This
Amendment No. 11 to the Statement on Schedule 13D/A dated June 15, 2004 is being filed to
amend the Schedule 13D filings of TAT Industries Ltd. to reflect a change in control of
TAT Technologies Ltd. (the Issuer)s controlling shareholder, TAT
Industries.
Item 1.
|
Security
and Issuer.
|
This
statement on Schedule 13D/A (the Statement) relates to the ordinary shares,
NIS 0.90 par value per share (the Ordinary Shares) of TAT Technologies, an
Israeli corporation (the Issuer). The address of the principal executive
office of the Issuer is Reem Industrial Park, Neta Boulevard, Bnei Ayish, Gedera
70750, Israel.
Item 2.
|
Identity and Background.
|
ITEM
2 OF THIS STATEMENT IS HEREBY AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS:
Isal Investments
is a holding company incorporated under the laws of the State of Israel. The address of
Isal Investments principal executive offices is Medinat Hayehudim 85, Herzelya
Pituach, 46140, Israel.
Isal
Industries, a wholly owned subsidiary of Isal Investments, is a holding company
incorporated under the laws of the State of Israel. The address of Isal Industries
principal executive offices is Medinat Hayehudim 85, Herzelya Pituach, 46140, Israel.
TAT
Industries is a holding company incorporated under the law of the State of Israel, whose
shares are traded on the Tel Aviv Stock Exchange. The address of TAT Industries
principal executive offices is Reem Industrial Park, Neta Boulevard, Bnei Ayish
79485, Israel.
During
the last five years, none of Isal Investments, Isal Industries, TAT Industries or, any of
the directors and executive officers of the respective corporations listed on Schedule 1
hereto, has been convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors), or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which proceeding it, he or
she was or is subject to a judgment, decree or final order either enjoining future
violations of, or prohibiting or mandating activities subject to, United States federal or
state securities laws, or finding any violation with respect to such laws.
Item 3.
|
Source
and Amount of Funds or Other Consideration.
|
The
purchase price paid by Isal Investments through its subsidiary, Isal Industries, for the
acquisition of 1,952,954 ordinary shares of TAT Industries in private transactions and on
the Tel Aviv Stock Exchange or (TASE), as described in Item 4 below, was
approximately $36,146,360. The consideration for the purchase of the ordinary shares of
TAT Industries was funded through a credit line.
The
purchase price paid by Isal Investments through its subsidiary, Isal Industries, for the
acquisition of 645,000 ordinary shares of the Issuer in private transactions, as described
in Item 4 below, was approximately $13,698,630. The consideration for the purchase of the
ordinary shares of the Issuer was funded through a credit line.
- 5 -
The
purchase price paid by TAT Industries for the acquisition of 494,358 ordinary shares of
the Issuer on the TASE and on the NASDAQ Stock Market pursuant to a stock purchase program
announced in March 2008, as described in Item 4 below, was approximately $4,789,383. The
consideration for the purchase of such ordinary shares was funded through a credit line.
Item 4.
|
Purpose
of Transaction.
|
ITEM
4 OF THIS STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING:
On
December 19, 2007, Isal Investments, through its subsidiary, Isal Industries, purchased
the controlling interest in TAT Industries, the Issuers controlling shareholder. Mr.
Shlomo Ostersetzer, the former Chairman of the Issuers Board of Directors and its
former President, and Mr. Dov Zeelim, the former Vice Chairman of the Issuers Board
of Directors and its former Chief Executive Officer, directly and through companies wholly
owned by them, sold an aggregate of 1,345,601 ordinary shares of TAT Industries, or 54.61%
of its then outstanding ordinary shares, to Isal Investments through its subsidiary, Isal
Industries, at a price of approximately $20.08 per share. On January 31, 2008 Isal
Investments, through its subsidiary, Isal Industries, purchased an additional 142,855
ordinary shares of TAT Industries, or 5.8% of its then outstanding ordinary shares, from
Mr. Dov Zeelim, at a price of approximately $13.79 per share. The agreement between Isal
Investments and Mr. Zeelim, as amended on December 31, 2007, provided Mr. Zeelim with a
put option with respect to 102,856 ordinary shares of TAT Industries then held by him that
was exercisable after January 1, 2010. Pursuant to an agreement between Isal Investments
and Mr. Zeelim entered into in May 2008 in connection with Mr. Zeelims resignation
as Chief Executive Officer of the Issuer, Mr. Zeelim exercised his put option on June 12,
2008 and the 102,856 ordinary shares subject to the option were purchased by Isal
Investments through its subsidiary, Isal Industries, at a price of approximately $24.17
per share.
On
December 24, 2007, Isal Investments through its subsidiary, Isal Industries, purchased
361,642 ordinary shares of TAT Industries, or 14.67% of its then outstanding ordinary
shares, on the TASE, at a price of approximately $12.90 per share.
