LOAN AGREEMENT
This LOAN AGREEMENT (this “Agreement”) dated as of November 9, 2011 (the “Effective Date”) between SILICON VALLEY BANK, a California corporation (“Bank”), and ELRON ELECTRONIC INDUSTRIES LTD., a company organized under the laws of the State of Israel (“Borrower”), provides the terms on which Bank shall lend to Borrower, and Borrower shall repay Bank. The parties agree as follows:
|
1
|
ACCOUNTING AND OTHER TERMS
|
Accounting terms not defined in this Agreement shall be construed following IFRS. Calculations and determinations must be made following IFRS; provided that if at any time any change in IFRS would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Bank shall so request, Borrower and Bank shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in IFRS; provided, further, that, until so amended, (a) such ratio or requirement shall continue to be computed in accordance with IFRS prior to such change therein and (b) Borrower shall provide Bank financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in IFRS. Notwithstanding the foregoing, all financial calculations (whether for pricing covenants, or otherwise) shall be made with regard to Borrower only and not on a consolidated basis. The term “financial statements” includes the notes and schedules. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13 of this Agreement. All other terms contained in this Agreement, unless otherwise indicated, shall have the meanings provided by the Code to the extent such terms are defined therein, and by any other applicable law.
|
2
|
LOAN AND TERMS OF PAYMENT
|
2.1 Promise to Pay. Borrower hereby unconditionally promises to pay Bank the outstanding principal amount of all Credit Extensions and accrued and unpaid interest thereon as and when due in accordance with this Agreement.
|
2.1.1
|
Term Loan Advances.
|
(a) Availability. Subject to the terms and conditions of this Agreement, during the Draw Period, Bank agrees to make advances (each a “Term Loan Advance” and collectively, “Term Loan Advances”) available to Borrower in an aggregate amount of up to Thirty Million Dollars ($30,000,000.00). Each Term Loan Advance must be in an amount at least equal to Five Million Dollars ($5,000,000.00). After repayment, no Term Loan Advance (or any portion thereof) may be reborrowed.
(b) Interest Period. Commencing on the first Payment Date of the calendar quarter following the month in which the Funding Date of such Term Loan Advance occurs, Borrower shall make quarterly payments of interest, in arrears, on the principal amount of each Term Loan Advance at the rate set forth in Section 2.2(a).
(c) Repayment. All outstanding principal and accrued interest under each Term Loan Advance, and all other outstanding Obligations with respect to each Term Loan Advance, are due and payable in full on the applicable Term Loan Maturity Date.
(d) Permitted Prepayment. Borrower shall have the option to prepay any Term Loan Advance (or portion thereof), provided Borrower (i) provides written notice to Bank of its election to prepay such Term Loan Advance (or portion thereof) at least fourteen (14) days prior to such prepayment, and (ii) pays, on the date of such prepayment (A) all outstanding principal plus accrued interest under such Term Loan Advance (or portion thereof), and (B) all other sums, that shall have become due and payable, including interest at the Default Rate with respect to any past due amounts.
|
2.2
|
Payment of Interest on the Credit Extensions.
|
(a) Interest Rate. Subject to Section 2.2(b), the principal amount outstanding under each Term Loan Advance shall accrue interest at a floating per annum rate equal to three-quarters of one percentage point (0.75%) above the Prime Rate, which interest shall be payable quarterly.
(b) Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, Obligations shall bear interest at a rate per annum which is five percentage points (5.00%) above the rate that is otherwise applicable thereto (the “Default Rate”) unless Bank otherwise elects from time to time in its sole discretion to impose a smaller increase. Fees and expenses which are required to be paid by Borrower pursuant to the Loan Documents (including, without limitation, Bank Expenses) but are not paid when due shall bear interest until paid at a floating per annum rate equal to three-quarters of one percentage point (0.75%) above the Prime Rate, plus five percentage points (5.00%). Payment or acceptance of the increased interest rate provided in this Section 2.2(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Bank.
(c) Adjustment to Interest Rate. Changes to the interest rate of any Credit Extension based on changes to the Prime Rate shall be effective on the effective date of any change to the Prime Rate and to the extent of any such change.
(d) Computation; 360-Day Year. In computing interest, the date of the making of any Credit Extension shall be included and the date of payment shall be excluded; provided, however, that if any Credit Extension is repaid on the same day on which it is made, such day shall be included in computing interest on such Credit Extension. Interest shall be computed on the basis of a 360-day year for the actual number of days elapsed.
(e) Debit of Accounts. Bank may debit any of Borrower’s deposit accounts, including the Designated Deposit Account, for principal and interest payments or any other amounts Borrower owes Bank when due. These debits shall not constitute a set-off.
(f) Interest Payment Date. Unless otherwise provided, interest is payable quarterly on the Payment Date.
|
2.3
|
Fees. Borrower shall pay to Bank:
|
(a) Commitment Fee. A fully earned, non-refundable commitment fee of Seventy-Five Thousand Dollars ($75,000.00), on the Effective Date, of which the amount of Forty Thousand Dollars ($40,000.00) has previously been paid by Borrower;
(b) Term Loan Advance Fees. In addition to the commitment fee provided in Section 2.3(a), in respect of (and as a condition precedent to) each Term Loan Advance, a fully earned, non-refundable fee of one-quarter of one percent (0.25%) of the principal amount of such Term Loan Advance, on the Funding Date of such Term Loan Advance (collectively, “Term Loan Advance Fees”); and
(c) Bank Expenses. All Bank Expenses (including reasonable attorneys’ fees and expenses for documentation and negotiation of this Agreement) incurred through and after the Effective Date, when due.
2.4 Payments. All payments (including prepayments) to be made by Borrower under any Loan Document shall be made in immediately available funds in U.S. Dollars, without setoff or counterclaim, before 12:00 p.m. Eastern time on the date when due. Payments of principal and/or interest received after 12:00 p.m. Eastern time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment shall be due the next Business Day, and additional fees or interest, as applicable, shall continue to accrue until paid.
|
2.5
|
Net Payments and Withholdings.
|
(a) All payments by Borrower shall be made subject to applicable withholding taxes under the Israeli Income Tax Ordinance and the Tax Treaty between the Government of the State of Israel and the Government of the United States of America with respect to taxes on income.
(b) Borrower will furnish Bank with proof reasonably satisfactory to Bank indicating that Borrower has made all such withholding tax payments, and will cooperate with Bank in connection with any information and documentation reasonably required by Bank in connection with credits, exemptions, rebates, or other benefits to be obtained by Bank in connection with such withholding payments made by Borrower, which credits, exemptions, rebates, or other benefits shall be property of Bank, without payment to Borrower or application to any Obligations hereunder.
(c) The agreements and obligations of Borrower contained in this Section 2.5 shall survive the termination of this Agreement.
3.1 Conditions Precedent to Initial Credit Extension. Bank’s obligation to make the initial Credit Extension is subject to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following documents, and completion of such other matters, as follows:
(a) duly executed original signatures to the Loan Documents;
(b) the Debenture (in English and Hebrew translations);
(c) all stock powers, transfer deeds and other documents required by Bank in connection with the pledged shares of stock in Given;
(d) delivery to Bank (at Bank’s office in Israel) of the certificates evidencing the shares of stock in Given that constitute, or will constitute, Collateral;
(e) Certificate of the secretary of Borrower with respect to articles, by-laws, incumbency and resolutions authorizing the execution and delivery of this Agreement, the Debenture, and the other Loan Documents;
(f) the completed and executed Borrowing Resolutions for Borrower;
(g) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released;
(h) Federal Reserve Form U-1, together with the duly executed original signature thereto;
(i) a proposed amendment to Given’s registration rights agreement, in the form attached hereto as Exhibit E, subject to the approval of Given’s shareholders;
(j) a legal opinion of Borrower’s counsel (authority/enforceability) in form and substance acceptable to Bank;
(k) letter agreements from Given in favor of Bank;
(l) evidence satisfactory to Bank that all filings required to have been made pursuant to the Debenture and the other Loan Documents have been made to secure a first-ranking Lien in favor of Bank on the Collateral, including, without limitation, Bank’s receipt of a registration of pledge certificate (teudat rishum shiabud) with respect thereto duly issued by the Israeli Registrar of Companies (the “Registrar”), and all other actions required to have been taken by Borrower or any other party prior to the initial Credit Extension shall have been taken and all consents and other authorizations shall have been obtained prior to the initial Credit Extension, all in accordance with the terms of the Debenture and the other Loan Documents; and
(m) payment of the fees and Bank Expenses then due as specified in Section 2.3 hereof.
3.2 Conditions Precedent to all Credit Extensions. Bank’s obligations to make each Credit Extension, including the initial Credit Extension, is subject to the following conditions precedent:
(a) timely receipt of an executed Payment/Advance Form;
(b) each of the representations and warranties in this Agreement and the Debenture shall be true, accurate, and complete in all material respects on the date of the Payment/Advance Form and on the Funding Date of each Credit Extension; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the Credit Extension. Each Credit Extension is Borrower’s representation and warranty on that date that the representations and warranties in this Agreement and the Debenture remain true, accurate, and complete in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date;
(c) in Bank’s sole discretion, there has not been any material impairment in the general affairs, management, results of operation, financial condition or the prospect of repayment of the Obligations;
(d) payment of the applicable Term Loan Advance Fee;
(e) Borrower’s execution and delivery to Bank of such additional debentures, or amendments to the Debenture, as requested by Bank, as provided in Section 4.1 of this Agreement, and all stock powers, transfer deeds and other documents required by Bank in connection with the pledged shares of stock in Given;
(f) evidence satisfactory to Bank that all filings required pursuant to the Debenture and the other Loan Documents to amend the description of the Collateral, as set forth in Section 4.1 of this Agreement, have been made with the Registrar (including, without limitation, Bank’s receipt of duly executed and stamped forms with a “received stamp” by the Registrar with respect thereto);
(g) delivery to Bank of the following, each in form and substance satisfactory to Bank: (i) a certificate of the secretary of Borrower with respect to Borrower’s articles, by-laws, incumbency and resolutions authorizing and approving the Term Loan Advance being requested and all related actions, transactions and documents, including, without limitation, the documentation delivered pursuant to Section 3.2(e), and (ii) completed and executed resolutions adopted by Borrower’s board of directors (and, if required, stockholders) authorizing and approving the Term Loan Advance being requested and all related actions, transactions and documents, including, without limitation, the documentation delivered pursuant to Section 3.2(e); and
(h) delivery to Bank (at Bank’s office in Israel) of the certificates evidencing the shares of stock in Given that constitute, or will constitute, Collateral.
3.3 Covenant to Deliver. Borrower agrees to deliver to Bank each item specified in Sections 3.1 and 3.2 required to be delivered to Bank under this Agreement as a condition precedent to any Credit Extension. Borrower expressly agrees that a Credit Extension made prior to the receipt by Bank of any such item shall not constitute a waiver by Bank of Borrower’s obligation to deliver such item, and the making of any Credit Extension in the absence of a required item shall be in Bank’s sole discretion.
3.4 Procedures for Borrowing. Subject to the prior satisfaction of all other applicable conditions to the making of a Credit Extension set forth in this Agreement, to obtain a Credit Extension, Borrower shall notify Bank (which notice shall be irrevocable) by electronic mail, facsimile, or telephone by 12:00 p.m. Eastern time at least two (2) Business Days before the requested Funding Date of the Credit Extension. Together with any such electronic or facsimile notification, Borrower shall deliver to Bank by electronic mail or facsimile a completed Payment/Advance Form executed by a Responsible Officer. Bank may rely on any telephone notice given by a person whom Bank believes is a Responsible Officer. Bank shall credit Credit Extensions to the Designated Deposit Account. Bank may make Credit Extensions under this Agreement based on instructions from a Responsible Officer or without instructions if the Credit Extensions are necessary to meet Obligations which have become due.
