|
¨
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
¨
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
¨
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the transition period from __________________ to __________________
|
Title of each class
|
Name of each exchange on which registered
|
|
Ordinary Shares, par value NIS 10.00 per share
|
NYSE MKT
|
1
|
Does not include a total of 85,655 ordinary shares held at that date as treasury shares under Israeli law, all of which were repurchased by Ellomay. For so long as such treasury shares are owned by Ellomay they have no rights and, accordingly, are neither eligible to participate in or receive any future dividends which may be paid to Ellomay’s shareholders nor are they entitled to participate in, be voted at or be counted as part of the quorum for, any meetings of Ellomay’s shareholders
|
Page
|
|||
6 | |||
7 | |||
Part I
|
|||
Identity of Directors, Senior Management and Advisers | 9 | ||
Offer Statistics and Expected Timetable | 9 | ||
9 | |||
Selected Financial Data
|
9 | ||
Capitalization and Indebtedness | 13 | ||
Risk Factors | 13 | ||
Information on Ellomay | 30 | ||
History and Development of Ellomay | 30 | ||
Business Overview | 33 | ||
Organizational Structure | 66 | ||
Property, Plants and Equipment
|
67 | ||
Unresolved Staff Comments | 69 | ||
69 | |||
Operating Results | 69 | ||
Liquidity and Capital Resources | 76 | ||
Research and Development, Patents and Licenses, Etc. | 83 | ||
Trend Information | 83 | ||
Off-Balance Sheet Arrangements | 84 | ||
Contractual Obligations | 84 | ||
Directors, Senior Management and Employees | 84 | ||
Directors and Senior Management |
84
|
||
Compensation | 87 | ||
Board Practices | 89 | ||
Employees | 104 | ||
Share Ownership | 105 | ||
Major Shareholders and Related Party Transactions | 109 | ||
Major Shareholders
|
109 | ||
Related Party Transactions
|
112 | ||
Financial Information | 113 | ||
Consolidated Statements and Other Financial Information
|
113 | ||
Significant Changes
|
114 |
The Offer and Listing | 114 | ||
Offer and Listing Details
|
114 | ||
Markets
|
115 | ||
Additional Information | 116 | ||
Share Capital
|
116 | ||
Memorandum of Association and Second Amended and Restated Articles
|
116 | ||
Material Contracts | 124 | ||
Exchange Controls | 125 | ||
Taxation | 125 | ||
Dividends and Paying Agents
|
132 | ||
Statement by Experts
|
132 | ||
Documents on Display | 132 | ||
Quantitative and Qualitative Disclosures about Market Risk | 133 | ||
135 | |||
|
|||
Part II
|
|||
Defaults, Dividend Arrearages and Delinquencies | 135 | ||
Material Modifications to the Rights of Security Holders and Use of Proceeds | 135 | ||
Controls and Procedures | 135 | ||
Audit Committee Financial Expert | 137 | ||
Code of Ethics | 137 | ||
Principal Accountant Fees and Services | 137 | ||
Exemptions from the Listing Standards for Audit Committees | 138 | ||
Purchases of Equity Securities by the Company and Affiliated Purchasers | 138 | ||
Change in Registrant’s Certifying Accountants | 139 | ||
Corporate Governance | 139 | ||
Mine Safety Disclosure | 140 | ||
Part III
|
|||
Financial Statements | 140 | ||
Financial Statements | 140 | ||
Exhibits | 141 |
·
|
the profitability of the photovoltaic market which we have entered;
|
·
|
the market, economic and political factors in Italy, in Spain and generally in Europe, in Israel and worldwide;
|
·
|
our contractors’ technical, professional and financial ability to deliver on and comply with their operation and maintenance undertakings in connection with the operation of our photovoltaic plants;
|
·
|
our ability to further familiarize ourselves and maintain expertise in the photovoltaic market and the energy market, and to track, monitor and manage the projects which we have undertaken;
|
·
|
our ability to identify, evaluate and consummate additional suitable business opportunities and strategic alternatives;
|
·
|
the price and market liquidity of our ordinary shares;
|
·
|
the fact that we may be deemed to be an “investment company” under the Investment Company Act of 1940 under certain circumstances (including as a result of the investments of assets following the sale of our business), and the risk that
we may be required to take certain actions with respect to the investment of our assets or the distribution of cash to shareholders in order to avoid being deemed an “investment company”;
|
·
|
our plans with respect to the management of our financial and other assets; and
|
·
|
the possibility of future litigation.
|
A.
|
Selected Financial Data
|
For Year ended December 31,
|
||||||||||||||||
2012
|
2011
|
2010
|
2009
|
|||||||||||||
Revenues
|
$ | 8,890 | $ | 6,114 | $ | - | $ | - | ||||||||
Operating expenses
|
1,954 | 1,391 | - | - | ||||||||||||
Depreciation expenses
|
2,717 | 1,777 | - | - | ||||||||||||
Gross profit
|
4,219 | 2,946 | - | - | ||||||||||||
General and administrative expenses
|
3,110 | 3,102 | 3,211 | 1,931 | ||||||||||||
Capital Loss
|
394 | - | - | - | ||||||||||||
Operating Profit (Loss)
|
715 | (156 | ) | (3,211 | ) | (1,931 | ) | |||||||||
Financing income
|
696 | 1,971 | 1,076 | 1,366 | ||||||||||||
Financing income (expenses) in connection with SWAP contracts
|
(2,157 | ) | (2,601 | ) | 404 | - | ||||||||||
Financing expenses
|
(2,166 | ) | (608 | ) | (80 | ) | (9 | ) | ||||||||
Financing income (expenses), net
|
(3,627 | ) | (1,238 | ) | 1,400 | 1,357 | ||||||||||
Company’s share of losses of investee accounted for at equity
|
(232 | ) | (596 | ) | (66 | ) | - | |||||||||
Loss before taxes on income
|
(3,144 | ) | (1,990 | ) | (1,877 | ) | (574 | ) | ||||||||
Tax benefit (taxes on income)
|
1,011 | 1,018 | 44 | (69 | ) | |||||||||||
Loss from continuing operations
|
(2,133 | ) | (972 | ) | (1,833 | ) | (643 | ) | ||||||||
Income (loss) from discontinued operations, net
|
- | - | 7,035 | (376 | ) | |||||||||||
Net income (loss) for the year
|
(2,133 | ) | (972 | ) | 5,202 | (1,019 | ) | |||||||||
Income (Loss) attributable to:
|
||||||||||||||||
Owners of the Company
|
(2,110 | ) | (972 | ) | 5,202 | (1,019 | ) | |||||||||
Non-controlling interests
|
(23 | ) | - | - | - | |||||||||||
Net income (loss) for the year
|
(2,133 | ) | (972 | ) | 5,202 | (1,019 | ) | |||||||||
Other comprehensive income (loss):
|
||||||||||||||||
Foreign currency translation adjustments
|
1,620 | (3,698 | ) | 194 | - | |||||||||||
Total other comprehensive income (loss)
|
1,620 | (3,698 | ) | 194 | - | |||||||||||
Total comprehensive income (loss)
|
$ | (513 | ) | $ | (4,670 | ) | $ | 5,396 | $ | (1,019 | ) | |||||
Basic net earnings (loss) per share:
|
||||||||||||||||
Loss from continuing operations
|
$ | (0.2 | ) | $ | (0.09 | ) | $ | (0.2 | ) | $ | (0.1 | ) | ||||
Earnings (loss) from discontinued operations
|
- | - | 0.9 | *) - | ||||||||||||
Net earnings (loss)
|
$ | (0.2 | ) | $ | (0.09 | ) | $ | 0.7 | $ | (0.1 | ) | |||||
Diluted net earnings (loss) per share:
|
||||||||||||||||
Loss from continuing operations
|
$ | (0.2 | ) | $ | (0.09 | ) | $ | (0.2 | ) | $ | (0.1 | ) | ||||
Earnings (loss) from discontinued operations
|
- | - | 0.8 | *) - | ||||||||||||
Net earnings (loss)
|
$ | (0.2 | ) | $ | (0.09 | ) | $ | 0.6 | $ | (0.1 | ) | |||||
Weighted average number of shares used for computing basic earnings (loss) per share
|
10,709,294 | 10,775,458 | 7,911,551 | 7,378,643 | ||||||||||||
Weighted average number of shares used for computing diluted earnings (loss) per share
|
10,709,294 | 10,775,458 | 8,904,250 | 7,378,643 |
For Year ended December 31,
|
||||||||||||||||
2012
|
2011
|
2010
|
2009
|
|||||||||||||
EBITDA from continuing operations
(1)
|
$ | 3,200 | $ | 1,025 | $ | (3,255 | ) | $ | (1,920 | ) |
(1)
|
EBITDA is a non-IFRS measure and is defined as earnings before financial expenses, net, interest, taxes, depreciation and amortization. We present this measure in order to enhance the understanding of our historical financial performance and to enable comparability between periods. While we consider EBITDA to be an important measure of comparative operating performance, EBITDA should not be considered in isolation or as a substitute for net income or other statement of operations or cash flow data prepared in accordance with IFRS as a measure of profitability or liquidity. EBITDA does not take into account our commitments, including capital expenditures and restricted cash and, accordingly, is not necessarily indicative of amounts that may be available for discretionary uses. Not all companies calculate EBITDA in the same manner, and the measure as presented may not be comparable to similarly-titled measures presented by other companies. Our EBITDA may not be indicative of our historic operating results; nor is it meant to be predictive of potential future results.
|
For Year ended December 31,
|
||||||||||||||||
2012
|
2011
|
2010
|
2009
|
|||||||||||||
Net income (loss) for the year
|
$ | (2,133 | ) | $ | (972 | ) | $ | 5,202 | $ | (1,019 | ) | |||||
Financing expenses (income), net
|
3,627 | 1,238 | (1,400 | ) | (1,357 | ) | ||||||||||
Loss (income) from discontinued operations, net of tax
|
- | - | (7,035 | ) | 376 | |||||||||||
Income tax expenses (benefit)
|
(1,011 | ) | (1,018 | ) | (44 | ) | 69 | |||||||||
Depreciation and amortization
|
2,717 | 1,777 | 22 | 11 | ||||||||||||
EBITDA
|
$ | 3,200 | $ | 1,025 | $ | (3,255 | ) | $ | (1,920 | ) |
At December 31,
|
||||||||||||||||
2012
|
2011
|
2010
|
2009
|
|||||||||||||
Working capital
|
$ | 27,977 | $ | 31,856 | $ | 71,756 | $ | 75,172 | ||||||||
Total assets
|
$ | 128,740 | $ | 126,392 | $ | 106,214 | $ | 76,432 | ||||||||
Total liabilities
|
$ | 45,626 | $ | 42,331 | $ | 17,648 | $ | 6,404 | ||||||||
Total shareholders’ equity
|
$ | 83,114 | $ | 84,061 | $ | 88,566 | $ | 70,028 | ||||||||
Capital stock (1)
|
$ | 102,068 | $ | 102,534 | $ | 102,369 | $ | 89,227 | ||||||||
Ordinary shares outstanding (1)
|
10,692,371 | 10,769,326 | 10 , 7 50,071 | 7 ,378,643 |
|
(1)
|
Net of treasury shares. 85,655 ordinary shares that have been purchased according to a share buyback program that was authorized the Company's Board of Directors.
|
Year ended December 31,
|
||||
2008
|
||||
Revenues:
|
||||
Products
|
$ | 10,568 | ||
Services
|
842 | |||
Total revenues
|
11,410 | |||
Cost of revenues:
|
||||
Products
|
7,927 | |||
Inventory write-off
|
197 | |||
8,124 | ||||
Services
|
2,862 | |||
Total cost of revenues
|
10,986 | |||
Gross profit
|
424 | |||
Operating expenses:
|
||||
Research and development, net
|
1,942 | |||
Selling and marketing
|
3,075 | |||
General and administrative
|
9,830 | |||
Doubtful accounts expenses (income)
|
368 | |||
Amortization of other intangible assets
|
- | |||
Total operating expenses
|
15,215 | |||
Operating loss
|
(14,791 | ) | ||
Gain on sale of Company’s business, net
|
95,137 | |||
Financial income (expenses), net
|
7,596 | |||
Income (loss) before taxes on income
|
87,942 | |||
Taxes on income
|
966 | |||
Net Income (loss)
|
$ | 86,976 | ||
Basic earnings (loss) per share
|
$ | 11.9 | ||
Diluted earnings (loss) per share
|
$ | 10.1 | ||
Weighted average number of shares used for computing basic earnings (loss) per share
|
7,297,257 | |||
Weighted average number of shares used for computing diluted earnings (loss) per share
|
8,610,275 |
At December 31,
|
||||
2008
|
||||
Working capital (deficiency)
|
$ | 76,119 | ||
Total assets
|
$ | 78,278 | ||
Total liabilities
|
$ | 7,349 | ||
Total shareholders’ Equity (deficiency)
|
$ | 70,929 | ||
Capital stock
|
$ | 89,109 | ||
Ordinary shares outstanding
|
7 ,378,643 |
B.
|
Capitalization and Indebtedness
|
C.
|
Reasons for the Offer and Use of Proceeds
|
D.
|
Risk Factors
|
A.
|
History and Development of Ellomay
|
|
·
|
Economic - An increase in solar power generation will reduce dependence on fossil
fuels. Worldwide demand for electricity is expected to nearly double by 2025, according to the U.S. Department of Energy. Additionally, according to International Energy Agency, over 60% of the world’s electricity is generated from fossil fuels such as coal, natural gas and oil. The combination of declining finite fossil fuel energy resources and increasing energy demand is depleting natural resources as well as driving up electricity costs, underscoring the need for reliable renewable energy production. Solar power systems are renewable energy sources that rely on the sun as an energy source and do not require a fossil fuel supply. As such, they are well positioned to offer a sustainable long-term alternative means of power generation. Once a solar power system is installed, the cost of generating electricity is relatively stable over the lifespan of the system. There are no risks that fuel prices will escalate or fuel shortages will develop, although cash paybacks for systems range depending on the level of incentives, electric rates, annualized sun intensity, installation costs and derogation in the efficiency of the panels.
|
|
·
|
Convenience - Solar power systems can be installed on a wide range of sites, including small residential roofs, the ground, covered parking structures and large industrial buildings. Most solar power systems also have few, if any, moving parts and are generally guaranteed to operate for 20-25 years, resulting in low maintenance and operating costs and reliability compared to other forms of power generation.
|
|
·
|
Environmental - Solar power is one of the cleanest electric generation sources, capable of generating electricity without air or water emissions, noise, vibration, habitat impact or waste generation. In particular, solar power does not generate greenhouse gases that contribute to global climate change or other air pollutants, as power generation based on fossil fuel combustion does, and does not generate radioactive or other wastes as nuclear power and coal combustion do. It is anticipated that greenhouse gas regulation will increase the costs and constrain the development of fossil fuel based electric generation and increase the attractiveness of solar power as a renewable electricity source.
|
|
·
|
Security - Producing solar power improves energy security both on an international level (by reducing fossil energy purchases from hostile countries) and a local level (by reducing power strains on local electrical transmission and distribution systems).
|
PV Plant Title
|
Capacity
|
Location
|
Technology of Panels
|
Connection to Grid
|
FiT (
€/kWh)
1
|
Revenue in 2012 (in thousands)
|
||||||
“Troia 8”
|
995.67 kWp
|
Province of Foggia, Municipality of Troia, Puglia region, Italy
|
Fix
|
January 14, 2011
|
0.346
|
$800
|
||||||
“Troia 9”
|
995.67 kWp
|
Province of Foggia, Municipality of Troia, Puglia region, Italy
|
Fix
|
January 14, 2011
|
0.346
|
$816
|
||||||
“Del Bianco”
|
734.40 kWp
|
Province of Macerata, Municipality of Cingoli, Marche region, Italy
|
Fix
|
April 1, 2011
|
0.346
|
$480
|
||||||
“Giaché”
|
730.01 kWp
|
Province of Ancona, Municipality of Filotrano, Marche region, Italy
|
Duel Axes Tracker
|
April 14, 2011
|
0.346
|
$665
|
||||||
“Costantini”
|
734.40 kWp
|
Province of Ancona, Municipality of Senigallia, Marche region
, Italy
|
Fix
|
April 27, 2011
|
0.346
|
$526
|
||||||
“Massaccesi”
|
749.7 kWp
|
Province of Ancona, Municipality of Arcevia, Marche region, Italy
|
Duel Axes Tracker
|
April 29, 2011
|
0.346
|
$671
|
||||||
“Galatina”
|
994.43 kWp
|
Province of Lecce, Municipality of Galatina, Puglia region, Italy
|
Fix
|
May 25, 2011
|
0.346
|
$637
|
PV Plant Title
|
Capacity
|
Location
|
Technology of Panels
|
Connection to Grid
|
FiT (
€/kWh)
1
|
Revenue in 2012 (in thousands)
|
||||||
“Pedale (Corato)”
2
|
2,993 kWp
|
Province of Bari, Municipality of Corato, Puglia region, Italy
|
Single Axes Tracker
|
May 31, 2011
|
0.289
|
$2,514
|
||||||
“Acquafresca”
|
947.6 kWp
|
Province of Barletta-Andria-Trani, Municipality of Minervino Murge, Puglia region, Italy
|
Fix
|
June 2011
|
0.291
|
$654
|
||||||
“D‘Angella”
|
930.5 kWp
|
Province of Barletta-Andria-Trani, Municipality of Minervino Murge, Puglia region, Italy
|
Fix
|
June 2011
|
0.291
|
$624
|
||||||
“Rinconada II”
3
|
2,275 kWp
|
Municipality of Córdoba, Andalusia, Spain
|
Fix
|
July 2010
|
0.3223
4
|
$503
5
|
|
·
|
an Engineering Procurement & Construction projects Contract, or an EPC Contract, which governs the installation, testing and commissioning of a photovoltaic plant by the respective Contractor;
|
|
·
|
an Operation and Maintenance, or O&M, Agreement, which governs the operation and maintenance of the photovoltaic plant by the respective Contractor;
|
|
·
|
when applicable, an agreement between the owner of the photovoltaic plant and the Contractor, whereby the panels required for the construction of the photovoltaic plant will be purchased by such owner directly from a third party supplier of such panels, and then transferred to the Contractor;
|
|
·
|
a number of ancillary agreements, including:
|
|
o
|
one or more “surface rights agreements” with the land owners, which provide the terms and conditions for the lease of land on which the photovoltaic plants are constructed and operated;
|
|
o
|
with respect to our Italian PV Plants –
|
|
·
|
standard “incentive agreements” with Gestore dei Servizi Elettrici, or GSE, Italy’s energy regulation agency responsible,
inter alia
, for incentivizing and developing renewable energy sources in Italy and purchasing energy and re-selling it on the electricity market. Under such agreement, it is anticipated that GSE will grant the applicable FiT governing the purchase of electricity (FiTs are further detailed in “Item 4.B: Material Effects of Government Regulations on the Italian PV Plants”);
|
|
·
|
one or more “power purchase agreements” with GSE, specifying the power output to be purchased by GSE for resale and the consideration in respect thereof (in the event of sale via the “Dedicated Withdrawal System” as more fully described under “Item 4.B: Material Effects of Government Regulations on the Italian PV Plants”); and
|
|
·
|
one or more “interconnection agreements” with the Enel Distribuzione S.p.A, or ENEL, the Italian national electricity grid operator, which provide the terms and conditions for the connection to the Italian national grid.
|
|
o
|
with respect to our Spanish PV Plant –
|
|
·
|
Standard “power evacuation agreements” with the Spanish power distribution grid company Endesa Distribución Eléctrica, S.L.U., or Endesa, regarding the rights and obligations of each party, concerning, inter alia, the evacuation of the power generated in the facility to the grid; and
|
|
·
|
Standard “representation agreements” with an entity that will represent the PV Principal in its dealings with the Spanish National Energy Commission, or CNE, and the bid system managed by the operator of the market, Operador del Mercado Ibérico de Energía, Polo Español, S.A., or OMEL, who are responsible for payment of the FiT as more fully set described under “Item 4.B: Material Effects of Government Regulations on the Spanish PV Plants.” The representation agreements in connection with Rinconada II are with Nexus Energía, S.A.
|
|
·
|
optionally, one or more “project financing agreements” with financing entities, as were already executed with respect to several of the PV Plants and as more fully described below, and as may be executed in the future with respect to one or more of the remaining PV Plants;
|
|
·
|
a stock purchase agreement in the event we acquire an existing company that owns a photovoltaic plant that is under construction or is already constructed.
|
|
·
|
by way of sale on the electricity market (Italian Power Exchange IPEX), the so called “Borsa Elettrica”;
|
|
·
|
through bilateral contracts with wholesale dealers; and
|
|
·
|
via the so-called “Dedicated Withdrawal Plant” introduced by AEEG Resolution no. 280/07 and subsequent amendments. This is the most common way of selling electricity, as it affords direct and quick negotiations with the national energy handler (GSE), which will in turn deal with energy buyers on the market. We sell electricity though this method.
|
·
|
the area to be enslaved (
asservimento
) is at least twice the size of the radiant surface; and
|
·
|
the portion of the plot of land which is not occupied by the photovoltaic plant is used exclusively for agricultural activities.
|
(i)
|
confirmed and further regulated the provisions of the
Circolare
no. 38/8763 regarding the cluster issue;
|
(ii)
|
implemented and extended the provisions of the Romani Decree by providing that the PAS applies to photovoltaic plants with power up to 200 kWp,and in particular cases (contaminated areas such as industrial areas, dumps and quarries), up to 1 MWp; and
|
(iii)
|
provided new requirements as to the procedure of application for the AU, including the requirement to submit an audited business plan together with the application.