On
December 19, 2007, Isal Investments purchased 600,000 ordinary shares or 9.2% of the
Issuers then outstanding ordinary shares, from Ta-Top Limited Partnership
(TA-Top), a wholly-owned subsidiary of Ta-Top Ltd., an Israeli private company
wholly-owned by FIMI Opportunity Fund (FIMI), at a price of approximately
$21.00 per share. The agreement between Isal Investments and Ta-Top also provided for a
mutual put and call option exercisable after one year with respect to the remaining
241,443 ordinary shares of the Issuer (approximately 3.7% of the Issuers outstanding
shares) beneficially held by FIMI.
- 6 -
On
December 19, 2007, Isal Investments through its subsidiary, Isal Industries, purchased an
additional 45,000 ordinary shares of the Issuer from Mr. Dov Zeelim, at a price of
approximately $20.29 per share.
On
July 17, 2008, Isal Investments and Ta-Top entered into an amendment to their agreement,
according to which 141,443 ordinary shares of the Issuer held by Ta-Top will be purchased
by Isal Investments in December 2008 at a price per share of $19.343. Ta-Top will retain a
put option to sell its remaining 100,000 ordinary shares of the Issuer to Ta-Top for a one
month period, starting on December 20, 2009. In the event that Ta-Top does not exercise
this option, Isal Investments will have a call option to purchase the remaining 100,000
ordinary shares for a one month period starting on January 21, 2010. The exercise price of
the call and put options will be $19.343 per share, with interest as provided in the
agreement.
As
a result of the above mentioned transactions, Isal Investments is currently the beneficial
holder of 65.11% of the Issuers outstanding shares, of which 9.85% of such shares
are held by it through its wholly owned subsidiary, Isal Industries, and 55.26% of such
shares are held directly by TAT Industries.
In
March 2008, the board of directors of TAT Industries, authorized TAT Industries to
purchase up to NIS 20 million (approximately $5.8 million) of the Issuers ordinary
shares through July 2008. Through July 24, 2008, TAT Industries has purchased 494,358
ordinary shares, or 7.6% of the Issuers ordinary shares.
Item 5.
|
Interest
in Securities of the Issuer.
|
(a)
Isal Investments, Isal Industries and TAT Industries are the beneficial owners
of 3,618,508 ordinary shares of the Issuer held by TAT Industries, which
constitute approximately 55.26% of the 6,547,671 ordinary shares that the Issuer
advised were issued and outstanding as of August 4, 2008.
Isal
Investments and Isal Industries are the beneficial owners of 645,000 ordinary shares of
the Issuer held by them, which constitute approximately 9.85% of the 6,547,671 ordinary
shares that the Issuer advised were issued and outstanding as of August 4, 2008.
(b)
Isal Investments, Isal Industries and TAT Industries have shared power to vote
or direct the vote and the shared power to dispose or direct the disposition of
the 3,618,508 ordinary shares of the Issuer held by TAT Industries.
Isal
Investments and Isal Industries have shared power to vote or direct the vote and the sole
power to dispose or direct the disposition of the 645,000 ordinary shares of the Issuer
held by it.
(c)
The following table sets forth all the transactions in the ordinary shares of
the Issuer effected by TAT Industries during the past sixty days. All such
transactions were open market purchases effected on the Tel Aviv Stock Exchange
and the NASDAQ Stock Market.
- 7 -
Date of Purchase by
TAT Industries
|
Number of Shares
of
Class A Stock
Purchased
|
Price Per Share*
|
|
|
|
|
|
|
|
|
|
|
|
|
03.25.2008
|
|
|
|
1,150
|
|
$
|
8.87
|
|
03.25.2008
|
|
|
|
1,870
|
|
$
|
8.88
|
|
03.25.2008
|
|
|
|
1,100
|
|
$
|
8.90
|
|
03.25.2008
|
|
|
|
64
|
|
$
|
8.92
|
|
03.25.2008
|
|
|
|
4,941
|
|
$
|
8.97
|
|
03.25.2008
|
|
|
|
8,998
|
|
$
|
9.22
|
|
03.25.2008
|
|
|
|
15,000
|
|
$
|
9.23
|
|
03.25.2008
|
|
|
|
90,000
|
|
$
|
9.25
|
|
03.25.2008
|
|
|
|
306
|
|
$
|
9.38
|
|
03.25.2008
|
|
|
|
60
|
|
$
|
9.40
|
|
03.25.2008
|
|
|
|
76,511
|
|
$
|
9.54
|
|
03.26.2008
|
|
|
|
80
|
|
$
|
9.88
|
|
03.26.2008
|
|
|
|
80
|
|
$
|
9.86
|
|
03.26.2008
|
|
|
|
174,348
|
|
$
|
10.13
|
|
03.26.2008
|
|
|
|
250
|
|
$
|
9.99
|
|
03.26.2008
|
|
|
|
3,700
|
|
$
|
9.93
|
|
03.26.2008
|
|
|
|
900
|
|
$
|
9.87
|
|
03.27.2008
|
|
|
|
5,000
|
|
$
|
8.29
|
|
04.01.2008
|
|
|
|
100,000
|
|
$
|
9.68
|
|
04.01.2008
|
|
|
|
10,000
|
|
$
|
9.59
|
|
Item 6.
|
Contracts,
Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
|
Isal
Investments is a party to a an agreement and an amendment to such agreement with TA- Top
dated November 14, 2007 and July 17, 2008 respectively.
