of sections 7.1 and 7.2.1 above,
should the Trustee find that a delay in declaring the Bonds
immediately due and payable, as set out in subsections 7.1 and
7.2.1 above, will significantly risk the rights of the
Bondholders, the Trustee may bring forward each of the periods
set out in subsections 7.1 and 7.2.1 above, as it finds
necessary, with a view to preventing the said risk to the rights
of the Bondholders, provided that it gives written notice thereof
to the Company and no response is received from the Company to
its satisfaction within two (2) business days from the date of
such warning.
7.3 After the Bonds are declared immediately due and payable as aforesaid,
the Company shall perform from time to time and at any time it is
required to do so by the Trustee, all the acts reasonably required to
allow the exercise of all powers vested by the Trustee. Inter alia, it
shall cause the performance of all acts reasonably required pursuant
to the law to validate the Trustee's powers.
8. CLAIMS AND PROCEEDINGS ON THE PART OF THE TRUSTEE
8.1 The Trustee may, at any time after the Bonds are declared due and
payable, at its discretion and without giving another notice, adopt
all such proceedings,
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including legal proceedings, as it finds fit, subject to the
provisions of any law, to protect the rights of the Bondholders and
implement the provisions of the Trust Deed and it may convene a
special meeting of the Bondholders to this end. The Trustee shall be
compelled to do so at the demand of the meeting of the Bondholders
adopted by a special resolution.
Nothing in the foregoing shall prejudice and/or derogate from the
Trustee's right to institute legal and/or other proceedings, either on
its own initiative or at the demand of the meeting of the Bondholders
adopted by a special resolution, even if the Bonds have not been
declared immediately due and payable, all with a view to protecting
the Bondholders and subject to the provisions of any law.
8.2 The Trustee may, before resorting to such proceedings, convene a
general meeting of the Bondholders, to determine, in a special
resolution, the type of proceedings to be adopted to exercise their
rights under this Deed and the Bonds. The Trustee may further
reconvene general meetings of the Bondholders for the purpose of
receiving instructions in respect of the conducting of such
proceedings. In such cases, the Trustee shall act without delay and on
the first practicable and reasonable date.
8.3 Subject to the provisions of this Deed, the Trustee may, but shall not
be obligated to, convene a general meeting of the Bondholders at any
time, with a view to discussing and/or receiving its instructions on
any matter pertaining to this Deed, provided that the convening of the
meeting shall be performed by the Trustee in such cases without any
delay and on the first practicable and reasonable date.
8.4 The Trustee may, but shall not be obligated to, at its sole
discretion, withhold any act on its part under this Deed, for the
purpose of an application to the general meeting of the Bondholders
and/or the court, until such time as it receives instructions from the
general meeting of the Bondholders and/or instructions from the court
on how to proceed. The application to the general meeting of the
Bondholders and/or to the court will be effected in such cases without
delay and on the first practicable and reasonable date.
8.5 Subject to the provisions of subsection 8.6 below, the Trustee shall
be obligated to act as set out in subsection 8.1 above, should it be
so required by a special resolution adopted at the general meeting of
the Bondholders, unless it finds that, under the circumstances, it is
not just and/or reasonable to do so and it has applied to the
pertinent court for respective instructions on the first reasonable
date.
8.6 The Trustee shall be entitled to indemnification from the Bondholders
and/or the Company for reasonable expenses incurred and/or to be
incurred by it, as the case may be, with respect to acts performed
and/or to be performed by it, by virtue of its duties under the terms
of the Trust Deed and/or under law
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and/or pursuant to instructions of a competent authority and/or any
law and/or at the demand pursuant to any resolution adopted at a
general meeting of the Bondholders and/or the Company. Notwithstanding
the foregoing, it is hereby clarified and agreed that the Company
shall not indemnify the Trustee for expenses incurred and/or that may
be incurred by it with respect to acts performed and/or which may be
performed at the demand of the Bondholders for any reason whatsoever
and the Bondholders shall not indemnify the Trustee for expenses
incurred and/or to be incurred by it with respect to acts performed
and/or to be performed by it at the Company's demand for any reason
whatsoever. The right to indemnification set out in this subsection
8.6, shall apply upon the following conditions:
8.6.1 The expenses are reasonable.
8.6.2 The Trustee has acted in good faith, has not been negligent and
such act was performed in its capacity as trustee.
8.6.3 The Trustee may not demand indemnification in advance for its
expenses in connection with a pressing matter.
8.7 Subject to the provisions of subsection 8.6 above, the Trustee may
refrain from adopting any measure as aforesaid in subsection 8.6
above, until such time as it receives, to its satisfaction, an
indemnity letter from all or any of the Bondholders, as the case may
be, in connection with any liability for damages and/or expenses
liable to be caused to the Trustee and the Company or to any of them,
due to the performance of such act, other than in circumstances where
a pressing act is required, and where refraining from the performance
thereof up to the receipt of the indemnify letter as aforesaid, shall
cause damage and/or loss to the Bondholders.
8.8 To remove any doubts, it is hereby clarified, that nothing in any of
the aforesaid provisions shall prejudice and/or derogate from the
Trustee's right which is hereby vested in it, to apply, at its
exclusive discretion, to legal instances also before the Bonds are
declared due and payable, for the purpose of obtaining any order
concerning the trust affairs.
9. RECEIPTS HELD IN TRUST
All receipts collected by the Trustee in consequence of declaring the Bonds
immediately due and payable, including receipts arising from proceedings
instituted by it, if any, against the Company, shall be held by it in trust
and it shall use same for such purposes and according to such priorities as
follows:
First, for settlement of all expenses, payments, levies and obligations
incurred by the Trustee, imposed on it, or caused in the course of, or in
consequence of, acts in implementation of the trust or otherwise, with
respect to the terms of this Deed, including its fee (but without
derogating from the Company's undertakings pursuant to section 17 below).
Second - to pay, to the Bondholders, the arrears interest due to
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them and subject to the linkage terms under the Bonds pari passu and pro
rata to the sums payable to each of them without preference or priority
with respect to any of them, and without any preference as to the time
priority of the issuance of the Bonds by the Company or otherwise; third -
to make such payments to the Bondholders, on account of the principal owed
to them under the Bonds held by them pari passu and subject to the linkage
terms under the Bonds, all whether the due date for settlement of any
installment on account of the principal as aforesaid has fallen due or not,
pro rata to the sums owing to them, without any preference as to the time
priority of the issuance of the Bonds by the Company or otherwise. The
surplus, if any, shall be paid by the Trustee to the Company or its
successors, as the case may be. Tax will be withheld from the payments to
the Bondholders to the extent such should be deducted under any law.
10. POWER TO WITHHOLD DISTRIBUTION OF FUNDS
10.1 Notwithstanding the provisions of section 9 above, in the event that
the monetary sum obtained in consequence of the institution of the
proceedings as aforesaid, which at any time is available for
distribution, as set out in such section, is less than ten (10)
percent of the unsettled principal balance of the Bonds plus the
interest thereon (subject to the linkage terms) (hereinafter: the
"MINIMUM SUM") the Trustee shall not be obligated to distribute same,
and it may invest such sum, in whole or in part, in such investments
as are permitted hereunder and substitute such investments from time
to time by other permitted investments under this Deed, all as it
finds fit. Notwithstanding the foregoing, a special resolution at the
meeting of the Bondholders may instruct the Trustee to distribute, to
the Bondholders, any such amount, even where the cumulative sum as
aforesaid is less than the Minimum Sum.
10.2 Where such investments, including accruals thereon, together with
other funds received by the Trustee for the purpose of the payment
thereof to the Bondholders, total, if at all, such amount as is
sufficient to pay at least ten (10) percent of the unsettled principal
balance of the Bonds (subject to the linkage terms), the Trustee shall
pay same to the Bondholders as set out in section 9 above. In the
event that, within a reasonable period of time, the Trustee does not
have a sufficient sum to pay at least ten (10) percent of the
unsettled balance of the principal of such Bonds, the Trustee may
distribute the funds held by it to the Bondholders.
11. NOTICE OF DISTRIBUTION AND DEPOSIT WITH THE TRUSTEE
11.1 The Trustee shall give notice to the Bondholders of the date and the
place of effecting any installment of the installments set out in
sections 9 and 10 above, in a notice to be delivered to them in the
manner designated in section
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21 below, not less than ten (10) days and not more than twenty (20)
days in advance.
After the date designated in the notice, the Bondholder shall be
entitled to interest thereon, at the rate designated in the Bonds,
only in respect of the unsettled balance of the principal (if any)
after deduction of the amount paid or offered to be paid to them as
aforesaid.
11.2 Any sum payable to a Bondholder which is has not been actually paid on
the date designated for payment for any reason beyond the Company's
control, while the Company was willing to pay same, shall cease to
bear interest and linkage differentials as of the date designated for
payment thereof, while the Bondholder shall be entitled only to such
payments as he would have been entitled to on the date designated for
payment of such installment on account of the principal, interest and
linkage differentials.
11.3 The Company shall deposit, with the Trustee, the sum of the
installment not paid in a timely fashion, as set out in subsection
11.2 above, not later than fifteen (15) business days as of the date
designated for such installment, and shall give notice of such
deposit, and such deposit shall be deemed as settlement of such
installment, and, in the event of the settlement of everything owing
for the Bond, also as the redemption of the Bond.