4.1 Debenture. Borrower undertakes to create in favor of Bank, prior to and as a condition precedent to requesting and receiving any Term Loan Advance, a first priority security interest and a first ranking fixed pledge and charge over the Collateral, which shall be such shares of stock in Given owned by Borrower as have an aggregate value (as reasonably determined by Bank) at least equal to three hundred twenty-five percent (325.0%) of the amount (as reasonably determined by Bank) of all outstanding Obligations (plus the amount of the Term Loan Advance requested), and such other shares of stock in Given owned by Borrower and other assets over which Borrower grants a first priority security interest and a first ranking fixed pledge and charge to Bank (if and to the extent provided in this Agreement and/or the Debenture), all in accordance with the Debenture Fixed Charge Agreement attached hereto as Exhibit C (as amended, modified or restated from time to time, the “Debenture”). In addition, prior to and as a condition precedent to requesting and receiving any Term Loan Advance, Borrower shall (a) execute and deliver to Bank such additional debentures, or amendments to the Debenture, as requested by Bank, to give Bank a first priority security interest and a first ranking fixed pledge and charge over the Collateral (each such new and/or amended debenture shall be included in the definition of the term “Debenture” herein), and (b) deliver to Bank (at Bank’s Israeli office) the certificates evidencing the shares of stock in Given owned by Borrower that constitute, or will constitute, Collateral.
In the event that, at any time, the Debt Coverage Ratio is less than 3.0 to 1.0 for a period of five (5) consecutive Business Days, Borrower shall, within three (3) Business Days of such occurrence (the “Determination Date”), either (at Borrower’s election): (a) execute and deliver to Bank such additional debentures, or amendments to the Debenture, as requested by Bank, giving Bank a first priority security interest and a first ranking fixed pledge and charge over additional shares of stock in Given owned by Borrower (and deliver to Bank the certificates evidencing such shares of stock), or, if such additional shares are not sufficient or are not available, alternative collateral acceptable to Bank in Bank’s sole and absolute discretion (which alternative collateral shall be deemed to be Collateral hereunder), or (b) repay all or a portion of the Obligations, such that, after giving effect to (a) and (b), the Debt Coverage Ratio is at least 3.25 to 1.0. In the event that Borrower fails to comply with the immediately preceding sentence, Borrower shall repay all outstanding Obligations within fourteen (14) Business Days of the Determination Date.
In addition, in the event that, at any time, the Debt Coverage Ratio is greater than 3.5 to 1.0 for a period of five (5) consecutive Business Days, at Borrower’s discretion Borrower and Bank shall execute such amendments to the Debenture to release such portion of the Collateral as necessary (with such portion being reasonably determined by Bank) so that, after giving effect to such release, the Debt Coverage Ratio is at least 3.25 to 1.0 but not greater than 3.5 to 1.0.
4.2 Priority. All Obligations shall be secured by the Collateral. Borrower warrants and represents that the security interests and pledges and charges of the Debenture, upon the filing thereof, shall be first priority security interests and first priority fixed pledges and charges in the Collateral, subject only to Permitted Liens which are expressly permitted by the terms of this Agreement to have priority.
4.3 Authorization to File Financing Statements. Borrower hereby authorizes Bank to file financing statements, without notice to Borrower, with all appropriate jurisdictions to perfect or protect Bank’s interest or rights hereunder, including a notice that any disposition of the Collateral, by either Borrower or any other Person, shall be deemed to violate the rights of Bank, substantially in the form attached hereto as Exhibit F.
|
5
|
REPRESENTATIONS AND WARRANTIES
|
Borrower represents and warrants as follows:
5.1 Due Organization, Authorization; Power and Authority. Borrower is duly existing and in good standing, if applicable, as a Registered Organization in its jurisdiction of formation. If Borrower is not now a Registered Organization but later becomes one, Borrower shall promptly notify Bank of such occurrence and provide Bank with Borrower’s organizational identification number.
The execution, delivery and performance by Borrower of the Loan Documents to which it is a party have been duly authorized, and do not (i) conflict with any of Borrower’s organizational documents, (ii) contravene, conflict with, constitute a default under or violate any material Requirement of Law, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or any of its property or assets may be bound or affected, (iv) require any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and are in full force and effect) or (v) constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which it is a party or by which it is bound in which the default could reasonably be expected to have a material adverse effect on Borrower’s business.
5.2 Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to grant a Lien in favor of Bank, free and clear of any and all Liens except Permitted Liens.
The Collateral is not in the possession of any third party bailee (such as a warehouse). None of the components of the Collateral shall be maintained at locations other than in Bank’s possession and control.
5.3 Litigation. Except as set forth in Schedule 5.3 hereto, there are no actions or proceedings pending or, to the knowledge of the Responsible Officers, threatened in writing by or against Borrower involving more than, individually or in the aggregate, One Million Dollars ($1,000,000.00).
5.4 Financial Statements; Financial Condition. All consolidated financial statements for Borrower delivered to Bank fairly present in all material respects Borrower’s consolidated financial condition and Borrower’s consolidated results of operations. There has not been any material deterioration in Borrower’s consolidated financial condition since the date of the most recent financial statements submitted to Bank.
5.5 Solvency. The fair salable (but for restrictions imposed by applicable securities laws on the salability of Borrower’s assets that constitute securities) value of Borrower’s assets (including goodwill minus disposition costs) exceeds the fair value of its liabilities, and Borrower is able to pay its debts (including trade debts) as they mature.
5.6 Regulatory Compliance. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to have a material adverse effect on its business. Borrower has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Government Authorities that are necessary to continue its business as currently conducted.
|
5.7
|
Intentionally Omitted.
|
|
5.8
|
Intentionally Omitted.
|
5.9 Use of Proceeds. Borrower shall use the proceeds of the Credit Extensions to fund its general business requirements.
5.10 Full Disclosure. No written representation, warranty or other statement of Borrower in any certificate or written statement given to Bank, as of the date such representation, warranty, or other statement was made, taken together with all such written certificates and written statements given to Bank, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the certificates or statements not misleading (it being recognized by Bank that the projections and forecasts provided by Borrower in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
5.11 Definition of “Knowledge.” For purposes of the Loan Documents, whenever a representation or warranty is made to Borrower’s knowledge or awareness, to the “best of” Borrower’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of the Responsible Officers.
Borrower shall do all of the following:
6.1 Government Compliance. Maintain its legal existence and good standing in its jurisdiction of formation and maintain qualification in each jurisdiction in which the failure to so qualify would reasonably be expected to cause a Material Adverse Change. Borrower shall comply with all laws, ordinances and regulations to which it is subject, noncompliance with which could cause a Material Adverse Change.
|
6.2
|
Financial Statements, Reports, Certificates. Deliver to Bank:
|
(a) Compliance Certificates. Within (i) sixty (60) days after the last day of each calendar quarter and (ii) ninety (90) days after the last day of Borrower’s fiscal year, a duly completed Compliance Certificate in the form attached hereto as Exhibit B signed by a Responsible Officer, certifying that as of the end of such calendar quarter or fiscal year, as applicable, Borrower was in full compliance with all of the terms and conditions of this Agreement and the other Loan Documents, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank shall reasonably request;
(b) Annual Audited Financial Statements. As soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under IFRS, consistently applied, together with an unqualified opinion on the financial statements from Borrower’s independent auditors;
(c) Other Statements. Within five (5) days of delivery, copies of all statements, reports and notices filed with the SEC;
(d) SEC Filings. Within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be, provided that Borrower shall deliver to Bank (i) within ninety (90) days after the last day of Borrower’s fiscal year, all reports on Form 20-F, and (ii) within sixty (60) days after the last day of each calendar quarter, all reports on Form 6-K, filed with the SEC. Documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the Internet at Borrower’s website address;
(e) Legal Action Notice. A prompt report of any legal actions pending or threatened in writing against Borrower that could result in damages or costs to Borrower of, individually or in the aggregate, One Million Dollars ($1,000,000.00) or more; and
(f) Other Financial Information. Other financial information reasonably requested by Bank, subject to Section 12.9 of this Agreement.
|
6.3
|
Intentionally Omitted.
|
|
6.4
|
Operating Accounts. Borrower shall maintain the Designated Deposit Account with Bank.
|
6.5 Financial Covenant. Borrower shall maintain at all times a Debt Coverage Ratio which shall not be less than 3.0 to 1.0 for any period of five (5) consecutive Business Days.
6.6 Litigation Cooperation. From the Effective Date and continuing through the termination of this Agreement, make available to Bank, without expense to Bank, Borrower and its officers, employees and agents and Borrower's Books, to the extent that Bank may deem them reasonably necessary to prosecute or defend any third-party suit or proceeding instituted by or against Bank with respect to any Collateral or relating to Borrower.
6.7 Further Assurances. Execute any further instruments and take further action as Bank reasonably requests to perfect or continue Bank’s Lien in the Collateral or to effect the purposes of this Agreement and the other Loan Documents.
6.8 Investments. At least two (2) times per fiscal year, Borrower shall participate in a meeting or conference call (as determined by Bank and upon Bank’s request) with Bank to review Borrower’s business, and provide Bank with access to Borrower’s Books in connection therewith, subject to Section 12.9 of this Agreement.
6.9 Notification. Promptly (but in no event later than two (2) Business Days) notify Bank with respect to (a) any Transfer by Borrower or RDC of any shares in Given or (b) any Transfer by DIC of more than one percent (1.0%) of DIC’s shares in Given.
Borrower shall not do any of the following without Bank’s prior written consent:
7.1 Dispositions. Convey, sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”) all or any part of its business or property, except for Transfers of portions of Borrower’s business or property made in the ordinary course of Borrower’s business (other than Transfers of the Collateral, which in all cases require Bank’s prior written consent).
7.2 Changes in Business, Management, Ownership, or Business Locations. (a) Engage in any business other than the business currently engaged in by Borrower, or reasonably related thereto; (b) liquidate or dissolve Borrower; or (c) enter into any transaction or series of related transactions in which the stockholders of Borrower who were not stockholders immediately prior to the first such transaction own more than fifty percent (50.0%) of the voting stock of Borrower immediately after giving effect to such transaction or related series of such transactions (other than by the sale of Borrower’s equity securities in a public offering or to venture capital investors so long as Borrower identifies to Bank the venture capital investors prior to the closing of the transaction and provides to Bank a description of the material terms of the transaction).
Borrower shall not, without at least five (5) days prior written notice to Bank: (1) change its jurisdiction of organization, (2) change its organizational structure or type, (3) change its legal name, or (4) change any organizational number (if any) assigned by its jurisdiction of organization.
7.3 Mergers or Acquisitions. Merge or consolidate with any other Person, or acquire all or substantially all of the capital stock or property of another Person, except in each case where (a) such transaction does not result in stockholders of Borrower who were not stockholders immediately prior to the first such transaction owning more than fifty percent (50.0%) of the voting stock of Borrower immediately after giving effect to such transaction or related series of such transactions, and (b) Borrower is the surviving corporation from such transaction.
7.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, other than Permitted Indebtedness.