|
Nominal Power kWp
|
Non-Integrated
|
Partially Integrated
|
Arch. Integrated
|
1 kW ≤ P ≤ 3 kW
|
0.40 Euro/kWh
|
0.44 Euro/kWh
|
0.49 Euro/kWh
|
3 kW < P ≤ 20 kW
|
0.38 Euro/kWh
|
0.42 Euro/kWh
|
0.46 Euro/kWh
|
P > 20 kW
|
0.36 Euro/kWh
1
|
0.40 Euro/kWh
|
0.44 Euro/kWh
|
|
______________________
|
|
1
With regard to the Italian PV Plant under the Third Conto Energia the tariff is equal to € 0.289/kWh.
|
a)
|
the power capacity of the plant is not higher than 1 MW and - in the case of lands owned by the same owner - the PV plants are installed at a distance of at least 2 km; and
|
b)
|
the installation of the PV plants does not cover more than 10% of the surface of agricultural land which is available to the applicant.
|
January – June 2012
|
July – December 2012
|
|||
PV plants on buildings
|
Other PV plants
|
PV plants on buildings
|
Other PV plants
|
|
[€/kWh]
|
[€/kWh]
|
[€/kWh]
|
[€/kWh]
|
|
1≤P≤3
|
0.274
|
0.240
|
0.252
|
0.221
|
3<P≤20
|
0.247
|
0.219
|
0.227
|
0.202
|
20<P≤200
|
0.233
|
0.206
|
0.214
|
0.189
|
200<P≤1000
|
0.224
|
0.172
|
0.202
|
0.155
|
1000<P≤5000
|
0.182
|
0.156
|
0.164
|
0.140
|
P>5000
|
0.171
|
0.148
|
0.154
|
0.133
|
|
(i)
|
new (generally lower than the Fourth Conto Energia and decreasing every six months) tariffs, comprising both the incentives and the sale of electric energy (so called “omni-comprehensive tariffs”);
|
|
(ii)
|
the provision for “large” photovoltaic plants of a register in which the same must be enrolled in order to qualify for the grant of the incentives;
|
|
(iii)
|
bonuses for photovoltaic plants whose components are manufactured in European Union countries; and
|
|
(iv)
|
bonuses for photovoltaic plants on buildings replacing asbestos roofs.
|
|
(a)
|
As a consequence of selling the electricity produced at the feed-in tariff;
|
|
(b)
|
As a consequence of selling the electricity produced on the wholesale power production market managed by the market operator (OMEL) at the market price; or
|
|
(c)
|
As a consequence of selling the electricity produced at the price negotiated between the parties in a bilateral or forward contract, entered into by a producer and an off-taker.
|
|
(a)
|
Type I – PV solar roof plants (or plants developed in similar surfaces); and
|
|
(b)
|
Type II – Any other type of PV solar plants (mainly, ground PV solar plants).
|
|
(a)
|
Taxable event
: generation of electric energy and its transmission to the grid;
|
|
(b)
|
Taxable income
: total amount received in terms of feed in tariff;
|
|
(c)
|
Tax rate
: 7%;
|
|
(d)
|
Taxpayer
: titleholder of the taxable event, i.e., the person which is entitled to generate electric energy and transfer such energy to the grid;
|
|
(e)
|
Tax period and accruing
: the tax period is the natural year and the tax is accrued each December 31;
|
|
(f)
|
Tax payment terms
: the taxpayers are obliged to issue a final self-settlement of the tax amount and to pay such amount within the following month of November as from the accruing of the tax. Therefore, the first self-settlement and payment shall be satisfied during November 2013; and
|
|
(g)
|
Interim tax payments
: the taxpayers are also required to transfer interim tax payments to the account of the final self-settlement within the first twenty calendar days of May, September, November and February of the following year, and corresponding to the periods of three, six, nine and twelve months of each year, respectively, and in accordance with the rules to be issued by the Ministry of Treasury and Public Bodies.
|
|
(a)
|
When all the necessary evacuation facilities (e.g. aerial or subterranean lines, transformation centers, etc.) are fully executed and commissioned;
|
|
(b)
|
When all the equipment for the generation of electricity are fully executed and commissioned; and
|
|
(c)
|
When the whole solar field is duly executed and commissioned.
|
PV Plant
|
Size of Property
|
Location
|
Owners of the PV Plants/Lands
|
|||
“Troia 8”
|
2.42.15 hectares
|
Province of Foggia, Municipality of Troia, Puglia region
|
PV Plant owned by Leasint and leased to Ellomay Six S.r.l. / Building right granted to Ellomay PV Six S.r.l. from owners
|
|||
“Troia 9”
|
2.39.23 hectares
|
Province of Foggia, Municipality of Troia, Puglia region
|
PV Plant owned by Leasint and leased to Ellomay Five S.r.l. / Building right granted to Ellomay PV Five S.r.l. from owners
|
|||
“Del Bianco”
|
2.44.96 hectares
|
Province of Macerata, Municipality of Cingoli, Marche region
|
PV Plant owned by Ellomay PV One S.r.l./ Building right granted to Ellomay PV One S.r.l. from owners
|
|||
“Giaché”
|
3.87.00 hectares
|
Province of Ancona, Municipality of Filotrano, Marche region
|
PV Plant owned by Ellomay PV Two S.r.l.
/ Building right granted to Ellomay PV Two S.r.l. from owners
|
PV Plant
|
Size of Property
|
Location
|
Owners of the PV Plants/Lands
|
|||
“Costantini”
|
2.25.76 hectares
|
Province of Ancona, Municipality of Senigallia, Marche region
|
PV Plant owned by Ellomay PV One S.r.l.
/ Building right granted to Ellomay PV One S.r.l. from owners
|
|||
“Massaccesi”
|
3,60,60 hectares
|
Province of Ancona, Municipality of Arcevia, Marche region
|
PV Plant owned by Ellomay PV Two S.r.l.
/ Building right granted to Ellomay PV Two S.r.l. from owners
|
|||
“Galatina”
|
4.00.00 hectares
|
Province of Lecce, Municipality of Galatina, Puglia region
|
PV Plant and Land owned by Energy Resources Galatina S.r.l.
|
|||
“Pedale (Corato)”
|
13.59.52 hectares
|
Province of Bari, Municipality of Corato, Puglia region
|
Building Right granted to Pedale S.r.l. that will own the PV Plant once constructed/ Land held by owners and leased to Pedale S.r.l.
|
|||
“Acquafresca”
|
3.38.26 hectares
|
Province of Barletta-Trani, Municipality of Minervino Murge, Puglia region
|
Building Right granted to Murgia Solar S.r.l. owns the PV Plant. Land held by owners and leased to Murgia Solar S.r.l.
|
|||
“D‘Angella”
|
3.79.570 hectares
|
Province of Barletta-Trani, Municipality of Minervino Murge, Puglia region
|
Building Right granted to Luma Solar S.r.l. that owns the PV Plant. Land held by owners and leased to Luma Solar S.r.l.
|
|||
“Rinconada II”
1
|
81,103 m²
|
Municipality of Córdoba, Andalusia, Spain
|
Building Right granted to Ellomay Spain S.L. that owns the PV Plant. Land held by owners and leased to Ellomay Spain S.L.
|
Year ended December 31,
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
Appreciation (Depreciation) of the NIS against the U.S. dollar
|
2.3 | % | (7.1 | )% | 6.4 | % | ||||||
Appreciation (Depreciation) of the Euro against the U.S. dollar
|
2 | % | (3.2 | )% | (7.4 | )% |
|
(a)
|
Assets and liabilities for each balance sheet presented are translated at the closing rate at the date of that balance sheet.
|
|
(b)
|
Income and expenses for each period presented in the statement of comprehensive income (loss) are translated at average exchange rates for the presented periods; however, if exchange rates fluctuate significantly, income and expenses are translated at the exchange rates at the date of the transactions.
|
|
(c)
|
Share capital, capital reserves and other changes in capital are translated at the exchange rate prevailing at the date of issuance.
|
|
(d)
|
Retained earnings are translated based on the opening balance translated at the exchange rate at that date and other relevant transactions during the period are translated as described in (b) and (c) above.
|
|
(e)
|
All resulting translation differences are recognized as a separate component of other comprehensive income (loss) in equity “adjustments arising from translating financial statement of foreign operations.”
|
|
(i)
|
a Senior Loan, to be applied to the costs of construction of the PV Plants (up to 80% of the relevant amount), in the amount of Euro 4.1 million, accruing interest at the EURIBOR rate, increased by a margin of 200 basis points per annum, repaid semi annually with a maturity date of December 31, 2027; and
|
|
(ii)
|
a VAT Line, for payment of VAT due on the costs of construction in the amount of Euro 0.55 million, accruing interest at the EURIBOR rate, increased by 160 basis points per annum, repaid in one payment until December 31, 2013.
|
Year ended December 31,
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
(U.S. dollars in thousands)
|
||||||||||||
Net cash (used in) provided by operating activities
|
$ | 5,906 | $ | (3,042 | ) | $ | (4,867 | ) | ||||
Net cash (used in) provided by investing activities
|
(1,850 | ) | (62,797 | ) | (12,159 | ) | ||||||
Net cash provided by (used in) financing activities
|
(34 | ) | 21,021 | 18,314 | ||||||||
Exchange differences on balances of cash and
cash equivalents
|
353 | (2,848 | ) | 15 | ||||||||
Net (decrease) increase in cash and cash equivalents
|
4,375 | (47,666 | ) | 1,303 | ||||||||
Cash and cash equivalents at beginning of period
|
28,917 | 76,583 | 75,280 | |||||||||
Cash and cash equivalents at end of period
|
33,292 | 28,917 | 76,583 |
Payments due by period
(in thousands of U.S. dollars)
|
||||||||||||||||||||
Contractual Obligations*
|
Total
|
Less than 1 year
|
1 – 3 years
|
3 – 5 years
|
more than
5 years
|
|||||||||||||||
Loans and Borrowings (1)
|
$ | 5,980 | $ | 5,980 | $ | - | $ | - | $ | - | ||||||||||
Finance lease obligations (1)
|
9,441 | 621 | 620 | 1,857 | 6,343 | |||||||||||||||
Long-term loans (1)
|
18,311 | 1,341 | 1,039 | 4,457 | 11,477 | |||||||||||||||
Long-term rent obligations (2)
|
3,859 | 267 | 267 | 267 | 3,058 | |||||||||||||||
Other long-term liabilities (3)
|
3,827 | - | - | - | 3,827 | |||||||||||||||
Total
|
$ | 37,591 | $ | 7,942 | $ | 1,659 | $ | 6,311 | 21,679 |
*
|
For contractual obligations related to our investment in the Italian and Spanish photovoltaic market, please refer to Item 4.
|
(1)
|
These amounts include future payment of interest.
|
(2)
|
Includes land lease agreements of our Italian subsidiaries. Rent until April 2013 of our offices in Tel Aviv is also included.
|
(3)
|
Consists mainly of balance amounts relating to SWAP contracts.
|
Name
|
Age
|
Position with Ellomay
|
||
Shlomo Nehama(1)(2)
|
58
|
Chairman of the Board of Directors
|
||
Ran Fridrich(1)(2)(3)
|
60
|
Director and Chief Executive Officer
|
||
Hemi Raphael(1)(2)
|
61
|
Director
|
||
Anita Leviant(1)(3)(4)
|
58
|
Director
|
||
Oded Akselrod(4)(5)
(6)
|
66
|
Director
|
||
Barry Ben Zeev(4)(5)(6)(7)
|
61
|
Director
|
||
Mordechai Bignitz(4)(5)(6)(7)
|
61
|
Director
|
||
Kalia Weintraub
|
34
|
Chief Financial Officer
|
||
Eran Zupnik
|
44
|
EVP of Business Development
|
(1)
|
Elected pursuant to the Shareholders Agreement, dated as of March 24, 2008, between S. Nechama Investments
(2008) Ltd. and Kanir Joint Investments (2005) Limited Partnership (See “Item 7.A: Major Shareholders”).
|
(2)
|
Provides management services to the Company pursuant to a Management Services Agreement (See “Item 6.B: Compensation”).
|
(3)
|
Member of our Advisory Committee.
|
(4)
|
Independent Director pursuant to the NYSE MKT rules.
|
(5)
|
Member of our Audit Committee.
|
(6)
|
Member of our Compensation Committee.
|
(7)
|
External Director and independent director pursuant to the Companies Law.
|
|
·
|
With respect to an office holder who is not the chief executive officer, a director, a controlling shareholder or a relative of the controlling shareholder:
|
|
o
|
In the event the transaction is in accordance with the Compensation Policy – approval (in the following order) of: (i) compensation committee and (ii) board of directors.
|
|
o
|
In the event the transaction is not in accordance with the Compensation Policy – approval, in special cases (in the following order), of: (i) compensation committee, (ii) board of directors and (iii) the company’s shareholders, by the “special majority” described above in connection with the approval of the Compensation Policy. Under these circumstances, the compensation committee and board of directors are still required to approve the transaction based on the criteria applicable to a Compensation Policy as described above. In the event the company’s shareholders do not approve the compensation of the office holder, the compensation committee and board of directors may still approve the transaction, in special cases and with detailed reasons and after discussion and examining the rejection of the company’s shareholders.
|
|
·
|
With respect to a company’s chief executive officer:
|
|
o
|
In the event the transaction is in accordance with the Compensation Policy - approval (in the following order) of: (i) compensation committee, (ii) board of directors and (iii) the company’s shareholders with the “special majority” described above in connection with the approval of the Compensation Policy.
|
|
o
|
In the event the transaction is not in accordance with the Compensation Policy – the approval process and requirements are the same as the approval process for such a transaction with an office holder who is not the CEO, a controlling shareholder or a relative of the controlling shareholder.
|
|
o
|
Amendment No. 20 includes an exception from the shareholder approval requirement in connection with the approval of a transaction with a CEO candidate, subject to certain conditions. In addition, in the event the company’s shareholders do not approve the compensation of the CEO, the compensation committee and board of directors may still approve the transaction, in special cases and with detailed reasons and after discussion and examining the rejection of the company’s shareholders.
|
|
·
|
With respect to a director who is not a controlling shareholder or a relative of the controlling shareholder:
|
|
o
|
In the event the transaction is in accordance with the Compensation Policy – approval (in the following order) of: (i) compensation committee, (ii) board of directors and (iii) the company’s shareholders with a regular majority.
|
|
o
|
In the event the transaction is not in accordance with the Compensation Policy – the approval process and requirements are the same as the approval process for such a transaction with an office holder who is not the CEO, a controlling shareholder or a relative of the controlling shareholder (other than the possibility to override the shareholders’ resolution).
|
|
·
|
With respect to a controlling shareholder or a relative of a controlling shareholder:
|
|
o
|
In the event the transaction is in accordance with the Compensation Policy - approval (in the following order) of: (i) compensation committee, (ii) board of directors and (iii) the company’s shareholders with the “special majority” described above in connection with the approval of the Compensation Policy.
|
|
o
|
In the event the transaction is not in accordance with the Compensation Policy: the approval process and requirements are the same as the approval process for such a transaction with an office holder who is not the CEO, a controlling shareholder or a relative of the controlling shareholder (other than the possibility to override the shareholders’ resolution).
|
Name of Beneficial Owner
|
Number of Shares
Beneficially Held (1)
|
Percent of Class
|
||||||
Shlomo Nehama(2)(5)
|
4,016,842 | 37.6 | % | |||||
Hemi Raphael (3)(4)(5)
|
454,524 | 4.3 | % | |||||
Ran Fridrich(4)(5)
|
148,567 | 1.4 | % | |||||
Anita Leviant(6)
|
* | * | ||||||
Oded Akselrod(6)
|
* | * | ||||||
Barry Ben Zeev(6)
|
* | * | ||||||
Mordechai Bignitz(6)
|
* | * | ||||||
Eran Zupnik(7)
|
132,172 | 1.2 | % | |||||
Kalia Weintraub
|
- | - |
(1)
|
As used in this table, “beneficial ownership” means the sole or shared power to vote or direct the voting or to dispose or direct the disposition of any security. For purposes of this table, a person is deemed to be the beneficial owner of securities that can be acquired within 60 days from March 1, 2013 through the exercise of any option or warrant. Ordinary shares subject to options or warrants that are currently exercisable or exercisable within 60 days are deemed outstanding for computing the ownership percentage of the person holding such options or warrants, but are not deemed outstanding for computing the ownership percentage of any other person. The amounts and percentages are based upon 10,692,371 ordinary shares outstanding as of March 1, 2013. This number of outstanding ordinary shares does not include a total of 85,655 ordinary shares held at that date as treasury shares under Israeli law, all of which were repurchased by us. For so long as such treasury shares are owned by us they have no rights and, accordingly, are neither eligible to participate in or receive any future dividends which may be paid to our shareholders nor are they entitled to participate in, be voted at or be counted as part of the quorum for, any meetings of our shareholders.
|
(2)
|
According to information provided by the holders, the 4,016,842 ordinary shares beneficially owned by Mr. Nehama consist of: (i) 3,551,869 ordinary shares held by S. Nechama Investments (2008) Ltd., an Israeli company, or Nechama Investments, which constitute approximately 33.2% of our outstanding ordinary shares, and (ii) 464,973 ordinary shares held directly by Mr. Nehama, which constitute approximately 4.4% of our outstanding ordinary shares. Mr. Nehama, as the sole officer, director and shareholder of Nechama Investments, may be deemed to indirectly beneficially own any ordinary shares beneficially owned by Nechama Investments, which constitute (together with the shares held directly by him) approximately 37.6% of our outstanding ordinary shares.
|
(3)
|
The 454,524 ordinary shares beneficially owned by Mr. Raphael consist of: (i) 314,514 ordinary shares held by a BVI private company wholly-owned by Mr. Raphael, which constitute approximately 2.9% of our outstanding shares and (ii) 140,010 ordinary shares held directly by Mr. Raphael, which constitute approximately 1.3% of our outstanding shares. Mr. Raphael, as the sole officer, director and shareholder of such private company, may be deemed to indirectly beneficially own any ordinary shares beneficially owned by such private company, which constitute (together with the shares held directly by him) approximately 4.3% of our outstanding ordinary shares.
|
(4)
|
By virtue of their positions as sole directors of Kanir Investments Ltd., or Kanir Ltd., the general partner in Kanir Joint Investments (2005) Limited Partnership, or Kanir, Mr. Raphael’s position as majority shareholder of Kanir Ltd. and their position as limited partners in Kanir, Hemi Raphael and Ran Fridrich may be deemed to also indirectly beneficially own the 2,841,440 ordinary shares beneficially owned by Kanir, which constitute, together with their holdings, 30.8% and 28%, respectively, of our outstanding ordinary shares. Messrs. Raphael and Fridrich disclaim beneficial ownership of the shares held by Kanir, except to the extent of their respective pecuniary interest therein, if any.
|
(5)
|
By virtue of the 2008 Shareholders Agreement between Nechama Investments and Kanir (see “Item 7.A: Major Shareholders”), Mr. Nehama, Nechama Investments, Kanir and Messrs. Raphael and Fridrich may be deemed to be members of a group that holds shared voting power with respect to 6,393,309 ordinary shares, which together constitute approximately 59.8% of our outstanding ordinary shares, and holds shared dispositive power with respect to 5,356,878 ordinary shares, which constitute 50.1% of our outstanding ordinary shares. Accordingly, taking into account the shares directly held by Messrs. Nehama, Raphael (taking into account also shares held by the private company wholly-owned by him) and Fridrich, they may be deemed to beneficially own approximately 64.1%, 64% and 61.2%, respectively, of the outstanding ordinary shares. Mr. Nehama and Nechama Investments both disclaim beneficial ownership of the ordinary shares beneficially owned by Kanir and Kanir Ltd., Kanir and Messrs. Raphael and Fridrich all disclaim beneficial ownership of the shares held by Nechama Investments.
|
(6)
|
Our directors who are not subject to Management Services Agreement also hold outstanding options, all of which are currently exercisable. The directors hold, in the aggregate, options exercisable into 19,502 ordinary shares, which are all currently exercisable.
|
(7)
|
Consists of options currently exercisable or that will become exercisable within 60 days from March 1, 2013.
|
Ordinary Shares
Beneficially Owned
(1)
|
Percentage of Ordinary Shares Beneficially Owned
|
|||||||
Shlomo Nehama (2)(5)
|
4,016,842 | 37.6 | % | |||||
Kanir Joint Investments (2005) Limited Partnership (“Kanir”) (3)(4)(5)(6)
|
2,841,440 | 26.6 | % | |||||
Zohar Zisapel (7)
|
841,976 | 7.9 | % | |||||
(1)
|
As used in this table, “beneficial ownership” means the sole or shared power to vote or direct the voting or to dispose or direct the disposition of any security as determined pursuant to Rule 13d-3 promulgated under the U.S. Securities Exchange Act of 1934, as amended. For purposes of this table, a person is deemed to be the beneficial owner of securities that can be acquired within 60 days from March 1, 2013 through the exercise of any option or warrant. Ordinary shares subject to options or warrants that are currently exercisable or exercisable within 60 days are deemed outstanding for computing the ownership percentage of the person holding such options or warrants, but are not deemed outstanding for computing the ownership percentage of any other person. The amounts and percentages are based on a total of 10,692,371 ordinary shares outstanding as of March 1, 2013. This number of outstanding ordinary shares does not include a total of 85,655 ordinary shares held at that date as treasury shares under Israeli law, all of which were repurchased by us. For so long as such treasury shares are owned by us they have no rights and, accordingly, are neither eligible to participate in or receive any future dividends which may be paid to our shareholders nor are they entitled to participate in, be voted at or be counted as part of the quorum for, any meetings of our shareholders.