11.4 The Trustee shall invest, within the framework of trust accounts in
its name and for its benefit, such funds as are transferred to it as
set out in subsection 11.3 above, in such investments as are permitted
to the Trustee under this Deed. In the event that the Trustee acts as
aforesaid, it shall only owe, to those eligible for such amounts, the
consideration received from the realization of the investments, less
the expenses related to the said investment and to the management of
the trust accounts, as well as the charges, and less the obligatory
payment applicable to the trust account. From such funds, the Trustee
shall transfer, to the Bondholders, the sums to which they are
entitled, as soon as practicable after proof and confirmations are
presented to the Trustee of their entitlement to such amounts, to the
Trustee's full satisfaction, and less its expenses.
11.5 The Trustee shall hold such funds and shall invest them in the said
manner, up to the end of one year from the final settlement date of
the Bonds. After such date the Trustee shall transfer, to the Company,
such amounts as are set out in subsection 11.4 above, including
profits arising from their investment, less its expenses, to the
extent remaining in its possession on such date. The Company shall
hold such amounts in trust for such Bondholders as are entitled to
such sum, and in respect of the sums transferred to it by the Trustee
as aforesaid the provisions of subsection 11.4 above shall apply to
it, mutatis mutandis.
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The Company shall confirm to the Trustee, in writing, the holding of
the amounts and the receipt thereof on behalf of the Bondholders, and
shall indemnify the Trustee for any claim and/or expense and/or damage
of any type whatsoever incurred by it in the wake of, and due to, the
transfer of the funds as aforesaid, unless the Trustee has acted
negligently.
The Company shall hold such funds in trust on behalf of the
Bondholders entitled thereto for six (6) additional years from the
date of the transfer thereof by the Trustee. Funds not demanded from
the Company by a Bondholder up to the elapsing of seven (7) years from
the date of the final settlement date of the Bonds, shall be
transferred to the Company, and the Company shall be entitled to use
the remaining funds for any purpose whatsoever.
12. RECEIPT FROM THE BONDHOLDERS
12.1 A receipt from a Bondholder for any payment on account of the
principal, the interest and the linkage differentials paid to him by
the Trustee in connection with the Bond, shall serve as absolute
exemption of the Trustee and the Company in connection with the very
performance of the payment of the sums designated in the receipt.
12.2 A receipt from the Trustee as to the deposit of any installment on
account of the principal, the interest and the linkage differentials
with the Trustee for the benefit of the Bondholders as set out in
subsection 11.3 above, shall be deemed as a receipt from the
Bondholder for the purpose of the provisions of subsection 12.1 above,
with respect to the exemption of the Company in connection with the
performance of the payment of the sums designated in the receipt.
12.3 Funds distributed as aforesaid in section 11 above, shall be deemed as
payment on account of the settlement of the Bonds.
13. PRESENTATION OF A BOND TO THE TRUSTEE AND REGISTRATION WITH RESPECT TO
PARTIAL INSTALLMENT
13.1 The Trustee may demand from a Bondholder to present to the Trustee,
upon the payment of any interest or partial installment of principal,
interest and linkage differentials pursuant to sections 9, 10 and 11
above, the Bonds certificates for which the installments are made.
13.2 The Trustee may register, in the Bond certificate, a note with respect
to the sums paid as aforesaid and as to the date of payment thereof.
13.3 The Trustee may, in any special case, at its discretion, waive the
presentation of a Bond certificate after an indemnity undertaking
and/or sufficient security, to its satisfaction, has been given to it
by the Bondholder, for
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damages liable to be caused due to failure to register such note, all
as it finds fit.
13.4 Notwithstanding the aforesaid, the Trustee may, at its discretion,
keep records in any other manner, with respect to such partial
installments.
14. INVESTMENT OF FUNDS
All funds which the Trustee is entitled to invest under this Deed, shall be
invested by it, in accounts at one of the five (5) leading banks in Israel,
in its name or for its benefit, in such investments as the laws of the
State of Israel allow trust funds to invest therein, as it finds fit, all
subject to the terms of this Trust Deed, provided that any investment in
securities shall be in such securities as have been rated by a rating
company approved by the Commissioner of the Capital Market with identical
rating to that of the Bonds on the date of the execution of this Trust
Deed.
15. COMPANY'S UNDERTAKINGS TO THE TRUSTEE
The Company hereby undertakes to the Trustee, so long as the Bonds have not
been fully settled, as follows:
15.1 To continue to conduct its business in a regular and appropriate
manner and to maintain and conduct its assets in a good and orderly
condition.
15.2 To regularly pay all the obligatory payments and taxes applicable, if
any, to its assets.
15.3 To maintain orderly books of account in accordance with accepted
accounting principles, to maintain the books and documents used as
their references, and to allow any authorized representative of the
Trustee to review, at any reasonable time to be coordinated in advance
with the Company, any book and/or document as aforesaid which the
Trustee seeks to review. In this context, an authorized representative
of the Trustee means a person designated by the Trustee for the
purpose of such review, by means of a written notice on the part of
the Trustee to be given to the Company prior to the review as
aforesaid, and which shall also contain the Trustee's approval whereby
such designated representative is obligated to the Trustee to keep
confidential the information disclosed to such designated
representative in his capacity on behalf of the Trustee. The Trustee
shall treat as confidential any information contained in a book and/or
document reviewed by the Trustee's representative as aforesaid.
15.4 To insure its assets pursuant to principles of regular business
procedures pursuant to which assets of such type are covered, and to
comply with all the terms of the insurance and to present to the
Trustee a certification of issuance of insurance policies, as
aforesaid, upon demand.
13
15.5 To give a written notice to the Trustee immediately upon learning, and
not later than two (2) business days after learning, of any event of
imposition of an attachment on the Company's assets the cumulative
value of which on such date amounts to 10% or more of the total
consolidated balance sheet of the Company, pursuant to the Company's
last consolidated financial statements and in any event of appointment
for the Company's assets, at such cumulative value, a receiver, a
special administrator and/or temporary or permanent liquidator, and to
adopt at its expense all measures required to remove such attachment
or to cancel the receivership, liquidation or administration, as the
case may be.
15.6 To advise the Trustee in writing, immediately upon learning thereof,
and not later than two (2) business days from learning of it, of the
occurrence of any of the events set out in subsections 7.1.1, 7.1.2
and 7.1.3 above.
15.7 To deliver to the Trustee, upon its demand, a copy of any report that
it is compelled to submit to the Securities Authority, on the same
date of submission thereof to the Authority, and a copy of any
document that the Company transfers to its shareholders or to the
Bondholders and the particulars of any information that it otherwise
transfers to them. The Company shall further transfer to the Trustee
additional information with respect to the Company at the Trustee's
reasonable demand, and any information transferred by the Trustee
shall be maintained in confidence by the Trustee.
15.8 To give a confirmation to the Trustee, at its demand, that all
payments that have fallen due have been effected to the Bondholders.
15.9 To act with a view that the Bonds be rated by a rating company
approved by the Commissioner of the Capital Market, pursuant to the
rules and provisions prescribed in the Income Tax Regulations (Rules
for Approval and Management of Provident Funds), 5724 - 1964,
Insurance Business (Control) Regulations (Ways of Investing an
Insurer's Capital and Reserves and Management of His Obligations),
5761 - 2001, as shall be amended from time to time up to the date of
settlement of the Bonds in full and to advise the Trustee of any
decline in the rating of the Bonds.
15.10 To allow the Trustee to participate at meetings of the Company's
shareholders, without conferring a voting right on it.
15.11 The Trustee's undertaking, as set out in this section 15 above, shall
not apply to any transfer of information to the meeting of the
Bondholders which, in the Trustee's reasonable opinion, will be
required by the Bondholders for the purpose of adopting a resolution
in respect of their rights or for the purpose of giving an account to
the Bondholders at the Trustee's reasonable discretion.
14
It is hereby clarified that failure to act on the part of the Trustee
and/or the Bondholders in view of the failure to comply with any obligation
on the part of the Company under this Deed, shall not be deemed as being a
waiver on the part of the Bondholders and/or the Trustee of any right, but
only as a limited consent to the special occasion on which it was granted.
16. OTHER AGREEMENTS
Subject to the provisions of the Law and the restrictions imposed on the
Trustee under law, the fulfillment of its capacity as Trustee, under this
Deed, or its very status as Trustee, shall not prevent the Trustee from
entering into various agreements with the Company or entering into
transactions with the Company in the ordinary course of its business,
provided that such engagements and/or transactions shall not cause the
Trustee to loose its capacity under Section 35.E. of the Law to serve as
Trustee for the Bondholders.
17. TRUSTEE'S FEE
The Trustee's fee shall be as set out in Appendix C hereto, constituting an
integral part of this Deed.
18. SPECIAL POWERS
18.1 The Trustee may, as part of the fulfillment of the Trust affairs under
this Deed, act in accordance with the opinion and/or advice of any
attorney, accountant, appraiser, assessor, surveyor, mediator or other
specialist, whether such opinion and/or advice has been prepared at
the Trustee's request and/or by the Company, and the Trustee shall not
be responsible for any loss or damage caused in consequence of any act
and/or omission performed by it on the basis of such advice or
opinion, unless the Trustee has acted negligently or mala fide.