7.5 Encumbrance. Create, incur, allow, or suffer any Lien on any of the Collateral, or assign or convey any right to receive income with respect to the Collateral, except for Permitted Liens, or permit any Collateral not to be subject to the first priority security interest and first ranking fixed pledge and charge granted in the Debenture.
7.6 Distributions. Pay any dividends or make any distribution or payment or redeem or retire any capital stock, unless no Event of Default then exists or shall occur as a result of such dividend, distribution, payment, redemption or retirement.
7.7 Intentionally Omitted.
7.8 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination, intercreditor, or other similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document relating to the Subordinated Debt which would increase the amount thereof or adversely affect the subordination thereof to Obligations owed to Bank.
7.9 Compliance. Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Act of 1940, as amended, or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System), or use the proceeds of any Credit Extension for that purpose; in the event that Borrower is or becomes subject to ERISA, fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair Labor Standards Act (in the event that Borrower is or becomes subject to the Federal Fair Labor Standards Act) or violate any other law or regulation, if the violation could reasonably be expected to have a material adverse effect on Borrower’s business; withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other governmental agency.
Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:
8.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day cure period shall not apply to payments due on the applicable Term Loan Maturity Date). During the cure period, the failure to make or pay any payment specified under clause (a) or (b) hereunder is not an Event of Default (but no Credit Extension will be made during the cure period);
(a) Borrower fails or neglects to perform any obligation in Sections 4.1, 6.2, 6.4, 6.5 or 6.9 or violates any covenant in Section 7; or
(b) Borrower fails or neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement or any Loan Documents, and as to any default (other than those specified in this Section 8) under such other term, provision, condition, covenant or agreement that can be cured, has failed to cure the default within ten (10) days after the occurrence thereof; provided, however, that if the default cannot by its nature be cured within the ten (10) day period or cannot after diligent attempts by Borrower be cured within such ten (10) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional period (which shall not in any case exceed thirty (30) days) to attempt to cure such default, and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default (but no Credit Extensions shall be made during such cure period). Cure periods provided under this section shall not apply, among other things, to financial covenants or any other covenants set forth in clause (a) above;
|
8.3
|
Material Adverse Change. A Material Adverse Change occurs;
|
|
8.4
|
Attachment; Levy; Restraint on Business.
|
(a) (i) The service of process seeking to attach, by trustee or similar process, any funds of Borrower on deposit or otherwise maintained with Bank or any Bank Affiliate, or (ii) a notice of lien or levy is filed against any of Borrower’s assets by any government agency, and the same under subclauses (i) and (ii) hereof are not, within ten (10) days after the occurrence thereof, discharged or stayed (whether through the posting of a bond or otherwise); provided, however, no Credit Extensions shall be made during any ten (10) day cure period; or
(b) (i) any material portion of Borrower’s assets is attached, seized, levied on, or comes into possession of a trustee or receiver, or (ii) any court order enjoins, restrains, or prevents Borrower from conducting any material part of its business;
8.5 Insolvency. (a) Borrower is unable to pay its debts (including trade debts) as they become due or otherwise becomes insolvent; (b) Borrower begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against Borrower and not dismissed or stayed within thirty (30) days (but no Credit Extensions shall be made while of any of the conditions described in clause (a) exist and/or until any Insolvency Proceeding is dismissed);
8.6 Other Agreements. There is, under any agreement to which Borrower is a party with a third party or parties, (a) any default resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount individually or in the aggregate in excess of Five Million Dollars ($5,000,000.00); or (b) any default by Borrower, the result of which could have a material adverse effect on Borrower’s business;
8.7 Judgments. One or more final judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least Five Million Dollars ($5,000,000.00) (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against Borrower and the same are not, within ten (10) days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior to the expiration of any such stay (provided that no Credit Extensions will be made prior to the discharge, stay, or bonding of such judgment, order, or decree);
8.8 Misrepresentations. Borrower or any Person authorized to act for Borrower makes any representation, warranty, or other statement now or later in this Agreement, any Loan Document or in any writing delivered to Bank or to induce Bank to enter this Agreement or any Loan Document, and such representation, warranty, or other statement is incorrect in any material respect when made; or
8.9 Subordinated Debt. Any document, instrument, or agreement evidencing any Subordinated Debt shall for any reason be revoked or invalidated or otherwise cease to be in full force and effect, any Person shall be in breach thereof or contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Obligations shall for any reason be subordinated or shall not have the priority contemplated by this Agreement.
|
9
|
BANK’S RIGHTS AND REMEDIES
|
9.1 Rights and Remedies. While an Event of Default occurs and continues Bank may, without notice or demand, do any or all of the following:
(a) declare all Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs all Obligations are immediately due and payable without any action by Bank);
(b) stop advancing money or extending credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Bank;
(c) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Borrower shall assemble the Collateral if Bank requests and make it available as Bank designates. Bank may enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Borrower grants Bank a license to enter and occupy any of its premises, without charge, to exercise any of Bank’s rights or remedies;
(d) apply to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) any amount held by Bank owing to or for the credit or the account of Borrower;
(e) prepare for sale, advertise for sale, and sell the Collateral;
(f) demand and receive possession of Borrower’s Books with respect to the Collateral; and
(g) exercise all rights and remedies available to Bank under the Loan Documents or at law or equity, including all remedies provided under the Code (including disposal of the Collateral pursuant to the terms thereof) or any other applicable law.
Notwithstanding the foregoing, in the event that Borrower has maintained, and maintains at such time, a Debt Coverage Ratio which shall not be less than 3.0 to 1.0 for any period of five (5) consecutive Business Days, then after the occurrence of any Event of Default (other than an Event of Default resulting from Borrower’s failure to comply with Section 6.5 of this Agreement), Bank shall give Borrower at least three (3) Business Days notice prior to Bank exercising Bank’s remedies under the Debenture with respect to the Given shares pledged to Bank by Borrower.
9.2 Power of Attorney. Borrower hereby irrevocably appoints Bank as its lawful attorney-in-fact, exercisable upon the occurrence and during the continuance of an Event of Default, to: (a) endorse Borrower’s name on any checks or other forms of payment or security; (b) pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; and (c) transfer the Collateral into the name of Bank or a third party as the Code or any other applicable law permits. Borrower hereby appoints Bank as its lawful attorney-in-fact to sign Borrower’s name on any documents necessary to perfect or continue the perfection of Bank’s Lien in the Collateral regardless of whether an Event of Default has occurred until all Obligations have been satisfied in full and Bank is under no further obligation to make Credit Extensions hereunder. Bank’s foregoing appointment as Borrower’s attorney in fact, and all of Bank’s rights and powers, coupled with an interest, are irrevocable until all Obligations have been fully repaid and performed and Bank’s obligation to provide Credit Extensions terminates.
9.3 Application of Payments and Proceeds Upon Default. If an Event of Default has occurred and is continuing, Bank may apply any funds in its possession, whether from Borrower account balances, payments, proceeds or other disposition of the Collateral, or otherwise, to the Obligations in such order as Bank shall determine in its sole discretion. Any surplus shall be paid to Borrower or other Persons legally entitled thereto; Borrower shall remain liable to Bank for any deficiency. If Bank, in its good faith business judgment, directly or indirectly enters into a deferred payment or other credit transaction with any purchaser at any sale of Collateral, Bank shall have the option, exercisable at any time, of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Bank of cash therefor.
9.4 Bank’s Liability for Collateral. So long as Bank complies with reasonable banking practices regarding the safekeeping of the Collateral in the possession or under the control of Bank, Bank shall not be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or other Person.
9.5 No Waiver; Remedies Cumulative. Bank’s failure, at any time or times, to require strict performance by Borrower of any provision of this Agreement or any other Loan Document shall not waive, affect, or diminish any right of Bank thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by the party granting the waiver and then is only effective for the specific instance and purpose for which it is given. Bank’s rights and remedies under this Agreement and the other Loan Documents are cumulative. Bank has all rights and remedies provided under the Code and any other applicable law, by law, or in equity. Bank’s exercise of one right or remedy is not an election and shall not preclude Bank from exercising any other remedy under this Agreement or other remedy available at law or in equity, and Bank’s waiver of any Event of Default is not a continuing waiver. Bank’s delay in exercising any remedy is not a waiver, election, or acquiescence.
9.6 Demand Waiver. Borrower waives demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by Bank on which Borrower is liable.
All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail or facsimile transmission; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address, facsimile number, or email address indicated below. Bank or Borrower may change its mailing or electronic mail address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10.
|
If to Borrower:
|
Elron Electronic Industries Ltd.
|
| |
Triangle Building, Azrieli Center, 42nd Floor
|
| |
Tel Aviv, Israel 67023
|
| |
Attn: Yaron Elad
|
| |
Fax: 972-3-6075556
|
| |
Email: yaron.elad@elron.com
|
| |
|
|
with a copy to:
|
P. Weinberg & Co.
|
| |
Triangle Building, Azrieli Center, 20th Floor
|
| |
Tel Aviv, Israel 67023
|
| |
Attn: Paul Weinberg, Adv.
|
| |
Fax: 972 3 6091024
|
| |
Email: paul@weinlegal.com
|
| |
|
|
If to Bank:
|
Silicon Valley Bank
|
| |
275 Grove Street, Suite 2-200
|
| |
Newton, Massachusetts 02466
|
| |
Attn: Mr. David Reich
|
| |
Fax: (617) 527-0177
|
| |
Email: DReich@svb.com
|
| |
|
|
with a copy to:
|
Riemer & Braunstein LLP
|
| |
Three Center Plaza
|
| |
Boston, Massachusetts 02108
|
| |
Attn: David A. Ephraim, Esquire
|
| |
Fax: (617) 880-3456
|
| |
Email: DEphraim@riemerlaw.com
|
|
11
|
CHOICE OF LAW, VENUE, JURY TRIAL WAIVER
|
New York law governs the Loan Documents without regard to principles of conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts in New York, New York; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Bank from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Bank. Borrower expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and Borrower hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided to Borrower in accordance with, Section 10 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Borrower may not assign this Agreement or any rights or obligations under it without Bank’s prior written consent (which may be granted or withheld in Bank’s discretion). Bank has the right, without the consent of or notice to Borrower, to sell, transfer, assign, negotiate, or grant participation in all or any part of, or any interest in, Bank’s obligations, rights, and benefits under this Agreement and the other Loan Documents. Bank will give Borrower prompt notice of any assignment of this Agreement and the other Loan Documents by Bank.
12.2 Indemnification. Borrower agrees to indemnify, defend and hold Bank and its directors, officers, employees, agents, attorneys, or any other Person affiliated with or representing Bank (each, an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) claimed or asserted by any other party in connection with the transactions contemplated by the Loan Documents; and (b) all losses or expenses (including Bank Expenses) in any way suffered, incurred, or paid by such Indemnified Person as a result of or following, resulting or arising from transactions between Bank and Borrower contemplated by the Loan Documents (including reasonable attorneys’ fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower shall not be liable for any consequential loss (including loss of profits).
12.3 Time of Essence. Time is of the essence for the performance of all Obligations in this Agreement.
12.4 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.
12.5 Correction of Loan Documents. Bank may correct patent errors and fill in any blanks in the Loan Documents consistent with the agreement of the parties so long as Bank provides Borrower with written notice of such correction and allows Borrower at least ten (10) days to object to such correction. In the event of such objection, such correction shall not be made except by an amendment signed by both Bank and Borrower.