|
(2)
|
According to information provided by the holders, the 4,016,842 ordinary shares beneficially owned by Mr. Nehama consist of: (i) 3,551,869 ordinary shares held by Nechama Investments, which constitute approximately 33.2% of our outstanding ordinary shares and (ii) 464,973 ordinary shares and held directly by Mr. Nehama, which constitute approximately 4.4% of our outstanding ordinary shares. Mr. Nehama, as the sole officer, director and shareholder of Nechama Investments, may be deemed to indirectly beneficially own any ordinary shares owned by Nechama Investments, which constitute (together with his shares) approximately 37.6% of our outstanding ordinary shares.
|
(3)
|
According to information provided by the holder, Kanir is an Israeli limited partnership. Kanir Ltd., in its capacity as the general partner of Kanir, has the voting and dispositive power over the ordinary shares directly beneficially owned by Kanir. As a result, Kanir Ltd. may be deemed to indirectly beneficially own the ordinary shares beneficially owned by Kanir. Messrs. Hemi Raphael and Ran Fridrich, who are members of our Board of Directors, are the sole directors of Kanir Ltd. and Mr. Raphael is a majority shareholder of Kanir Ltd. As a result, Messrs. Raphael and Fridrich may be deemed to indirectly beneficially own the ordinary shares beneficially owned by Kanir, which constitute, together with their holdings as set forth in footnote (4), 30.8% and 28%, respectively, of our outstanding ordinary shares. Kanir Ltd. and Messrs. Raphael and Fridrich disclaim beneficial ownership of such ordinary shares except to the extent of their respective pecuniary interest therein, if any.
|
(4)
|
According to information provided by Hemi Raphael, Mr. Raphael beneficially owns 454,524 ordinary shares, consisting of: (i) 314,514 ordinary shares held by a BVI private company wholly-owned by Mr. Raphael, which constitute approximately 2.9% of our outstanding shares and (ii) 140,010 ordinary shares held directly by Mr. Raphael, which constitute approximately 1.3% of our outstanding shares. Mr. Raphael, as the sole officer, director and shareholder of such private company, may be deemed to indirectly beneficially own any ordinary shares beneficially owned by such private company, which constitute (together with the shares held directly by him) approximately 4.3% of our outstanding ordinary shares. According to information provided by Mr. Fridrich, Mr. Fridrich directly owns 148,567 ordinary shares, which constitute approximately 1.4% of our outstanding shares.
|
(5)
|
By virtue of the 2008 Shareholders Agreement, Mr. Nehama, Nechama Investments, Kanir, Kanir Ltd., and Messrs. Raphael and Fridrich may be deemed to be members of a group that holds shared voting power with respect to 6,393,309 ordinary shares, which constitute approximately 59.8% of our outstanding ordinary shares, and holds shared dispositive power with respect to 5,356,878 ordinary shares, which constitute 50.1% of the outstanding ordinary shares. Accordingly, taking into account the shares directly held by Messrs. Nehama, Raphael (taking into account also shares held by the private company wholly-owned by him) and Fridrich, they may be deemed to beneficially own approximately 64.1%, 64% and 61.2%, respectively, of our outstanding ordinary shares. Each of Mr. Nehama and Nechama Investments disclaims beneficial ownership of the ordinary shares beneficially owned by Kanir. Each of Kanir, Kanir Ltd. and Messrs. Raphael and Fridrich disclaims beneficial ownership of the ordinary shares beneficially owned by Nechama Investments. A copy of the 2008 Shareholders Agreement was filed with the SEC on March 31, 2008 as Exhibit 14 to an amendment to a Schedule 13D and is not incorporated by reference herein.
|
(6)
|
Based upon a Schedule 13D/A filed with the SEC on December 22, 2010, on previous Schedule 13D filings by the persons referenced herein and on other information known to us. Bonstar, an Israeli company, currently holds 233,258 ordinary shares, which constitute approximately 2.2% of the outstanding ordinary shares. Bonstar is a limited partner of Kanir and assisted Kanir in the financing of the purchase of some of its ordinary shares. Accordingly, Bonstar may be deemed to be a member of a group with Kanir and its affiliates, although there are no agreements between Bonstar and either of such persons and entities with respect to the ordinary shares beneficially owned by each of them. Mr. Joseph Mor and Mr. Ishay Mor are the sole shareholders of Bonstar and Mr. Joseph Mor serves as the sole director of Bonstar. Messrs. Joseph Mor and Ishay Mor also hold, through a company jointly held by them, 175,000 ordinary shares, which constitute approximately 1.6% of the outstanding ordinary shares. By virtue of their control over Bonstar and the other company, Messrs. Joseph Mor and Ishay Mor may be deemed to indirectly beneficially own the 408,258 ordinary shares beneficially owned by Bonstar and by the other company, which constitute approximately 3.8% of the ordinary shares. Each of Bonstar and Messrs. Joseph Mor and Ishay Mor disclaims beneficial ownership of the ordinary shares beneficially owned by Kanir and Nechama Investments, except to the extent of their respective pecuniary interest therein, if any.
|
(7)
|
Based solely upon, and qualified in its entirety with reference to, a Schedule 13G/A filed with the SEC on January 24, 2013, reporting holdings as of December 31, 2012. According to the information included in such Schedule 13G/A, Zohar Zisapel is an Israeli citizen. The holdings of Mr. Zisapel consist of: (i) 841,726 ordinary shares held by the Mr. Zisapel and (ii) 250 ordinary shares held of record by Lomsha Ltd., an Israeli company controlled by Mr. Zisapel.
|
|
|
High (US)
|
Low (US)
|
||||||
Year
|
||||||||
2008
|
$ | 7.5 | $ | 4.7 | ||||
2009
|
6.6 | 4.5 | ||||||
2010
|
7.5 | 5.1 | ||||||
2011
|
8.00 | 5.41 | ||||||
2012
|
7.7 | 4.25 | ||||||
2011
|
||||||||
First Quarter
|
$ | 7.2 | $ | 6.2 | ||||
Second Quarter
|
8.0 | 6.0 | ||||||
Third Quarter
|
7.09 | 5.98 | ||||||
Fourth Quarter
|
6.00 | 5.41 | ||||||
201
2
|
||||||||
First Quarter
|
$ | 6.55 | $ | 5.37 | ||||
Second Quarter
|
7.70 | 5.64 | ||||||
Third Quarter
|
6.00 | 4.25 | ||||||
Fourth Quarter
|
6.00 | 4.95 | ||||||
201
3
|
||||||||
First Quarter (through March 20, 2013)
|
$ | 7.47 | $ | 6.10 | ||||
Most Recent Six Months
|
||||||||
February 2013 | $ | 7.06 | $ | 6.45 | ||||
January 2013 | 6.77 | 6.10 | ||||||
December 2012 | 6.00 | 5.55 | ||||||
November 2012 | 6.00 | 5.20 | ||||||
October 2012 | 5.10 | 4.95 | ||||||
September 2012
|
5.06 | 4.25 |
D.
|
Selling Shareholders
|
E.
|
Dilution
|
F.
|
Expenses of the Issue
|
A.
|
Share Capital
|
B.
|
Memorandum of Association and Second Amended and Restated Articles
|
|
·
|
any amendment to the articles;
|
|
·
|
an increase in the company’s authorized share capital;
|
|
·
|
a merger; or
|
|
·
|
approval of related party transactions that require shareholder approval.
|
|
(1)
|
an individual citizen or resident of the United States,
|
|
(2)
|
a corporation or other entity taxable as a corporation for U.S. federal income tax purposes organized in or under the laws of the United States or any political subdivision thereof,
|
|
(3)
|
an estate the income of which is subject to U.S. federal income tax without regard to its source, or
|
|
(4)
|
a trust, if such trust was in existence on August 20, 1996 and has validly elected to be treated as a U.S. person for U.S. federal income tax purposes, or if (a) a court within the U.S. can exercise primary supervision over its administration and (b) one or more U.S. persons have the authority to control all of the substantial decisions of such trust.
|
|
(1)
|
the excess distribution or gain will be allocated ratably over your holding period for the ordinary shares,
|
|
(2)
|
the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC, will be treated as ordinary income, and
|
|
(3)
|
the amount allocated to each other year will be subject to tax at the highest tax rate in effect for that year and the interest charge generally applicable to underpayments of tax will be imposed on the resulting tax attributable to each such year.
|
December 31, 2012
|
||||||||||||||||
Increase
|
Decrease
|
|||||||||||||||
Profit or loss
|
Equity
|
Profit or loss
|
Equity
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Change in the exchange rate of:
|
||||||||||||||||
5% in the Euro
|
(295 | ) | (295 | ) | 295 | 295 | ||||||||||
5% in NIS
|
27 | 27 | (27 | ) | (27 | ) |
December 31, 2012
|
December 31, 2011
|
|||||||
Profit or loss
|
Profit or loss
|
|||||||
US$ thousands
|
US$ thousands
|
|||||||
Increase of 1%
|
198 | 99 | ||||||
Increase of 3%
|
749 | 298 | ||||||
Decrease of 1%
|
(344 | ) | (99 | ) | ||||
Decrease of 3%
|
(653 | ) | (239 | ) |
|
(i)
|
pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company;
|
|
(ii)
|
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and
|
|
(iii)
|
provide reasonable assurance regarding prevention or timely protection of unauthorized acquisition, use or disposition of the company’s assets that could have a material effect on the financial statements.
|
2012
|
2011
|
|||||||
Audit Fees(1)
|
$ | 87 | $ | 93 | ||||
Audit-Related Fees(2)
|
- | |||||||
Tax Fees(3)
|
$ | 32 | $ | 23 | ||||
All Other Fees
|
- | |||||||
Total
|
$ | 119 | $ | 116 |
(1)
|
Professional services rendered by our independent registered public accounting firm for the audit of our annual financial statements or services that are normally provided by the accountants in connection with statutory and regulatory filings or engagements.
|
(2)
|
Professional services related to due diligence investigations.
|
(3)
|
Professional services rendered by our independent registered public accounting firm for international and local tax compliance, tax advice services and tax planning.
|
Period
|
(a) Total Number of Shares Purchased
(1)
|
(b) Average Price Paid per Share
(2)
|
(c) Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs
|
(d) Approximate Dollar Value of Shares that May Yet Be Purchased Under the Plans or Programs
(3)
|
||||||||||||
January 1 – January 31
|
9,350 | $ | 5.8388 | 9,350 | $ | 2,897,000 | ||||||||||
February 1 – February 29
|
5,600 | $ | 5.8837 | 5,600 | $ | 2,864,000 | ||||||||||
March 1 – March 31
|
34,522 | $ | 5.8539 | 34,522 | $ | 2,659,000 | ||||||||||
April 1 – April 30
|
21,748 | $ | 6.6967 | 21,748 | $ | 2,516,000 | ||||||||||
May 1 – May 31
|
4,635 | $ | 6.1252 | 4,635 | $ | 2,488,000 | ||||||||||
June 1 – June 30
|
1,000 | $ | 5.7868 | 1,000 | $ | 2,482,000 | ||||||||||
July 1 - July 31
(4)
|
100 | $ | 5.9999 | 100 | $ | 0 | ||||||||||
Total
|
76,955 | 76,955 |
|
(1)
|
All ordinary shares were repurchased pursuant to the share buyback program approved in September 2011 and were made in open-market transactions.
|
|
(2)
|
In U.S. dollars. The average price per share excludes commissions.
|
|
(3)
|
In U.S. dollars. As noted above the buyback program reflected in the table terminated at the end of 2012 and we ceased repurchases on July 1, 2012. An aggregate amount of 85,655 ordinary shares were repurchased in connection with this program.
|
|
(4)
|
The information included herein represents a trade made on June 29, 2012 that settled on July 5, 2012.
|
Number
|
Description
|
|
1.1
|
Memorandum of Association of the Registrant (translated from Hebrew), reflecting amendments through June 9, 2011*
|
|
1.2
|
Second Amended and Restated Articles of the Registrant, reflecting amendments through June 20, 2012
|
|
2.1
|
Specimen Certificate for ordinary shares
(1)
|
|
4.1
|
1998 Share Option Plan for Non-Employee Directors
|
|
4.2
|
2000 Stock Option Plan
|
|
4.3
|
Form of Indemnification Agreement between the Registrant and its officers and directors
|
|
4.4
|
Form of Exemption Letter between the Registrant and its officers and directors
|
|
4.5
|
Management Services Agreement, by and among the Registrant, Kanir Joint Investments (2005) Limited Partnership and Meisaf Blue & White Holdings Ltd., effective as of March 31, 2008(2)
|
|
4.6
|
Engineering Procurement & Construction Contract for the Construction of a Photovoltaic System in Cingoli, between Ellomay PV One S.R.L. and Ecoware S.p.A., dated March 4, 2010 (portions translated from Italian)(3)*
|
|
4.7
|
Engineering Procurement & Construction Contract for the Construction of a Photovoltaic System in Senigallia, between Ellomay PV One S.R.L. and Ecoware S.p.A., dated March 4, 2010 (portions translated from Italian)(3)*
|
|
4.8
|
Side Agreement, between Ellomay PV One S.R.L. and Ecoware S.p.A., dated March 5, 2010(4)
|
|
4.9
|
Giaché Building Right Agreement (summary of Italian version)(5)*
|
|
4.10
|
Massaccesi Building Right Agreement (summary of Italian version)(5)*
|
|
4.11
|
Settlement Agreement and Release, dated July 27, 2010, between Ellomay Capital Limited and Hewlett-Packard Company(5)
|
|
4.12
|
Troia 8 Building Right Agreement (summary of Italian version)(5)*
|
|
4.13
|
Troia 9 Building Right Agreement (summary of Italian version)(5)*
|
|
4.14
|
Investment Agreement, among U. Dori Group Ltd., U. Dori Energy Infrastructures Ltd. and Ellomay Clean Energy Ltd. , dated November 25, 2010 (summary of Hebrew version)(5)*
|
|
4.15
|
Shareholders Agreement, among U. Dori Group Ltd., Ellomay Clean Energy Ltd. and U. Dori Energy Infrastructures Ltd., dated November 25, 2010 (summary of Hebrew version)(5)*
|
|
4.16
|
Agreement, between U. Dori Energy Infrastructures Ltd. and Israel Discount Bank Ltd., dated January 26, 2011 (summary of Hebrew version)(5)*
|
|
4.17
|
Engineering Procurement & Construction Contract for the Construction of a Photovoltaic Plant, between Urbe Techno S.r.l. and Pedale S.r.l., dated March 25, 2011 (portions translated or summarized from Italian)(includes a summary of the Building Rights Agreement)(5)*
|
|
4.18
|
Acquafresca Building Right Agreement (summary of Italian version)(1)*
|
|
4.19
|
D’Angella Building Right Agreement (summary of Italian version)(1)*
|
Number
|
Description
|
4.20
|
Rinconada II Building Right Agreement (summary of Spanish version)(1)*
|
|
8
|
List of Subsidiaries of the Registrant
|
|
12.1
|
Certification of Principal Executive Officer required by Rule 13a-14(a) and Rule 15d-14(a) (Section 302 Certification)
|
|
12.2
|
Certification of Principal Financial Officer required by Rule 13a-14(a) and Rule 15d-14(a) (Section 302 Certification)
|
|
13
|
Certification of Principal Executive Officer and Principal Financial Officer required by Rule 13a-14(b) and Rule 15d-14(b) (Section 906 Certification)
|
|
15.1
|
Consent of Somekh Chaikin
|
|
15.2
|
Consent of BDO
|
|
15.3
|
Consent of Kost Forer Gabbay & Kasierer
|
*
|
The original language version is on file with the Registrant and is available upon request.
|
|
(1)
|
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2011 and incorporated by reference herein.
|
(2)
|
Previously filed with the Registrant’s Form 6-K dated December 1, 2008 and incorporated by reference herein.
|
(3)
|
Previously filed with Amendment No. 2 to the Registrant’s Form 20-F for the year ended December 31, 2009 and incorporated by reference herein.
|
(4)
|
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2009 and incorporated by reference herein.
|
(5)
|
Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2010 and incorporated by reference herein.
|
Ellomay Capital Ltd.