18.2 Any such advice and/or opinion may be given, forwarded or received by
means of a letter, telegram, facsimile and/or any other electronic
means for transmission of information, and the Trustee shall not be
responsible for any acts performed by it on the basis of any advice
and/or opinion and/or information transmitted in one of the aforesaid
manners, notwithstanding that same contained errors and/or was not
authentic, unless the Trustee was aware of such errors or where such
errors could have been detected under a reasonable examination. Such
opinion shall be open for perusal by any Bondholder, upon demand, with
the Trustee, subject to the Bondholder's execution of a letter of
confidentiality upon the Company's demand.
18.3 The Trustee shall not be obligated to give notice to any party of the
execution of this Deed and may not in any manner interfere with the
management of the Company's business or affairs. Nothing in the
contents of this section shall limit the Trustee in respect of acts to
be performed by it under this Trust Deed.
15
18.4 The Trustee shall use the trust, powers, authorizations and
authorities conferred on it, under this Deed, at its absolute
discretion and shall not be responsible for any damage caused in
consequence of an error in such discretion, unless the Trustee has
acted negligently.
19. THE TRUSTEE'S POWER TO ENGAGE AGENTS
The Trustee may appoint an attorney or other agent/s to act in its stead,
to perform or participate in the performance of special acts to be
performed with respect to the Trust and pay a fee to any such agent, and,
without limitation to the generality of the foregoing, institution of legal
proceedings or representation in proceedings of the Company's merger or
spin-off. The Company may object to such appointment on any reasonable
ground whatsoever, including in the event that the agent is competing,
directly and/or indirectly, with the Company's business.
20. TRUSTEE'S FEE
Without prejudice to the rights for indemnification vested in the Trustee
under the Law and/or the Company's obligations under this Deed, and subject
to the contents of subsection 8.6 above, the Trustee, its attorney,
manager, agent or other person, appointed by the Trustee, pursuant to this
Deed, shall be entitled to indemnification out of the funds received by the
Trustee for the Bondholders arising from the proceedings instituted by it
and/or otherwise pursuant to this Deed, with respect to reasonable
obligations assumed by them, with respect to reasonable expenses incurred
in the course of implementing the Trust under this Deed or with respect to
such acts, which in their opinion were required for such implementation
and/or with respect to the exercise of powers and authorizations vested in
the Trustee, pursuant to this Deed and with respect to all sorts of legal
proceedings, opinions of attorneys and other specialists, negotiations,
discussions, expenses, claims and demands in connection with any law and/or
matter, made and/or omitted in any manner, with respect to the above, and
the Trustee may withhold the funds in its possession and pay out of such
funds such amounts as are required for settlement of the indemnification.
Notwithstanding the foregoing, the Trustee shall not be entitled to
indemnification for such acts performed by it where held in a conclusive
judgment that the Trustee acted negligently.
21. NOTICES
21.1 Any notice on behalf of the Company and/or the Trustee to the
Bondholders shall be given by means of an advertisement published in
two widely-circulated daily newspapers in the Hebrew language and, at
the Company's discretion, also by means of forwarding the notice by
registered mail, to the last address of the Bondholders recorded in
the Register. Furthermore, the Company shall publish an immediate
report and such published report shall be deemed to have been
delivered to the Bondholders on the date of the publication thereof.
16
21.2 Copies of notices and invitations that will be given by the Company to
the Bondholders shall also be sent to the Trustee. It shall be
clarified that such notices and invitations do not include ongoing
accounts by the Company to the public.
Copies of notices and invitations that will be given by the Trustee to
the Bondholders shall also be sent by it to the Company.
21.3 Any notice or demand on behalf of the Trustee to the Company or on
behalf of the Company to the Trustee, may be given by means of a
letter that will be forwarded by registered mail to the address set
out in this Deed, or to any other address of which one party gives
written notice to the other, and any such notice or demand shall be
deemed to have been received by its addressee within three business
days from the date of dispatch thereof at the post office.
22. REVISIONS IN THE TRUST DEED, WAIVER AND SETTLEMENT
22.1 Subject to the provisions of the Law and the regulations enacted
thereunder, the Trustee may, from time to time and at any time, or in
any other event, if it is satisfied that same does not amount to
material injury to the rights of the Bondholders, waive any failure to
fulfill any of the terms of the Bonds or this Deed on the part of the
Company, provided that they do not refer to the terms of payment of
the Bonds and the grounds for the declaration as immediately due and
payable and/or reports that the Company is to deliver to the Trustee
pursuant to the provisions of this Deed.
22.2 Subject to the provisions of the Law and the regulations enacted
thereunder, and with the prior approval by a special resolution to be
adopted at the general meeting of the Bondholders, at which the
holders were present in person, or by proxy, at least fifty percent
(50%) of the par value of the unsettled balance of the principal of
the Bonds, or at an adjourned meeting, at which the holders were
present in person or by proxy, at least twenty percent (20%) of such
balance, the Trustee may, either before or after the principal of the
Bonds becomes due, settle with the Company with respect to any right
or claim of all or any of the Bondholders and reach any arrangement in
respect of their rights with the Company, including waiver of any of
its rights or claims and/or those of all or any of the Bondholders
vis-a-vis the Company.
22.3 Subject to the provisions of the Law, the Company and the Trustee may,
either before or after the principal of the Bonds becomes due, revise
the Trust Deed and/or the terms of the Bonds, on the occurrence of one
of the following:
22.3.1 The Trustee has been satisfied that the change does not
materially adversely affects the rights of the Bondholders, other
than revisions referring to the terms of payment of the Bonds,
the grounds for
17
declaration as immediately due and payable and/or reports to be
submitted by the Company to the Trustee pursuant to the
provisions of this Deed.
22.3.2 The proposed revision has been approved by a special resolution
adopted at the general meeting of the Bondholders, at which the
holders were present in person or by proxy, of at least fifty
percent (50%) of the par value of the unsettled balance of the
principal of the Bonds, or at an adjourned meeting, at which the
holders were present in person or by proxy, of at least twenty
percent (20%) of such balance.
22.4 The Company shall deliver to the Bondholders, a notice of any such
revision, pursuant to subsection 22.1, subsection 22.3.1 or subsection
22.4 above, as soon as practicable after the implementation thereof.
22.5 In any event of exercise of the Trustee's right under this section,
the Trustee may demand from the Bondholders to deliver the Bonds
certificates to it or to the Company, for the purpose of entering a
note therein as to any compromise, waiver, revision or amendment as
aforesaid, and at the Trustee's demand, the Company shall enter such a
note. In any event of the use of the Trustee's right under this
section, it shall give a written notice thereof to the Bondholders
within a reasonable time.
23. BONDHOLDERS' REGISTER
23.1 The Company shall keep and maintain, at its registered office, a
Bondholders' Register, in which the names of the Bondholders shall be
recorded, as well as their addresses, and the number and par value of
the Bonds registered in their name. Furthermore, any transfer of
ownership in the Bonds shall be recorded in the Bonds. The Trustee and
any Bondholder may, at any reasonable time, peruse such Register. The
Company may close the Register from time to time for such period or
periods as shall not exceed, cumulatively, 30 days per annum.
23.2 The company shall not be obligated to record in the Register, any
notice as to express, implied or estimated trust, or any pledge or
lien of any nature whatsoever or any equitable right, claim or offset
or any other right whatsoever, with respect to the Bonds. The Company
shall only recognize the ownership of the person in whose name the
Bonds were registered, provided that his legal heirs, administrators
of estate or executors of the will of the registered owner and any
person entitled to the Bonds, in the wake of the bankruptcy of any
registered owner (and, in the case of a corporation - in the wake of
the dissolution thereof), may be registered as their owner, after
presenting proof which at the Company's discretion is sufficient to
prove their right to be registered as the owner thereof.
18
24. CERTIFICATES AND SPLIT OF CERTIFICATES
For the Bonds registered in the name of one holder, one certificate shall
be issued to him, or, at his request, a number of certificates shall be
issued to him (the certificates referred to in this section shall be
hereinafter referred to as: the "CERTIFICATES").
Each certificate may be split into certificates such that the total par
value of the Bonds included therein equals the amount of the par value of
the Bonds included in the certificate sought to be split. The split will be
performed in accordance with a split application signed by the registered
owner of the Bonds, forming the subject matter of the certificate sought to
be split, against submission of the certificate sought to be split to the
Company at its registered office. The split shall be effected within 30
days from the end of the month in which the certificate was delivered,
together with its split applications, to the Company's registered office.
The new Bonds certificates that will be issued in the wake of the split,
shall each be for a par value amount in whole New Shekels. All expenses
relating to the split, including Stamp Duty and other levies, if any, shall
apply to the holder seeking the split.
25. EXPIRY OF THE TRUSTEE'S OFFICE
25.1 The provisions of the Law shall apply to the office of the Trustee and
the expiry thereof, and to the appointment of a new trustee.
25.2 The Trustee may resign from its office at any time it wishes to do so
after giving a written notice to the Company, three (3) months in
advance, specifying the reasons for the resignation. The Trustee's
resignation shall have no validity unless approved by a court, and
only from the date designated therefore in the court's approval as
aforesaid.