12.6 Amendments in Writing; Waiver; Integration. No purported amendment or modification of any Loan Document, or waiver, discharge or termination of any obligation under any Loan Document, shall be enforceable or admissible unless, and only to the extent, expressly set forth in a writing signed by the party against which enforcement or admission is sought. Without limiting the generality of the foregoing, no oral promise or statement, nor any action, inaction, delay, failure to require performance or course of conduct shall operate as, or evidence, an amendment, supplement or waiver or have any other effect on any Loan Document. Any waiver granted shall be limited to the specific circumstance expressly described in it, and shall not apply to any subsequent or other circumstance, whether similar or dissimilar, or give rise to, or evidence, any obligation or commitment to grant any further waiver. The Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of the Loan Documents merge into the Loan Documents.
12.7 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Agreement.
12.8 Survival. All covenants, representations and warranties made in this Agreement continue in full force until this Agreement has terminated pursuant to its terms and all Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) have been paid in full and satisfied. The obligation of Borrower in Section 12.2 to indemnify Bank shall survive until the statute of limitations with respect to such claim or cause of action shall have run.
12.9 Confidentiality. In handling any confidential information, Bank shall exercise the same degree of care that it exercises for its own proprietary information, but disclosure of information may be made: (a) to Bank’s Subsidiaries or Affiliates (such Subsidiaries and Affiliates, together with Bank, collectively, “Bank Entities”); (b) to prospective transferees or purchasers of any interest in the Credit Extensions (provided, however, Bank shall use its best efforts to obtain any prospective transferee’s or purchaser’s agreement to the terms of this provision); (c) as required by law, regulation, subpoena, or other order, including without limitation, applicable securities law pursuant to which Borrower may be required to file a copy of this Agreement and its annexures and/or a summary thereof with the Tel Aviv Stock Exchange and the SEC; (d) to Bank’s regulators or as otherwise required in connection with Bank’s examination or audit; (e) as Bank considers appropriate in exercising remedies under the Loan Documents; and (f) to third-party service providers of Bank so long as such service providers have executed a confidentiality agreement with Bank with terms no less restrictive than those contained herein. Confidential information does not include information that is either: (i) in the public domain or in Bank’s possession when disclosed to Bank, or becomes part of the public domain after disclosure to Bank; or (ii) disclosed to Bank by a third party if Bank does not know that the third party is prohibited from disclosing the information.
Bank Entities may use the confidential information for reporting purposes and the development and distribution of databases and market analyses so long as such confidential information is aggregated and anonymized prior to distribution unless otherwise expressly permitted by Borrower. The provisions of the immediately preceding sentence shall survive the termination of this Agreement.
12.10 Right of Set Off. Borrower hereby grants to Bank, a lien, security interest and right of set off as security for all Obligations to Bank, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank or any entity under the control of Bank (including a Bank subsidiary) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Bank may set off the same or any part thereof and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12.11 Electronic Execution of Documents. The words “execution,” “signed,” “signature” and words of like import in any Loan Document shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of a paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act.
12.12 Captions. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
12.13 Construction of Agreement. The parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the parties caused the uncertainty to exist.
12.14 Relationship. The relationship of the parties to this Agreement is determined solely by the provisions of this Agreement. The parties do not intend to create any agency, partnership, joint venture, trust, fiduciary or other relationship with duties or incidents different from those of parties to an arm’s-length contract.
12.15 Third Parties. Nothing in this Agreement, whether express or implied, is intended to: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any persons other than the express parties to it and their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any person not an express party to this Agreement; or (c) give any person not an express party to this Agreement any right of subrogation or action against any party to this Agreement.
13.1 Definitions. As used in the Loan Documents, the word “shall” is mandatory, the word “may” is permissive, the word “or” is not exclusive, the words “includes” and “including” are not limiting, the singular includes the plural, and numbers denoting amounts that are set off in brackets are negative. As used in this Agreement, the following capitalized terms have the following meanings:
“Affiliate” is, with respect to any Person, each other Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person that is a limited liability company, that Person’s managers and members.
“Agreement” is defined in the preamble hereof.
“Bank” is defined in the preamble hereof.
“Bank Entities” is defined in Section 12.9.
“Bank Expenses” are all audit fees and expenses, costs, and expenses (including reasonable attorneys’ fees and expenses) for preparing, amending, negotiating, administering, defending and enforcing the Loan Documents (including, without limitation, those incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred with respect to Borrower.
“Borrower” is defined in the preamble hereof.
“Borrower’s Books” are all Borrower’s books and records including ledgers, federal and state tax returns, records regarding Borrower’s assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Borrowing Resolutions” are, with respect to any Person, those resolutions adopted by such Person’s board of directors (and, if required, stockholders) and delivered by such Person to Bank approving the Loan Documents to which such Person is a party and the transactions contemplated thereby, together with a certificate executed by its secretary on behalf of such Person certifying that (a) such Person has the authority to execute, deliver, and perform its obligations under each of the Loan Documents to which it is a party, (b) that attached as Exhibit A to such certificate is a true, correct, and complete copy of the resolutions then in full force and effect authorizing and ratifying the execution, delivery, and performance by such Person of the Loan Documents to which it is a party, (c) the name(s) of the Person(s) authorized to execute the Loan Documents on behalf of such Person, together with a sample of the true signature(s) of such Person(s), and (d) that Bank may conclusively rely on such certificate unless and until such Person shall have delivered to Bank a further certificate canceling or amending such prior certificate.
“Business Day” is any day that is not a Saturday, Sunday or a day on which Bank is closed.
“Claims” is defined in Section 12.2.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Bank’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
“Collateral” is any and all properties, rights and assets granted by Borrower to Bank (to the extent so granted) or arising under Israeli law or other applicable law, now, or in the future, including, without limitation, the Pledged Assets and all proceeds thereof.
“Compliance Certificate” is that certain certificate in the form attached hereto as Exhibit B.
“Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend, letter of credit or other obligation of another such as an obligation, in each case, directly or indirectly guaranteed, endorsed, co-made, discounted or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (b) any obligations for undrawn letters of credit for the account of that Person; and (c) all obligations from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“Credit Extension” is any Term Loan Advance.
“Debenture” is defined in Section 4.1.
“Debt Coverage Ratio” is the ratio of (a) the aggregate value of the shares of stock in Given owned by Borrower or such alternative collateral acceptable to Bank in Bank’s sole and absolute discretion, in each case over which Bank has a first priority security interest and a first ranking fixed pledge and charge pursuant to the Debenture, to (b) the aggregate amount of all outstanding Obligations, each as determined by Bank.
“Default Rate” is defined in Section 2.2(b).
“Designated Deposit Account” is Borrower’s deposit account, account number _____________, maintained with Bank.
“Determination Date” is defined in Section 4.1.
“DIC” is Discount Investment Corporation Ltd.
“Dollars,” “dollars” or use of the sign “$” means only lawful money of the United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States.
“Draw Period” is the period of time commencing upon the Effective Date through the earlier to occur of (a) the date that is eighteen (18) months from the Effective Date, and (b) an Event of Default.
“Effective Date” is defined in the preamble hereof.
“ERISA” is the Employee Retirement Income Security Act of 1974, and its regulations.
“Event of Default” is defined in Section 8.
“Exchange Act” is the Securities Exchange Act of 1934, as amended.
“Funding Date” is any date on which a Credit Extension is made to or for the account of Borrower which shall be a Business Day.
“Given” means Given Imaging Ltd., a company organized under the laws of the State of Israel.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.
“IDBD” is IDB Development Corporation Ltd.
“IDBH” is IDB Holding Corporation Ltd.
“IFRS” are the International Financial Reporting Standards, a collection of guidelines and rules set by the International Accounting Standards Board (www.iasb.org) which are applicable to the circumstances as of the date of determination.
“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, and (d) Contingent Obligations.
“Indemnified Person” is defined in Section 12.2.
“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, the Israeli Companies Ordinance 5743-1983, the Israeli Companies Law 5759-1999, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.
“Loan Documents” are, collectively, this Agreement, the Debenture and any other debentures or pledge agreements, the Borrowing Resolutions, any account control agreements, any subordination agreements, any note, or notes or guaranties executed by Borrower, and any other present or future agreement between Borrower and/or for the benefit of Bank in connection with this Agreement or the Debenture, all as amended, restated, or otherwise modified.
“Material Adverse Change” is (a) a material impairment in the perfection or priority of Bank’s Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the business, operations, or condition (financial or otherwise) of Borrower (provided, however, Bank acknowledges that the voluntary de-listing or voluntary deregistration of Borrower from the NASDAQ exchange shall not, by itself, be considered a material adverse change in the business, operations, or condition (financial or otherwise) of Borrower, provided further, however, that any facts or circumstances relating to such voluntary de-listing or voluntary deregistration shall be relevant in connection with determining whether a Material Adverse Change has occurred); (c) a material impairment of the prospect of repayment of any portion of the Obligations; or (d) Bank determines, based upon information available to it and in its reasonable judgment, that there is a substantial likelihood that Borrower shall fail to comply with one or more of the financial covenants in Section 6 during the next succeeding financial reporting period.
“Obligations” are Borrower’s obligations to pay when due any debts, principal, interest, Term Loan Advance Fees, the Commitment Fee, Bank Expenses and other amounts Borrower owes Bank now or later, whether under this Agreement, the Loan Documents, or otherwise, including, without limitation, all Secured Amounts (as defined in the Debenture), including interest accruing after Insolvency Proceedings begin and debts, liabilities, or obligations of Borrower assigned to Bank, and to perform Borrower’s duties under the Loan Documents.
“Payment/Advance Form” is that certain form attached hereto as Exhibit A.
“Payment Date” is the first calendar day of each calendar quarter.
“Permitted Indebtedness” is:
(a) Borrower’s Indebtedness to Bank under this Agreement and the other Loan Documents;
(b) Indebtedness existing on the Effective Date which, in the case of such Indebtedness individually or in the aggregate in excess of Twenty Thousand Dollars ($20,000.00), is shown on Exhibit D attached hereto;
(c) Subordinated Debt;
(d) unsecured Indebtedness to trade creditors incurred in the ordinary course of business;
(e) unsecured Indebtedness in favor of DIC, IDBD or IDBH, provided that such unsecured Indebtedness (i) is Subordinated Debt, (ii) is not incurred prior to Borrower requesting and receiving Term Loan Advances in an aggregate amount of Thirty Million Dollars ($30,000,000.00), (iii) does not exceed at any time, in the aggregate, Thirty Million Dollars ($30,000,000.00), and (iv) is not repaid (in whole or in part) until such time as (A) the Obligations are fully paid in cash, (B) Bank has no commitment or obligation to lend any further funds to Borrower, and (C) all financing agreements between Bank and Borrower are terminated by Borrower or Bank pursuant to the terms hereunder;
(f) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (e) above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon Borrower;
(g) any obligation or undertaking to provide equity financing or debt financing to Borrower’s portfolio companies in Borrower’s ordinary course of business; and
(h) any direct or indirect liability, contingent or not, of Borrower for any indebtedness of any of Borrower’s Affiliates, which indebtedness is directly or indirectly guaranteed, endorsed, co-made, discounted or sold with recourse by Borrower, provided that Borrower’s liability and obligations with respect thereto (i) are unsecured, and (ii) do not exceed at any time, in the aggregate, Ten Million Dollars ($10,000,000.00).
“Permitted Liens” are:
(a) Liens existing on the Effective Date which are shown on Exhibit D attached hereto or arising under this Agreement and the other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) being contested in good faith and for which Borrower maintains adequate reserves on Borrower’s Books, provided that no notice of any such Lien has been filed or recorded under the Internal Revenue Code of 1986, as amended, and the Treasury Regulations adopted thereunder; and
(c) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by Liens described in (a) through (b), but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increase.