|
|||
By:
|
/s/ Ran Fridrich | ||
Ran Fridrich
|
|||
Chief Executive Officer and Director
|
|||
Ellomay Capital Ltd. and its
Subsidiaries
Consolidated Financial
Statements
As at December 31, 2012
|
Page
|
|
F-2
|
|
F-5
|
|
F-6
|
|
F-7
|
|
F-8 - F-9
|
|
F-10 - F-74
|
/s/ Kost Forer Gabbay & Kasierer
|
|
Tel-Aviv, Israel
|
KOST FORER GABBAY & KASIERER
|
April 14, 2011
|
A Member of Ernst & Young Global
|
December 31
|
December 31
|
|||||||||||
2012
|
2011
|
|||||||||||
Note
|
US$ in thousands
|
|||||||||||
Assets
|
||||||||||||
Current assets:
|
||||||||||||
Cash and cash equivalents
|
3 | 33,292 | 28,917 | |||||||||
Short-term deposits
|
5,290 | 10,000 | ||||||||||
Restricted cash
|
4 | 8,085 | 15,688 | |||||||||
Trade receivables
|
95 | 88 | ||||||||||
Other receivables and prepaid expenses
|
5 | 4,436 | 6,875 | |||||||||
51,198 | 61,568 | |||||||||||
Non-current assets
|
||||||||||||
Investment in equity accounted investees
|
6 | 19,198 | 12,995 | |||||||||
Financial asset
|
6 | 485 | 52 | |||||||||
Property, plant and equipment
|
7 | 53,860 | 48,638 | |||||||||
Restricted cash
|
4 | 3,253 | 2,974 | |||||||||
Other assets
|
746 | 165 | ||||||||||
77,542 | 64,824 | |||||||||||
Total assets
|
128,740 | 126,392 | ||||||||||
Liabilities and Equity
|
||||||||||||
Current liabilities
|
||||||||||||
Loans and borrowings
|
9 | 7,044 | 12,129 | |||||||||
Accounts payable
|
1,926 | 2,790 | ||||||||||
Accrued expenses and other payables
|
8 | 14,051 | 14,593 | |||||||||
Liabilities attributed to discontinued operations
|
1B | 200 | 200 | |||||||||
23,221 | 29,712 | |||||||||||
Non-current liabilities
|
||||||||||||
Finance lease obligations
|
10 | 6,898 | 6,114 | |||||||||
Long-term loans
|
11 | 11,680 | 5,115 | |||||||||
Other long-term liabilities
|
12 | 3,827 | 1,344 | |||||||||
Excess of losses over investment in equity accounted investee
|
- | 46 | ||||||||||
22,405 | 12,619 | |||||||||||
Total liabilities
|
45,626 | 42,331 | ||||||||||
Equity
|
||||||||||||
Share capital
|
26,180 | 26,180 | ||||||||||
Share premium
|
76,410 | 76,403 | ||||||||||
Treasury shares
|
(522 | ) | (49 | ) | ||||||||
Reserves
|
(1,884 | ) | (3,504 | ) | ||||||||
Accumulated deficit
|
(17,079 | ) | (14,969 | ) | ||||||||
Attributed to owners of the Company's equity rights
|
83,105 | 84,061 | ||||||||||
Non-Controlling Interest
|
9 | |||||||||||
Total equity
|
83,114 | 84,061 | ||||||||||
Total liabilities and equity
|
128,740 | 126,392 |
For the year ended December 31
|
|||||||||||||
2012
|
2011
|
2010
|
|||||||||||
Note
|
US$ in thousands (except per share data)
|
||||||||||||
Revenues
|
8,890 | 6,114 | - | ||||||||||
Operating expenses
|
(1,954 | ) | (1,391 | ) | - | ||||||||
Depreciation expenses
|
17B
|
(2,717 | ) | (1,777 | ) | - | |||||||
Gross profit
|
4,219 | 2,946 | - | ||||||||||
General and administrative expenses
|
17C
|
(3,110 | ) | (3,102 | ) | (3,211 | ) | ||||||
Capital loss
|
(394 | ) | - | - | |||||||||
Operating Profit (Loss)
|
715 | (156 | ) | (3,211 | ) | ||||||||
Financing income
|
17A
|
696 | 1,971 | 1,076 | |||||||||
Financing income (expenses) in connection with SWAP contracts
|
17A
|
(2,157 | ) | (2,601 | ) | 404 | |||||||
Financing expenses
|
17A
|
(2,166 | ) | (608 | ) | (80 | ) | ||||||
Financing income (expenses), net
|
(3,627 | ) | (1,238 | ) | 1,400 | ||||||||
Company’s share of losses of investee accounted for at equity
|
(232 | ) | (596 | ) | (66 | ) | |||||||
Loss before taxes on income
|
(3,144 | ) | (1,990 | ) | (1,877 | ) | |||||||
Tax benefit
|
18
|
1,011 | 1,018 | 44 | |||||||||
Loss from continuing operations
|
(2,133 | ) | (972 | ) | (1,833 | ) | |||||||
Income from discontinued operations, net of tax
|
- | - | 7,035 | ||||||||||
Net income (loss) for the year
|
(2,133 | ) | (972 | ) | 5,202 | ||||||||
Income (Loss) attributable to:
|
|||||||||||||
Owners of the Company
|
(2,110 | ) | (972 | ) | 5,202 | ||||||||
Non-controlling interests
|
(23 | ) | - | - | |||||||||
Net income (loss) for the year
|
(2,133 | ) | (972 | ) | 5,202 | ||||||||
Other comprehensive income (loss)
|
|||||||||||||
Foreign currency translation adjustments
|
1,620 | (3,698 | ) | 194 | |||||||||
Total other comprehensive income (loss)
|
1,620 | (3,698 | ) | 194 | |||||||||
Total comprehensive income (loss)
|
(513 | ) | (4,670 | ) | 5,396 |
Basic net earnings (loss) per share
|
|||||||||||||
Loss from continuing operations
|
(0.2 | ) | (0.09 | ) | *(0.2 | ) | |||||||
Earnings from discontinued operations
|
- | - | *0.9 | ||||||||||
Net earnings (loss)
|
19
|
(0.2 | ) | (0.09 | ) | *0.7 | |||||||
Diluted net earnings (loss) per share
|
|||||||||||||
Loss from continuing operations
|
(0.2 | ) | (0.09 | ) | *(0.2 | ) | |||||||
Earnings from discontinued operations
|
- | - | *0.8 | ||||||||||
Net earnings (loss)
|
19
|
(0.2 | ) | (0.09 | ) | *0.6 |
Attributable to owners of the Company
|
Non- controlling interests | Total Equity | ||||||||||||||||||||||||||||||
Translation
|
||||||||||||||||||||||||||||||||
reserve
|
||||||||||||||||||||||||||||||||
from
|
||||||||||||||||||||||||||||||||
Share
|
Share
|
Accumulated
|
Treasury
|
Foreign
|
||||||||||||||||||||||||||||
capital
|
premium
|
deficit
|
shares
|
Operations
|
Total
|
|||||||||||||||||||||||||||
US$ in thousands
|
||||||||||||||||||||||||||||||||
Balance as at
|
||||||||||||||||||||||||||||||||
January 1, 2012
|
26,180 | 76,403 | (14,969 | ) | (49 | ) | (3,504 | ) | 84,061 | - | 84,061 | |||||||||||||||||||||
Loss for the year
|
- | - | (2,110 | ) | - | - | (2,110 | ) | (23 | ) | (2,133 | ) | ||||||||||||||||||||
Other comprehensive loss
|
- | - | - | - | 1,620 | 1,620 | * | 1,620 | ||||||||||||||||||||||||
Total comprehensive loss
|
- | - | (2,210 | ) | - | 1,620 | (490 | ) | (23 | ) | (513 | ) | ||||||||||||||||||||
Transactions with owners
|
||||||||||||||||||||||||||||||||
of the Company, recognized
|
||||||||||||||||||||||||||||||||
directly in equity:
|
||||||||||||||||||||||||||||||||
Treasury shares
|
- | - | - | (473 | ) | - | (473 | ) | - | (473 | ) | |||||||||||||||||||||
Cost of share-based
|
- | 7 | - | - | - | 7 | - | 7 | ||||||||||||||||||||||||
Payment
|
||||||||||||||||||||||||||||||||
Non-controlling interests in respect of business combination
|
- | - | - | - | - | - | 32 | 32 | ||||||||||||||||||||||||
Balance as at
|
||||||||||||||||||||||||||||||||
December 31, 2012
|
26,180 | 76,410 | (17,079 | ) | (522 | ) | (1,884 | ) | 83,105 | 9 | 83,114 | |||||||||||||||||||||
Balance as at
|
||||||||||||||||||||||||||||||||
January 1, 2011
|
26,103 | 76,266 | (13,997 | ) | - | 194 | 88,566 | - | 88,566 | |||||||||||||||||||||||
Loss for the year
|
- | - | (972 | ) | - | - | (972 | ) | - | (972 | ) | |||||||||||||||||||||
Other comprehensive loss
|
- | - | - | - | (3,698 | ) | (3,698 | ) | - | (3,698 | ) | |||||||||||||||||||||
Total comprehensive loss
|
- | - | (972 | ) | - | (3,698 | ) | (4,670 | ) | - | (4,670 | ) | ||||||||||||||||||||
Transactions with owners
|
||||||||||||||||||||||||||||||||
of the Company, recognized
|
||||||||||||||||||||||||||||||||
directly in equity:
|
||||||||||||||||||||||||||||||||
Treasury shares
|
- | - | - | (49 | ) | - | (49 | ) | - | (49 | ) | |||||||||||||||||||||
Exercise of warrants
|
77 | 105 | - | - | - | 182 | - | 182 | ||||||||||||||||||||||||
Cost of share-based
|
||||||||||||||||||||||||||||||||
payments
|
- | 32 | - | - | - | 32 | - | 32 | ||||||||||||||||||||||||
Balance as at
|
||||||||||||||||||||||||||||||||
December 31, 2011
|
26,180 | 76,403 | (14,969 | ) | (49 | ) | (3,504 | ) | 84,061 | - | 84,061 |
Balance as at
|
||||||||||||||||||||||||||||||||
January 1, 2010
|
16,820 | 72,407 | (19,199 | ) | - | - | 70,028 | - | 70,028 | |||||||||||||||||||||||
Net income
|
- | - | 5,202 | - | - | 5,202 | - | 5,202 | ||||||||||||||||||||||||
Other comprehensive
|
- | - | - | - | - | - | - | - | ||||||||||||||||||||||||
Income
|
- | - | - | - | 194 | 194 | - | 194 | ||||||||||||||||||||||||
Total comprehensive
|
||||||||||||||||||||||||||||||||
income
|
- | - | 5,202 | - | 194 | 5,396 | - | 5,396 | ||||||||||||||||||||||||
Transactions with owners
|
||||||||||||||||||||||||||||||||
of the Company, recognized
|
||||||||||||||||||||||||||||||||
directly in equity:
|
||||||||||||||||||||||||||||||||
Exercise of warrants
|
9,283 | 3,803 | - | - | - | 13,086 | - | 13,086 | ||||||||||||||||||||||||
Cost of share-based
|
||||||||||||||||||||||||||||||||
payments
|
- | 56 | - | - | - | 56 | - | 56 | ||||||||||||||||||||||||
Balance as at
|
||||||||||||||||||||||||||||||||
December 31, 2010
|
26,103 | 76,266 | (13,997 | ) | - | 194 | 88,566 | - | 88,566 |
For the year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ in thousands
|
||||||||||||
Cash flows from operating activities
|
||||||||||||
Net income (loss)
|
(2,133 | ) | (972 | ) | 5,202 | |||||||
Income from discontinued operations
|
- | - | (7,035 | ) | ||||||||
Loss from continuing operations
|
(2,133 | ) | (972 | ) | (1,833 | ) | ||||||
Adjustments for
:
|
||||||||||||
Depreciation
|
2,717 | 1,777 | 22 | |||||||||
Loss from disposal of fixed assets, net of insurance income
|
338 | - | - | |||||||||
Interest income, net
|
(438 | ) | (436 | ) | (611 | ) | ||||||
Interest received
|
553 | 582 | 412 | |||||||||
Interest paid
|
(1,274 | ) | (322 | ) | - | |||||||
Taxes on income paid
|
(55 | ) | - | - | ||||||||
Increase (decrease) in derivatives
|
2,068 | 2,326 | (404 | ) | ||||||||
Cost of share-based payment
|
7 | 32 | 56 | |||||||||
Share of losses of investee accounted for at equity method
|
232 | 596 | 66 | |||||||||
Capital loss
|
394 | - | - | |||||||||
Deferred tax
|
(197 | ) | (144 | ) | - | |||||||
Decrease (increase) in other receivable and prepaid expenses
|
4,278 | (6,285 | ) | (2,424 | ) | |||||||
Increase in trade receivables
|
(1 | ) | (95 | ) | - | |||||||
Decrease (increase) in other assets
|
(11 | ) | 345 | (373 | ) | |||||||
Increase in accrued severance pay, net
|
6 | 17 | - | |||||||||
Increase (decrease) in accounts payable
|
(122 | ) | (35 | ) | 2,815 | |||||||
Decrease in other payables and accrued expenses
|
(456 | ) | (540 | ) | (2,161 | ) | ||||||
8,039 | (2,182 | ) | (2,602 | ) | ||||||||
Net cash used in operating activities from
|
||||||||||||
continuing operations
|
5,906 | (3,154 | ) | (4,435 | ) | |||||||
Net cash provided by (used in) operating activities from
|
||||||||||||
discontinued operations
|
- | 112 | (432 | ) | ||||||||
Net cash provided by (used in) operating activities
|
5,906 | (3,042 | ) | (4,867 | ) |
For the year ended December 31 | ||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ in thousands | ||||||||||||
Cash flows from investing activities:
|
||||||||||||
Purchase of property and equipment
|
(1,212 | ) | (24,937 | ) | (14,765 | ) | ||||||
Acquisition of subsidiary, net of cash acquired (see note 6F)
|
(6,472 | ) | - | - | ||||||||
Advance on account of investment
|
- | - | (3,546 | ) | ||||||||
Investment in equity accounted investees
|
(6,481 | ) | (10,765 | ) | - | |||||||
Disposal of an investee accounted for at equity method
|
114 | - | - | |||||||||
Investment (proceeds) from long-term deposits, net
|
4,710 | - | (400 | ) | ||||||||
Settlement of forward contract
|
112 | 465 | - | |||||||||
Deposit (proceeds) from restricted cash, net
|
7,379 | (17,560 | ) | (728 | ) | |||||||
Investment (Proceeds) from short-term bank deposits
|
- | (10,000 | ) | - | ||||||||
Net cash used in investing activities
|
||||||||||||
from continuing operations
|
(1,850 | ) | (62,797 | ) | (19,439 | ) | ||||||
Net cash generated from investing activities from
|
||||||||||||
discontinued operations
|
- | - | 7,280 | |||||||||
Net cash provided by (used in) investing activities
|
(1,850 | ) | (62,797 | ) | (12,159 | ) | ||||||
Cash flows from financing activities:
|
||||||||||||
Short-term loans, net
|
(5,821 | ) | 12,914 | - | ||||||||
Repayment of Long-term loans and financial lease obligation
|
(1,286 | ) | - | - | ||||||||
Treasury shares
|
(473 | ) | (49 | ) | - | |||||||
Proceeds of financial lease obligation
|
1,086 | 2,166 | 5,228 | |||||||||
Proceeds of long-term loans
|
6,460 | 5,808 | - | |||||||||
Proceeds from warrants exercised
|
- | 182 | 13,086 | |||||||||
Net cash provided by (used in) financing activities from
|
||||||||||||
continuing operations
|
(34 | ) | 21,021 | 18,314 | ||||||||
Net cash generated from financing activities
|
(34 | ) | 21,021 | 18,314 | ||||||||
Exchange differences on balances of cash and
|
||||||||||||
cash equivalents
|
353 | (2,848 | ) | 15 | ||||||||
Increase (decrease) in cash and cash equivalents
|
4,375 | (47,666 | ) | 1,303 | ||||||||
Cash and cash equivalents at the beginning of year
|
28,917 | 76,583 | 75,280 | |||||||||
Cash and cash equivalents at the end of the year
|
33,292 | 28,917 | 76,583 |
|
A.
|
Ellomay Capital Ltd. (hereinafter - the "Company") (formerly: NUR Macroprinters Ltd.), an Israeli Company that operates in the photovoltaic industry in Italy and Spain and has invested in several Israeli entities and whose plan of operation is to operate in the Italian and Spanish PV field and manage its investments in the Israeli market
and with respect to the remaining funds the Company holds, to identify and evaluate additional suitable business opportunities in the energy and infrastructure fields, including in the renewable energy field, through direct or indirect investment in energy manufacturing plants and through acquisition of all or part of an existing business, pursuing business combinations or otherwise
.
|
|
B.
|
Until February 29, 2008, the Company and its subsidiaries developed, manufactured, sold and provided support services for digital wide format and super-wide format printing systems for on-demand, short-run printing as well as related consumable products. On February 29, 2008 the sale of this business to Hewlett-Packard Company ("HP" and the "HP Transaction") was consummated. The aggregate consideration in connection with the HP Transaction amounted to $122.6 million. Of the total consideration, an amount of $0.5 million was withheld in connection with the obligation of one our subsidiaries that were sold to HP with respect to the government grants and an amount of $14.5 million was deposited into an escrow account to secure our indemnity obligations. Following the submission of the claims and responses and negotiations between us and HP in connection with the funds deposited in the escrow account, the Company executed a settlement agreement with HP on July 27, 2010 and received approximately $7.2 million (plus accrued interest) out of the $14.5 million that were deposited in the escrow account.
|
|
As of December 31, 2012, the Company has an accrued liability of approximately $ 200 thousands in connection with payments it expects to make to some of its former employees as part of the compensation previously approved in connection with the HP Transaction.
|
|
Assets and liabilities amounts, operating results and cash flows attributed to the digital wide format and super-wide format printing business were presented as discontinued operations and are expected to be settled in one to two years.
|
December 31
|
December 31
|
|||||||
2012
|
2011
|
|||||||
US$ thousands
|
US$ thousands
|
|||||||
Liabilities
|
||||||||
Accrued expenses and other liabilities
|
200 | 200 | ||||||
Total Liabilities
|
200 | 200 |
|
C.
|
Definitions:
|
|
A.
|
Basis of preparation of the financial statements
|
|
1.
|
The consolidated financial statements of the Company as of December 31, 2012 have been prepared in accordance with International Financial Reporting Standards (IFRS), as issued by the IASB.
|
|
2.
|
Consistent accounting policies
|
|
A.
|
Basis of preparation of the financial statements (cont’d)
|
|
3.
|
Measurement basis
|
|
(i)
|
Investment in investee accounted for using the equity method;
|
|
(ii)
|
Derivative financial instruments at fair value through profit or loss; and
|
|
(iii)
|
Provision for tax uncertainties
|
|
B.
|
Significant accounting judgments, estimates and assumptions used in the preparation of the financial statements
|
|
B.
|
Significant accounting judgments, estimates and assumptions used in the preparation of the financial statements (cont’d)
|
|
C.
|
Functional and presentation currency
|
|
1.
|
These consolidated financial statements are presented in US dollar which is the Company's functional currency, and have been rounded to the nearest thousand. The US dollar is the currency that represents the principal economic environment in which the Company operates.
|
|
2.
|
The functional currency is examined for the Company and for each of the subsidiaries separately. The functional currency of the Company's Italian and Spanish subsidiaries' was determined to be the EURO and for the equity investment it was determined to be the NIS.
|
|
a)
|
Assets and liabilities for each balance sheet presented are translated at the closing rate at the date of that balance sheet.
|
|
b)
|
Income and expenses for each period presented in the statement of comprehensive income (loss) are translated at average exchange rates for the presented periods; however, if exchange rates fluctuate significantly, income and expenses are translated at the exchange rates at the date of the transactions.
|
|
c)
|
Share capital, capital reserves and other changes in capital are translated at the exchange rate prevailing at the date of issuance.
|
|
d)
|
Retained earnings are translated based on the opening balance translated at the exchange rate at that date and other relevant transactions during the period are translated as described in b) and c) above.
|
|
e)
|
All resulting translation differences are recognized as a separate component of other comprehensive income (loss) in equity "foreign currency transaction adjustments".
|
|
3.
|
Transactions, assets and liabilities in foreign currency:
|
|
D.
|
Change in classification
|
|
E.
|
Basis of consolidation and equity method accounting
|
|
1.
|
Subsidiaries
|
|
2.
|
Transactions eliminated upon consolidation
|
|
3.
|
Investment in associates entities (equity accounted investees
)
|
|
E.
|
Basis of consolidation and equity method accounting (cont’d)
|
|
4.
|
Business combinations
|
|
E.
|
Basis of consolidation and equity method accounting (cont’d)
|
|
5.
|
Non-controlling interests
|
|
F.
|
Cash and cash equivalents
|
|
G.
|
Short term deposits
|
|
H.
|
Property, plant and equipment
|
|
(1)
|
Recognition and measurement
|
|
(2)
|
Depreciation
|
%
|
Mainly %
|
||
Office furniture and equipment
|
6-33
|
33
|
|
Photovoltaic plants in Spain
|
4
|
4
|
|
Photovoltaic plants in Italy
|
5
|
5
|
|
Leasehold improvements
|
Over the shorter of the lease period or the life of the asset
|
7
|
|
I.
|
Financial instruments
|
|
I.
|
Financial instruments (cont’d)
|
|
J.
|
Impairment of non-financial assets
|
|
K.
|
Share-based payment transactions
|
|
L.
|
Employees benefits
|
|
1.
|
Short-term employee benefits:
|
|
2.
|
Post-employment benefits:
|
|
L.
|
Employees benefits (cont'd)
|
|
M.
|
Leases
|
|
N.
|
Revenue recognition
|
|
O.
|
Income tax
|
|
P.
|
Earnings (loss) per share
|
|
Q.
|
Financial income and expenses
|
|
R.
|
Provisions
|
|
S.
|
Discontinued operations
|
|
T.
|
Standards issued but not yet effective:
|
|
(1)
|
IFRS 9 (2010),
Financial Instruments
(“the Standard”)
– The Standard is one of the stages in a comprehensive project to replace IAS 39 Financial Instruments: Recognition and Measurement ("IAS 39") and it replaces the requirements included in IAS 39 regarding the classification and measurement of financial assets and financial liabilities.
|
|
T.
|
Standards issued but not yet effective (cont'd):
|
|
(2)
|
IFRS 10 Consolidated Financial Statements (“IFRS 10”).
IFRS 10 replaces the requirements of IAS 27 Consolidated and Separate Financial Statements (“IAS 27”) and the requirements of SIC-12 Consolidation – Special Purpose Entities (“SIC 12”) with respect to the consolidation of financial statements, so that the requirements of IAS 27 will continue to be valid only for separate financial statements.
|
|
IFRS 10 introduces a new single control model for determining whether an investor controls an investee and should therefore consolidate it. This model is implemented with respect to all investees. According to the model, an investor controls an investee when it is exposed, or has rights, to variable returns from its involvement with that investee, has the ability to affect those returns through its power over that investee and there is a link between power and returns.
|
|
IFRS 10 is applicable retrospectively (with a certain relief) for annual periods beginning on or after January 1, 2013. Early adoption is permitted providing that disclosure is provided and that the entire new suite of standards is early adopted, meaning also the additional standards that were issued at the same time – IFRS 11 Joint Arrangements, IFRS 12 Disclosure of Involvement with Other Entities, IAS 27 (2011) and IAS 28 (2011).
|
|
IFRS 10 is not expected to have a material effect on the Company's financial statements.
|
|
(3)
|
IFRS 11 Joint Arrangements (“IFRS 11”).
IFRS 11 replaces the requirements of IAS 31 Interests in Joint Ventures ("IAS 31") and amends part of the requirements in IAS 28 Investments in Associates. IFRS 11 defines a joint arrangement as an arrangement over which two or more parties have joint control (as defined in IFRS 10). Joint arrangements are divided into two types: a joint operation and a joint venture.
|
|
IFRS 11 is applicable retrospectively for annual periods beginning on or after January 1, 2013, but there are specific requirements for retrospective implementation in certain cases. IFRS 11 is not expected to have a material effect on the Company's financial statements.
|
|
(4)
|
IFRS 13 Fair Value Measurement (“IFRS 13”).
IFRS 13 replaces the fair value measurement guidance contained in individual IFRSs with a single source of fair value measurement guidance. It defines fair value, establishes a framework for measuring fair value and sets out disclosure requirements for fair value measurements. IFRS 13 does not introduce new requirements to measure assets or liabilities at fair value. IFRS 13 is applicable prospectively for annual periods beginning on or after January 1, 2013. Earlier application is permitted with disclosure of that fact. IFRS 13 is not expected to have a material effect on the Company's financial statements.
|
T.
|
Standards issued but not yet effective: (cont’d)
|
|
(5)
|
Amendment to IAS 1, Presentation of Financial Statements: Presentation of Items of Other Comprehensive Income (“the Amendment”).
The IAS 1 Amendment changes the presentation of items of other comprehensive income (“OCI”) in the financial statements, so that items of OCI that may be reclassified to profit or loss in the future would be presented separately from those that would never be reclassified to profit or loss. The IAS 1 Amendment is effective for annual periods beginning on or after July 1, 2012. The IAS 1 amendment will be applied retrospectively.
|
|
(6)
|
Amendment to IAS 32 Financial Instruments: Presentation (“the Amendment”)
|
|
(7)
|
Improvements to IFRSs
2009-2011
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
||||||||
Cash available for immediate withdrawal
|
9,386 | 8,650 | ||||||
Cash equivalents – short-term bank deposits (*)
|
23,906 | 20,267 | ||||||
33,292 | 28,917 |
|
(*)
|
The annual interest rate for deposits as of December 31, 2012, is 0.15% - 1.2% (0.125% - 0.95% as of December 31, 2011).
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
||||||||
Short-term restricted cash (1)
|
8,085 | 15,688 | ||||||
Deposits (2)
|
653 | 724 | ||||||
Long-term bank deposits (3)
|
2,600 | 2,250 | ||||||
Long-term restricted cash
|
3,253 | 2,974 |
|
(1)
|
Bank deposits securing the Company's short term bank loans (see Note 9). The annual interest rate as of December 31, 2012, is 0.45% - 1.5%.
|
|
(2)
|
These deposits were used to secure obligations towards the land owners of two of the Company’s Photovoltaic plants.
|
|
(3)
|
Bank deposits securing the Company's swap contracts (see Notes 10 and 11). The interest annual rate as of December 31, 2012, is 0.95% - 1.25%.