Items 7.
|
Material
to be Filed as Exhibits.
|
|
Exhibit 1
|
Joint
Filing Agreement
|
|
Exhibit 2
|
Agreement
between Isal Investments (1993) Ltd. and Ta-Top Limited Partnership dated
November 14, 2007
|
|
Exhibit 3
|
Amendment to Agreement between Isal Investments (1993) Ltd. Ta-Top Limited Partnership
dated July 17, 2008
|
- 8 -
SIGNATURES
After
reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies
that the information set forth in this Amendment No. 11 to the Statement is true, complete
and correct.
Date: August 7, 2008
|
|
Isal Amlat Investments (1993) Ltd.
By: /s/ Eran Saar
Eran Saar
Chief Executive Officer
|
|
|
Isal Amlat Industries (1994) Ltd.
By: /s/ Eran Saar
Eran Saar
Director
|
|
|
TAT Industries Ltd.
By: /s/ Shmuel Fledel
Shmuel Fledel
Chief Executive Officer
|
- 9 -
Schedule 1
List of Officers and
Directors
Isal Amlat Investments
(1993) Ltd.
|
|
|
|
|
|
|
|
|
|
Name
|
Position
|
Giora Inbar
|
Chairman of the Board of Director
|
Amos Sapir
|
Director
|
Jaime Shulman
|
Outside Director
|
Alexander Patishi
|
Outside Director
|
Daniella Yaorn Zolelr
|
Director
|
Eran Saar
|
Chief Executive Officer
|
Eitan Finkelstein
|
Chief Executive Officer Maof Non- Ferrous Metals Ltd. and Finkelstein Metals Ltd.
|
Shmuel Fledel
|
Chief Executive Officer TAT Industries Ltd. and TAT Technologies Ltd.
|
Isal Amlat Industries
(1994) Ltd.
|
|
|
|
|
|
|
|
|
|
Name
|
Position
|
Eran Saar
|
Director
|
TAT Industries Ltd.
|
|
|
|
|
|
|
|
|
|
Name
|
Position
|
Giora Inbar
|
Chairman of the Board of Director
|
Shmuel Fledel
|
Chief Executive Officer
|
Itamar Shani
|
Outside Director
|
Yeshaayahu Perl
|
Outside Director
|
Eran Saar
|
Director
|
Daniella Yaorn Zolelr
|
Director
|
Avraham Ortal
|
Director
|
Shaul Menachem
|
President and Chief Executive Officer of Limco- Piedmont Inc.
|
- 10 -
Exhibit 1
JOINT FILING AGREEMENT
The
undersigned hereby agree that the attached Statement on Schedule 13D/A relating to the
Ordinary Shares, par value NIS 0.90 per share of Tat Technologies Ltd. is filed on behalf
of each of them.
Date: August 7, 2008
|
|
Isal Amlat Investments (1993) Ltd.
By: /s/ Eran Saar
Eran Saar
Chief Executive Officer
|
|
|
Isal Amlat Industries (1994) Ltd.
By: /s/ Eran Saar
Eran Saar
Director
|
|
|
TAT Industries Ltd.
By: /s/ Shmuel Fledel
Shmuel Fledel
Chief Executive Officer
|
- 11 -
Exhibit 2
AGREEMENT
THIS
AGREEMENT (this
Agreement
) is
entered into as of November 14, 2007 (the
Effective Date
), by and between TA-TOP Limited Partnership (the
Partnership
) and ISAL AMLAT Investments (1993) Ltd. in its behalf
and on behalf of entities controlled by it (the
Purchaser
).
WHEREAS,
TAT Technologies Ltd. (the
Company
)
is a public Israeli company whose
shares (
Ordinary Shares
) are
traded on the NASDAQ Stock Exchange and the TASE; and
WHEREAS,
the Partnership holds 841,443 Ordinary Shares of the Company;
WHEREAS,
the Purchaser desires to purchase from the Partnership and the Partnership desires to sell to the Purchaser 600,000 Ordinary
Shares (the
Purchased Shares
) in
accordance with the terms and conditions set forth herein;
WHEREAS,
following the sale of the Purchased Shares, the Purchaser is prepared to grant
the Partnership a Put Option and the Partnership is prepared to grant to the
Purchaser a Call Option (all as defined below), all in accordance with
the terms and conditions set forth herein.