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Pledged Assets” is defined in the Debenture.
“Prime Rate” is, with respect to any day, the “Prime Rate” as quoted in the Wall Street Journal print edition on such day (or, if such day is not a day on which the Wall Street Journal is published, the immediately preceding day on which the Wall Street Journal was published).
“RDC” is RDC Rafael Development Corporation Ltd.
“Registered Organization” is any “registered organization” as defined in the Code or any other applicable law with such additions to such term as may hereafter be made.
“Registrar” is defined in Section 3.1(l) of this Agreement.
“Requirement of Law” is as to any Person, the organizational or governing documents of such Person, and any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” is any of the Chief Executive Officer, Chief Financial Officer or any Director of Borrower.
“SEC” shall mean the Securities and Exchange Commission, and any successor thereto.
“Subordinated Debt” is indebtedness incurred by Borrower subordinated to all of Borrower’s now or hereafter indebtedness to Bank (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Bank entered into between Bank and the other creditor), on terms acceptable to Bank.
“Subsidiary” is, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless the context otherwise requires, each reference to a Subsidiary herein shall be a reference to a Subsidiary of Borrower.
“Term Loan Advance” and “Term Loan Advances” are defined in Section 2.1.2(a).
“Term Loan Advance Fees” is defined in Section 2.3(b).
“Term Loan Maturity Date” is, for each Term Loan Advance, the first calendar day of the month that is thirty-five (35) months after the Funding Date of such Term Loan Advance.
“Transfer” is defined in Section 7.1.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
BORROWER:
ELRON ELECTRONIC INDUSTRIES LTD.
|
By
|
(signed)
|
(signed)
|
|
Name:
|
Ari Bronshtein
|
Yaron Elad
|
|
Title:
|
CEO
|
CFO
|
| |
|
|
|
BANK:
|
|
| |
|
|
|
SILICON VALLEY BANK
|
|
| |
|
|
|
By
|
(signed)
|
|
|
Name:
|
Timothy M. Hardin
|
|
|
Title:
|
Division Risk Manager
|
|
EXHIBIT A
LOAN PAYMENT/ADVANCE REQUEST FORM
[omitted]
EXHIBIT B
COMPLIANCE CERTIFICATE
[omitted]
Schedule 1 to Compliance Certificate
Financial Covenants of Borrower
[omitted]
EXHIBIT C
DEBENTURE FIXED CHARGE AGREEMENT
Made and executed this __ day of ,
WHEREAS, the undersigned, Elron Electronic Industries Ltd., a company organized and existing under the laws of the State of Israel with its registered office at Triangle Building, Azrieli Center, 42nd Floor, Tel Aviv, Israel 67023 and publicly traded on the Israeli Tel Aviv Stock Exchange and on the Over the Counter Bulletin Board (OTCBB) (hereinafter: the "Company"), intends to receive from Silicon Valley Bank, a California corporation with a loan production office located at 275 Grove Street, Suite 2-200, Newton, Massachusetts 02466 (hereinafter: the "Bank"), credits and various loans (hereinafter: the "Banking Services") from time to time pursuant to, for such purpose and on such conditions as specified in the provisions of that certain Loan Agreement entered into between and among the Bank and the Company on November 9, 2011 (the Loan Agreement, as may be amended, modified, replaced or restated from time to time, is hereinafter referred to as the "Loan Agreement") and/or as may be agreed from time to time with respect to each such Banking Service; and
THEREFORE, it has been agreed that the Company shall secure the repayment of the various amounts of money which the Company may owe and/or may be liable to the Bank in connection with the granting of the Banking Services and/or the Loan Agreement and/or in connection with other liabilities not being Banking Services in connection with the Loan Agreement, all in accordance with the terms hereinafter contained. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
|
1.
|
Nature of the Debenture.
|
This Debenture has been made to secure the full and punctual payment of all the sums due and to become due to the Bank from the Company in connection with the granting of the Banking Services to the Company and/or in connection with the Loan Agreement and/or in connection with other liabilities not being Banking Services under the Loan Agreement, whether the Company may have incurred or will incur liability with respect thereto in the future, now due or becoming due in the future, which are payable prior to the realization of the Pledged Assets (defined below) or subsequent thereto, whether due absolutely or contingently, directly or indirectly, together with interest, commissions, charges, fees and expenses of whatever nature, including costs of realizing the Pledged Assets, lawyers' fees, insurance, and any other payments arising from this Debenture and together with any nature of linkage differences due and becoming due from the Company to the Bank in respect of linked principal and interest and any other linked sum set forth in the Loan Agreement (all the foregoing sums being jointly and severally hereinafter referred to as the "Secured Amounts").
(a) As security for the full and timely payment of all amounts which may become due from the Company in connection with any and all of the Obligations, [_________] of such ordinary shares in Given Imaging Ltd., a company organized under the laws of Israel ("Given") owned by the Company that have an aggregate value (as reasonably determined by the Bank) equal to at least three hundred twenty five percent (325.0%) of the amount (as reasonably determined by the Bank) of all outstanding Obligations (plus the amount of the Term Loan Advance requested) (the "Shares", which term shall include all additional ordinary shares of Given pledged to the Bank by the Company) which shall from time to time be delivered to the Bank, together with all other shares, if any, which by virtue of the Shares or otherwise are issued to, or acquired by the Company, whether in substitution therefor, by way of bonus shares, rights or otherwise, together with all existing and future rights and benefits attaching to the Shares and all additions and substitutions thereto and therefor, including but without prejudice to the generality of the foregoing, all interest returns of capital and other sums paid or to be paid in respect of or in connection with the Shares and all additions and substitutions thereto and therefor, are hereby granted, pledged and charged by way of a first ranking fixed pledge and charge and a first priority security interest in favor of the Bank in accordance with the terms and conditions of this Debenture Fixed Charge Agreement, all of which shall be referred to hereinafter as "Pledged Assets". The initial number of Shares pledged to the Bank is set forth in Exhibit A.
(b) Subject to the terms and conditions of the Loan Agreement, in the event that the Bank agrees to make additional Term Loan Advances, prior to and as a condition precedent to requesting and receiving any Term Loan Advance, the Company shall (a) execute and deliver to Bank a supplement to this Debenture in the form attached hereto as Exhibit C, as requested by Bank, to give Bank a first ranking fixed pledge and charge and a first priority security interest in favor of the Bank over such Shares as have an aggregate value (as reasonably determined by the Bank) equal to at least three hundred twenty five percent (325.0%) of the amount (as reasonably determined by the Bank) of all outstanding Obligations (plus the amount of the Term Loan Advance requested), in accordance with the terms and conditions of this Debenture Fixed Charge Agreement (each such supplement shall be included in the definition of the term "Debenture Fixed Charge Agreement" herein, and any collateral being pledged under any such supplement shall be included in the definition of "Pledged Assets"), and (b) deliver to Bank (at Bank’s Israeli office) the certificates evidencing the Shares.
It is hereby agreed and acknowledged that the description of the Pledged Assets shall be amended and updated from time to time by the Company and the Bank, at the Bank’s direction, upon each Term Loan Advance, in accordance with the provisions of the Loan Agreement and this Debenture Fixed Charge Agreement.
(c) In the event that, at any time, the Debt Coverage Ratio is less than 3.0 to 1.0 for a period of five (5) consecutive Business Days, the Company shall, within three (3) Business Days of such occurrence (the "Determination Date"), either (at the Company’s election): (a) execute and deliver to Bank such additional debentures, or supplements to this Debenture, as requested by Bank, giving Bank a first ranking fixed pledge and charge and a first priority security interest over additional shares of Given owned by the Company (and deliver to Bank the certificates evidencing such shares), or, if such additional shares are not sufficient or are not available, alternative collateral acceptable to Bank in Bank's sole and absolute discretion (which alternative collateral shall be deemed to be Pledged Assets hereunder), or (b) repay all or a portion of the Obligations, such that, after giving effect to (a) and (b), the Debt Coverage Ratio is at least 3.25 to 1.0. In the event that the Company fails to comply with the immediately preceding sentence, the Company shall repay all outstanding Obligations within fourteen (14) Business Days of the Determination Date.
(d) In addition, in the event that, at any time, the Debt Coverage Ratio is greater than 3.5 to 1.0 for a period of five (5) consecutive Business Days, at the Company’s discretion the Company and Bank shall execute such supplements to the Debenture to release such portion of the Pledged Assets as necessary (with such portion being reasonably determined by Bank) so that, after giving effect to such release, the Debt Coverage Ratio is at least 3.25 to 1.0 but not greater than 3.5 to 1.0.
(e) The Bank shall be entitled, at its sole discretion, to set off at any time any amount payable by the Company to the Bank on account of the Obligations which has not been timely paid, against any sums paid or to be paid in respect of or in connection with the Pledged Assets, without the consent of the Company. The Bank shall give the Company at least three (3) Business Days notice prior to any such setoff.
(f) The Company confirms that the Bank's books, accounts and entries shall be binding upon the Company, shall be deemed to be correct and shall serve as prima facie evidence against the Company in all their particulars, including all reference to the computation of the Obligations, the Pledged Assets and any other matter related hereto.
(g) Without derogating from the other provisions contained in this Debenture Fixed Charge Agreement, any waiver, extension, concession, acquiescence or forbearance (hereinafter: "waiver") on the Bank's part as to the non-performance, partial performance or incorrect performance of any of the Company's obligations pursuant to this Debenture Fixed Charge Agreement, such waiver shall not be treated as a waiver on the part of the Bank of any rights but as a limited consent given in respect of the specific instance.
|
3.
|
Representations and Undertakings.
|
The Company hereby declares, confirms, warrants and undertakes, as the case may be, as follows:
(a) The Shares are fully paid up, in the exclusive possession (prior to delivery thereof to the Bank) and ownership of the Company, free and clear of any charge, pledge, security interest, attachment, claim or any other third party rights except for the pledge in favor of the Bank hereunder, and will remain so for the duration of the pledge of the Pledged Assets.
(b) Other than as provided in the Registration Rights Agreement (defined below), applicable securities laws and the legend appearing on the certificates representing the Shares, there is no limitation or provision of law or of any agreement applicable to the Pledged Assets restricting the assignability, transferability or chargeability of the Pledged Assets, and the Company is capable of and entitled to charge and grant a security interest in the Pledged Assets.
(c) No assignment or other disposition has been made affecting the Pledged Assets or their value as collateral as envisaged by this Debenture Fixed Charge Agreement.
(d) The Shares confer upon their holder the right to receive a pro-rata portion of any and all dividends distributed by Given to its stockholders, or assets of Given in the event of winding up and to cast a pro-rata portion of all votes entitled to be cast by all stockholders of Given.
(e) Subject only to applicable securities laws, the Shares are capable of being freely sold, transferred and/or disposed of without the consent or approval of any third person or authority. The Company hereby waives any and all rights under any of the organizational documents of Given with respect to the pledge and transfer of the Shares pursuant to the provisions of this Debenture Fixed Charge Agreement.
(f) The enforcement of the security constituted by this Debenture Fixed Charge Agreement may result in the transfer of the Shares, either to the Bank or any other parties, and as a shareholder of Given at the date hereof, the Company hereby expressly and specifically approves and accepts such transfer and such transferee(s), whoever it, he, she or they may be in accordance with the provisions of the Debenture Fixed Charge Agreement and any applicable law, and the Company undertakes if and when required, to execute and deliver such instruments of conveyance and transfer and take such other action, including voting such Shares in favor of a such transfer.