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
||||||||
Government authorities
|
3,132 | 2,323 | ||||||
Income receivable
|
492 | 4,027 | ||||||
Interest receivable
|
8 | 133 | ||||||
Prepaid expenses and other
|
804 | 392 | ||||||
4,436 | 6,875 |
|
|
Equity accounted investees
|
|
A.
|
Information about investee companies
|
|
1.
|
U. Dori Energy Infrastructures Ltd. (“Dori Energy”) –
|
|
A.
|
Information about investee companies (cont'd)
|
|
A.
|
Information about investee companies (cont'd)
|
|
A.
|
Information about investee companies (cont'd)
|
|
B.
|
Composition of the investments
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
US$ thousands
|
|||||||
Investment in shares (C)
|
12,844 | 12,760 | ||||||
Long-term loans
|
6,688 | 235 | ||||||
Deferred interest
|
(334 | ) | - | |||||
19,198 | 12,995 | |||||||
Financial asset - Options to acquire additional shares
|
485 | 52 |
|
C.
|
Details regarding attributed surplus costs and goodwill arising from the acquisition of affiliates
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
US$ thousands
|
|||||||
Customer contracts (*)
|
5,357 | 5,234 | ||||||
Deferred tax
|
(1,328 | ) | (1,297 | ) | ||||
Goodwill
|
268 | 262 | ||||||
Balance of attributed surplus cost
|
4,298 | 4,199 |
|
(*)
|
The estimated useful life of the customer contracts and related deferred tax was determined to be 23 years and will begin when the construction of the power plant is completed and it begins operating.
|
|
D.
|
Changes in investments
|
2012
|
2011
|
|||||||
Changes in equity and loans:
|
US$ thousands
|
US$ thousands
|
||||||
Balance as at January 1 (**)
|
12,995 | 3,612 | ||||||
Investment in investee
|
- | 10,095 | ||||||
Grant of long term loans
|
5,927 | 235 | ||||||
Interest on long term loans
|
334 | - | ||||||
Deferred interest
|
(334 | ) | - | |||||
The Company’s share of losses
|
(232 | ) | (351 | ) | ||||
Foreign currency translation adjustments
|
508 | (596 | ) | |||||
Balance as at December 31
|
19,198 | 12,995 |
Changes in option to acquire additional sheres:
|
||||||||
Balance as at January 1
|
52 | - | ||||||
Investment in investee
|
- | 98 | ||||||
Reevaluation of option to acquire additional shares
|
433 | (46 | ) | |||||
Balance as at December 31
|
485 | 52 |
(**)
|
The balance as of January 1, 2011, represents advances payments on account of investment.
|
|
E.
|
Summary financial data for investees, not adjusted for the percentage ownership held by the Company
|
|
(a)
|
Summary information on financial position
|
Equity
|
||||||||||||||||||||||||||||||||
attributable
|
||||||||||||||||||||||||||||||||
to the
|
||||||||||||||||||||||||||||||||
Non-
|
Non-
|
owners of
|
||||||||||||||||||||||||||||||
Rate of
|
Current
|
current
|
Total
|
Current
|
current
|
Total
|
the
|
|||||||||||||||||||||||||
ownership
|
Assets
|
assets
|
assets
|
liabilities
|
liabilities
|
liabilities
|
Company
|
|||||||||||||||||||||||||
%
|
US$ thousands
|
|||||||||||||||||||||||||||||||
2012
|
||||||||||||||||||||||||||||||||
Dori Energy
|
40 | 64 | 39,022 | 39,086 | (13 | ) | (18,060 | ) | (18,073 | ) | 21,013 | |||||||||||||||||||||
2011
|
||||||||||||||||||||||||||||||||
Dori Energy
|
40 | 75 | 22,673 | 22,748 | (18 | ) | (1,612 | ) | (1,630 | ) | 21,118 |
|
E.
|
Summary financial data for investees, not adjusted for the percentage ownership held by the Company (cont’d)
|
|
(b)
|
Summary information on operating results
|
Rate of
|
Profit (loss)
|
|||||||
Ownership
|
for the year
|
|||||||
%
|
US$ thousands
|
|||||||
2012
|
||||||||
Dori Energy
|
40 | (580 | ) | |||||
2011
|
||||||||
Dori Energy
|
40 | (252 | ) |
|
F.
|
Subsidiary -
Business combination during the period
|
|
F.
|
Subsidiary - Business combination during the period (cont’d)
|
June 30,
2012
|
||||
US$ thousands
|
||||
Property and equipment
|
$ | 6,914 | ||
Working capital, net (excluding cash and cash equivalents)
|
(410 | ) | ||
Non-controlling interests
|
(32 | ) | ||
Total cash paid, net
|
$ | 6,472 |
Office
|
||||||||||||||||
Photovoltaic
|
furniture and
|
Leasehold
|
||||||||||||||
Plants
|
equipment
|
Improvements
|
Total
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Cost
|
||||||||||||||||
Balance as at January 1, 2011
|
21,612 | 107 | 66 | 21,785 | ||||||||||||
Additions
|
30,603 | 8 | 6 | 30,617 | ||||||||||||
Effect of changes in exchange rates
|
(2,046 | ) | - | - | (2,046 | ) | ||||||||||
Balance as at December 31, 2011
|
50,169 | 115 | 72 | 50,356 | ||||||||||||
Balance as at January 1, 2012
|
50,169 | 115 | 72 | 50,356 | ||||||||||||
Additions
|
536 | 16 | - | 552 | ||||||||||||
PV Plant acquired in a business combination (see Note 6F)
|
6,914 | - | - | 6,914 | ||||||||||||
Disposals
|
(828 | ) | - | - | (828 | ) | ||||||||||
Effect of changes in exchange rates
|
1,344 | - | - | 1,344 | ||||||||||||
Balance as at December 31, 2012
|
58,135 | 131 | 72 | 58,338 |
Depreciation
|
||||||||||||||||
Balance as at January 1, 2011
|
- | 22 | 11 | 33 | ||||||||||||
Depreciation for the year
|
1,751 | 16 | 10 | 1,777 | ||||||||||||
Effect of changes in exchange rates
|
(92 | ) | - | - | (92 | ) | ||||||||||
Balance as at December 31, 2011
|
1,659 | 38 | 21 | 1,718 | ||||||||||||
Balance as at January 1, 2012
|
1,659 | 38 | 21 | 1,718 | ||||||||||||
Depreciation for the year
|
2,694 | 13 | 10 | 2,717 | ||||||||||||
Disposals
|
(55 | ) | - | - | (55 | ) | ||||||||||
Effect of changes in exchange rates
|
98 | - | - | 98 | ||||||||||||
Balance as at December 31, 2012
|
4,396 | 51 | 31 | 4,478 | ||||||||||||
Carrying amounts
|
||||||||||||||||
As at January 1, 2011
|
21,612 | 85 | 55 | 21,752 | ||||||||||||
As at December 31, 2011
|
48,510 | 77 | 51 | 48,638 | ||||||||||||
As at December 31, 2012
|
53,739 | 80 | 41 | 53,860 |
|
Investment in Photovoltaic Plants
|
Cost included in the
|
||||||
PV Plant Title
|
Capacity*
|
Connection to Grid
|
Book value
|
|||
US$ in thousands
|
||||||
“Troia 8”
|
995.67 kWp
|
January 14, 2011
|
4,615
|
|||
“Troia 9”
|
995.67 kWp
|
January 14, 2011
|
4,584
|
|||
“Del Bianco”
|
734.40 kWp
|
April 1, 2011
|
2,757
|
|||
“Giaché”
|
730.01 kWp
|
April 14, 2011
|
3,629
|
|||
“Costantini”
|
734.40 kWp
|
April 27, 2011
|
2,783
|
|||
“Massaccesi”
|
749.7 kWp
|
April 29, 2011
|
3,606
|
|||
“Galatina”
|
994.43 kWp
|
May 25, 2011
|
5,418
|
|||
“Pedale
|
2,993 kWp
|
May 31, 2011
|
15,202
|
|||
“Acquafresca”
|
947.6 kWp
|
June 2011
|
4,172
|
|||
“D‘Angella”
|
930.5 kWp
|
June 2011
|
4,111
|
|||
"Ellomay Spain - Rinconada"
|
2,275 kWp
|
June 2010 **
|
7,258
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
||||||||
Employees and payroll accruals
|
82 | 62 | ||||||
Government authorities
|
42 | 32 | ||||||
SWAP related balances
|
635 | 441 | ||||||
Forward related balances
|
120 | - | ||||||
Tax provision
|
2,318 | 3,680 | ||||||
Deferred income in connection with investment in equity accounted investee (see Note 6A(1))
|
287 | - | ||||||
Payable in connection with photovoltaic plants
|
9,404 | 9,000 | ||||||
Accrued expenses
|
1,163 | 1,378 | ||||||
14,051 | 14,593 |
Interest
|
Interest
|
||||||||||||||||
Linkage
|
rate
|
rate
|
December 31
|
December 31
|
|||||||||||||
terms
|
2012
|
2011
|
2012
|
2011
|
|||||||||||||
%
|
%
|
US$ thousands
|
US$ thousands
|
||||||||||||||
Maturities on long term loans (refer to Notes 10 and 11)
|
EURIBOR
|
1.6-5.15 | 1.6-3.43 | 1,112 | 498 | ||||||||||||
Short term bank loans (1)
|
EURO LIBOR
|
0.75 | 0.75 | 5,932 | 11,631 | ||||||||||||
7,044 | 12,129 |
|
(1)
|
During 2011 the Company received short term bank loans renewable each month in the aggregate amount of Euro 9,000 thousand and repaid Euro 4,500 thousand in December 2012. As of December 31, 2012 the outstanding loan balance is Euro 4,500 thousand ($5,932 thousand) linked to the EURO LIBOR monthly rate.
|
|
A.
|
Composed as follows:
|
Linkage
|
Interest rate
|
December 31
|
December 31
|
||||||||||
terms
|
2011 and 2012
|
2012
|
22011012 | ||||||||||
%
|
US$ thousands
|
US$ thousands
|
|||||||||||
Leasing institution
|
EURIBOR
|
3.43 | 6,898 | 6,114 |
|
1.
|
On December 31, 2010 two wholly-owned Italian subsidiaries of the Company entered into financial leasing agreements, (the “Leasing Agreements”) in the amount of Euro 3,000 thousand each (Euro 6,000 thousand in total) for the financing of the subsidiaries, with the following terms: nominal annual interest rate of 3.43%. Monthly payments in the amount of Euro 20 thousand, commencing 210 days after issuance, for the duration of the Leasing Agreements (17 years) which are linked to the EURIBOR monthly average Euro Interbank Offered Rate. As of December 31, 2011 the first two drawdowns under the Leasing Agreements were received in
the aggregate amount of approximately Euro 5 million (approximately $6,483 thousand) net of expenses capitalized in the amount of approximately Euro 1.142 million (approximately $1,476 thousand) comprised mainly of Cadastral tax and VAT paid in connection with the Leasing Agreements. In March 2012 the final drawdown under the Leasing Agreements was received in the amount of approximately Euro 818.5 (approximately $1,080 thousand).
|
|
2.
|
The Leasing Agreements includes the following covenants:
|
|
a.
|
A declaration that the shareholders credit towards the two Italian wholly-owned subsidiaries will be subordinated to the leasing company’s credit;
|
|
b.
|
The Company undertook not to transfer the entire holdings in two wholly-owned Italian subsidiaries and shares not exceeding 20% of its holdings in the wholly-owned Luxembourgian subsidiary that wholly-owns the two Italian subsidiaries;
|
c.
|
The Company undertook to assign (as guarantee) the receivables from GSE; and
|
|
d.
|
The Company undertook encumber in favor of the leasing company the rights in connection with the guarantees provided under the EPC Contracts and the Operation and Maintenance agreements.
|
|
3.
|
The Company accounted for the transaction as a sale and a finance leaseback as the Company retained the significant risks and benefits of ownership related to its relevant PV Plants. The carrying value of the photovoltaic plants was left unchanged, with the sales proceeds recorded as a finance lease obligation accounted for under IAS 39.
|
|
B.
|
The aggregate annual maturities are as follows:
|
December 31
|
December 31
|
|||||||
2012
|
2011
|
|||||||
$ thousands
|
$ thousands
|
|||||||
First year (current maturities)
|
367 | 298 | ||||||
Second year
|
379 | 312 | ||||||
Third year
|
393 | 319 | ||||||
Fourth year
|
406 | 330 | ||||||
Fifth year
|
420 | 341 | ||||||
Sixth year and thereafter
|
5,300 | 4,812 | ||||||
7,265 | 6,412 | |||||||
Less current maturities
|
367 | 298 | ||||||
Long-term finance lease obligation
|
6,898 | 6,114 |
|
A.
|
Composed as follows:
|
Interest
|
|||||||||
Linkage
|
rate
|
December 31
|
|||||||
terms
|
2011
|
2011
|
|||||||
%
|
US$ thousands
|
||||||||
Bank loans
|
EURIBOR
|
1.6-2 | 5,115 |
Interest
|
|||||||||
Linkage
|
rate
|
December 31
|
|||||||
terms
|
2012
|
2012
|
|||||||
%
|
US$ thousands
|
||||||||
Bank loans
|
EURIBOR
|
1.6-5.15 | 10,425 | ||||||
Other long-term loans
|
EURIBOR
|
5.15 | 1,255 |
|
1.
|
On February 17, 2011, one of the Company's Italian subsidiaries entered into a project finance facilities credit agreement (the “Finance Agreement”) with an Italian bank (Centrobanca – Banca di Credito Finanziario e Mobiliare S.p.A.). Pursuant to the Finance Agreement two lines of credit in the aggregate amount of Euro 4.65 million were provided:
|
|
(i)
|
a Senior Loan, to be applied to the costs of construction of the PV Plants (up to 80% of the relevant amount), in the amount of Euro 4.1 million, accruing interest at the EURIBOR rate, increased by a margin of 200 basis points per annum, to be repaid in six-monthly installments; and
|
|
A.
|
Composed as follows: (cont’d)
|
|
(ii)
|
a VAT Line, for payment of VAT due on the costs of construction in the amount of Euro 0.55 million, accruing interest at the EURIBOR rate, increased by 160 basis points per annum, to be repaid in one payment on December 31, 2013.
|
|
2.
|
On December 20, 2011, one of the Company's Italian subsidiaries, entered into a loan agreement (the “Loan Agreement”) with an Italian bank (Unicredit S.p.A.). Pursuant to the Loan Agreement, a line of credit was set up to an amount of Euro 5.047 million bearing an interest at the EURIBOR 6 month rate plus a range of 5.15%-5.35% per annum, depending on the period in which interest is accrued during the term of the Loan Agreement. The principal and interest on the loan are repaid semi-annually. The final maturity date of this loan is December 31, 2029.
|
|
The Loan Agreement provides for mandatory prepayment upon the occurrence of certain events, including in the event the borrower receives insurance or indemnity compensation and in the event of a change in control of the borrower without the bank's consent.
|
|
|
On January 31, 2012 an amount of Euro 4.9 million (approximately $ 6,460 thousand) was drawn down on account of these credit lines. Related expenses capitalized to the loan comprised mainly of related notary fee and bank charges amount to
approximately
Euro 148 thousand (approximately $195 thousand).
|
|
A.
|
Composed as follows: (cont’d)
|
|
3.
|
Effective as of March 8, 2012, the Company's 85% owned Spanish subsidiary entered into a loan agreement with the owner of the remaining 15% of its outstanding shares. Pursuant to the Loan Agreement, a line of credit was set up to an amount of Euro 8 million bearing an interest at the EURIBOR 6 month rate plus a range of 5.15% per annum for a period of 5 years, and renewable for additional 5 year periods. As of December 31, 2012 the credit facility balance used amounts to approximately Euro 952 thousand (approximately $ 1,255 thousand) including accumulated interests.
|
|
B.
|
The aggregate annual maturities are as follows:
|
December 31
|
December 31
|
|||||||
2012
|
2011
|
|||||||
$ thousands
|
$ thousands
|
|||||||
First year (current maturities)
|
745 | 200 | ||||||
Second year
|
471 | 875 | ||||||
Third year
|
499 | 240 | ||||||
Fourth year
|
522 | 252 | ||||||
Fifth year
|
1,805 | 265 | ||||||
Sixth year and thereafter
|
8,383 | 3,483 | ||||||
12,425 | 5,315 |
Less current maturities
|
745 | 200 | ||||||
Long-term loans
|
11,680 | 5,115 |
|
C.
|
In order to manage the interest – rate risk resulting from financing institutions in Italy linked to the Euribor, the Company executed swap transactions.
|
December 31
|
December 31
|
|||||||
2012
|
2011
|
|||||||
$ thousands
|
$ thousands
|
|||||||
Deferred Tax (see Note 18E)
|
384 | - | ||||||
Swap contracts
|
3,415 | 1,322 | ||||||
Liabilities for employees benefits
|
28 | 22 | ||||||
3,827 | 1,344 |
|
A.
|
Investment in photovoltaic plants
|
|
Each of the PV Plants is constructed and operated on the basis of the following agreements:
|
|
-
|
An EPC Contract, which governs the installation, testing and commissioning of a photovoltaic plant by the respective Contractor;
|
|
-
|
An Operation and Maintenance Agreement (an "O&M Agreement"), which governs the operation and maintenance of the photovoltaic plant by the respective Contractor;
|
|
-
|
When applicable, agreement between the Company's relevant Italian subsidiary and the Contractor, whereby the panels required for the construction of the photovoltaic plant will be purchased by such Italian subsidiary directly from a third party supplier of such panels, and then transferred to the Contractor;
|
|
-
|
A number of ancillary agreements, including:
|
|
*
|
One or more "building rights agreements" with the land owners, which provide the terms and conditions for the lease of land on which the photovoltaic plants are constructed and operated.
|
|
*
|
Standard "incentive agreements" with Gestoredei Servizi Elettrici ("GSE"), Italy's energy regulation agency responsible, inter-alia, for incentivizing and developing renewable energy sources in Italy and purchasing energy and re-selling it on the electricity market. The incentive
agreements will be entered into prior to connection of the each of the EPC Projects to the Italian national grid. Under such agreement, it is anticipated that GSE will grant the applicable feed-in tariff governing the purchase of electricity.
|
|
*
|
One or more "power purchase agreements" with GSE, specifying the power output to be purchased by GSE for resale and the consideration in respect thereof.
|
|
*
|
One or more "interconnection agreements" with the Enel Distribuzione S.p.A ("ENEL"), the Italian national electricity grid operator, which provide the terms and conditions for the connection to the Italian national grid.
|
|
*
|
A stock purchase agreement in the event the Company acquires a plant that is under construction or is already constructed.
|
|
*
|
Standard “power evacuation agreements” with the Spanish power distribution grid company Endesa Distribución Eléctrica, S.L.U., or Endesa, regarding the rights and obligations of each party, concerning, inter alia, the evacuation of the power generated in the facility to the grid; and
|
|
A.
|
Investment in photovoltaic plants (cont’d)
|
|
*
|
Standard “representation agreements” with an entity that will represent the PV Principal in its dealings with the Spanish National Energy Commission, or CNE, and the bid system managed by the operator of the market, Operador del Mercado Ibérico de Energía, Polo Español, S.A., or OMEL, who are responsible for payment of the FiT. The representation agreements in connection with Rinconada II are with Nexus Energía, S.A. |
|
*
|
a stock purchase agreement in the event we acquire an existing company that owns a photovoltaic plant that is under construction or is already constructed. |
|
B.
|
Agreement to receive participation interest
|
|
C.
|
Operating lease commitments
|
Operating
|
||||
lease
|
||||
US$ thousands
|
||||
Year ended December 31
|
||||
2013
|
267 | |||
2014
|
267 | |||
2015
|
267 | |||
2016
|
206 | |||
2017 and thereafter
|
2,852 | |||
Total minimum lease payments
|
3,859 |
|
D.
|
Legal proceedings:
|
|
1.
|
During 2002, a customer filed a lawsuit in China against a subsidiary alleging bad quality of products. The court ruled on April 2003 that the subsidiary should reimburse the customer with the amount of approximately $ 284 thousand as of December 31, 2012. Following an appeal filed by the subsidiary, the court ruled in September 2003 in favor of the end-user. The subsidiary is in the process of liquidation since 2003 and has no assets; therefore the plaintiff has no remedy against the subsidiary. In October 2011 the customer declared its creditor’s rights as part of the process of the liquidation of the subsidiary in an aggregate amount of approximately $ 386 thousand (as of December 31, 2012), which includes interest up to the date of the customer’s demand. The Company responded rejecting the allegations made and the demands for payment by the Company of the subsidiary’s alleged debts. Based on management's estimation and the assessment of its legal counsel, it is unlikely that the Company will be required to pay the amount ruled against the subsidiary in China. Therefore, no provision was recorded with respect to this claim.
|
|
2.
|
In December 2003, a customer of a subsidiary filed a lawsuit alleging that a machine purchased by it failed to perform. The customer sought reimbursement of the purchase price paid by it in the amount of $ 290 thousand. During 2006 the Company launched a counter claim to this lawsuit for the collection of unpaid outstanding invoices which was settled between the parties in May 2010. In January 2010 the court dismissed the customer’s lawsuit and in June 2010 the customer filed an appeal. Based on management's estimation and the assessment of its legal counsel, no provision was recorded with respect to this claim.