NOW, THEREFORE
, the parties hereto agree as follows:
|
|
|
1.
|
Sale of the Purchased Shares
. Subject to the terms and conditions contained
herein, at the Closing (as defined
below), the Partnership shall sell to the Purchaser and the Purchaser shall purchase from the Partnership
the Purchased Shares, free and clear of any and all Encumbrances, at a
price per Purchased Share of NIS 84.00 (the
Price Per Share
) and an aggregate purchase price of NIS 50,400,000 Million (the
Purchase Price
).
|
|
|
|
For the purpose of this
Agreement
Encumbrances
shall mean: with respect to any form of asset: liens, pledges, hypothecations,
security interests, easements, claims, charges, mortgages;
|
|
|
2.
|
Transactions at Closing;
Deliverables
. The
closing of the transactions set forth herein (the
Closing
) shall be
conditioned and contingent upon:
|
|
|
|
a.
|
The procurement of the approval
of the Controller of Restrictive Trades as per the Agreements executed between Purchaser and each of Messrs. Shlomo Osterzetzer
and Dov Zeelim;
|
|
|
|
|
b.
|
The procurement by Limco
Pidemont Inc. (
Limco
) from the Federal Aviation Administration (
FAA
) or from Limcos legal
counsel that the transfer of the shares
of TAT Industries Ltd., as per the Agreements executed between Mr. Shlomo Osterzetzer and Dov Zeelim does not
invalidate the authorizations given by FAA.
|
1
Should the foregoing precedent
conditions will not be completed within 45 days from the date hereof
then this Agreement shall terminate and become null and void with no liability
of either of the Party to the other Party:
provided however that each of the Parties may, by delivering a written
notice to the other Party to that effect, extend the foregoing period of 45
days by a total of 30 additional days.
The Closing shall be within three
days from the date on which the aforesaid conditions precedent have been satisfied. At the Closing,
the following transactions shall occur, which transactions shall be deemed to
take place simultaneously and no transaction shall be deemed to have been completed or any document delivered until
all such transactions have been completed
and all required documents have been delivered:
|
|
|
|
(1)
|
The Partnership shall deliver to the Purchaser the
Purchased Shares, free and clear of any
and all Encumbrances.
|
|
|
|
|
(2)
|
The Purchaser shall transfer to
the bank account of the Partnership the Purchase Price. The Purchase Price shall be paid in NIS by
wire transfer of immediately available
funds.
|
|
|
|
|
|
3.
|
Representations and Warranties
. The representations and warranties herein
contained shall be true and correct
as of the date hereof and on, and as of, the Closing Date with the
same force and effect as if made on, and as of, that date.
|
|
|
|
(a)
|
Representations
and Warranties of the Partnership
. The Partnership hereby represents and warrants to the Purchaser as follows:
|
|
|
|
|
(1)
|
Ownership
of Purchased Shares
. It is the beneficial and record owner and holder of the
Purchased
Shares and owns such Purchased Shares free and clear of any and all Encumbrances.
|
|
|
|
|
(2)
|
Authorization;
Binding Authority; Enforceability
. That it has full corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and delivered by it, and
constitutes a legal, valid and binding obligation of the Partnership, enforceable against it in accordance with its
terms. No provisions of any applicable law or regulation, or any order
or decree of any court or Governmental body
have been or will be violated by the execution and delivery of this Agreement
or by the consummation of the
transactions contemplated hereby. No authorization, approval or
consent of, or filing with, any Governmental or official body is required of the Partnership in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
|
|
|
|
|
(b)
|
Representations and Warranties
of the Purchaser
. The
Purchaser hereby represents and warrants that it has full corporate power and
authority to execute and deliver this Agreement, to perform its obligations hereunder, to consummate the
transactions contemplated hereby,
and to purchase the Purchased Shares from the Partnership pursuant to the provisions of this Agreement.
This Agreement has been duly executed and delivered by the Purchaser, and
constitutes the legal, valid and binding obligations of the Purchaser, enforceable against the
Purchaser in accordance with its terms. No provisions of any applicable law or regulation, or any order or decree
of any court any court or Governmental body or any agreement to which
Purchaser is a party of by which it is bound have been or will be violated by
the execution and delivery of this
Agreement or by the consummation of the transactions contemplated hereby. As of the Closing no authorization, approval or
consent of, or filing with, any Governmental or official body will be
required of the Purchaser in connection with the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby. The Purchaser acknowledges and
confirms that other than as specifically
state above, it is purchasing the Purchased Shares on an As-Is basis, without any representation by the
Partnership with respect to the Company or its business.
|
2
|
|
|
|
|
4.
|
Post Effective Date Covenants
.
|
|
|
As of the Closing, each of Mr.