(g) There are no outstanding powers of attorney or proxies or assignments or delegations thereof authorizing an action to be taken on behalf of the Company in connection with the Pledged Assets.
(h) The Company undertakes not to sell, pledge, charge, grant a security interest in, assign or otherwise dispose of any of the Pledged Assets, including without limitation by conferring any rights ranking pari-passu, prior to or deferred to the rights of the Bank, without the prior written consent of the Bank, and to notify the Bank forthwith of the levying of any attachment on the Pledged Assets, to forthwith notify the attachor of the charge in favor of the Bank and to take at the Company's own expense immediately and without delay all such measure as are required for discharging such attachment.
(i) The Company undertakes to be liable towards the Bank for any defect in the Company's title to the Pledged Assets and/or any default thereunder and to bear the responsibility for the authenticity, regularity and correctness of all the signatures, endorsements and particulars of any Bills, documents, instruments and securities which have been or may be delivered to the Bank by way of collateral security.
(j) The Company hereby irrevocably assigns to the Bank, with such assignment to be deemed effective upon (i) the making of the initial Term Loan Advance by Bank and (ii) the occurrence of any of the events specified in Section 6 below, all rights and interests of the Company applicable to the Shares under that certain Registration Rights Agreement dated July 18, 2007, by and among Given and certain shareholders thereof, as may be amended by the proposed amendment thereto contemplated by the Loan Agreement (the “Registration Rights Agreement”), and promptly following execution of this Debenture Fixed Charge Agreement shall provide Given with any notice in connection therewith as prescribed by the Registration Rights Agreement, such that the Bank shall be entitled to exercise all such rights and interests in place of the Company, subject only to the limitations set forth in the Registration Rights Agreement.
(k) The Company and DIC are parties to a voting agreement entered into on September 29, 2003 with a term of one year and renews automatically annually thereafter unless terminated by notice of either party to the other party no later than August 30 in each year, or unless earlier terminated by agreement of both parties thereto.
Unless and to the extent waived by the Bank in writing, all of the above declarations, confirmations, warranties and undertakings shall continue to subsist as long as the pledge of the Pledged Assets continues to exist.
Any of the representations, warranties and covenants made by the Company hereunder shall be in addition to, and shall not derogate in any manner from, any representations, warranties and covenants made by the Company under the Loan Agreement and any other document related to the granting of the Banking Services.
|
4.
|
In order to carry out the provisions of Section 2 above:
|
(a) The Company shall deposit the following documents with the Bank, concurrently with the execution hereof and immediately upon the request of the Bank from time to time: (i) the original share certificates representing the Shares, (ii) blank share transfer deeds with respect to the Shares, executed by the Company (the "Blank Share Transfer Deeds"), and (iii) irrevocable power of attorney in favor of the Bank, executed by the Company (the "POA") in the form attached as Exhibit B hereto. The Company hereby agrees that upon the occurrence of any of the events specified under Section 6 below: (i) the Bank shall be entitled to fill in the missing details under the Blank Share Transfer Deeds and to use such deeds as it deems appropriate, and (ii) the Bank shall be entitled to use the POA in order to attend and vote on general meeting of Given, and to sign on behalf of the Company as its attorney-in-fact on any documents, declarations, affidavits or returns which, in the opinion of the Bank may be required to facilitate the realization of any of the Pledged Assets as collateral for the full repayment of the Obligations or to transfer any of the Pledged Assets to the Bank or any other third party.
(b) Subject to the provisions of this Debenture Fixed Charge Agreement, the Company remains the owner of the Shares and, accordingly, the right to take part in the general meetings of Given and to vote therein shall remain vested in it. The Company shall not, without the prior written consent of the Bank, exercise its voting powers in respect of the Shares in any manner which would materially adversely affect the security constituted by this Debenture Fixed Charge Agreement (including, without limitation, in favor of any material change in the terms of the Shares) or would be inconsistent with the terms of any of the documents in connection with the Banking Services. The Company shall have the right to receive all profits, premiums, earnings and/or income accrued or accruing to the Pledged Assets, and same shall be transferred to the Company, subject to sub-section 0(d) below and to the provisions of the Loan Agreement.
(c) The Company shall in addition perform any and all of the obligations imposed upon it in its capacity as shareholder of Given so as to preserve all rights conferred by the Shares.
(d) Upon the occurrence of any of the events specified under Section 6 below, the right to take part in the general meetings of the Company and to vote shall be transferred to the Bank to the widest extent permitted by applicable law. The Company shall do all things necessary to effect such transfer to the extent permitted by applicable law, including without limitation, issuing any power of attorney necessary for the Bank to exercise such right to take part in general meetings and to vote.
(e) The Company undertakes to execute and deliver any documents and instruments and to do and to cause to be done all such acts, if any, necessary for filing, perfecting, maintaining, protecting, and registering the pledge on the Pledged Assets hereunder within the time frame provided for under Israeli law, and to pay all fees and charges with respect to all such filing and submission, if required.
The Company undertakes to notify the Bank forthwith:
(a) Of any claim of right to any of the Pledged Assets;
(b) Of any of the events enumerated in Section 6 hereof;
(c) Of any material reduction in value of any of the Pledged Assets;
(d) Of any application filed for the winding-up of the Company's affairs or for the appointment of a receiver over the Company's assets as well as any resolution regarding any structural change in the Company which is not permitted under the terms of the Loan Agreement; and
(e) Of any change of address.
Without derogating from the generality of the provisions of this Debenture Fixed Charge Agreement, the Bank shall be entitled to demand the immediate payment of the Obligations and to debit any account of the Company with the amount thereof in any one of the events numerated below, in which case the Company undertakes to pay the Bank all of the Obligations, and the Bank shall be entitled to take whatever steps it sees fit for the collection of the Obligations and to realize, at the Company's expense, the Pledged Assets by any means allowed by law:
(a) The Company is in breach of any of its obligations, undertakings, representations or warranties under this Debenture Fixed Charge Agreement (the foregoing shall not derogate from any right, under any law, granted to the Bank in respect of any other breach) and any applicable cure period, if applicable, has elapsed; and/or
(b) There occurs and continues to subsist an event which gives the Bank right to demand payment, under any document signed between the Company and the Bank, including, inter alia, under the Loan Agreement; and/or
(c) The occurrence of an Event of Default as defined in the Loan Agreement.
Notwithstanding anything to the contrary herein, in the event that Company has maintained, and maintains at such time, a Debt Coverage Ratio which shall not be less than 3.0 to 1.0 for any period of five (5) consecutive Business Days, then after the occurrence of any Event of Default (other than an Event of Default resulting from Company’s failure to comply with Section 6.5 of the Loan Agreement), the Bank shall give the Company at least three (3) Business Days notice prior to Bank exercising Bank’s remedies hereunder with respect to the Pledged Assets.
7. Repayment of the Obligations.
Without derogating from the Company's rights under Section 2.1.1(d) of the Loan Agreement, the Company hereby undertakes to pay the Bank all and any of the Obligations promptly on the maturity dates prescribed or which may be prescribed therefore from time to time.
Without prejudice to Section 16, to the extent applicable, neither the Company nor any person having a right liable to be affected by the pledges, security interests and charges hereby created or the realization thereof shall have any right under Section 13(b) of the Israeli Pledge Law, 5727-1967 (the "Pledge Law"), or any other statutory provisions in substitution therefore.
8. Realization of the Pledge.
(a) Upon the occurrence of any of the event specified in Section 6 above, the Bank may exercise its rights as pledgee available under applicable law, including, without limitation, to:
(i) Sell the Pledged Assets;
(ii) Transfer title to the Pledged Assets and/or request the competent courts that title to the Pledged Assets be assigned to the Bank for payment of all or any part of the outstanding Obligations; and
(iii) Act generally in relation to the Pledged Assets in such manner as the Bank acting shall determine.
(b) Nothing contained herein shall derogate from any other right or remedy the Bank may then have, pursuant to the Loan Agreement or any applicable law, against the Company, which may be exercised by the Bank simultaneously therewith on in any other manner deemed appropriate by the Bank.
(c) In order to realize all or any of the Pledged Assets, the Bank may adopt any means it or they deem fit in order to collect any amount payable on account of the Obligations and/or to realize the Pledged Assets and/or the respective rights of the Bank hereunder, including the sale of any of the Pledged Assets in any manner allowed by applicable law, as the Bank shall deem fit, and at any such sale the Bank may become the purchaser and shall have the right to set-off the purchase price offered by it against the amount due to it on account of the Obligations.
(d) Upon the occurrence of any of the events specified in Section 6 above the Bank may manage and administer the Pledged Assets in such manner and for such period as the Bank, in its absolute discretion may deem expedient, and for the purposes aforesaid.
(e) All costs, claims, expenses and disbursements incurred by the Bank in or about or incidental to the exercise of any powers aforesaid shall be payable by the Company on demand and shall be secured by this Debenture Fixed Charge Agreement.
9. In the event that any of the Pledged Assets are sold by the Bank and/or in accordance with a court order or an order of a competent authority and such order does not specify the order in which the amounts realized are to be appropriated, all amounts so obtained shall be appropriated according to the documents signed between the Company and the Bank in connection with the Banking Services.
10. The Pledged Assets which have been or may be given to the Bank under this Debenture Fixed Charge Agreement shall be continuing and revolving securities and shall remain in force until all Obligations have been fully discharged and the Bank has certified in writing that this Debenture Fixed Charge Agreement and the Loan Agreement are each null; upon and subject thereof the Bank shall return the original share certificates and the Blank Share Transfer Deed to the Company, shall sign the applicable documents in connection with release of the Pledged Assets registered in accordance with the terms of this Debenture, and shall provide the Company with a certificate confirming that the POA is null and void.
11. All collateral securities and guarantees which have been or may be given to the Bank for payment of the Obligations shall be independent of one another.
12. The Bank may at any time, at its own discretion and without the Company's consent being required, assign this Debenture Fixed Charge Agreement and its rights arising hereunder, including the collaterals in whole or in part and any assignee may also reassign the said rights without any further consent being required from the Company. The Bank will give the Company prompt notice of any assignment of this Agreement by the Bank.
13. Should the payment date of the Obligations or any part thereof not yet have fallen due at the time of the sale of the Pledged Assets, or the Obligations be due to the Bank contingently only, then the Bank shall be entitled to recover out of the proceeds of the sale an amount sufficient to cover the Obligations and the amount so recovered shall be charged to the Bank as security for, and be held by the Bank until the discharge in full of, the Obligations.
14. The nature and effect of the Pledged Assets to which this Debenture Fixed Charge Agreement is applicable shall not be affected nor shall the validity of any of the security and obligations of the Company hereunder be impaired or affected by any compromise, concession, granting of time or other like release consented to by the Bank with respect to the Company or by any variation in the Company's obligations towards the Bank in connection with the Obligations or by any release or waiver by the Bank of any other collateral security or guarantees.
(a) Each communication to be made under this Debenture Fixed Charge Agreement shall be made in writing and, unless otherwise stated, may be made also by facsimile transmission.