The Securities Authority may apply to the court to terminate the
office of the Trustee, pursuant to Section 35.N. of the Securities
Law.
The Trustee's office shall terminate where it turns out that it is
prevented from continuing in its office, in the wake of a change in
the provisions of the Law or the applicable law in respect of capacity
to serve as trustee. In this context, a demand by the Securities
Authority to terminate the Trustee's office shall also be deemed as
"impediment". In such event a new Trustee shall be appointed as
proposed by the Company, in accordance with a resolution of the
meeting of the Bondholders in a resolution to be adopted with the
required majority as set forth in subsection 25.3 below.
The Company shall publish an immediate report of any such event with
respect to the office of the Trustee and/or the termination thereof as
aforesaid.
25.3 Holders of ten percent (10%) of the par value of the unsettled balance
of the principal of the Bonds may convene a general meeting of the
Bondholders and it may decide, in accordance with the vote of holders
of at least fifty
19
percent (50%) of such balance, or their proxies, on the dismissal of
the Trustee from its office.
25.4 In the event of expiry of the Trustee's office, the court may appoint
another Trustee, for such period and at such terms as it finds fit.
The Trustee whose office has expired shall continue to serve in its
office up to the appointment of another Trustee.
25.5 Each new Trustee shall have such powers, authorizations and other
authorities as the Trustee whose office has expired, and it may act,
in all respects, as if it has been appointed as Trustee from the
outset.
25.6 Any appointment of a new Trustee, other than a trust company of a bank
in Israel, put to the approval of the meeting of the Bondholders,
shall require the Company to provide, on the date of the convening of
the meeting, details of its equity and insurance arrangements with
respect to the fulfillment of its capacity as trustee for the
Bondholders.
25.7 If the Trustee's office has expired and/or the Trustee has been
dismissed from its office, the Trustee shall not be entitled to
payment of its fee as of the date of expiry of its office and/or
dismissal from its office. In the event of payment of an annual fee,
the Trustee shall refund the fee paid for the months in which it has
not served as Trustee for the Company.
26. MEETINGS OF THE BONDHOLDERS
Meetings of the Bondholders shall be conducted as set forth in Appendix B
hereto.
27. REPORTING TO THE TRUSTEE
The Company shall submit to the Trustee, so long as all the Bonds have not
been settled (including the linkage differentials related thereto):
27.1 Audited financial statements of the Company for the fiscal year ended
on December 31 of the previous year, immediately after the publication
thereof by the Company.
27.2 Any report with respect to interim financial results of the Company,
immediately after the publication thereof by the Company.
27.3 Any immediate report of the Company, immediately after the publication
thereof by the Company, or any other report submitted by the Company
to another stock exchange if the Company's securities will be traded
on such stock exchange in the future.
27.4 Approval of the Company's auditor and/or the Company's controller of
effecting the interest payment and/or payment on account of the
principal and the dates thereof to the Bondholders, and the balance of
the par value of the
20
Bonds in circulation, upon the Trustee's written demand for such
confirmation.
27.5 To give the Trustee a notice of the occurrence of any of the events
constituting a ground for declaration as immediately due and payable,
as set out in section 7 above. The Trustee undertakes to give a notice
to the Bondholders of any notice by the Company as aforesaid.
27.6 In the event that the Company stops reporting to the public, the
Company undertakes to submit, to the Trustee, the reports set out in
this section 27 above, in such format and on such dates as applicable
to the Company, prior to the termination of the Company's reporting
duties, so long as the Bonds have not been settled.
For the purpose of this section 27, the publication of the said reports in
this section 27 above on the Magna shall be deemed as submission of the
report to the Trustee.
28. APPLICABILITY OF THE SECURITIES LAW, 5728 - 1968
In any matter not referred to in this Deed and, in any event of conflict
between the provisions of the Law and its Regulations (that may not be
contracted out) and this Deed, the parties shall act in accordance with the
provisions of the Law and its Regulations.
29. APPLICABLE LAW AND JURISDICTION
29.1 Israeli Law shall apply exclusively to this Trust Deed, including the
appendixes hereto, as well as to any dispute arising with respect to
this Deed.
29.2 The exclusive jurisdiction in respect hereof shall vest in the Tel -
Aviv - Jaffa Court only.
30. AUTHORIZATION TO REPORT IN MAGNA
By signing this Deed, the Trustee authorizes the authorized signatories of
the Company with respect to electronic signatures to report in its name on
the Magna system its entering into this Deed and the execution of this Deed
on its part, to the extent required under law.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED:
------------------------------------- ----------------------------------------
ELBIT MEDICAL IMAGING LTD. AURORA FIDELITY TRUST COMPANY LTD.
21
I, the undersigned, _______________, Advocate, hereby confirm that this Trust
Deed was signed by ELBIT MEDICAL IMAGING LTD. IN ACCORDANCE WITH ITS MEMORANDUM
AND ARTICLES OF ASSOCIATION, VIA MESSRS. _________________________________.
----------------------------------------
____________________, ADVOCATE
22
APPENDIX A
ELBIT MEDICAL IMAGING LTD.
(SERIES C) BOND CERTIFICATE
Series of up to 458,605,000 registered (Series C) Bonds, of NIS 1 par value
each, payable in 10 equal semi-annual installments, on September 1 of each of
the years 2009 to 2018, inclusive (the first installment to be effected on
September 1, 2009 and the last installment to be effected on September 1, 2018),
bearing interest at the Uniform Interest Rate or the New Uniform Interest Rate
(as such terms are defined in the Prospectus) payable in semi-annual
installments on March 1 and September 1 of each of the years 2007 to 2018 (the
first installment to be effected on March 1, 2007 and the last installment to be
effected on September 1, 2018), linked (principal and interest) to the Index for
July 2006, as published on August 15, 2006.
Registered Bonds
CERTIFICATE NO.: ____
Total par value of the Bonds under this Certificate - NIS _______________
The registered owner of the Bonds under this Certificate:
____________________________.
1. This Certificate evidences that Elbit Medical Imaging Ltd. (hereinafter:
the "COMPANY") shall pay, on September 1 of each of the years 2009 and up
to 2018 (inclusive), (the first installment to be effected on September 1,
2009 and the last installment to be effected on September 1, 2018), 10% of
the par value of the Bonds under this Certificate; the Company shall
further pay, on March 1 and September 1 of each of the years 2007 to 2018
(inclusive), interest at Uniform Interest Rate or the New Uniform Interest
Rate (as such terms are defined in the Prospectus) on the unsettled balance
of their par value, payable in semi-annual installments, on March 1 and
September 1 of each of the years 2007 to 2018 (the first installment to be
effected on March 1, 2007 and the last installment to be effected on
September 1, 2018), all subject to the linkage terms and the other terms
set out in the terms listed overleaf. Any such installment shall be
effected to the registered owner of the Bonds in this Certificate at the
end of February 17 or at the end of August 20 that fall immediately before
the due date of such installment.
2. The last payment for the principal and interest shall be effected against
the delivery of the Bonds to the Company at the Company's registered
office, or at any other place of which the Company shall give a notice, not
later than five (5) business days prior to the due date thereof under the
terms of the Bond.
3. The Bonds of this Series are issued pursuant to a Trust Deed between the
Company on the one hand, and Aurora Fidelity Trust Company Ltd.
(hereinafter: the "TRUSTEE") on the other hand, entered into on August 22,
2006 (hereinafter: the "TRUST DEED") and are not secured by means of any
lien.
4. All Bonds of this Series shall be equal inter se (pari passu), such that
none shall have any preferential right over the other.
5. The Company reserves the right to issue, at any time, without the approval
of the Trustee and/or the Bondholders of this Series, other Bonds or Series
Bonds or other securities of any nature or type whatsoever, whether or not
vesting a right to convert into Company shares, at such terms as the
Company shall find fit, whether preferable, equal or inferior to the terms
of the Bonds of this Series. The Company further reserves the right to
increase the Series Bonds at its exclusive discretion pursuant to the
provisions of any law and subject to the provisions of section 2 of the
terms listed overleaf.
6. The Bonds in this Certificate are further subject to the terms listed
overleaf and to the terms set forth in the Trust Deed.
The Bonds are offered within a transaction that does not constitute a public
offering in the United States, within the meaning thereof in the 1933 US
Securities Law, as may be amended from time to time (hereinafter: the "LAW").
The Bonds will not be submitted for registration with the US Securities
Authority, or any other securities authority of any state in the United States.
The Bonds may not be offered or sold, under US Law, by any holder other than in
accordance with exemption from the registration requirements in the United
States, or within a transaction which is not subject to the registration
requirements, under the US Law or any securities law applicable in the pertinent
state in the United States.
SIGNED BY THE COMPANY ON
--------------------------
------------------------------------- ----------------------------------------
I, the undersigned, ______________________, Advocate, hereby confirm that this
Trust Deed was signed by ELBIT MEDICAL IMAGING LTD. IN ACCORDANCE WITH ITS
MEMORANDUM AND ARTICLES OF ASSOCIATION, VIA MESSRS. ___________________________.