Ishay Davidi and Mr. Gillon Beck shall resign from the Companys Board of Directors and the Board of
Directors of Companys subsidiaries, as applicable;
|
|
5.
|
Put Option
.
|
|
|
|
5.1
|
The Purchaser hereby grants the
Partnership the right (the
Put Option
), effective as of the Closing and exercisable at any time during the
Exercise Period (as defined below),
but at a single transaction, to cause the Purchaser to purchase all or any part of the Ordinary Shares
of the Company held by the Partnership
(provided however that the Partnership will not purchase additional Ordinary Shares until the termination of the
Exercise Period), on the date the option is exercised in accordance
with this Agreement but in no event more than 241,443 Ordinary Shares of the
Company (the
Option
Shares
) as the Partnership may specify, in its sole discretion, in the Put Option
Notice of Exercise (as defined
below), at the Put Option Closing (as defined below), at a price per
share (the
Put PPS Consideration
) that equals $19.343 (i.e., $21.00 discounted by a per share amount of
US$ 1.6567), which represents an aggregate
discount of US$ 400,000 in the event all 241,443 Ordinary Shares are to be sold pursuant to the Put Option. Such Put
Option may be exercisable by the Partnership at any time during the
Exercise Period.
|
|
|
|
|
5.2
|
Exercise Period
. The Exercise Period, in which the Put Option
may be exercised by the Partnership,
shall commence on the first anniversary of the Closing and shall continue for
a period of 30 days thereafter (the
Exercise Period
).
|
|
|
|
|
5.3
|
Exercise of the Put Option
. The Put Option is exercisable by delivery (once)
of a written notice of exercise to
the Purchaser (the
Put Option Notice of Exercise
), such Put Option Notice of Exercise to be delivered to the
Purchaser by no later than 8:00 p.m. (Israel time) on the last day of
the Exercise Period.
|
|
|
|
|
5.4
|
Put Option Closing
. The purchase and sale of the Option Shares
following the exercise of the Put
Option, if exercised, shall take place at a closing (the
Put Closing
) to be held at the offices of Naschitz,
Brandes & Co., 5 Tuval Street, Tel Aviv, Israel at 10:00 a.m.
local time at 5 Tuval Street, Tel-Aviv, on a date which is three (3) business days following the fulfillment of the
conditions set forth in Section 5.5
below, or such other date, time and place as the parties may mutually agree,
but in any case, not later than fourteen (14) days following the issuance
of the Put Option Notice of Exercise.
|
3
|
|
|
|
|
|
5.5
|
Transactions at Put Closing
. At the Put Closing, the following transactions
shall occur, which transactions
shall be deemed to take place simultaneously and no transaction shall be
deemed to have been completed or any document delivered until all such transactions have been completed
and all required documents delivered:
|
|
|
|
|
|
|
(1)
|
The Partnership shall transfer
to the Purchaser the Option Shares being
purchased free and clear of any and all Encumbrances.
|
|
|
|
|
|
|
|
|
(2)
|
The Purchaser shall transfer to
the Partnership an amount equal to the Put PPS Consideration
multiplied by the number of Option Shares
being purchased from the Partnership. Such amount shall be transferred by
wire transfer of immediately available funds in United States Dollars.
|
|
|
|
|
|
|
|
|
(3)
|
The delivery of the Option
Shares to the Purchaser at the Put Closing shall constitute a representation
and warranty by the Partnership that as of the Put Closing it is
the record and beneficial owner and holder of, and has good and
valid title to, the Option Shares,
free and clear of any and all Encumbrances.
|
|
|
|
|
|
|
5.6
|
No Restrictions
. For the
avoidance of doubt, until the end of the Exercise Period, the Partnership
shall be entitled to sell or otherwise dispose of any Ordinary Shares of the Company held by it (including, for the avoidance
of doubt, the Option Shares) without
any restrictions.
|
|
|
|
6.
|
Call Option
.
|
|
|
|
6.1
|
The Partnership hereby grants
the Purchaser the right (the
Call Option
), effective as of the Closing and exercisable at a single transaction any
time during one month following the
termination of the Exercise Period, (the
Call Exercise Period
) to purchase
all or part of the Option Shares as the Purchaser may specify, in its sole discretion, in the Call
Option Notice of Exercise (as defined
below), at the Call Option Closing (as defined below), at a price per share that equals the Put PPS Consideration (the
Call PPS Consideration
). Such Call
Option may be exercisable by the Purchaser at any time during the Call Exercise Period.
|
|
|
|
|
6.2
|
Exercise of the Call Option
. The Call
Option is exercisable by delivery (once) of a written notice of exercise to the Partnership (the
Call Option
Notice of Exercise
), such Call
Option Notice of Exercise to be delivered
to the Partnership by no later than 8:00 p.m.