(b) Each communication or document to be made or delivered by each party to another pursuant to this Debenture Fixed Charge Agreement shall (unless that other party has by written notice, specified another address) be made or delivered to that party, addressed as follows:
|
if to the Company:
|
|
| |
Elron Electronic Industries Ltd.
|
|
| |
Triangle Building, Azrieli Center, 42nd Floor
|
|
| |
Tel Aviv, Israel 67023
|
|
| |
Attn: Yaron Elad
|
|
| |
Fax: 972-3-6075556
|
|
| |
Email: yaron.elad@elron.com
|
|
| |
|
|
| |
with a copy to:
|
|
| |
P. Weinberg & Co.
|
|
| |
Triangle Building, Azrieli Center, 20th Floor
|
|
| |
Tel Aviv, Israel 67023
|
|
| |
Attn: Paul Weinberg, Adv.
|
|
| |
Fax: 972 3 6091024
|
|
| |
Email: paul@weinlegal.com
|
|
| |
|
|
|
if to the Bank:
|
|
| |
Silicon Valley Bank
|
|
|
|
275 Grove Street, Suite 2-200
|
|
|
|
Newton, Massachusetts 02466
|
|
|
|
Attn: Mr. David Reich
|
|
|
|
Fax: (617) 527-0177
|
|
|
|
Email: DReich@svb.com
|
|
| |
|
|
| |
with a copy to:
|
|
| |
Yigal Arnon & Co.
|
|
| |
1 Azrieli Center, 46th Floor
|
|
| |
Tel Aviv 67021
|
|
| |
Attn: Peter Sugarman, Adv.
|
|
| |
Fax: (972)-3-608-7734
|
|
|
|
Email: peters@arnon.co.il
|
|
| |
|
|
| |
with a copy to:
|
|
| |
Riemer & Braunstein LLP
|
|
|
|
Three Center Plaza
|
|
|
|
Boston, Massachusetts 02108
|
|
|
|
Attn: David A. Ephraim, Esquire
|
|
|
|
Fax: (617) 880-3456
|
|
|
|
Email: DEphraim@riemerlaw.com
|
|
and shall be deemed to have been made or delivered (a) upon the earlier of actual receipt and five (5) Business Days after deposit in regular mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon verification of transmission, when sent by facsimile transmission; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger.
(c) Each of the parties hereto shall be entitled at any time and from time to time to give the other parties notice in writing of any change of the addresses relating to the party giving such notice, and paragraphs (b) and (c) of this Section shall be deemed modified by and in accordance with every such notice of change.
16. Choice of Law, Venue, Jury Trial Waiver.
(a) New York law governs this Debenture Fixed Charge Agreement without regard to principles of conflicts of law. The Company and Bank each submit to the exclusive jurisdiction of the State and Federal courts in New York, New York; provided, however, that nothing in this Debenture shall be deemed to operate to preclude Bank from bringing suit or taking other legal action in any other jurisdiction to realize on the Pledged Assets, or to enforce a judgment or other court order in favor of Bank. The Company expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and the Company hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. The Company hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to the Company at the address set forth in, or subsequently provided in accordance with, Section 15 of this Debenture and that service so made shall be deemed completed upon the earlier to occur of the Company's actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
(b) THE COMPANY AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS DEBENTURE OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS DEBENTURE. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
17. Expenses. All the expenses in connection with this Debenture Fixed Charge Agreement as detailed in the Loan Agreement and in any other documents signed between the Bank and the Company in connection with the Banking Services and in accordance therewith, including the fee for preparing credit and security documents, the stamping and registration of document, and all and any expenses involved in the realization of the Pledged Assets and institution of proceedings for collection (including the fees of the Bank's lawyers), insurance, safe-keeping, maintenance and repair of the Pledged Assets – shall be paid by the Company to the Bank on its first demand, together with Interest at the Default Rate from the date demand was made until payment in full, and until payment in full, all the above expenses together with interest thereon shall be secured by this Debenture Fixed Charge Agreement. The Bank may debit the Company with the aforesaid expenses, together with interest thereon.
18. In this Debenture Fixed Charge Agreement – (a) the singular includes the plural and vice versa; (b) the masculine gender includes the feminine gender and vice versa; (c) "Bank" means Silicon Valley Bank and any of its branches existing on the date hereof and/or to be subsequently opened, wherever they may be, its assigns, successors, or attorneys-in-fact; (d) "Bills" means: promissory notes, bills of exchange, cheques, undertakings, guarantees, sureties, assignments, bills of lading, deposit notes and any other negotiable instruments (e) "Interest at the Default Rate" means interest at the Default Rate, as such term is defined in the Loan Agreement; (f) the headings are only indicative and are not to be used in construing this Debenture Fixed Charge Agreement; (g) the recitals hereto form an integral part hereof; and (h) this Debenture Fixed Charge Agreement is the binding agreement between the parties hereto and this English version of this Debenture shall supersede any translation to Hebrew or Hebrew summary of this Debenture Fixed Charge Agreement, which may be created only for registration purposes with the Israeli Registrar of Companies.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Debenture Fixed Charge Agreement to be duly executed at the respective places and on the respective dates below written.
|
Elron Electronic Industries Ltd.
|
|
Silicon Valley Bank
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
|
By:
|
|
|
By:
|
|
|
| |
|
|
|
|
|
|
At:
|
|
|
At:
|
|
|
| |
|
|
|
|
|
|
Date:
|
|
|
Date:
|
|
|
Exhibit A
Pledged Assets
[_________] Ordinary Shares of Given Imaging Ltd. of which [______] are registered under the Securities Act of 1933
Exhibit B
Power of Attorney
[omitted]
Exhibit C
Supplement to Debenture Fixed Charge Agreement
This Supplement (the "Supplement") is made on _________, 20__ between Elron Electronic Industries Ltd., a company organized and existing under the laws of the State of Israel with its registered office Triangle Building, Azrieli Center, 42nd Floor, Tel Aviv, Israel 67023 and publicly traded on the Israeli Tel Aviv Stock Exchange and on the Over the Counter Bulletin Board (OTCBB) (hereinafter: the "Company"), and Silicon Valley Bank, a California corporation with a loan production office at 275 Grove Street, Suite 2-200, Newton, Massachusetts 02466 (hereinafter: the "Bank").
RECITALS:
WHEREAS, pursuant to a Debenture Fixed Charge Agreement made on _______ (the "Fixed Charge") the Company granted the Bank a first ranking fixed charge with respect to Pledged Assets as security for the Obligations;
AND WHEREAS pursuant to the Loan Agreement and the Fixed Charge, the Company is required to pledge additional collateral to the Bank;
NOW, THEREFORE, THE PARTIES HEREBY AFFIRM AND DECLARE AS FOLLOWS:
Unless otherwise defined in the Supplement, terms defined and references contained herein shall have the meaning and construction set forth in the Fixed Charge.
The parties hereby replace Exhibit A of the Fixed Charge with the attached Exhibit A, such that the items listed therein are and shall be pledged in favor of the Bank by way of a first-ranking fixed pledge and charge, on the same terms and conditions as those applying under the Fixed Charge and created under Section 2(a) thereof;
IN WITNESS WHEREOF this Supplement has been executed the day and year first above written.
ELRON ELECTRONIC INDUSTRIES LTD.
By:____________________
Name:
Title:
Accepted and Agreed to:
SILICON VALLEY BANK
By:____________________
Name:
Title:
EXHIBIT D
Schedule of indebtedness and liens
[omitted]
EXHIBIT E
Amended Registration Rights Agreement
[omitted]
EXHIBIT F
UCC Financing Statement
[omitted]
SCHEDULE 5.3
actions or proceedings
[omitted]
Schedule A
Directors and Executive Officers
of
RDC Rafael Development Corporation Ltd.
(as of February 28, 2012)
Citizenship is the same as country of address, unless otherwise noted.
|
Name & Address
|
|
Position
|
Current Principal Occupation
|
|
Arie Mientkavich (1)
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Chairman of the Board of Directors
and Acting CEO
|
Chairman of the Board of Directors of Elron; Deputy Chairman of Gazit Globe Ltd and Chairman of Gazit Globe Israel (Development) Ltd.
|
|
Ari Bronshtein
3 Azrieli Center, The Triangular Tower 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Vice President of DIC; Chief Executive Officer of Elron.
|
|
David Vaish
Rafael Advanced Defense Systems Ltd., Haifa, Israel
|
|
Director
|
Vice President for Finance & Chief Financial Officer of Rafael Advanced Defense Systems Ltd.
|
|
Roni Potesman
Rafael Advanced Defense Systems Ltd., Haifa, Israel
|
|
Director
|
Corporate Vice President R&D of Rafael Advanced Defense Systems Ltd.
|
|
Yaron Elad
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Director
|
Vice President and Chief Financial Officer of Elron.
|
|
Ilan Biran
Rafael Advanced Defense Systems Ltd., Haifa, Israel
|
|
Director
|
Chairman of the Board of Directors of Rafael Advanced Defense Systems Ltd.
|
|
Dr. Zvi Slovin
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Director
|
Business advisor of Elron.
|
|
Moshe Maor
Rafael Advanced Defense Systems Ltd., Haifa, Israel
|
|
Director
|
Chief Subsidiary Officer of Rafael Advanced Defense Systems Ltd.
|
|
Giora Shaked
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Chief Executive Officer
|
Chief Executive Officer of RDC Rafael Development Corporation Ltd.
|
|
Lior Levinsky
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Director of Finance
|
Director of Finance of RDC Rafael Development Corporation Ltd.
|
(1) As of February 28, 2012 Mr. Mientkavich owned (i) 4,545 Ordinary Shares, and (ii) options to purchase from the Issuer 35,000 Ordinary Shares at a price of $29.42 per share, 10,000 Ordinary Shares at a price of $16.00 per share and 10,000 Ordinary Shares at a price of $11.55 per share, all of which are exercisable immediately.
Schedule B
Directors and Executive Officers
o f
DEP Technology Holdings Ltd.
(as of February 28, 2012)
Citizenship is the same as country of address, unless otherwise noted.
|
Name & Address
|
|
Position
|
Current Principal Occupation
|
|
Ari Bronshtein
3 Azrieli Center, The Triangular Tower 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Vice President of DIC; Chief Executive Officer of Elron.
|
|
Yaron Elad
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Director
|
Vice President and Chief Financial Officer of Elron.
|
|
Dr. Zvi Slovin
3 Azrieli Center, The Triangular Tower 42nd floor, Tel-Aviv 67023, Israel
|
|
Director
|
Business advisor of Elron.
|
Schedule C
Directors and Executive Officers
o f
Elron Electronic Industries Ltd.