|
|
3.
|
In February 2007, a claim was filed against the Company and one of its former officers by a person claiming to have been an agent of the Company in West Africa for commissions on sales of printers. The claim is for NIS 3,000 thousand ($ 804 thousand as of December 31, 2012). The Company filed a statement of defense denying all claims, both with respect to the causes of action and with respect to the factual allegations in the claim. The plaintiff's filed a motion with the Court to strike the Company’s Statement of Defense, which was rejected. The plaintiff's filed a motion to appeal to the Supreme Court. That motion was rejected in July 2010. In October 2012, the district court rendered its ruling and rejected the plaintiff’s claims in their entirety. In November 2012 an appeal was filed in the Supreme Court by the plaintiff. Written summaries will be submitted by the plaintiffs and by the defendants by September 2013 and November 4, 2013, respectively, and the plaintiffs may submit a response to the defendants' summaries by December 2013. A hearing has been scheduled at the Supreme Court for March 5, 2014. Based on management's estimation and the assessment of its legal counsel, no provision was recorded with respect to this claim.
|
|
D.
|
Legal proceedings: (cont'd)
|
|
|
4.
|
In September 2010 a claim was filed with the Court of Brescia, Italy against the Company and against HP and several of its subsidiaries by a former customer asking the declaration of invalidity or voidness or termination of the supply of agreements in connection with five printers it purchased between 2004 - 2006 alleging the defectiveness of the printers (in particular, the lack of the essential safety qualifications and relevant certifications) and requesting damages in the aggregate amount of Euro 2,500 thousand plus VAT (approximately $ 3,295 thousand plus VAT). The Company was sued based on its past ownership of the seller of the printers, NUR Europe (which was sold to HP in connection with the HP Transaction). The Company has required that HP pay its legal fees in connection with this claim based on the settlement agreement executed with HP in July 2010. The parties reached a settlement in November 2012 and the case was dismissed. In addition, the Company reached a settlement with HP concerning the payment of legal fees.
|
|
A.
|
On December 30, 2008, the Company's shareholders approved the terms of a management services agreement entered into among the Company, Kanir Joint Investments (2005) Limited Partnership ("Kanir") and Meisaf Blue & White Holdings Ltd. ("Meisaf"), a company controlled by the Company's chairman of the board and controlling shareholder, effective as of March 31, 2008 (the "Management Agreement"). According to the Management Agreement, Kanir and Meisaf, through their employees, officers and directors, provide assistance to the Company in all aspects of the new operations process, including but not limited to, any activities to be conducted in connection with identification and evaluation of the business opportunities, the negotiations and the integration and management of any new operations and including discussions with the Company's management to assist and advise them on such matters and on any matters concerning the Company's affairs and business. In consideration of the performance of the management services and the board services pursuant to the Management Agreement, the Company agreed to pay Kanir and Meisaf an aggregate annual management services fee in the amount of $ 250 thousand.
|
|
The Company sub-leases a small part of our office space to a company controlled by Mr. Shlomo Nehama, at a price per square meter based on the price that it pays under its lease agreements. This sub-lease agreement was approved by the Company's Board of Directors.
|
|
B.
|
Compensation to key management personnel and interested parties (including directors)
|
Year ended December 31
|
||||||||||||||||||||||||
2012
|
2011
|
2010
|
||||||||||||||||||||||
Number of
|
Number of
|
Number of
|
||||||||||||||||||||||
people
|
Amount
|
people
|
Amount
|
people
|
Amount
|
|||||||||||||||||||
US$ thousands
|
US$ thousands
|
US$ thousands
|
||||||||||||||||||||||
Short-term employee
|
||||||||||||||||||||||||
benefits
|
2 | 443 | 2 | 565 | 2 | 345 | ||||||||||||||||||
Post-employment
|
||||||||||||||||||||||||
benefits
|
2 | 27 | 2 | 29 | 2 | 30 | ||||||||||||||||||
Share-based payments
|
1 | * | 1 | 20 | 1 | 50 |
|
*
|
Less than $1 thousand
|
Year ended December 31
|
||||||||||||||||||||||||
2012
|
2011
|
2010
|
||||||||||||||||||||||
Number of
|
Number of
|
Number of
|
||||||||||||||||||||||
people
|
Amount
|
people
|
Amount
|
people
|
Amount
|
|||||||||||||||||||
US$ thousands
|
US$ thousands
|
US$ thousands
|
||||||||||||||||||||||
Total compensation to
|
||||||||||||||||||||||||
directors not employed
|
||||||||||||||||||||||||
by the Company
|
4 | 79 | 4 | 73 | 4 | 72 | ||||||||||||||||||
share-based payments
|
4 | 7 | 4 | 12 | 4 | 6 |
|
C.
|
Debts and loans to related and interested parties
|
(*)
|
See note 6A1
|
(**)
|
See note 6A2
|
|
A.
|
Composition of share capital
|
December 31, 2012
|
December 31, 2011
|
December 31, 2010
|
||||||||||||||||||||||
Issued and
|
Issued and
|
Issued and
|
||||||||||||||||||||||
Authorized
|
Outstanding(1)
|
Authorized
|
outstanding(1)
|
Authorized
|
Outstanding
|
|||||||||||||||||||
Number of shares
|
||||||||||||||||||||||||
Ordinary shares
|
||||||||||||||||||||||||
of NIS 10.00 par
|
||||||||||||||||||||||||
value each
|
17,000,000 | 10,692,371 | 17,000,000 | 10,769,326 | 17,000,000 | 10,750,071 |
|
B.
|
Changes in share capital
|
Number of
|
NIS
|
|||||||
Shares
|
par value
|
|||||||
Balance at December 31, 2011
|
10,769,326 | 107,693,260 | ||||||
Treasury shares
|
(76,955 | ) | (769,550 | ) | ||||
Balance at December 31, 2012
|
10,692,371 | 106,923,710 |
|
C.
|
Rights attached to shares:
|
|
1.
|
Voting rights at the general meeting, right to dividend and rights upon liquidation of the Company.
|
|
2.
|
The Ordinary shares of the Company were traded until May 2005 on the NASDAQ Capital Market. From May 19, 2005, the Company's Ordinary shares have been quoted over-the-counter in the "pink sheets" and commencing August 22, 2011 have been listed on the NYSE MKT (formerly the NYSE Amex).
|
|
D.
|
On March 31, 2008 the prior principal shareholders of the Company, the Fortissimo entities, completed the sale of all of the shares and a majority of the warrants held by them to Kanir Joint Investments (2005) Limited Partnership, which was also previously a controlling shareholder of the Company and S. Nechama Investments (2008) Ltd., which became a controlling shareholder of the Company as a result of the purchase from the Fortissimo entities and from several other shareholders.
|
|
E.
|
Reverse share split
|
|
F.
|
Buyback plan
|
|
G.
|
Warrants
|
|
H.
|
Translation reserve from foreign operation
|
|
I.
|
Capital management in the Company
|
|
1.
|
To preserve the Company's ability to ensure business continuity thereby creating a return for the shareholders, investors and other interested parties.
|
|
2.
|
To ensure adequate return for the shareholders by making reasonable investment decisions based on the level of internal rate of return that is in line with the Company's business activity.
|
|
3.
|
To maintain healthy capital ratios in order to support business activity and maximize shareholders value.
|
|
A.
|
Expenses recognized in the financial statements
|
Year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ thousand
|
||||||||||||
Expenses arising from share-based payment
|
||||||||||||
transactions
|
7 | 32 | 56 |
Year ended December 31
|
||||||||
2012
|
2011
|
|||||||
Dividend yield
|
0 | % | 0 | % | ||||
Expected volatility
|
0.552 | 0.737 | ||||||
Risk-free interest
|
0. 24 | % | 0.37 | % | ||||
Expected life (in years)
|
3 | 3 |
Equal market price
|
||||||||
2012
|
2011
|
|||||||
US$
|
||||||||
Weighted average exercise prices
|
5.24 | 6.82 | ||||||
Weighted average fair value on grant date
|
2.1 | 2.73 |
|
B.
|
Stock Option Plans
|
|
C.
|
Changes during the year:
|
2012
|
2011
|
2010
|
||||||||||||||||||||||
Weighted
|
Weighted
|
Weighted
|
||||||||||||||||||||||
average
|
average
|
average
|
||||||||||||||||||||||
Number of
|
exercise
|
Number of
|
exercise
|
Number of
|
exercise
|
|||||||||||||||||||
options
|
price
|
options
|
price
|
options
|
price
|
|||||||||||||||||||
US$
|
US$
|
US$
|
||||||||||||||||||||||
Outstanding at
|
||||||||||||||||||||||||
beginning of year
|
153,364 | 8.2 | 148,736 | 8.3 | 151,358 | 8.3 | ||||||||||||||||||
Granted during
|
||||||||||||||||||||||||
the year
|
4,045 | 5.24 | 4,628 | 6.82 | 4,045 | 5.9 | ||||||||||||||||||
Exercised during
|
||||||||||||||||||||||||
the year
|
( 5,667 | ) | 5.72 | - | - | - | - | |||||||||||||||||
Expired during
|
||||||||||||||||||||||||
the year
|
- | - | - | - | (6,667 | ) | - | |||||||||||||||||
Outstanding at
|
||||||||||||||||||||||||
end of year
|
151,742 | 8.24 | 153,364 | 8.2 | 148,736 | 8.3 | ||||||||||||||||||
Exercisable at
|
||||||||||||||||||||||||
end of year
|
151,663 | 8.24 | 153,282 | 7.04 | 104,646 | 8.1 |
|
D.
|
The weighted average remaining contractual life for the share options outstanding as of December 31, 2012 was 5.76- 7.89 years (2010 - 7.59-8.05 years and 2011 - 6.84-8 years).
|
|
E.
|
The range of exercise prices for share options outstanding as of December 31, 2012 was $3.1- $9.2 (2010 - $ 3.1- $ 9.2 and 2011 - $ 3.1- $ 9.2).
|
|
A.
|
Financing income and expenses:
|
|
1.
|
Financing income
|
For the year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ thousands
|
||||||||||||
Interest income
|
438 | 436 | 611 | |||||||||
Gain from derivatives
(Forward)
|
112 | - | 465 | |||||||||
Change in fair value of derivatives
|
146 | - | 404 | |||||||||
Gain from exchange rate differences, net
|
- | 1,535 | - | |||||||||
Total financing income
|
696 | 1,971 | 1,480 |
|
2.
|
Financing expenses
|
For the year ended December 31
|
|||||||||||||
2012
|
2011
|
2010
|
|||||||||||
US$ thousands
|
|||||||||||||
Change in fair value of derivatives (SWAP)
|
2,157 | 2,601 | - | ||||||||||
Swap interest
|
511 | 104 | - | ||||||||||
Change in fair value of derivatives (Forward)
|
120 | - | - | ||||||||||
Interest on loans
|
1,028 | 464 | - | ||||||||||
Loss
from exchange rate differences, net
|
485 | - | 53 | ||||||||||
Bank charges and other commissions
|
22 | 40 | 27 | ||||||||||
Total financing expenses
|
4,323 | 3,209 | 80 |
|
B.
|
Operating Costs
|
For the year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ thousands
|
||||||||||||
Depreciation
|
2,717 | 1,777 | - | |||||||||
Professional services
|
268 | 822 | - | |||||||||
Annual rent
|
205 | 190 | - | |||||||||
Operating and maintenance services
|
922 | 164 | - | |||||||||
Insurance
|
153 | 62 | - | |||||||||
Other
|
406 | 153 | - | |||||||||
Total operating costs
|
4,671 | 3,168 | - |
|
C.
|
General and administrative expenses
|
For the year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ thousands
|
||||||||||||
Salaries and related compensation
|
963 | 1,148 | 754 | |||||||||
Professional services
|
1,547 | 1,614 | 2,144 | |||||||||
Loss from disposal of fixed assets, net of insurance income
|
338 | - | - | |||||||||
Other
|
262 | 340 | 313 | |||||||||
Total general and administrative expenses
|
3,110 | 3,102 | 3,211 |
|
A.
|
|
(a)
|
Taxable event
: generation of electric energy and its transmission to the grid;
|
|
(b)
|
Taxable income
: total amount received in terms of feed in tariff;
|
|
(c)
|
Tax rate
: 7%;
|
|
(d)
|
Taxpayer
: titleholder of the taxable event, i.e., the person which is entitled to generate electric energy and transfer such energy to the grid;
|
|
(e)
|
Tax period and accruing
: the tax period is the natural year and the tax is accrued each December 31;
|
|
(f)
|
Tax payment terms
: the taxpayers are obliged to issue a final self-settlement of the tax amount and to pay such amount within the following month of November as from the accruing of the tax. Therefore, the first self-settlement and payment shall be satisfied during November 2013; and
|
|
(g)
|
Interim tax payments
: the taxpayers are also required to transfer interim tax payments to the account of the final self-settlement within the first twenty calendar days of May, September, November and February of the following year, and corresponding to the periods of three, six, nine and twelve months of each year, respectively, and in accordance with the rules to be issued by the Ministry of Treasury and Public Bodies.
|
|
B.
|
Composition of income tax income (expense):
|
For the year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ thousands
|
US$ thousands
|
US$ thousands
|
||||||||||
Current tax income (expense)
|
||||||||||||
Current year
|
(526 | ) | (432 | ) | - | |||||||
Previous years
|
24 | - | - | |||||||||
Reverse
of uncertain tax positions
|
1,316 | 1,352 | 44 | |||||||||
814 | 920 | 44 | ||||||||||
Deferred tax income
|
||||||||||||
Creation and reversal of temporary differences
|
197 | 98 | - | |||||||||
Tax benefit
|
1,011 | 1,018 | 44 |
|
C.
|
Theoretical tax:
|
2012
|
2011
|
2010
|
||||||||||
US$ thousands
|
||||||||||||
Loss before taxes on income from continuing
|
||||||||||||
Operations
|
3,144 | 1,990 | 1,877 | |||||||||
Primary tax rate of the Company
|
25 | % | 24 | % | 25 | % | ||||||
Theoretical tax benefit
|
786 | 478 | 469 | |||||||||
Loss (profit) subject to different tax rate
|
(70 | ) | ( 49 | ) | 102 | |||||||
Foreign exchange differences
|
(92 | ) | 685 | (189 | ) | |||||||
Permanent differences
|
(190 | ) | (285 | ) | - | |||||||
Unrecognized tax losses (profit) and reserve of uncertain tax position
|
577 | 189 | (338 | ) | ||||||||
Actual tax benefit
|
1,011 | 1,018 | 44 |
|
D.
|
Carry forward tax losses:
|
|
E
|
Deferred taxes:
|
Finance lease
|
||||||||||||||||
Property and
|
obligations and
|
|||||||||||||||
equipment
|
Long term loans
|
Swap contract
|
Total
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Balance of deferred tax asset
|
||||||||||||||||
(liability) as at January 1, 2012
|
(2,875 | ) | 2,952 | 21 | 98 | |||||||||||
Changes recognized in profit or loss
|
65 | (153 | ) | 285 | 197 | |||||||||||
Changes recognized in in other comprehensive income
|
(218 | ) | 195 | 15 | (8 | ) | ||||||||||
Balance of deferred tax asset
|
||||||||||||||||
(liability) as at December 31, 2012
|
(3,028 | ) | 2,994 | 321 | 287 |
Finance lease
|
||||||||||||||||
Property and
|
obligations and
|
|||||||||||||||
Equipment
|
Long term loans
|
Swap contract
|
Total
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Balance of deferred tax asset
|
||||||||||||||||
(liability) as at January 1, 2011
|
- | - | - | - | ||||||||||||
Changes recognized in other comprehensive income
|
(2,875 | ) | 2,952 | 21 | 98 | |||||||||||
Balance of deferred tax asset
|
||||||||||||||||
(liability) as at December 31,
|
||||||||||||||||
2011
|
(2,875 | ) | 2,952 | 21 | 98 |
|
F.
|
Provision for tax uncertainties:
|
For the year ended December 31
|
||||||||||||
2012
|
2011
|
2010
|
||||||||||
US$ thousands
|
US$ thousands
|
US$ thousands
|
||||||||||
Net income (loss) attributed to owners of the Company
|
(2,110 | ) | (972 | ) | 5,202 | |||||||
Weighted average ordinary shares outstanding (1)
|
10,709,294 | 10,775,458 | 7,911,551 | |||||||||
Dilutive effect:
|
||||||||||||
Employee stock options and warrants
|
- | - | 992,699 | |||||||||
Diluted weighted average ordinary shares
|
||||||||||||
Outstanding
|
- | - | 8,904,250 | |||||||||
Basic loss per share from continuing operations
|
( 0.2 | ) | ( 0. 09 | ) | ( 0. 2 | ) | ||||||
Diluted loss per share from continuing operations
|
( 0.2 | ) | ( 0. 09 | ) | ( 0. 2 | ) | ||||||
Basic earnings per share from discontinued
|
||||||||||||
Operations
|
- | - | 0. 9 | |||||||||
Diluted earnings per share from discontinued
|
||||||||||||
Operations
|
- | - | 0. 8 |
|
A.
|
Overview
|
|
—
|
Credit risk
|
|
—
|
Liquidity risk
|
|
—
|
Market risk
|
December 31
|
||||||||
2012
|
2011
|
|||||||
US$ thousands
|
||||||||
Derivatives presented under current liabilities
|
||||||||
Forward contracts
|
(120 | ) | - | |||||
SWAP contracts
|
(591 | ) | (441 | ) | ||||
Total
|
(711 | ) | (441 | ) | ||||
Derivatives presented under non-current liabilities
|
||||||||
SWAP contracts
|
(3,415 | ) | (1,322 | ) | ||||
Total
|
(3,415 | ) | (1,322 | ) |
|
B.
|
Risk management framework
|
|
C.
|
Credit Risk
|
|
D.
|
Liquidity risk
|
|
D.
|
Liquidity risk (cont’d)
|
December 31, 2012
|
||||||||||||||||||||||||
Carrying
|
Contractual
|
Less than
|
More than
|
|||||||||||||||||||||
amount
|
cash flows
|
1 year
|
1-2 years
|
2-5 years
|
5 years
|
|||||||||||||||||||
US$ thousands
|
||||||||||||||||||||||||
Non-derivative financial liabilities
|
||||||||||||||||||||||||
Long term loans, including current maturities
|
12,425 | 18,311 | 1,341 | 1,039 | 4,454 | 11,477 | ||||||||||||||||||
Finance lease obligation including current maturities
|
7,265 | 9,441 | 621 | 620 | 1,857 | 6,343 | ||||||||||||||||||
Loans and borrowings
|
5,932 | 5,980 | 5,980 | - | - | - | ||||||||||||||||||
Trade payables and other accounts payable
|
14,935 | 14,935 | 14,935 | - | - | - | ||||||||||||||||||
Liabilities attributed to discontinued operations
|
200 | 200 | 200 | - | - | - | ||||||||||||||||||
40,757 | 48,867 | 23,077 | 1,659 | 6,311 | 17,820 |
Derivative finance liabilities
|
||||||||||||||||||||||||
Forward contracts
|
120 | 120 | 120 | - | - | - | ||||||||||||||||||
Swap contracts
|
4,006 | 4,006 | 591 | 531 | 1,272 | 1,612 | ||||||||||||||||||
4,126 | 4,126 | 711 | 531 | 1,272 | 1,612 |
|
D.
|
Liquidity risk (cont’d)
|
December 31, 2011
|
||||||||||||||||||||||||
Carrying
|
Contractual
|
Less than
|
More than
|
|||||||||||||||||||||
amount
|
cash flows
|
1 year
|
1-2 years
|
2-5 years
|
5 years
|
|||||||||||||||||||
US$ thousands
|
||||||||||||||||||||||||
Non-derivative financial liabilities
|
||||||||||||||||||||||||
Long term loans, including current maturities
|
5,315 | 6,936 | 390 | 1,082 | 1,214 | 4,250 | ||||||||||||||||||
Finance lease obligation including current maturities
|
6,412 | 8,808 | 560 | 558 | 1,659 | 6,031 | ||||||||||||||||||
Loans and borrowings
|
11,631 | 11,834 | 11,834 | - | - | - | ||||||||||||||||||
Trade payables and other accounts payable
|
16,942 | 16,942 | 16,942 | - | - | - | ||||||||||||||||||
Liabilities attributed to discontinued operations
|
200 | 200 | 200 | - | - | - | ||||||||||||||||||
40,500 | 44,720 | 29,926 | 1,640 | 2,873 | 10,281 | |||||||||||||||||||
Derivative finance liabilities
|
||||||||||||||||||||||||
Swap contracts
|
1,763 | 1,763 | 441 | 905 | 382 | 35 |
|
E.
|
Market risk
|
|
(1)
|
Foreign currency risk
|
|
E.