(Israel time) on the last day of the Call Exercise
Period.
|
4
|
|
|
|
|
|
6.3
|
Call
Option Closing
. The purchase and sale of the Option Shares following
the exercise of the Call Option, if exercised, shall take place at a closing
(the
Put Closing
)
to be held at the offices of Naschitz, Brandes & Co., 5 Tuval Street Tel
Aviv, Israel at 10:00 a.m. local time at 5 Tuval Street, Tel-Aviv, on a date
which is three (3) business days following the fulfillment of the conditions
set forth in Section 6.4
below, or such other date, time and place as the parties may mutually agree, but in any case, not later than
fourteen (14) days following the issuance
of the Call Option Notice of Exercise.
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6.4
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Transactions
at Call Closing
. At the Call Closing, the following transactions shall occur, which
transactions shall be deemed to take place simultaneously and no transaction shall
be deemed to have been completed or any document delivered until all
such transactions have been completed and all required documents delivered:
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(1)
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The Partnership shall
transfer to the Purchaser the Option Shares being
purchased free and clear of any and all Encumbrances.
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(2)
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The
Purchaser shall transfer to the Partnership an amount equal to the Call PPS
Consideration multiplied by the number of Option Shares being purchased from the
Partnership. Such amount shall be transferred by wire transfer of immediately available funds in
United States Dollars.
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(3)
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The
delivery of the Option Shares to the Purchaser at the Put Closing shall constitute a representation and warranty by
the Partnership that as of the Put Closing
it is the record and beneficial owner and holder of, and has good and valid title to, the Option Shares, free and
clear of any and all Encumbrances.
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6.
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Miscellaneous
.
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(1)
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Further
Assurances
. Each of the parties hereto shall perform such further
acts and execute
such further documents as may reasonably be necessary to carry out and give full effect to the
provisions of this Agreement and the intentions of the parties as reflected hereby.
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(2)
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Governing
Law; Jurisdiction
. This Agreement shall be governed by and construed in accordance with the laws of the State of
Israel, without regard to the conflict of laws provisions thereof. Each of the parties hereby irrevocably submits to
the exclusive jurisdiction of the
appropriate court in Tel-Aviv, Israel, and agrees not to assert any objections to the jurisdiction thereof.
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(3)
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Successors and Assigns;
Assignment
. Except as otherwise expressly limited
herein, the provisions hereof shall inure
to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto. Except for an assignment as part of a security
interest, none of the rights, privileges, or obligations set forth in, arising under, or created by this Agreement
may be assigned or transferred without the prior consent in writing of each
party to this Agreement.
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5
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(4)
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Entire
Agreement; Amendment and Waiver
. This Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter
hereof. Any term of this Agreement may be amended and the observance of any term hereof may be waived (either
prospectively or retroactively and either generally or in a particular instance) only with the written consent
of the parties to this Agreement.
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(5)
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Notices,
etc
. All notices and other communications required or permitted hereunder to be given to a party
to this Agreement shall be in writing and shall be telecopied or mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed to such partys address as set forth below or at such other address as the
party shall have furnished to each other party in writing in accordance with this
provision:
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if to
the Purchaser:
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ISAL
AMLAT Investments (1993) Ltd.
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85
Medinat Hayehudim St. Herzelia
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Tel: 09-9701801
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Phone: 09-9701889
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if to
the Partnership:
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TA-TOP
Limited Partnership
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c/o
TA-TEK Ltd, its general partner
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c/o
FIMI 2001 Ltd.
Rubinstein
Hous
37 Petach
Tikva Road
Tel:
03-5652244
Fax: 03-5652245
With
Copy to
Sharon
Amir, Adv.
Naschitz,
Brandes & Co.
5 Tuval
Street
Tel Aviv 67897
Israel
Facsimilia:
+972-3-623-5021
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or
such other address with respect to a party as such party shall notify the
other party in writing as above provided. Any notice sent in accordance with
this sub Section 6 shall be effective (i) if mailed, seven (7) business days
after mailing, (ii) if sent by messenger, upon delivery to the above-referenced
address, and (iii) if sent via via telecopier, upon transmission and electronic
confirmation of receipt or (if transmitted and received on a non-business day) on the
first business day following transmission and electronic confirmation of receipt
(provided, however, that any notice of change of address shall only be valid upon
receipt).
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6
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(6)
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Delays or Omissions
. No delay or omission to exercise any
right, power, or remedy accruing to any
party upon any breach or default under this Agreement, shall be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent, or
approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must
be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise, afforded to any
of the parties, shall be cumulative
and not alternative.