(as of February 28, 2012)
Citizenship is the same as country of address, unless otherwise noted.
|
Name & Address
|
|
Position
|
Current Principal Occupation
|
|
Arie Mientkavich (1)
3 Azrieli Center, The Triangular Tower, 42nd floor, Tel-Aviv 67023, Israel
|
|
Chairman of the
Board of Directors
|
Chairman of Elron; Deputy Chairman of Gazit Globe Ltd and Chairman of Gazit Globe Israel (Development) Ltd.
|
|
Ami Erel
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
President & Chief Executive Officer of DIC; Chairman of Cellcom Israel Ltd.; Deputy Chairman of Makhteshim Agan Industries Ltd.
|
|
Avraham Asheri
12 Yoshpe Street, Apt. 7,
Mevasseret Zion 90805, Israel
|
|
Director
|
Director of companies.
|
|
Yaacov Goldman
39 Nachlieli Street,
Hod Hasharon 45355, Israel
|
|
External Director
|
Director of companies.
|
|
Gad Arbel
Hashalom 96,
Mevaseret Zion, 90805, Israel
|
|
External Director
|
Director of Companies.
|
|
Prof. Gabriel Barbash
14 Zisman Street,
Ramat Gan 52521, Israel
|
|
Director
|
Director General of the Tel Aviv
Sourasky Medical Center.
|
|
Rona Dankner
3 Azrieli Center, The Triangular Tower, Tel-Aviv 67023, Israel
|
|
Director
|
Director of Companies
|
|
Shay Livnat
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Director
|
President of Zoe Holdings Ltd.
|
|
Dori Manor (*)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Director
|
Chief Executive Officer of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Arie Ovadia
10 Harav Amiel Street,
Tel Aviv, 62223, Israel
|
|
Director
|
Director of companies.
|
|
Hadar Udler
3 Azrieli Center, The Triangular Tower 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Corporate Secretary of IDB Holding and IDB Development.
|
|
Ari Bronshtein
3 Azrieli Center, The Triangular Tower 44th floor, Tel-Aviv 67023, Israel
|
|
Chief Executive Officer
|
Vice President of DIC; Chief Executive Officer of Elron.
|
|
Yaron Elad
3 Azrieli Center, The Triangular Tower, 42nd floor, Tel-Aviv 67023, Israel
|
|
Vice President and
Chief Financial Officer
|
Vice President and Chief Financial Officer of Elron.
|
|
Gadi Veinrib
3 Azrieli Center, The Triangular Tower, 42nd floor, Tel-Aviv 67023, Israel
|
|
Vice President
|
Vice President of Elron.
|
|
Niv Levy
3 Azrieli Center, The Triangular Tower, 42nd floor, Tel-Aviv 67023, Israel
|
|
Comptroller
|
Comptroller of Elron.
|
(*) Dual citizen of Israel and France.
(1) See note (1) in Schedule A
Schedule D
Directors and Executive Officers
of
Discount Investment Corporation Ltd.
(as of February 28, 2012)
Citizenship is the same as country of address, unless otherwise noted.
|
Name & Address
|
|
Position
|
Current Principal Occupation
|
|
Nochi Dankner
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Chairman of the
Board of Directors
|
Chairman of IDB Holding; IDB Development, DIC and Clal Industries and Investments Ltd.; Businessman and director of companies.
|
|
Zehava Dankner
64 Pinkas Street, Tel Aviv 62157, Israel
|
|
Director
|
Director of companies.
|
|
Zvi Livnat
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Deputy President of IDB Holding; Deputy Chairman of IDB Development; Co-Chief Executive Officer of Clal Industries and Investments Ltd..
|
|
Avi Fischer
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Deputy President of IDB Holding; Deputy Chairman of IDB Development; Co-Chief Executive Officer of Clal Industries and Investments Ltd..
|
|
Refael Bisker
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Chairman of Property and Building Corporation Ltd.; Co-Chairman of Shufersal Ltd.
|
|
Mark Schimmel (*)
24 Hashahaf Street, Chofit 40295, Israel
|
|
Director
|
Co-Managing Director of UKI Investments.
|
|
Shaul Ben-Zeev
Taavura Junction,
Ramle 72102, Israel
|
|
Director
|
Chief Executive Officer of Avraham Livnat Ltd.
|
|
Eliahu Cohen
23 King Joshafat Street, Herzelia 46701, Israel
|
|
Director
|
Director of companies.
|
|
Gideon Lahav
124 Ehad Ha-Am Street,
Tel-Aviv 65208, Israel
|
|
Director
|
Director of companies.
|
|
Prof. Niv Ahituv
33 Drezner Street,
Tel Aviv 69496, Israel.
|
|
External Director
|
Professor at the Faculty of Management in the Tel Aviv University.
|
|
Prof. Dan Oppenheim
14 Zamarot Street,
Herzliya 46424, Israel
|
|
External Director
|
Consultant in the field of medical services.
|
|
Isaac Manor (**)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Director
|
Chairman of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Dori Manor (**)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Director
|
Chief Executive Officer of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Haim Gavrieli
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Chief Executive Officer of IDB Holding and IDB Development.
|
|
Ami Erel
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
President and
Chief Executive Officer
|
President and Chief Executive Officer of DIC; Chairman of Cellcom Israel Ltd.; Deputy Chairman of Makhteshim Agan Industries Ltd.
|
|
Raanan Cohen
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Vice President
|
Vice President of DIC; Chief Executive Officer of Koor Industries Ltd.
|
|
Ari Bronshtein
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Vice President
|
Vice President of DIC; Chief Executive Officer of Elron.
|
|
Michel Dahan
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Vice President and
Chief Financial Officer
|
Vice President and Chief Financial Officer of DIC.
|
|
Asaf Topaz
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Vice President
|
Vice President of DIC.
|
|
Motti Berenstain
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Comptroller
|
Comptroller of DIC
|
(*) Dual citizen of Israel and United Kingdom
(**) Dual citizen of Israel and France
Schedule E
Directors and Executive Officers
of
IDB Development Corporation Ltd.
(as of February 28, 2012)
Citizenship is the same as country of address, unless otherwise noted.
|
Name & Address
|
|
Position
|
Current Principal Occupation
|
|
Nochi Dankner
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Chairman of the
Board of Directors
|
Chairman of IDB Holding, IDB Development, DIC and Clal Industries and Investments Ltd.; Businessman and director of companies.
|
|
Zehava Dankner
64 Pinkas Street, Tel Aviv 62157, Israel
|
|
Director
|
Director of companies.
|
|
Avi Fischer
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Deputy Chairman of the
Board of Directors
|
Deputy President of IDB Holding; Deputy Chairman of IDB Development; Co-Chief Executive Officer of Clal Industries and Investments Ltd..
|
|
Zvi Livnat
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Deputy Chairman of the
Board of Directors
|
Deputy President of IDB Holding; Deputy Chairman of IDB Development; Co-Chief Executive Officer of Clal Industries and Investments Ltd..
|
|
Refael Bisker
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Chairman of Property and Building Corporation Ltd.; Co-Chairman of Shufersal Ltd.
|
|
Jacob Schimmel
7 High field Gardens,
London NW11 9HD, United Kingdom
|
|
Director
|
Co-Managing Director of UKI Investments.
|
|
Shay Livnat
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Director
|
President of Zoe Holdings Ltd.
|
|
Eliahu Cohen
23 King Joshafat Street, Herzelia 46701, Israel
|
|
Director
|
Director of companies.
|
|
Isaac Manor (*)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Director
|
Chairman of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Dori Manor (*)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Director
|
Chief Executive Officer of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Abraham Ben Joseph
87 Haim Levanon Street,
Tel-Aviv 69345, Israel
|
|
Director
|
Director of companies.
|
|
Amos Malka
18 Nahal Soreq Street,
Modi'in 71700, Israel
|
|
Director
|
Director of companies
|
|
Prof. Yoram Margalioth
16 Ha'efroni Street,
Raanana 43724, Israel
|
|
Director
|
Senior lecturer (expert on tax laws) at the Faculty of Law in the Tel Aviv University.
|
|
Haim Gavrieli
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Chief Executive Officer
|
Chief Executive Officer of IDB Holding and IDB Development.
|
|
Dr. Eyal Solganik
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Executive Vice President and
Chief Financial Officer
|
Executive Vice President and Chief Financial Officer of IDB Development; Chief Financial Officer of IDB Holding.
|
|
Ari Raved
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Vice President
|
Vice President of IDB Development.
|
|
Gonen Bieber (**)
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Vice President and
finance manager
|
Vice President and Chief Financial Officer of Clal Industries and Investments Ltd.; Vice President and finance manager of IDB Development; Finance manager of IDB Holding.
|
|
Haim Tabouch
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Vice President Comptrolling
|
Vice President Comptrolling of IDB Development; Comptroller of IDB Holding.
|
|
Amir Harosh
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Comptroller
|
Comptroller of IDB Development.
|
(*) Dual citizen of Israel and France.
(**) Dual citizen of Israel and Germany.
Schedule F
Directors and Executive Officers
of
IDB Holding Corporation Ltd.
(as of February 28, 2012)
Citizenship is the same as country of address, unless otherwise noted.
|
Name & Address
|
|
Position
|
Current Principal Occupation
|
|
Nochi Dankner
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Chairman of the
Board of Directors
|
Chairman of IDB Holding, IDB Development, DIC and Clal Industries and Investments Ltd.; Businessman and director of companies.
|
|
Isaac Manor (*)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Deputy Chairman of the
Board of Directors
|
Chairman of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Arie Mientkavich (1)
3 Azrieli Center, The Triangular Tower, 42nd floor, Tel-Aviv 67023, Israel
|
|
Vice Chairman of the
Board of Directors
|
Chairman of Elron; Deputy Chairman of Gazit-Globe Ltd. and Chairman of Gazit-Globe Israel (Development) Ltd.
|
|
Zehava Dankner
64 Pinkas Street, Tel Aviv 62157, Israel
|
|
Director
|
Director of companies.
|
|
Lior Hannes
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Chairman of Koor Industries Ltd.; Chief Executive Officer of IDB Investments (U.K.) Ltd.
|
|
Refael Bisker
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Director
|
Chairman of Property and Building Corporation Ltd.; Co-Chairman of Shufersal Ltd.
|
|
Jacob Schimmel
7 High field Gardens,
London NW11 9HD, United Kingdom
|
|
Director
|
Co-Managing Director of UKI Investments.
|
|
Shaul Ben-Zeev
Taavura Junction, Ramle 72102, Israel
|
|
Director
|
Chief Executive Officer of Avraham Livnat Ltd.
|
|
Eliahu Cohen
23 King Joshafat Street, Herzelia 46701, Israel
|
|
Director
|
Director of companies.
|
|
Dori Manor (*)
103 Kahanman Street,
Bnei Brak 51553, Israel
|
|
Director
|
Chief Executive Officer of companies in the motor vehicle sector of the David Lubinski Ltd. group.
|
|
Meir Rosenne
8 Oppenheimer Street, Ramat Aviv,
Tel Aviv 69395, Israel
|
|
Director
|
Attorney.
|
|
Shmuel Dor
7 Tarad Street, Ramat Gan 52503, Israel
|
|
External Director
|
Head of auditing of subsidiaries of Clalit Health Services
|
|
Zvi Dvoresky
3 Biram Street, Haifa 34986, Israel
|
|
External Director
|
Chief Executive Officer of Beit Kranot Trust Ltd.
|
|
Zvi Livnat
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Director and
Deputy President
|
Deputy President of IDB Holding; Deputy Chairman of IDB Development; Co-Chief Executive Officer of Clal.
|
|
Haim Gavrieli
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Chief Executive Officer
|
Chief Executive Officer of IDB Holding and IDB Development.
|
|
Avi Fischer
3 Azrieli Center, The Triangular Tower, 45th floor, Tel-Aviv 67023, Israel
|
|
Deputy President
|
Deputy President of IDB Holding; Deputy Chairman of IDB Development; Co-Chief Executive Officer of Clal Industries and Investments Ltd..
|
|
Dr. Eyal Solganik
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Chief Financial Officer
|
Chief Financial Officer of IDB Holding; Executive Vice President and Chief Financial Officer of IDB Development.
|
|
Haim Tabouch
3 Azrieli Center, The Triangular Tower, 44th floor, Tel-Aviv 67023, Israel
|
|
Comptroller
|
Comptroller of IDB Holding; Vice President Comptrolling of IDB Development.
|
(*) Dual citizen of Israel and France.
(1) See note (1) in Schedule A
Page 67 of 67 pages