----------------------------------------
, ADVOCATE
------------------------------
2
THE TERMS LISTED OVERLEAF
1. GENERAL
In this Bond, the following terms shall have the following meanings, unless
another meaning is implied from the context, namely:
"Company" - Elbit Medical Imaging Ltd.;
"Trust Deed" - a trust deed between the Company and Aurora Fidelity Trust
Co. Ltd., that was signed in connection with the (Series C) Bonds;
"(Series C) Bonds" or the "Bond Series" or the "Bonds" - a series, of up to
458,605,000 registered (Series C) Bonds having a par value of NIS 1.00 each
of the Company, which shall be issued from time to time in the Company's
sole discretion;
"Trustee" - Aurora Fidelity Trust Co. Ltd. and/or any entity which shall
serve from time to time as the trustee of the Bondholders pursuant to the
Trust Deed;
"Register" - the register of holders of (Series C) Bonds of the Company, in
which all of the holders of the (Series C) Bonds shall be registered;
"Bondholder" or "Bondowner" - the person whose name is registered at the
given time in the Register as the Bondholder, and in the event of a number
of joint holders, the joint holder whose name is registered first in the
Register;
"Bond Certificate" - a certificate of (Series C) Bonds whose text is set
forth in Appendix A of the Trust Deed;
"Law" or the "Securities Law" - the Securities Law, 5728 - 1968, and the
regulations thereof, as they shall be from time to time;
"Principal" - the amount of the total par value that is registered in this
Bond Certificate;
"Consumer Price Index" or the "Index" - The price index which is known by
the name of "the Consumer Price Index", which includes fruit and vegetables
and which is published by the Central Bureau of Statistics, including said
index even if same is published by any other official institute or body
instead of the Central Bureau of Statistics, and including any other
official index which shall replace said index, whether or not based on the
same data as the existing index. Should another index which shall be
published by said institute or body replace said index and should said
institute or body not determine the ratio between it and the replaced
index, then said ratio shall be determined by the Central Bureau of
Statistics. Should said ratio not be determined as stated, then the Trustee
shall determine, in consultation with economic experts to be chosen by the
Trustee, the ratio between the other index and the replaced index.
"Known Index" - on any date - the index most recently published prior to
that date.
"Base Index" - the Consumer Price Index in respect of July 2006, as
published on August 15, 2006.
"Payment Index" - the index known on the date of remittance of any payment
on account of the Principal and/or interest.
"Business Day" - a day on which most of the banks in Israel are open to the
public, for the purpose of performing transactions.
"Special Resolution" - as defined in section 6 of Appendix B of the Trust
Deed.
"Entitled Bondholder" - the Bondholder in this Certificate who is entitled
to the rights set forth therein at the given time.
"Stock Exchange" - the Tel Aviv Stock Exchange Ltd.
"Rating Company" - a company that has been approved by the Supervisor of
the Capital Markets at the Ministry of Finance.
"Prospectus" - The Prospectus for the issuance to the public of the
Company, including, the issuance of bonds, to be published in August 2006.
2. THE BONDS
The Bonds in this Certificate are part of a series of up to 458,605,000
(Series C) Bonds of the Company.
The Bonds are being offered in a transaction which does not constitute a
public offering in the U.S.A., as this term is construed in US Securities
Act of 1933, including the regulations thereof (hereinafter: the "Act").
The Bonds shall not be filed for registration with the US Securities
Exchange and Commission or any other securities authority of any state in
the USA. The Bonds may not be offered or sold pursuant to law in the USA by
any holder, other than in accordance with an exemption from the
registration requirements in the USA, or as part of a transaction which is
not subject to the registration requirements, pursuant to the Act and
pursuant to all of the binding securities laws in the relevant state in the
USA.
Increase in the Series - the Company is entitled to issue, at any time and
from time to time, without requiring the consent of the Bondholders or the
Trustee, including to a subsidiary of the Company, in accordance with the
provisions of any law, additional bonds whose terms shall be identical to
the terms of the (Series C) Bonds, at any price and in any manner as the
Company shall deem fit. Subject thereto, this Deed shall apply also with
regard to any such additional bonds which shall be issued by the Company,
and they shall be deemed, on the date of issue thereof, to be the same as
the Company's (Series C) Bonds which
2
were issued first. Notwithstanding that stated anywhere in this Deed, an
additional issue of (Series C) Bonds, beyond the scope that was rated by a
Rating Company in relation to this series (as at the date of this Deed, the
amount equates to approximately NIS 470 million), shall be implemented
subject to an additional rating by a Rating Company and subject to the fact
that the additional issue of bonds from the same series, as stated, shall
not have an adverse effect on the rating of the Bonds which were first
issued pursuant to this Deed, as that rating shall be at said time. The
Company shall receive approval from the Stock Exchange for such increase,
and shall publish an immediate report of any increase in the Bond Series.
Issue of Additional Securities - the Company reserves the right to issue,
at any time, without requiring the consent of the Trustee and/or the
consent of the Bondholders, other bonds or other series of bonds or other
securities, of any kind or nature, upon such terms as the Company shall
deem fit, whether they have priority over the terms of the Bonds, or
whether they are equal or inferior thereto.
3. THE PRINCIPAL
Subject to the rest of the terms of the Bonds, the Company shall pay the
original bond principal in 10 equal six-monthly installments, on the
September 1 of each of the years 2009 to 2018 inclusive (the first
installment to be effected on September 1, 2009 and the last installment to
be effected on September 1, 2018). The unpaid principal balance shall be
linked to the Consumer Price Index in accordance with the terms of linkage
as stated in section 5 below.
4. THE INTEREST
The unpaid principal balance of the (Series C) Bonds shall bear annual
interest at a the Uniform Interest Rate or at the New Uniform Interest Rate
(as such terms are defined in the Prospectus) (hereinafter: the "Interest
Rate"). The interest shall be linked to the Consumer Price Index in
accordance with the terms of linkage as stated in section 5 below.
The interest shall be paid on March 1 and September 1 between the years
2007 and 2018, for the six months ending on the date of each said payment
(hereinafter: the "Interest Period") (i.e., vis-a-vis the payment for March
1 - the period commencing on September 2 and ending on March 1 and
vis-a-vis the payment on September 1 - the period commencing on March 2 and
ending on September 1 of each year, save for the first Interest Period, as
detailed below), on the unpaid balance from time to time of the amount of
the Principal in that Interest Period, subject to the other terms of the
Bonds.
The first payment of the interest shall be made on March 1, 2007 for the
period commencing on the date the clearance of the Bonds is executed and
ending on March 1, 2007 with the Interest Rate in respect of the first
Interest period will be computed on the basis of 365 days per year and the
Company will publish an immediate report on the first interest rate shortly
after the tender.
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The last payment of the interest shall be made on September 1, 2018,
together with the last payment on account of the Principal, against the
return of the Bond Certificates to the Company. It is hereby clarified that
income tax will be deducted from the interest payments which must be
withheld at source.
5. TERMS OF LINKAGE OF THE PRINCIPAL AND INTEREST
The unpaid principal balance and the interest thereon, as set forth above,
shall be linked to the Consumer Price Index, in the following manner:
Should it transpire on the date of remittance of any payment on account of
the Principal and/or the interest of the Bonds that the Payment Index on
the said date is higher than the Base Index, the Company shall make said
payment of the Principal or interest, increased in a manner that is
proportionate to the rate of increase of said Payment Index as compared
with the Base Index; however, should it transpire that said Payment Index
is identical to or lower than the Base Index, the Company shall make the
said payment of the Principal or interest, when the calculation thereof
shall be based on the Base Index.
6. PAYMENTS OF THE PRINCIPAL AND INTEREST
6.1 Any payment on account of the Principal and/or the interest,
respectively, shall be paid to whomsoever shall be registered in the
Register as the Bondholder at the end of the August 20 immediately
prior to the payment date of that payment, and every payment on
account of interest shall be paid to that person registered in the
Register as the Bondholder at the end of February 17 or at the end of
August 20 immediately prior to the payment date of said payment, with
the exception of the last payment which shall be made against the
delivery of the Bond Certificates to the Company, at the Company's
registered offices and/or at any other place in respect of which the
Company shall provide notice, not later than five Business Days prior
to the date determined for the remittance of the last payment.
Payments on account of the Principal and the interest shall be made
subject to the terms of linkage as stated in section 5 above.
Wherever the date of making a payment on account of the Principal
and/or the interest shall fall on a day which is not a Business Day,
the payment date of said payment shall be deferred to the first
Business Day thereafter, and no interest shall be borne in respect of
the deferment of said payment.
6.2 Each payment due from the Company in respect of the Bonds shall be
subject to a deduction of tax at source, insofar as the Company is
required by law to make such deduction.
6.3 The payment to the Entitled Bondholder shall be made by check or by
bank transfer in favor of the bank account whose details shall be
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submitted in writing to the Company at an earlier time by the Entitled
Bondholder, in accordance with that stated in section 6.5 below.
Should the Company be unable, for any reason which is beyond the
Company's control, to pay any amount to the Bondholder entitled
thereto, it shall deposit this amount with the Trustee as stated in
section 7.2 below.
6.4 If the Bondholder entitled to payment did not submit at an earlier
time to the Company the details of the bank account for the crediting
thereof by bank transfer, as stated, the Company shall send a check by
registered mail to the last address registered in the Register. The
sending of the check to the Entitled Bondholder by registered mail, as
stated, shall be deemed for all intents and purposes to be payment of
the amount specified therein on the date of the dispatch thereof by
mail, provided that it was cashed upon presentation thereof in
accordance with proper procedure with regard thereto.