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(7)
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Severability
. If any provision of
this Agreement is held by a court of competent jurisdiction to be
unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of
this Agreement shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms; provided, however, that in
such event this Agreement shall be interpreted so as to give effect, to the
greatest extent consistent with and permitted by applicable law, to the meaning and intention of the
excluded provision as determined by such
court of competent jurisdiction.
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(8)
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Counterparts
. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an original and
enforceable against the parties actually executing such counterpart, and all
of which together shall constitute one and the same instrument.
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(9)
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No
Joint Venture
. Nothing contained in this Agreement will be deemed or construed as creating
a joint venture or partnership between any of the parties hereto. No party is by virtue of this Agreement
authorized as an agent, employee or legal representative
of any other party. No party will have the power to control the activities and operations of any other and their
status is, and at all times, will continue
to be, that of independent contractors with respect to each other. No party will have any power or authority to bind or commit any other. No party
will hold itself out as having any
authority or relationship in contravention of this Section.
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[Remainder of page intentionally left blank]
7
IN WITNESS WHEREOF, the
undersigned have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
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ISAL AMLAT Investments (l993) Ltd.
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By:
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Name:
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Title:
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TA-TOP
Limited Partnership
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By:
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Name:
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Title:
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8
Exhibit 3
AMENDMENT
This Amendment (the
Amendment
) is entered into as of
17/7, 2008, by and between TA-TOP Limited Partnership (the
Partnership
) and ISAL AMLAT
Investments (1993) Ltd. in its behalf and on behalf of entities controlled by it (the
Purchaser
).
WHEREAS,
the Partnership and the Purchaser are parties to a valid agreement dated as of November 14, 2007 (the
Original
Agreement
), with respect to which
both parties have heretofore been fully compliant; and
WHEREAS,
the Purchaser has requested to amend the terms of the Put Option;
WHEREAS,
the Partnership agrees,
ex-gracia
, to
amend the terms of the Put Option, as further set forth herein; and
WHEREAS,
accordingly, the Purchaser and the Partnership wish to amend the Original
Agreement as expressly set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as
follows:
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1. Capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the Original
Agreement.
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2. Section 5 of the
Original Agreement shall be deleted in its entirety and replaced with the following
section:
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5.
Put Option
.
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5.1 The Purchaser hereby
grants the Partnership the right (the
Put
Option
), effective as of
the Closing and exercisable at any time during the Exercise Period (as defined below), to
cause the Purchaser to purchase all or any part of the Ordinary Shares of the Company held by
the Partnership (provided however that the Partnership will not purchase additional
Ordinary Shares until the termination of the Exercise Period), on the date the option is
exercised in accordance with this Agreement but in no event more than an aggregate of
241,443 Ordinary Shares of the Company (the
Option Shares
) as the Partnership may specify, in its sole
discretion, in the Put Option Notices of Exercise (as defined below),
at the Put Option Closings (as defined below), at a price per share (the
Put PPS Consideration
) that equals (i)
with respect to the Initial Option Shares (as defined below), $19.343 (i.e., $21.00
discounted by a per share amount of US$1.6567), which represents an aggregate discount
of US$ 400,000 in the event all 241,443 Ordinary Shares were to be sold pursuant to the Put
Option, and (ii) with respect to the Additional Option Shares (as defined
below), $19.343 supplemented by interest calculated at an annual rate equal to LIBOR
plus two percent (2%) from the date of the Put Closing (as defined below) with
respect to the Initial Option Shares and until the date on which the Put Option with respect to such Additional
Option Shares is exercised (if at all).
Such Put Option may be exercisable by the Partnership at any time during the applicable Exercise Period;
provided, however, that the delivery of this Amendment shall constitute a Put
Option Notice of Exercise (as defined below) with respect to the Initial Option Shares.
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1
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5.2
Exercise Period
. The Exercise
Period, in which the Put Option may be exercised by the Partnership,
shall commence (i) with respect to 141,443 Ordinary Shares of the Company (the
Initial Option Shares
), on
December
20, 2008, and (ii) (i) with respect to the remaining 100,000 Ordinary Shares of the
Company (the
Additional Option
Shares
), on December 20,
2009 and in each case shall continue for a period of 30 days thereafter (in each
case, the
Exercise Period
).
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5.3
Exercise of the Put Option
. The Put Option is exercisable by
delivery of a
written notice
of exercise to the Purchaser (each, the
Put
Option Notice of Exercise
), such Put Option Notice of Exercise to be delivered
to the Purchaser by no later than 8:00 p.m. (Israel time) on the last day of
the applicable Exercise Period; provided, however, that as aforesaid, the
delivery of this Amendment shall constitute a Put Option Notice of Exercise with respect
to the Initial Option Shares.