|
Market risk (cont’d)
|
|
(1)
|
Linkage and foreign currency risks (cont’d)
|
|
(a)
|
The exposure to linkage and foreign currency risk
|
December 31, 2012
|
||||||||||||||||||||
Non-monetary
|
NIS
|
Unlinked
|
EURO
|
Total
|
||||||||||||||||
US$ thousands
|
||||||||||||||||||||
|
||||||||||||||||||||
Current assets:
|
||||||||||||||||||||
Cash and cash equivalents
|
- | 84 | 26,605 | 6,603 | 33,292 | |||||||||||||||
ST deposits
|
- | - | 5,290 | - | 5,290 | |||||||||||||||
ST restricted cash
|
- | - | 6,408 | 1,677 | 8,085 | |||||||||||||||
Trade receivables
|
- | - | - | 95 | 95 | |||||||||||||||
Other accounts receivables
|
- | 73 | 8 | 4,355 | 4,436 | |||||||||||||||
Non-current assets:
|
||||||||||||||||||||
Investments in equity
|
||||||||||||||||||||
accounted investees
|
19,198 | - | - | - | 19,198 | |||||||||||||||
Financial asset
|
- | 485 | - | - | 485 | |||||||||||||||
Property, plant and
|
||||||||||||||||||||
equipment, net
|
53,860 | - | - | - | 53,860 | |||||||||||||||
LT restricted cash
|
- | - | 2,600 | 653 | 3,253 | |||||||||||||||
Other assets
|
746 | - | - | - | 746 | |||||||||||||||
Current liabilities:
|
||||||||||||||||||||
Loans and borrowings
|
- | - | - | (7,044 | ) | (7,044 | ) | |||||||||||||
Accounts payable
|
- | (11 | ) | - | (1,915 | ) | (1,926 | ) | ||||||||||||
Accrued expenses and
|
||||||||||||||||||||
other payables
|
(2,853 | ) | - | (120 | ) | (11,078 | ) | (14,051 | ) | |||||||||||
Liabilities attributed to
|
||||||||||||||||||||
discontinued operations
|
- | - | (200 | ) | - | (200 | ) | |||||||||||||
Non-current liabilities:
|
||||||||||||||||||||
Finance lease obligations
|
- | - | - | (6,898 | ) | (6,898 | ) | |||||||||||||
Long-term loans
|
- | - | - | (11,680 | ) | (11,680 | ) | |||||||||||||
Other long-term liabilities
|
(412 | ) | - | - | (3,415 | ) | (3,827 | ) | ||||||||||||
Total exposure in statement
|
||||||||||||||||||||
of financial position in
|
||||||||||||||||||||
respect of financial assets
|
||||||||||||||||||||
and financial liabilities
|
70,539 | 631 | 40,591 | (28,647 | ) | 83,114 |
|
E.
|
Market risk (cont’d)
|
|
(1)
|
Linkage and foreign currency risks (cont’d)
|
|
(a)
|
The exposure to linkage and foreign currency risk (cont’d)
|
December 31, 2011
|
||||||||||||||||||||
Non-monetary
|
NIS
|
Unlinked
|
EURO
|
Total
|
||||||||||||||||
US$ thousands
|
||||||||||||||||||||
Current assets:
|
||||||||||||||||||||
Cash and cash equivalents
|
- | 131 | 16,271 | 12,515 | 28,917 | |||||||||||||||
ST deposits
|
- | - | 10,000 | - | 10,000 | |||||||||||||||
ST restricted cash
|
- | - | 15,688 | - | 15,688 | |||||||||||||||
Trade receivables
|
- | - | - | 88 | 88 | |||||||||||||||
Other accounts receivables
|
- | 272 | - | 6,603 | 6,875 | |||||||||||||||
Non-current assets:
|
||||||||||||||||||||
Investments in equity
|
||||||||||||||||||||
accounted investees
|
12,995 | - | - | - | 12,995 | |||||||||||||||
Financial asset
|
- | 52 | - | - | 52 | |||||||||||||||
Property, plant and
|
||||||||||||||||||||
equipment, net
|
48,638 | - | - | - | 48,638 | |||||||||||||||
LT restricted cash
|
- | - | 2,250 | 724 | 2,974 | |||||||||||||||
Other assets
|
165 | - | - | 165 | ||||||||||||||||
Current liabilities:
|
- | - | ||||||||||||||||||
Loans and borrowings
|
- | - | - | (12,129 | ) | (12,129 | ) | |||||||||||||
Accounts payable
|
- | (13 | ) | - | (2,777 | ) | (2,790 | ) | ||||||||||||
Accrued expenses and
|
||||||||||||||||||||
other payables
|
(4,538 | ) | - | - | (10,055 | ) | (14,593 | ) | ||||||||||||
Liabilities attributed to
|
||||||||||||||||||||
discontinued operations
|
- | - | (200 | ) | - | (200 | ) | |||||||||||||
Non-current liabilities:
|
||||||||||||||||||||
Finance lease obligations
|
- | - | - | (6,114 | ) | (6,114 | ) | |||||||||||||
Long-term loans
|
- | - | - | (5,115 | ) | (5,115 | ) | |||||||||||||
Excess of losses over
|
||||||||||||||||||||
investment in equity
|
(46 | ) | - | - | - | (46 | ) | |||||||||||||
Other long-term liabilities
|
(22 | ) | - | - | (1,322 | ) | (1,344 | ) | ||||||||||||
Total exposure in statement
|
||||||||||||||||||||
of financial position in
|
||||||||||||||||||||
respect of financial assets
|
||||||||||||||||||||
and financial liabilities
|
57,192 | 442 | 44,009 | (17,582 | ) | 84,061 |
|
E.
|
Market risk (cont’d)
|
|
(1)
|
Linkage and foreign currency risks (cont’d)
|
|
(a)
|
The exposure to linkage and foreign currency risk (cont’d)
|
For the year ended December 31
|
||||||||||||||||
2012
|
2011
|
|||||||||||||||
Rate of
|
Rate of
|
|||||||||||||||
change
|
change
|
|||||||||||||||
%
|
USD
|
%
|
USD
|
|||||||||||||
1 Euro
|
2 | 1.318 | (3.2 | ) | 1.292 | |||||||||||
1 NIS
|
2.3 | 0.268 | (7.1 | ) | 0.262 |
|
(b)
|
Sensitivity analysis
|
December 31, 2012
|
||||||||||||||||
Increase
|
Decrease
|
|||||||||||||||
Profit or loss
|
Equity
|
Profit or loss
|
Equity
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Change in the exchange rate of:
|
||||||||||||||||
5% in the Euro
|
(295 | ) | (295 | ) | 295 | 295 | ||||||||||
5% in NIS
|
27 | 27 | (27 | ) | (27 | ) |
December 31, 2011
|
||||||||||||||||
Increase
|
Decrease
|
|||||||||||||||
Profit or loss
|
Equity
|
Profit or loss
|
Equity
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Change in the exchange rate of:
|
||||||||||||||||
5% in the Euro
|
(579 | ) | (579 | ) | 579 | 579 | ||||||||||
5% in NIS
|
20 | 20 | (20 | ) | (20 | ) |
|
E.
|
Market risk (cont’d)
|
December 31,
|
||||||||
2012
|
2011
|
|||||||
Profit or loss
|
Profit or loss
|
|||||||
US$ thousands
|
US$ thousands
|
|||||||
Increase of 1%
|
198 | 99 | ||||||
Increase of 3%
|
749 | 298 | ||||||
Decrease of 1%
|
(344 | ) | (99 | ) | ||||
Decrease of 3%
|
(653 | ) | (239 | ) |
|
E.
|
Market risk (cont’d)
|
|
(1)
|
Linkage and foreign currency risks (cont’d)
|
|
F.
|
Fair value
|
|
(1)
|
Fair values versus carrying amounts
|
December 31
|
||||||||||||||||
2012
|
2011
|
|||||||||||||||
Carrying
|
Fair
|
Carrying
|
Fair
|
|||||||||||||
amount
|
Value
|
amount
|
value
|
|||||||||||||
US$ thousands
|
||||||||||||||||
Loans from banks
|
||||||||||||||||
(including current maturities)
|
12,425 | 10,724 | 5,315 | 4,430 | ||||||||||||
Finance lease obligations
|
||||||||||||||||
(including current maturities)
|
7,265 | 6,760 | 6,412 | 5,776 | ||||||||||||
19,690 | 17,484 | 11,727 | 10,206 |
|
(2)
|
Interest rates used for determining fair value
|
December 31
|
||||
2012
|
2011
|
|||
%
|
%
|
|||
Non-current liabilities:
|
||||
Loans from banks
|
Euribor+ 1.9-5.6%
|
Euribor +5.25%
|
||
Finance lease obligations
|
Euribor+ 1.9-5.6%
|
Euribor +5.25%
|
|
F.
|
Fair value (cont’d)
|
|
(3)
|
Fair value hierarchy
|
Level 1
|
-
|
Quoted prices (unadjusted) in active markets for identical assets or liabilities.
|
Level 2
|
-
|
Inputs other than quoted prices included within Level 1 that are observable either directly or indirectly.
|
Level 3
|
-
|
Inputs that are not based on observable market data (valuation techniques which use inputs that are not based on observable market data).
|
December 31, 2012 | ||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total | |||||||||||||
US$ in thousands | ||||||||||||||||
Option to acquire additional
|
||||||||||||||||
shares in investee
|
- | - | 485 | 485 | ||||||||||||
Swap contracts
|
- | 4,006 | - | 4,006 |
|
F.
|
Fair value (cont’d)
|
|
(4)
|
Level 3 financial instruments carried at fair value
|
Financial assets
|
||||
Option to
|
||||
purchase
|
||||
additional
|
||||
shares in
|
||||
investee
|
||||
US$ in thousands
|
||||
Balance as at January 27, 2011
|
98 | |||
Total losses recognized in Profit or loss
|
(46 | ) | ||
Balance as at December 31, 2011
|
52 | |||
Total income recognized in Profit or loss
|
146 | |||
Deferred income
|
287 | |||
Balance as at December 31, 2012
|
485 |
|
(5)
|
Fair value sensitivity analysis of level 3 financial instruments carried at fair value
|
December 31, 2012
|
||||||||||||||||
Increase
|
Decrease
|
|||||||||||||||
Profit or loss
|
Equity | Profit or loss |
Equity
|
|||||||||||||
US$ in thousands
|
||||||||||||||||
Option to purchase additional
shares in investee:
|
||||||||||||||||
Change in volatility of 10%
|
73 | 73 | (64 | ) | (64 | ) | ||||||||||
Change in volatility of 20%
|
141 | 141 | (129 | ) | (129 | ) | ||||||||||
Change in interest rate of 1%
|
43 | 43 | (40 | ) | (40 | ) | ||||||||||
Change in interest rate of 2%
|
87 | 87 | (73 | ) | (193 | ) |
A.
|
On January 28, 2013, the company entered into a binding Letter of Intent for the purchase of two Italian companies, each of which holds a photovoltaic (solar) site with fixed technology in the Veneto Region, Italy (Northern Italy), with an aggregate capacity of approximately 12MWp that are fully constructed and operating and were connected to the Italian national grid in August 2011 under the applicable Feed-in-Tariff (0.238 Euro/kWh) for the consideration of approximately Euro 25.5 million (approximately $33,600 thousand), based on a transaction cut-off date of September 30, 2012. Currently the parties are in an advanced stage of negotiations and upon the execution of the final agreements, the Company shall deposit in a trust account a nonrefundable deposit of Euro 12.5 million on account of the purchase price (approximately $16,500 thousand). Within 90 days thereafter, subject to the fulfillment of certain customary conditions precedent, the final closing of the transaction shall take place, in which the Company is to pay the remaining amount of up to Euro 13 million(approximately $17,150 thousand) on account of the purchase price (after calculation of applicable deductions (if any). According to the binding Letter of Intent, to the extent that the balance of the purchase price will not be paid by the Company and provided all other conditions have been satisfied, then the Seller may either extend the 90 day deadline or unilaterally terminate the agreements and request that the nonrefundable deposit be released to it from the trust account. The Company cannot terminate the agreement if it is unable to obtain financing. In March 2013, certain creditors of the Veneto Seller approached the German court requesting that the transaction be subject to approval of the creditors of the Veneto Seller and the court granted their request. Therefore, at this point there can be no assurance as to whether and when the Veneto Agreements will be finalized and executed and as to the fulfillment of all relevant conditions to closing that will be set forth therein.
|
Number
|
Description
|
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1.1
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Memorandum of Association of the Registrant (translated from Hebrew), reflecting amendments through June 9, 2011*
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1.2
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Second Amended and Restated Articles of the Registrant, reflecting amendments through June 20, 2012
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2.1
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Specimen Certificate for ordinary shares
(1)
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4.1
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1998 Share Option Plan for Non-Employee Directors
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4.2
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2000 Stock Option Plan
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4.3
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Form of Indemnification Agreement between the Registrant and its officers and directors
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4.4
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Form of Exemption Letter between the Registrant and its officers and directors
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4.5
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Management Services Agreement, by and among the Registrant, Kanir Joint Investments (2005) Limited Partnership and Meisaf Blue & White Holdings Ltd., effective as of March 31, 2008(2)
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4.6
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Engineering Procurement & Construction Contract for the Construction of a Photovoltaic System in Cingoli, between Ellomay PV One S.R.L. and Ecoware S.p.A., dated March 4, 2010 (portions translated from Italian)(3)*
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4.7
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Engineering Procurement & Construction Contract for the Construction of a Photovoltaic System in Senigallia, between Ellomay PV One S.R.L. and Ecoware S.p.A., dated March 4, 2010 (portions translated from Italian)(3)*
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4.8
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Side Agreement, between Ellomay PV One S.R.L. and Ecoware S.p.A., dated March 5, 2010(4)
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4.9
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Giaché Building Right Agreement (summary of Italian version)(5)*
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4.10
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Massaccesi Building Right Agreement (summary of Italian version)(5)*
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4.11
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Settlement Agreement and Release, dated July 27, 2010, between Ellomay Capital Limited and Hewlett-Packard Company(5)
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4.12
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Troia 8 Building Right Agreement (summary of Italian version)(5)*
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4.13
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Troia 9 Building Right Agreement (summary of Italian version)(5)*
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4.14
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Investment Agreement, among U. Dori Group Ltd., U. Dori Energy Infrastructures Ltd. and Ellomay Clean Energy Ltd. , dated November 25, 2010 (summary of Hebrew version)(5)*
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4.15
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Shareholders Agreement, among U. Dori Group Ltd., Ellomay Clean Energy Ltd. and U. Dori Energy Infrastructures Ltd., dated November 25, 2010 (summary of Hebrew version)(5)*
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4.16
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Agreement, between U. Dori Energy Infrastructures Ltd. and Israel Discount Bank Ltd., dated January 26, 2011 (summary of Hebrew version)(5)*
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4.17
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Engineering Procurement & Construction Contract for the Construction of a Photovoltaic Plant, between Urbe Techno S.r.l. and Pedale S.r.l., dated March 25, 2011 (portions translated or summarized from Italian)(includes a summary of the Building Rights Agreement)(5)*
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4.18
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Acquafresca Building Right Agreement (summary of Italian version)(1)*
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4.19
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D’Angella Building Right Agreement (summary of Italian version)(1)*
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Number
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Description
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4.20
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Rinconada II Building Right Agreement (summary of Spanish version)(1)*
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8
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List of Subsidiaries of the Registrant
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12.1
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Certification of Principal Executive Officer required by Rule 13a-14(a) and Rule 15d-14(a) (Section 302 Certification)
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12.2
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Certification of Principal Financial Officer required by Rule 13a-14(a) and Rule 15d-14(a) (Section 302 Certification)
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13
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Certification of Principal Executive Officer and Principal Financial Officer required by Rule 13a-14(b) and Rule 15d-14(b) (Section 906 Certification)
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15.1
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Consent of Somekh Chaikin
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15.2
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Consent of BDO
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15.3
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Consent of Kost Forer Gabbay & Kasierer
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*
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The original language version is on file with the Registrant and is available upon request.
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(1)
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Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2011 and incorporated by reference herein.
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(2)
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Previously filed with the Registrant’s Form 6-K dated December 1, 2008 and incorporated by reference herein.
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(3)
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Previously filed with Amendment No. 2 to the Registrant’s Form 20-F for the year ended December 31, 2009 and incorporated by reference herein.
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(4)
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Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2009 and incorporated by reference herein.
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(5)
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Previously filed with the Registrant’s Form 20-F for the year ended December 31, 2010 and incorporated by reference herein.
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1.
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The name of the Company is:
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2.
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The objects for which the Company was formed (state the main objects).
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(a)
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Advertisement on outdoor boards.
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(b)
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Manufacturing of computerized monitors on an international level.
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(c)
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Selling patents in the field of outdoor advertisement.
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(d)
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Development of sophisticated advertisement accessories.
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(e)
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To manage any business of equity owners, property owners, concession owners, financiers, agents, delegates, brokers, representatives and contractors, to take upon itself, to manage and to execute any finance and investment business.
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(f)
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To borrow, raise, secure the repayment of, any money, in such manner and on such terms and conditions as the Company may deem fit, and in particular – without derogating from the generality of the foregoing – by the issue of mortgages on its lands and other immovable properties and/or providing floating and/or fixed and special debentures and pledges and liens on any part of its lands and other assets, charged upon all or any of the property of the Company, present or future, and to repay, discharge or redeem any such mortgage, pledge or lien. The Company shall also be authorized to secure the repayment of monies it borrowed or will borrow by the issuance of debentures or series of debentures, new and otherwise, and to guarantee the repayment of such debentures by placing a charge of any kind, without any limitation, upon any part of the Company’s lands an all other assets, in whole or in part, present and future, including unpaid capital, and to acquire, release and redeem any such debentures, series of debentures or charges.
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(g)
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To lend money and to give advances or credit to, and to guarantee the debts and contracts of, such persons, firms and companies and on such terms and conditions as the Company may deem fit, and, in particular to customers and other persons having dealings with the Company, and to guarantee and be guarantor for such persons, firms or companies, and to accept from those to whom the Company shall lend money or give credit or guarantee all types of guarantees as the Company may deem fit, including – without limiting the generality of the foregoing – mortgages as well as pledges, charges, floating charges or security over any property of any kind, lands and chattels, and to release and surrender any such securities or redeem them on such terms as the Company may deem fit.
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(h)
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To carry on the business of producing, manufacturing, working, improving, developing, importing, exporting, transportation, supply, marketing, distribution, trading, exploiting and dealing in technical and mechanical equipment, apparatus, tools, utensils, appurtenances, accessories, containers, packings, raw materials, products, good and materials, of all kinds and description and for any use whatsoever.
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(i)
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To deal in any research, exploration and development of natural resources, and the exploitation thereof, to conduct researches with respect to this, and to establish, hold and operate institutions, experimental stations, laboratories and research associations.
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(j)
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To carry on the business of transportation and moving and in any means of transportation or transportation of any kind and type.
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(k)
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To apply for, purchase or otherwise acquire and obtain and register rights of use or inspection, to protect, extend and renew, in Israel or abroad, all kinds of patents, patent rights, brevet d’invention, licenses, protections, concessions (hereinafter – “patent rights”) which may, in the opinion of the Company, be conducive to the interests of the Company, and to use patent rights and work in accordance therewith, to exploit the same in any manner, to enter into any agreement and do any act whatsoever in connection with patent rights; to sell and otherwise dispose of patent rights and to grant licenses and privileges in connection with the same.
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(l)
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To engage in any scientific, technical, mechanical and other research work, experiments and tests, including for the purpose of improving or attempting to improve any invention and patent rights which the Company shall be entitled to, entitled to use or acquire or desire to acquire for itself.
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(m)
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To apply for, obtain, acquire, maintain, exploit, sell, transfer in all parts of the world, patterns, processes, know-how, trade secrets, permits, licenses, rights of possession, concessions, tenements and any other rights, privileges and benefits of any kind which may entitle, authorize or assist the Company to carry on any of the businesses which it is authorized to carry on.
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(n)
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To enter into any arrangements with any governments or authorities, whether central, municipal, local or otherwise, in all parts of the world, that may seem conducive to the objects of the Company, or any of them, and to obtain from any such government or authority any rights, privileges and concessions which the Company may think desirable to obtain, exploit or perform.
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(o)
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To adopt such means of making known the activities of the Company as may seem expedient, and, in particular, by advertising in the press, in the radio and in other ways, by circulars, by conducting exhibitions and advertising materials, and by granting prizes and grants.
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(p)
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To purchase or otherwise acquire and undertake any business – whether as a going concern or otherwise – and any property, assets, good-will, rights and obligations of any person or company, if it may benefit the Company or advance any interests that is within the framework of the Company’s objects.
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(q)
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To establish and incorporate, or to participate in the establishment or incorporation of any company, so that such company shall acquire or undertake any or all of the assets, rights and liabilities of the Company, or for any other purpose which might, in the opinion of the Company, assist, directly or indirectly, the Company to advance any interest that is within any of the Company’s objects.
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(r)
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To amalgamate or merge with any company.
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(s)
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To enter into partnership or any agreement for sharing of profits, combining of profits or cooperation with any person or company carrying on or entitled to carry on any business or businesses which the Company is entitled to carry on.
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(t)
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To sell and transfer the enterprise of the Company, in whole or in part, for such consideration as the Company may deem fit, and, in particular, in consideration for shares, debentures or other securities, to another company with objects similar, in whole or in part, to the objects of this Company.
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(u)
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To enter into any contract or agreement, and to execute any document, deed, contract or agreement, within the framework of the Company’s objects.
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(v)
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To insure the Company, its property, enterprises, plants and actions, in whole or in part, against any damages, loss, risk or liability.
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(w)
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To invest and deal with the monies of the Company not immediately required for its business in such manner as the Company may from time to time determine.
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(x)
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To distribute its assets, in whole or in part, among its members in specie; provided that such distribution would not cause a capital reduction not in accordance with the Companies Ordinance.
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(y)
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To provide pensions, grants and rewards to its employees and directors, or to persons who were its employees or directors, and to their family members, and to establish or support and assist with the opening of schools, educational or scientific institutions or commercial companies, whether related to the Company’s objects or not at all related, and the Company may also establish and maintain any club or other establishment for the benefit of the Company’s businesses or for the enjoyment of its employees and managers.