6.5 The Bondholder who wishes to provide notice of the bank account
details for the crediting thereof with the payments under the Bonds,
as stated, or who wishes to change said bank account details or his
instructions with regard to the manner of payment, may do so by
providing written notice, which shall be sent to the Company by
registered mail, however, the Company shall comply with the
instruction only if it reached its registered offices at least ten
days prior to the date determined for the remittance of any payment
under the Bond. Should the notice be received by the Company in delay,
the Company shall act pursuant thereto solely with regard to those
payments whose payment date shall fall after the payment date close to
the date of receipt of the notice.
7. NON-PAYMENT FOR A REASON BEYOND THE COMPANY'S CONTROL
7.1 Any amount due to a Bondholder that was not actually paid on the date
determined for the payment thereof due to a reason beyond the
Company's control, while the Company was prepared to pay same, shall
cease to bear interest and linkage differentials from the date
determined for the payment thereof, and said Bondholder shall be
entitled solely to those amounts to which he would have been entitled
on the date determined for the payment of said amount on account of
the Principal, the interest and the linkage differentials.
7.2 The Company shall deposit with the Trustee the amount of the payment
that was not paid on time, as stated in sub-section 7.1 above, not
later than 15 Business Days from the date determined for said payment,
and it shall provide notice of said deposit, and said deposit shall be
deemed to be the settlement of the payment, and in the event of the
settlement of everything that is due in respect of the Bond, it shall
also be deemed to be the redemption of the Bond.
7.3 The Trustee shall invest, in trust accounts in its name and in its
favor, the funds that shall be transferred to it as stated in
sub-section 7.2 above, in
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such investments as the Trustee is permitted to make pursuant to the
Trust Deed. Should the Trustee do so, it shall not be liable to the
Entitled Bondholders in respect of those amounts, other than in
respect of the consideration which shall be received from the
realization of the investments, less the expenses related to said
investment and to the management of the trust accounts, the
commissions and less the compulsory payments applicable to the trust
account. Out of said funds, the Trustee shall transfer amounts to the
Bondholders entitled thereto, as soon as practicable after proof and
approvals shall be submitted to the Trustee attesting to their right
to these amounts, to the Trustee's full satisfaction, and less the
Trustee's expenses and commissions at such rate as shall be standard
practice at the Trustee at that time.
7.4 The Trustee shall hold these funds and shall invest same in said
manner, until the expiration of one year from the final payment date
of the Bonds. After this date, the Trustee shall transfer to the
Company the amounts stated in sub-section 7.3 above, including the
profits deriving from the investment thereof, less the Trustee's
expenses, insofar as shall remain in the Trustee's possession at that
time. The Company shall hold these amounts in trust for the
Bondholders who are entitled to said amounts, and in all matters
pertaining to the amounts which shall be transferred to the Company by
the Trustee as stated above, the Company shall be subject to the
provisions of sub-section 7.3 above, mutatis mutandis.
The Company shall approve for the Trustee, in writing, the holding of
the amounts and the fact of receipt thereof in trust for said
Bondholders, and it shall indemnify the Trustee in respect of any
claim and/or expense and/or damage of any kind or nature which shall
be caused to the Trustee following and in respect of the transfer of
said amounts, unless the Trustee acted negligently.
The Company shall hold these funds in trust for the Bondholders who
are entitled to said amounts for a period of six additional years from
the date of transfer thereof to the Company from the Trustee. Funds
which shall not have been demanded from the Company by the Bondholders
by the expiration of seven years from the final payment date of the
Bonds shall be transferred to the Company, and the Company shall be
entitled to make use of the remaining funds for any purpose
whatsoever.
8. TRANSFER OF BONDS
8.1 The Bonds are transferable with regard to any par value amount,
provided that it shall be in whole New Israel Shekels. Any transfer of
the Bonds shall be made pursuant to a deed of transfer drawn up as per
the standard draft for a share transfer, duly signed by the registered
holder or his legal representatives, and also by the transferee or his
legal representatives, which shall be submitted to the Company at its
registered offices, together with the certificates of the Bonds being
transferred pursuant thereto, and any other proof that shall be
required by the Company for the purpose of proving the transferor's
right to transfer same.
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8.2 The transfer of Bonds shall be made by the signing by the transferor
and the transferee of a share transfer deed, as per such draft that is
acceptable to the Company, together with a witness to the signature of
each one of them. The bond transfer deed shall be submitted to the
Company during normal working hours.
8.3 In the event of the transfer of only part of the unpaid specified
principal amount of the Bonds in this Certificate, the Certificate
shall first be split pursuant to the provisions of section 9 below
into the number of Bond Certificates as required as a consequence
thereof, in such a manner that the total of all the principal amounts
specified therein shall be equal to the specified principal amount of
said Bond Certificate.
8.4 After fulfillment of all these terms, the transfer shall be entered
into the Register.
8.5 All of the expenses and commissions entailed in the transfer shall
apply to the entity requesting the transfer.
9. SPLIT OF BOND CERTIFICATES
9.1 Any Bond Certificate may be split into a number of Bond Certificates,
where the total of all the principal amounts specified therein shall
be equal to the specified principal amount of the Certificate whose
split was requested.
9.2 The split of a Bond Certificate as stated shall be done upon a
requisition for the split, signed by the Bondholder in the Certificate
or his legal representatives, which shall be submitted to the Company
at its registered offices, together with the Bond Certificate whose
split was requested.
9.3 The split shall be implemented within thirty days from the expiration
of the month in which the Certificate was submitted to the Company's
registered offices. The new Bond Certificates which shall be issued
following the split shall each be in par value amounts in whole New
Israel Shekels.
9.4 All of the expenses entailed in the split, including stamp tax and
other levies, if any, shall apply to the entity that requested the
split.
10. GENERAL PROVISIONS
10.1 Payments on account of the Principal and the interest are payable and
transferable without taking into consideration any equity rights or
any offsetting rights or any right of counterclaim that exists or
shall exist between the Company and a former holder, including the
original holder of the Bonds.
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10.2 Any holder becoming entitled to the Bonds as a consequence of
bankruptcy or as a consequence of dissolution proceedings of a
Bondholder shall be entitled, as soon as he shall provide such proof
as the Company shall demand of him from time to time, to be registered
in the Register as the holder of the Bonds or, subject to the terms
set forth above in this Certificate, to transfer same.
10.3 The Bondholders shall be entitled to exercise their rights pursuant to
the Bonds and the Trust Deed through the Trustee or pursuant to a
resolution of the General Meeting of the Bondholders, in such manners
as set forth in the Bond and in the Trust Deed. Notwithstanding the
foregoing, should the Trustee fail to act in accordance with the
provisions of the Trust Deed and the Bond, the Bondholders shall be
entitled to exercise their rights pursuant to a resolution of the
General Meeting.
10.4 The immediate payment right set forth in section 7 of the Trust Deed
shall be deemed to be an integral part of this Bond.
11. MODIFICATIONS TO THE TERMS OF THE BONDS, Waiver and Settlement
11.1 Subject to the provisions of the Law and the regulations enacted
pursuant thereto, the Trustee shall be entitled from time to time and
at any time, or in any other case, should the Trustee be satisfied
that such will not have an adverse material effect on the rights of
the Bondholders, waive any non-compliance with any of the terms of the
Bonds or the Trust Deed by the Company, provided such does not relate
to the terms of payment of the Bonds and to the causes of the
declaration of immediate payment and/or to the reports which the
Company is required to submit to the Trustee in accordance with the
provisions of this Deed.
11.2 Subject to the provisions of the Law and the regulations enacted
pursuant thereto, and with prior approval by special resolution which
shall be passed at the General Meeting of the Bondholders, at which
the holders were present, either in person or by proxy, of at least
fifty percent (50%) of the par value of the unpaid balance of the
Bonds principal, or at a deferred meeting, at which the holders were
present, either in person or by proxy, of at least twenty percent
(20%) of said balance, the Trustee shall be entitled, whether before
or after the principal of all the Bonds that shall be issued pursuant
to the Trust Deed shall be declared due and payable, to reach a
compromise with the Company in connection with any right or claim of
any or all of the Bondholders, and to reach agreement with the Company
on any arrangement, of their rights, including to waive any right or
claim of the Trustee and/or of any or all of the Bondholders against
the Company.
11.3 Subject to the provisions of the Law, the Company and the Trustee are
entitled, whether before or after the principal of all the Bonds that
shall be issued pursuant to the Trust Deed shall be declared due and
payable,
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to modify the Trust Deed and/or the Bond terms, if any of the
following exist:
11.3.1 If the Trustee is satisfied that the modification will not have
a material adverse effect on the rights of the Bondholders, with
the exception, mutatis mutandis, of a modification relating to
the terms of payment of the Bonds, to the causes of the
declaration of immediate payment and/or to the reports which the
Company is required to submit to the Trustee in accordance with
the provisions of this Deed.