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5.4
Put Option Closing
. The purchase and sale of the Initial
Option Shares and Additional Option
Shares, as applicable, following the exercise of the Put Option with respect
thereto, if exercised, shall take place at a closing (the
Put Closing
) to be held at the offices of Naschitz,
Brandes & Co., 5 Tuval Street, Tel Aviv, Israel
at 10:00 a.m. local time at 5 Tuval Street, Tel-Aviv, on a date which
is three (3) business days following the
fulfillment of the conditions set forth in Section 5.5 below, or such other date, time and place as the parties may mutually
agree, but in any case, not later
than the later of (i) fourteen (14) days following the issuance of the
applicable Put Option Notice of
Exercise, and (ii) the first day of the applicable Exercise Period.
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5.5
Transactions at Put
Closing
.
At the Put Closing, the following transactions shall occur, which
transactions shall be deemed to take place simultaneously and no transaction shall be
deemed to have been completed or any document delivered until all such
transactions have been completed and all required documents delivered:
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(1) The Partnership shall
transfer to the Purchaser the Option Shares being purchased free and clear of any
and all Encumbrances.
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(2) The Purchaser shall
transfer to the Partnership an amount equal to the Put PPS Consideration
multiplied by the number of Option Shares being purchased from the Partnership. Such
amount shall be transferred by wire transfer of immediately available funds in United
States Dollars.
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(3) The delivery of the
Option Shares to the Purchaser at the applicable Put Closing shall constitute a
representation and warranty by the Partnership that as of such Put Closing it is the
record and beneficial owner and holder of, and has good and valid title to, the Option Shares
being delivered, free and clear of any and all Encumbrances.
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2
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5.6
No Restrictions
. For the avoidance of
doubt, during the Exercise Period, the Partnership shall be
entitled to sell or otherwise dispose of any Ordinary Shares of the Company held by it (including, for the avoidance of doubt, the
Option
Shares) without any restrictions.
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3. Section 6 of the
Original Agreement shall be deleted in its entirety and replaced with the following section:
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6.
|
Call
Option
.
|
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6.1
|
The Partnership hereby grants the Purchaser the right
(the
Call Option
), effective as of the Closing and exercisable at any time during one
month following the termination of the applicable Exercise Period, (the
Call Exercise Period
) to purchase all or
part of the Initial Option
Shares or Additional Option Shares, as applicable, as the Purchaser may specify, in its sole discretion, in
the Call Option Notice of Exercise
(as defined below), at the Call Option Closing (as defined below), at a price per share that equals the
Put PPS Consideration (the
Call PPS
Consideration
). Such Call Option may be exercisable by the
Purchaser at any time during the
applicable Call Exercise Period.
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6.2
|
Exercise of the Call Option
. The Call Option is exercisable by delivery of a written notice of exercise to
the Partnership (each, the
Call Option Notice of Exercise
), such Call Option
Notice of Exercise to be delivered to the Partnership by no later than 8:00 p.m. (Israel time) on the last day of the
applicable Call Exercise Period.
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6.3
|
Call Option Closing
. The purchase and sale of the Initial Option Shares and Additional Option Shares, as
applicable, following the exercise of
the Call Option with respect thereto, if exercised, shall take
place at a closing (the
Call Closing
)
to be held at the offices of Naschitz, Brandes & Co., 5 Tuval Street, Tel Aviv, Israel at 10:00 a.m. local time at 5
Tuval Street, Tel-Aviv, on a date which is three (3) business
days following the fulfillment of the conditions set forth in Section 6.4 below, or such other date, time and place
as the parties may mutually agree, but in any case, not later than
fourteen (14) days following the issuance of the applicable Call Option Notice of Exercise.
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6.4
|
Transactions
at Call Closing
. At the Call Closing, the following transactions
shall occur, which transactions shall be deemed to take place simultaneously
and no transaction shall be deemed to
have been completed or any document delivered until all such transactions have been completed and all required
documents delivered:
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|
|
(1)
|
The Partnership shall transfer to the Purchaser the
Option Shares being purchased free and clear of any and all Encumbrances.
|
3
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(2) The Purchaser shall
transfer to the Partnership an
amount equal to the Call PPS Consideration multiplied by the number of Option Shares
being purchased from the Partnership. Such amount shall be transferred by wire
transfer of immediately available funds in United States Dollars.
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(3) The delivery of the
Option Shares to the Purchaser at the applicable Call Closing shall constitute a
representation and warranty by the Partnership that as of such Call Closing it is the
record and beneficial owner and holder of, and has good and valid title to,
the Option Shares so being delivered, free and clear of any and all
Encumbrances.
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4. Except for the changes
in the Original Agreement set forth in Sections 2 and 3 above, the provisions of
the Original Agreement remain in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers, hereunto duly authorized, as of the day and year first
above written.
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ISAL
AMLAT Investments (l993) Ltd.
|
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By:
|
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Name:
|
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Title:
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TA-TOP
Limited Partnership
|
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By:
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Name:
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Title:
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