11.3.2 If the proposed modification was approved by a special
resolution that was passed at a General Meeting of the
Bondholders, at which the holders were present, either in person
or by proxy, of at least fifty percent (50%) of the par value of
the unpaid balance of the principal of the Bonds , or at a
deferred meeting, at which the holders were present, either in
person or by proxy, of at least twenty percent (20%) of said
balance.
11.4 The Company shall provide the Bondholders with notice of any change as
stated under subsection 11.1. or subsection 11.3.1 or subsection 11.4
above, as soon as possible after the execution thereof.
11.5 In any event of the use of the Trustee's right pursuant to this
section, the Trustee shall be entitled to demand that the Bondholders
submit their Bond Certificates to the Trustee or to the Company, for
the purpose of entry of a note regarding any compromise, waiver,
modification or amendment as stated, and at the Trustee's request, the
Company shall enter such a note. In any event of the use of the
Trustee's right pursuant to this section, the Trustee shall provide
notice thereof, in writing, to the Bondholders within a reasonable
period of time.
12. GENERAL MEETINGS OF THE BONDHOLDERS
The General Meetings of the Bondholders shall be convened and conducted in
accordance with that stated in Appendix B of the Trust Deed.
13. RECEIPTS AS PROOF
Without derogating from any other of these terms, a receipt signed by a
holder of the Bonds in this Certificate shall constitute proof of the full
settlement of any payment specified in the receipt, which was made by the
Company or by the Trustee, as the case may be, in respect of the Bonds in
this Certificate.
14. REPLACEMENT OF BOND CERTIFICATE
Should a Bond Certificate be defaced, lost or destroyed, the Company shall
be entitled to issue in place thereof a new Bond Certificate, upon the same
terms with regard to proof, indemnity and cover of the expenses that were
caused to
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the Company for the purpose of clarifying the right of ownership of the
Bonds, as the Company shall deem fit, provided that in the event of
defacement, the defaced Bond Certificate shall be returned to the Company
prior to the issuance of the new certificate. Stamp tax and other levies,
as well as other expenses entailed in the issuance of the new certificate
shall apply to the entity requesting said certificate.
15. NOTICES
15.1 Any notice on behalf of the Company and/or the Trustee to the
Bondholders shall be given in a notice to be published in two daily
newspapers which are widely circulated in Israel in Hebrew, and in the
Company's discretion, also by sending the notice by registered mail to
the last address of the Bondholders registered in the Register. Should
the Bonds be listed for trading on the Stock Exchange, in addition,
the Company shall publish an immediate report and a report so
published shall be deemed to have been delivered to the Bondholders on
the date of publication thereof.
15.2
15.3 Copies of the notices and invitations which shall be given by the
Company to the Bondholders, shall also be sent by the Company to the
Trustee. It shall be clarified that such notices and invitations do
not include current reports of the Company to the public.
Copies of the notices and invitations which shall be given by the
Trustee to the Bondholders shall also be sent by the Trustee to the
Company.
15.4 Any notice or demand on behalf of the Trustee to the Company or on the
Company's behalf to the Trustee may be given by letter, which shall be
sent by registered mail according to the address set forth in this
Deed, or according to any other address in respect of which one party
shall give notice to the other, in writing, and any such notice or
demand shall be deemed to have been received by the party to which the
notice was sent at the expiration of three Business Days from the date
of dispatch thereof by mail.
16. PURCHASE OF BONDS BY THE COMPANY OR BY A SUBSIDIARY
16.1 The Company reserves the right to purchase at any time Bonds of the
Bond Series at any price as it shall deem fit, without prejudice to
the payment obligation of the Bonds which shall be held by others,
with the exception of the Company.
16.2 The Bonds which shall be purchased by the Company shall be cancelled,
and shall also be delisted from trading on the Stock Exchange and the
Company shall not be entitled to re-issue them.
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16.3 A subsidiary of the Company may buy and/or sell from time to time on
the Stock Exchange and off the Stock Exchange, including by way of an
issue by the Company, Bonds of the Bond Series. The Bonds which shall
be held as stated by a subsidiary shall be deemed to be the asset of
the subsidiary, they shall not be delisted from trading on the Stock
Exchange, and they may also be transferred just like the other (Series
C) Bonds. The votes to which the subsidiary shall be entitled, as
stated, by virtue of its holdings of the Bonds, shall not be included
in the count for the purpose of the determination of the existence of
a quorum at the General Meeting of the Bondholders, and the bonds held
by the subsidiary shall not confer thereon voting rights at said
General Meetings, for such time as the Bonds shall be held by said
subsidiary.
16.4 That stated in this section 16 above, per se, shall not require the
Company and/or a subsidiary of the Company and/or the Bondholders to
buy Bonds or to sell the Bonds which they hold.
17. EARLY REDEMPTION
If it be decided by the Stock Exchange to delist the Bonds in circulation,
because the value of the public's holdings of the Bonds was less than the
amount set forth in the directives of the Stock Exchange regarding the
delisting of bonds, the Company shall determine the redemption date on
which the Bondholder shall be entitled to redeem the Bonds, and the Company
shall act for this purpose as follows:
17.1 Within 45 days from the date of the decision of the Board of Directors
of the Stock Exchange regarding said delisting, the Company shall
provide notice of an early redemption date on which the Bondholder
shall be entitled to redeem the Bonds. The Company shall pay to the
Bondholder the principal, together with linkage differentials and
interest pursuant to the terms of the Bond, which had accrued by the
date of the actual redemption. The notice of the early redemption date
shall be published in two daily newspapers which are widely circulated
in Israel in Hebrew and shall be sent in writing, by registered mail,
to all of the Bondholders at that time.
17.2 The early redemption date shall fall due not prior to 17 days from the
date of the publication of the notice and not later than 45 days from
said date, however, not in the period between the date determined for
payment of interest and the date of the actual payment thereof.
17.3 On the early redemption date, the Company shall redeem the Bonds whose
holders had requested redemption thereof, according to the par value
thereof together with the linkage differentials and interest accrued
on the principal up to the actual redemption date (the calculation of
the interest for part of a year shall be made on the basis of 365 days
per year).
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17.4 The determination of the early redemption date as stated above shall
not have an adverse effect on the redemption rights set forth in the
Bonds for any of the Bondholders who shall not redeem them on the
early redemption date as stated above, however, the Bonds shall be
delisted from trading, and they shall be subject, inter alia, to the
tax implications arising therefrom.
17.5 Early redemption of the Bonds as stated above shall not confer on any
of the Bondholders who shall redeem the Bonds as stated the right to
payment of interest in respect of the period after the actual
redemption date.
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APPENDIX B
ELBIT MEDICAL IMAGING LTD.
GENERAL MEETINGS OF THE BONDHOLDERS
1. The Trustee or the Company may invite the Bondholders to a Bondholders'
meeting. If the Company convenes such a meeting, it is required to
immediately send notice, in writing, to the Trustee of the place, the date
and the time at which the meeting will be held and of the matters to be
raised for discussion thereat.
At the time of convening bondholder meetings, the Trustee will examine the
existence of a conflict of interests amongst the Bondholders under the
circumstances of the case. The Company and the Trustee shall act to convene
class meetings of Bondholders pursuant to the provisions of any law, case
law, the provisions of the Securities Law and the Regulations and
Directives enacted thereunder.
The Company shall be required to convene such a meeting, upon the written
requisition of the Trustee or of the holders of at least ten percent (10%)
of the par value of the unpaid balance of the principal of all the Bonds
that shall be issued pursuant to the Trust Deed. The Trustee shall be
required to convene such a meeting upon the written requisition of the
holders of at least ten percent (10%) of the par value of the unpaid
balance of the principal of all the Bonds that shall be issued pursuant to
the Trust Deed. In the event that the requisitioners of the meeting are the
Bondholders, the Company and/or the Trustee, as the case may be, shall be
entitled to demand from the requisitioners indemnification for the
reasonable expenses entailed therein.
2. In respect of each Bondholders' meeting, advance notice of at least 14 days
shall be given to the Bondholders and to the Trustee, which shall specify
the place, the date and the time of the meeting, and which shall also
specify, in a general manner, the issues to be discussed at the meeting.
Should the meeting be convened for the purpose of passing a special
resolution, advance notice of at least 21 days shall be given, and the
notice shall specify, in addition to that stated above, the proposed text
of the special resolution. In the event of the convening of the meeting by
the Trustee, such notice shall also be given to the Company.
The Trustee may shorten the period of time for the provision of advance
notices, should the Trustee believe that the deferment of the convening of
the meeting could have an adverse effect on the Bondholders' rights.
3. Any notice on behalf of the Company and/or the Trustee to the Bondholders
shall be given in a notice that shall be published in two daily newspapers
which are widely circulated in Israel in Hebrew and, in the Company's
discretion, also by sending the notice by registered mail to the last
address of the Bondholders registered in the Register. In addition, the
Company shall publish an immediate report , and a report so published shall
be deemed to have been delivered to the Bondholders on the date of
publication thereof.
4. No resolution shall be disqualified which was duly passed at a meeting
convened as stated above, if, in error, notice thereof was not given to the
holders of at least ten percent (10%) of the par value of the unpaid
balance of the principal of all the Bonds that shall be issued pursuant to
the Trust Deed or if such notice was not received by said holders.
5. The chairman of the meeting shall be the person appointed by the Trustee.
Should the Trustee not appoint a chairman as stated, or should the person
appointed by the Trustee as stated be absent from the meeting, the
Bondholders who are present (or their proxies) shall elect a chairman from
among their number. The Bondholders' meeting shall commence after it shall
be proven that a quorum exists as required for the commencement of the
discussion.
6. (a) Subject to the quorum required for the dismissal of the Trustee
pursuant to law, at the Bondholders' meetings, with the exception of
that stated in section 6(e) below, a quorum shall be constituted by
the presence of at least two Bondholders who are present, either in
person or in proxy, and who hold or represent jointly at least ten
percent (10%) of the par value of the unpaid balance of the principal
of all the Bonds that shall be issued pursuant to the Trust Deed at
that time.
(b) If, within half an hour from the time designated for the commencement
of such a meeting, there shall be no quorum as stated, the meeting
shall be adjourned to the same day of the following week, in the same
place and at the same time (without any additional notice being
necessary) and should this day not be a Business Day - to the next
subsequent Business Day (without any additional notice being
necessary), or to such other date, place and time as the entity
convening the meeting shall determine, provided that the convening
entity shall provide notice of seven (7) days in advance, at least, of
the holding of said adjourned meeting, in the same manner in which it
gave the notice of the holding of the original meeting, and it shall
note that should there be no quorum at the adjourned meeting, as
stated above, the quorum shall be two Bondholders who are present,
either in person or in proxy, without taking into consideration the
par value of the Bonds which they hold. Such notice may also be given
in the notice pursuant to which the adjourned meeting was called.
(c) Should there be no quorum at the meeting adjourned as stated above,
two Bondholders who are present, either in person or in proxy, and who
hold any amount whatsoever of Bonds, shall constitute the quorum.
(d) With the consent of the holders of the majority of the par value of
the unpaid balance of the principal of all the Bonds that shall be
issued pursuant to the Trust Deed, who are present at a meeting,
either in person or in proxy, at which a quorum exists, the Chairman
may, and at the request of the meeting, is obligated to, defer the
continuation of the meeting from time to time and from place to place,
as the meeting shall decide. Should the continuation of the meeting be
deferred by ten days or
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more, notice shall be given of the continued meeting in the same
manner that notice was given of the first meeting. With the exception
of the foregoing, the Bondholders shall not be entitled to receive any
notice of a continued meeting and/or of the matters to be discussed by
the continued meeting. No matters shall be discussed at the continued
meeting other than those matters which could have been discussed at
the meeting at which the deferment was decided upon.
(e) At a meeting convened in order to pass any of the resolutions set
forth below and also resolutions defined in the Trust Deed, in the
Bond, in the Terms Listed Overleaf and in this Appendix, as special
resolutions (hereinafter: "Special Resolution"), a quorum shall be
constituted by the presence at the meeting of the holders of at least
fifty percent (50%) of the par value of the unpaid balance of the
principal of all the Bonds that shall be issued pursuant to the Trust
Deed or at an adjourned meeting, at which the holders shall be
present, either in person or in proxy, of at least ten percent (10%)
of said balance:
(1) Any material amendment, modification or arrangement of the
Bondholders' rights, whether these rights derive from the Bonds,
from the Trust Deed or otherwise, or any material compromise or
waiver in connection with these rights;
(2) Any amendment to the provisions of the Trust Deed which shall be
published by the Company, and the authorization of the Trustee to
sign any additional or new trust deed for the purpose of making
said amendment;
(3) The declaration of the Bonds to be immediately due and payable.
The provisions of this section 6(e) shall apply subject to the
provisions of section 2 of the Trust Deed. It is hereby clarified that
for the purpose of the presence of a quorum, the votes shall not be
taken into account of Bondholders which are subsidiaries of the
Company, related companies of the Company and/or controlling
shareholders of the Company, and Bondholders which are subsidiaries of
the Company, related companies of the Company and/or controlling
shareholders of the Company shall not be entitled to vote at any
General Meeting.
7. (a) Bondholders are entitled to participate in and vote at any General
Meeting by proxy. In any vote of Bondholders, the vote shall be held
on a poll, so that each Bondholder or his proxy shall be entitled to
one vote in respect of each NIS 1.00 par value of the unpaid principal
balance of the Bonds by virtue of which he is entitled to vote. In the
event of joint holders, the only vote that shall be accepted is that
of the holder who wishes to vote, either in person or by proxy, whose
name appears first, out of the joint holders, in the Register.
(b) The Bondholder or his proxy may vote in respect of part of his votes
for a particular proposed resolution; and in respect of another part
of his
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votes, he may vote against it; and in respect of another part of his
votes, he may abstain; all as he shall deem fit.
(c) The Trustee who shall take part in a meeting at the Company's
invitation shall participate without a voting right.
8. (a) The majority required to pass an ordinary resolution of the General
Meeting is a simple majority of the number of votes represented in the
vote, voting for or against. The majority required to pass a Special
Resolution at a meeting as stated in section 6(e) above is a majority
of not less than 75% of the number of votes represented in said vote,
voting for or against.
(b) A resolution to amend the Trust Deed shall be passed by Special
Resolution, subject to the provisions of the Law.
(c) A declaration by the Chairman of the passing of a resolution or the
rejection thereof, and entry to this effect in the minutes of the
meeting, shall serve as conclusive evidence of this fact.
9. (a) The instrument appointing a proxy shall be in writing and shall be
signed by the appointor or by his proxy, who has due authorization, in
writing. Should the appointor be a corporation, the appointment shall
be made by authorization in writing, duly signed by the corporation
together with the approval by an attorney of the validity of the
signature. A proxy need not be a Bondholder himself.
(b) The instrument of appointment and the power of attorney or any other
certificate pursuant to which the instrument of appointment was
signed, or an authenticated copy of such a power of attorney, shall be
deposited at the Company's offices not less than 48 hours prior to the
time of the meeting in respect of which the power of attorney was
given, unless determined otherwise in the notice convening the
meeting.
(c) A vote conducted in accordance with the terms set forth in the
instrument appointing a proxy shall be valid even if prior to the
meeting, the appointor passed away or was declared to be incapacitated
or the instrument of appointment was cancelled or the Bond in respect
of which the vote was given was transferred, unless notice, in
writing, was received at the Company's registered offices prior to the
time of the meeting, with regard to said death, declaration of
incapacity, or cancellation or transfer, as the case may be.
(d) Any corporation which is the holder of a Bond may, pursuant to duly
signed authorization in writing, empower a person as it shall deem fit
to act as its representative at any meeting of the Bondholders, and
the person so empowered may act on behalf of the corporation which he
represents.
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10. The Chairman of the meeting shall attend to the drawing up of minutes of
all the discussions and resolutions at any General Meeting of the
Bondholders, and to the keeping thereof in the Book of Minutes of the
Bondholders' Meetings. All minutes signed by the Chairman of the meeting at
which the resolutions were passed and the discussions were conducted, or by
a chairman of the meeting held subsequent thereto, shall serve as proof of
the matters entered therein, and until such time as the contrary is proven,
any resolution passed at such a meeting shall be deemed to have been duly
passed.
11. Any person or persons who shall be appointed by the Trustee as the
Secretary of the Company and any other person or persons who shall be so
authorized by the Company, shall be entitled to be present at the
Bondholders' meetings. No such persons shall have a voting right at the
General Meeting.
12. Any meeting of the Bondholders shall be held at the Company's registered
offices or at any other venue in respect of which the entity convening the
meeting provided notice.
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APPENDIX C
ELBIT MEDICAL IMAGING LTD.
TRUSTEE'S FEES
1. For of the first trust year in respect of (Series A) Bonds, (Series B)
Bonds and (Series C) Bonds jointly, issued by the Company the Trustee's
fees shall be in the amount of NIS 55,000.
2. The annual fees, commencing from the second trust year, in respect of
(Series A) Bonds, (Series B) Bonds and (Series C) Bonds jointly, issued by
the Company, the Trustee's fees shall be in the amount of NIS 30,000, which
shall be paid at the beginning of each trust year.
3. In respect of participation at general meetings of shareholders and/or
Bondholders, the fee shall be in the amount of NIS 150 per hour.
4. Should the Trustee be required to perform special work (such as work
required due to a change in the Company's structure or in respect of the
need to perform acts due to the Company's failure to comply with its
undertakings to the Bondholders or in respect of the need to perform
additional acts for the purpose of the performance of its duties as a
reasonable trustee, due to a future change in the laws and/or regulations
and/or other binding provisions which shall apply to the Trustee's
activities), the fee shall be in the amount of USD 150 per hour.
5. It is hereby clarified that should additional expenses be imposed on the
Trustee, due to changes in the laws and/or regulations and/or other binding
provisions which shall apply to the Trustee's activities, which shall be
required of the Trustee for the purpose of the performance of its duties as
a reasonable trustee, the Company shall indemnify the Trustee for its
expenses.
6. Should the drawing up and/or examination of the Trust Deed, as the case may
be, be performed by the undersigned, and yet, for reasons beyond the
undersigned's control, should the issue of the Bonds not be effected, then
a fee in the amount of NIS 10,000 shall be paid in respect of the drawing
up and/or examination of the Trust Deed.
7. VAT as duly applicable shall be added to all of the tariffs listed above.
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