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(z)
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To act in order to attain any of the aforementioned objects, by virtue of this Memorandum of Association – to do such acts in Israel the Company is authorized – by virtue of the law, in any parts of the world, and to do in any country and place in the world, to perform and fulfill any commerce or business – that in the Company’s opinion could assist in the advancement of any issue within the framework of any object of the Company’s objects.
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(aa)
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To do all such actions related or connected to the objects included in this Memorandum of Association, explicitly or implicitly, or that may bring to the attainment of the above objects or any of them.
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(bb)
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To do all or any of the above actions, whether in Israel or outside of Israel in any part of the world, and either as principals, agents or trustees or otherwise, and either alone or in conjunction with others, and either by or through agents, contractors, trustees or otherwise.
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(cc)
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And it is hereby agreed and declared that in this Memorandum of Association the following expressions – whether appearing in the Memorandum of Association itself or in the Second Schedule to the Companies Ordinance
1
– shall have the following meanings:
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1
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Reference in this Memorandum to “the Second Schedule to the Companies Ordinance” is to the Second Schedule of the Companies Ordinance (New Version), 5743-1983.
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(dd)
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And it is hereby further agreed and declared that, unless it is expressly otherwise stated in this Memorandum of Association, each of the objects and powers specified in each of the sub-clauses of this Clause, including, having regard to the provisions of this sub-clause in each of the clauses of the Second Schedule to the Companies Ordinance, is a main and independent object, and shall in no way be limited or restricted by any reference or inference from any other sub-clause of this clause or any clause of the Second Schedule to the Companies Ordinance, or by any reference to or inference from the name of the Company.
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3.
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The liability of the members is limited.
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4.
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The Company’s share capital is NIS 170,000,000, divided into 17,000,000 ordinary shares of nominal value NIS 10.00 each.
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5.
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Any change to the provisions of this Memorandum relating to the share capital of the Company shall require the approval of members, participating at a General Meeting in person or by proxy and vested with more than fifty percent (50%) of the total voting power attached to the shares whose holders participated, in person or by proxy, at such General Meeting.
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Subscribers’ Names and ID Numbers
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Address and Description
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Number of Shares Taken
2
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Signatures
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Moshe Nuri
4657557
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30 Lochamei Hagetaot,
Pethach Tikva
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1994 Ordinary Shares
5 Management Shares
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/s/ Moshe Nuri
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Henya Nuri
5407479
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30 Lochamei Hagetaot,
Pethach Tikva
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1 Ordinary Share
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/s/ Henya Nuri
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2
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The class of management shares has been abolished and the shareholdings have changed.
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1.
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Interpretation
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1.1.
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In these Articles the following terms shall bear the meaning ascribed to them below:
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1.2.
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Sections 2, 3, 4, 5, 6, 7, 8 and 10 of the Interpretation Law, 5741-1981, shall apply, mutatis mutandis, to the interpretation of the Articles.
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1.3.
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The captions in the Articles are for convenience only and shall not be deemed a part hereof or affect the interpretation of any provision hereof.
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2.
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Name
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3.
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Purpose and Objective
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3.1.
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The objective of the Company shall be to undertake any lawful activity, including any objective set forth in the Memorandum (for as long as it is in effect).
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3.2.
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The purpose of the Company is to operate in accordance with commercial considerations with the intention of generating profits. Such considerations may take into account, amongst others, public interest and the interests of the Company’s creditors and employees. In addition, the Company may contribute reasonable amounts for any suitable purpose even if such contributions do not fall within the business considerations of the Company. The Board may determine the amounts of the contributions, the purpose for which the contribution is to be made, and the recipients of any such contribution.
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4.
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Share Capital
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5.
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Limited Liability
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6.
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Alteration of Share Capital
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6.1.
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Increase its share capital in an amount it considers expedient by the creation of new shares. The power to increase the share capital may be exercised by the Company whether or not all of the shares then authorized have been issued and whether or not all of the shares theretofore issued have been called up for payment. Such resolution shall set forth the amount of the increase, the number of the new shares created thereby, their nominal value and class, and may also provide for the rights, preferences of deferred rights that shall be attached to the newly created shares and the restrictions to which such shares shall be subject;
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6.2.
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Consolidate all or any of its issued or unissued share capital and divide same into shares of nominal value larger than the one of its existing shares;
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6.3.
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Subdivide all or any of its issued or unissued share capital, into shares of nominal value smaller than the one of its existing shares; provided, however, that the proportion between the amount paid and the amount unpaid on each share which is not fully paid-up shall be retained in the subdivision;
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6.4.
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Cancel any shares which, as at the date of the adoption of the resolution, have not been issued or agreed to be issued, and thereby reduce the amount of its share capital by the aggregate nominal value of the shares so canceled;
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7.
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Rights Attached to Shares
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7.1.
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Subject to any contrary provisions of the Memorandum (for as long as it is in effect) or the Articles, same rights, obligations and restrictions shall be attached to all the shares of the Company regardless of their denomination or class.
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7.2.
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If at any time the share capital is divided into different classes of shares, the rights attached to any class may be modified or abrogated by a resolution adopted by a Determining Majority at a General Meeting and by the adoption of a resolution, supported by a Determining Majority, approving same modification or abrogation at a General Meeting of the holders of the shares of such class.
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7.3.
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The creation of additional shares of a specific class, or the issuance of additional shares of a specific class, shall not be deemed, for purposes of article 7.2, a modification or abrogation of rights attached to shares of such class or of any other class.
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8.
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Issuance of Shares
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9.
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Share Certificates
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9.1.
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Each member shall be entitled, not later than 60 days from the date of issuance or the date of transfer, to receive from the Company one share certificate in respect of all the shares of any class registered in his name on the Register of Members or, if approved by the Company, several share certificates, each for one or more of such shares.
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9.2.
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Each share certificate issued by the Company shall be numerated, denote the class of the shares represented thereby and the name of the owner, thereof as registered on the Register of Members, and may also specify the amount paid-up thereon. A share certificate shall be signed on behalf the Company by the person or persons authorized by the Board.
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9.3.
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A share certificate denoting two or more persons as joint owners of the shares represented thereby shall be delivered to any one of the persons named on the Register of Members in respect of such joint ownership.
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9.4.
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A share certificate defaced or defective, may be replaced upon being delivered to the Company and being canceled. A share certificate lost or destroyed may be replaced upon furnishing of evidence to the satisfaction of the Board proving such loss or destruction and subject to the submission to the Company of an indemnity letter and/or securities as the Board may think fit.
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10.
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Owners of Shares
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11.
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Calls on Shares
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11.1.
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The Board may, from time to time, make calls upon members to perform payment of any amount of the consideration of their shares not yet paid, provided same amount is not, by the terms of issuance of same shares, payable at a definite date. Each member shall pay to the Company the amount of every call so made upon him at the time(s) and place(s) designated in such call. Unless otherwise stipulated in the resolution of the Board, each payment with respect to a call shall be deemed to constitute a pro-rata payment on account of all of the shares in respect of which such call was made.
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11.2.
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A call may contain a demand for payment in installments.
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11.3.
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A call shall be made in writing and shall be delivered to the member(s) in question not less than fourteen (14) days prior to the date of payment stipulated therein. Prior to the due date stipulated in the call the Board may, by delivering a written notice to the member(s), revoke such call, in whole or in part, postpone the designated date(s) of payment or change the designated place of payment.
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11.4.
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If, according to the terms of issuance of any share, any amount is due at a definite date, such amount shall be paid on same date, and the holder of the same share shall be deemed, for all intents and purposes, to have duly received a call in respect of such amount.
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11.5.
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The joint holders of a share shall be bound jointly and severally to pay all calls in respect thereof. A call duly made upon one of the joint holders shall be deemed to have been duly made upon all of the joint holders.
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11.6.
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Any amount not paid when due shall bear an interest from its due date until its actual payment at a rate equal to the then prevailing rate of interest for unauthorized overdrafts as charged by Bank Hapoalim Ltd, unless otherwise prescribed by the Board.
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11.7.
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The Board may agree to accept prepayment by any member of any amount due with respect to his shares, and may direct the payment of interest for such prepayment at a rate as may be agreed upon between the Board and the member so prepaying.
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11.8.
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Upon the issuance of shares of the Company, the Board may stipulate similar or different terms with respect to the payment of the consideration thereof by their respective holders.
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12.
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Forfeiture and Surrender
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12.1.
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If any member fails to pay when due any amount payable pursuant to a call, or interest thereon as provided for herein, the Company may, by a resolution of the Board, at any time thereafter, so long as said amount or interest remains unpaid, forfeit all or any of the shares in respect of which said call had been made. All expenses incurred by the Company with respect to the collection of any such amount of interest, including, inter-alia, attorney’s fees and costs of legal proceedings, shall be added to, and shall constitute a part of the amount payable to the Company in respect of such call for all purposes (including the accrual of interest thereon).
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12.2.
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Upon the adoption of a resolution of forfeiture, the Board shall cause the delivery of a notice thereof to the member in question. Same notice shall specify that, in the event of failure to pay the entire amount due within the period stipulated in the notice (which period shall be not less than thirty (30) days), same failure shall cause, ipso facto, the forfeiture of the shares. Prior to the expiration of such period, the Board may extend the period specified in the notice of forfeiture or nullify the resolution of forfeiture, but such nullification shall not estop nor derogate from the power of the Board to adopt a further resolution of forfeiture in respect of the non-payment of said amount.
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12.3.
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Whenever shares are forfeited as herein provided, all dividends theretofore declared in respect thereof and not actually paid shall be deemed to have been forfeited together with the shares.
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12.4.
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The Company, by a resolution of the Board, may accept the voluntary surrender by any member of all or any part of his shares.
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12.5.
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Any share forfeited or surrendered as provided herein shall thereupon constitute the property of the Company, and may be resold. Such shares that have not yet been resold shall be considered dormant shares.
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12.6.
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Any member whose shares have been forfeited or surrendered shall cease to be a member in respect of the forfeited or surrendered shares, but shall, notwithstanding, be obligated to pay to the Company all amounts at the time of forfeiture or surrender due to the Company with respect thereof, including interest and expenses as aforesaid until actual repayment, whether the maturity date of same amounts is on or prior to the date of forfeiture or surrender or at any time thereafter, and the Board, in its discretion, may enforce payment of such amounts or any part thereof, unless such shares have been resold in which event the provisions of the Law shall apply. In the event of such forfeiture or surrender, the Company, by a resolution of the Board, may accelerate the maturity date(s) of any or all amounts then owed to the Company by same member and not yet due, however, arising whereupon all of such amounts shall forthwith become due and payable.
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13.
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Lien
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13.1.
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The Company shall have, at all times, a first and paramount lien upon all the shares registered in the name of each member on the Register of Members, upon all the dividends declared in respect of such shares and upon the proceeds of the sale thereof, as security for his obligations. For the purposes of this Article 13 and of Article 14, the term “Obligation” shall mean any and all present and future indebtedness owed to the Company by a member with respect to his shares, however arising, whether such indebtedness is absolute or contingent, joint or several, matured or unmatured, liquidated or non-liquidated.
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13.2.
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Shall a member fail to fulfill any or all of his Obligations, the Company may enforce the lien, after same member was provided with a period of fourteen (14) days to fulfill the Obligations so breached.
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13.3.
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A member shall be obliged to reimburse the Company for all expenses thereby incurred with respect to the enforcement of a lien upon same member’s shares, and such obligation shall be secured by the shares which are subject to same lien.
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14.
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Sale of Shares after Forfeiture or Surrender or in Enforcement of Lien
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14.1.
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Upon any sale of shares after forfeiture or surrender or in the course of enforcement of a lien, the Company may appoint any person to execute an adequate instrument of transfer or any other instrument required to effect the sale, and shall be entitled to register the purchaser on the Register of Members as the holder of the shares so purchased. The purchaser shall not be obliged to check the regularity of the proceedings of forfeiture, surrender or enforcement of a lien or the use that was made consideration thereby paid with respect to the shares.
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14.2.
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The net proceeds of any such sale, after payment of the selling expenses, shall serve for repayment of the Obligations of the respective member, and the balance if any shall be paid to the member, his inheritors, the executors of his will, the administrators of his estate, and to persons on his behalf.
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15.
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Redeemable Securities
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16.
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Effectiveness of Transfer of Shares
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17.
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Procedure on Voluntary Transfer of Shares
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18.
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Transfer of Shares
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18.1.
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The transfer of shares of the Company and any other securities issued by the Company and owned by a Registered Holder (in this Article 18, hereinafter, “
Securities
”) shall be made in writing in a conventional manner or as established by the Board; it may be effected by the signature of the transferor only, on the condition that an appropriate share transfer deed shall be submitted to the Company.
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18.2.
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Securities that are not paid up in full or are subject to any lien or pledge may not be transferred unless the transfer is approved by the Board, which may at its sole discretion withhold its approval without having to show grounds.
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18.3.
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Any transfer of Securities that are not paid up in full shall be subject to the signature of the transferee and the signature of a witness in verification of the authenticity of the signatures on the share transfer deed.
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18.4.
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The transferor shall be deemed to be the Registered Holder of the transferred Securities until the name of the transferee is entered in the Register of Members.
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18.5.
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The share transfer deed shall be submitted to the office for registration together with the certificates to be transferred and such other evidence as the Company may require with regard to the transferor’s title or right to transfer the Securities. The share transfer deed shall remain with the Company after its registration.
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18.6.
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The Company may demand payment of a transfer registration fee at a rate to be determined by the Board from time to time.
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18.7.
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The Board may close the Register of Members for a period no longer than 30 days every year.
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18.8.
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Upon the death of a Registered Holder of Securities of the Company, the Company shall recognize the guardians, administrators of the estate, executors of the will, and in the absence of such persons, the inheritors of the deceased person as the only ones entitled to be registered as the Registered Holders of Securities of the Company, subject to proof of their rights in a manner established by the Board.
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18.9.
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In the event of the deceased member being a Registered Holder of a Security jointly with other persons, the surviving member shall be considered the sole Registered Holder of said Securities, upon the approval of the Company, without exempting the estate of the deceased joint holder from any of the obligations relating to the jointly held Securities.
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18.10.
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A person acquiring a right to a Security by virtue of his being a guardian or administrator of the estate or inheritor of the deceased member, or receiver, liquidator or trustee in liquidation proceedings regarding a corporate member, or by any operation of law, may be subject to submission of such proof of entitlement as the Board may establish be entered as the Registered Holder of the respective Security or transfer the Security subject to the provisions of the Articles with regard to such transfer.
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18.11.
|
A person acquiring a Security as a result of a transfer by operation of law shall be entitled to dividends and other rights in respect of the Security and also to receive and certify the receipt of dividends and other sums of money in connection with the said Security; however, such person shall not be entitled to receive notices of the convening of General Meetings of the Company or to participate or vote therein or to exercise any right conferred by the Security with the exception of the aforementioned rights, pending the registration of such person in the Register of Members.
|
19.
|
Issuance of Shares
|
20.
|
Annual Meeting
|
|
20.1.
|
An Annual Meeting shall be held once in every calendar year at such time (within a period of not more than fifteen (15) months after the last preceding Annual Meeting) and at such place as may be determined by the Board.
|
|
20.2.
|
The Annual Meeting shall:
|
|
20.2.1.
|
Discuss the audited financial statements of the Company for the last fiscal year;
|
|
20.2.2.
|
Appoint auditors and establish their remuneration, or empower the Board to establish their remuneration;
|
|
20.2.3.
|
Appoint the directors as stipulated in Article 32 below, and establish their remuneration;
|
|
20.2.4.
|
Discuss any other business to be transacted at a General Meeting according to the Articles or by operation of law.
|
21.
|
Extraordinary Meeting
|
|
21.1.
|
All General Meetings other than Annual Meetings shall be called “Extraordinary Meetings”.
|
|
21.2.
|
The Board may, whenever it thinks fit, convene an Extraordinary Meeting, and shall be obligated to do so upon receipt of a requisition in writing in accordance with Section 63 of the Law.
|
|
21.3.
|
Members of the Company shall not be authorized to convene an Extraordinary Meeting except as provided in Section 64 of the Law.
|
22.
|
Notice of General Meetings
|
|
22.1.
|
Prior to any General Meeting, a written notice thereof shall be made public as required by Law. Such notice shall specify the place, the day and the hour of the General Meeting, the agenda of the meeting and such other information required under law. The notice will be published not less than fourteen (14) days prior to any General Meeting. The Company shall not be required to deliver notice to each shareholder, except as may be specifically required by Law.
|
|
22.2.
|
Any written notice or other document may be served by the Company upon any member either personally or by sending it by prepaid mail addressed to such member at his address as described in the Register of Members or such other address as he may have designated in writing for the receipt of notices and other documents.
|
|
22.3.
|
Notwithstanding anything to the contrary herein, notice by the Company of a General Meeting which is published in one international wire service shall be deemed to have been duly given on the date of such publication.
|
23.
|
Quorum
|
|
23.1.
|
Two or more members present in person or by proxy and holding shares conferring in the aggregate more than twenty-five percent (25%) of the total voting power attached to the shares of the Company, shall constitute a quorum at General Meetings. No business shall be considered or determined at a General Meeting, unless the requisite quorum is present when the General Meeting proceeds to consider and/or determine same business.
|
|
23.2.
|
If within half an hour from the time appointed for the General Meeting a quorum is not present, the General Meeting shall, if convened upon requisition under Section 64 of the Law, be dissolved, but in any other case it shall stand adjourned on the same day, in the next week, at the same time and place. The requisite quorum at an adjourned General Meeting shall be any two or more members, present in person or by proxy. At an adjourned General Meeting the only businesses to be considered shall be those matters which might have been lawfully considered at the General Meeting originally called if a requisite quorum had been present, and the only resolutions to be adopted are such types of resolutions which could have been adopted at the General Meeting originally called.
|
24.
|
Chairman
|
25.
|
Adoption of Resolution at General Meetings
|
|
25.1.
|
A resolution,
including, but not limited to, a resolution to amend these Articles and to approve a merger of the Company,
shall be deemed adopted at a General Meeting if the requisite quorum is present and the resolution is supported by members present, in person or by proxy, vested with more than fifty percent (50%) of the total voting power attached to the shares whose holders were present, in person or by proxy, at such General Meeting and voted thereon, or such other percentage as is required by these Articles or by the Law.
|
|
25.2.
|
Any proposed resolution put to vote at a General Meeting shall be decided by a poll.
|
|
25.3.
|
Subject to approval by a General Meeting at which the requisite quorum is present, the chairman is obligated at the request of the General Meeting, to adjourn the General Meeting, and the adjourned meeting shall convene at such date and place as is decided by the General Meeting. If the General Meeting is adjourned by more than twenty-one (21) days, a notice of the adjourned meeting shall be given in the manner set forth in Sections 67 through 69 of the Law. An adjourned meeting may only transact such business as left unfinished at the original meeting.
|
|
25.4.
|
A declaration by the Chairman of the General Meeting that a proposed resolution has been adopted or rejected, shall constitute conclusive evidence of the adoption or rejection, respectively, of same resolution, and no further proof verifying the contents of such declaration or the number or proportion of the votes recorded in favor of or against such resolution shall be required.
|
|
25.5.
|
Notwithstanding anything to the contrary herein, for so long as the Shareholders Agreement is in effect, at the written request of any two directors with respect to any proposed action or transaction described below, such action or transaction shall require the approval of the General Meeting by a resolution supported by members
present, in person or by proxy
, vested with at least 50.1% of the outstanding shares of the Company, or by such higher approval threshold as may be required by Law:
|
|
25.5.1.
|
any transaction of the Company or of a subsidiary of the Company with (i) an Officer of the Company or a nominee to become a director of the Company, (ii) a shareholder of the Company which owns 5% or more of its outstanding share capital, (iii) a family member of the first degree of any of the foregoing persons or (iv) an Affiliate of any of the foregoing. “
Officer
” shall have the meaning of “office holder” under the Law. “
Affiliate
” shall mean, with respect to any party, any person (a) in which such party, directly or indirectly, owns at least majority interest (both economic and voting), (b) which directly or indirectly owns a majority interest (both economic and voting) in such party, or (c) which, directly or indirectly, is in Control of or is Controlled by such party. “
Control
” shall mean, with respect to a person that is a corporation, the ownership, directly or indirectly, of voting securities of such person carrying more than 50% of the voting rights attaching to all voting securities of such person which are sufficient, if exercised, to elect a majority of its board of directors, and in relation to a person that is a partnership, limited partnership, business trust or other similar entity, the ownership, directly or indirectly, of voting securities of such person carrying more than 50% of the voting rights attaching to all voting securities of the person or the ownership of other interests entitling the holder to exercise control and direction over the activities of such person;
|
|
25.5.2.
|
any amendment to the Memorandum or these Articles;
|
|
25.5.3.
|
any merger or consolidation of the Company;
|
|
25.5.4.
|
any material change in the Company’s scope of business;
|
|
25.5.5.
|
the voluntary liquidation or dissolution of the Company;
|
|
25.5.6.
|
approval of the Company’s annual budget and business plan, and any material deviation therefrom; and
|
|
25.5.7.
|
any change of the signatory rights on behalf of the Company.
|
26.
|
Voting Power
|
|
26.1.
|
Subject to the provisions of Article 27.1 below and subject to any other provision hereof pertaining to voting rights attached or not-attached to shares of the Company, whether in general or in respect of a specific matter or matters, every member shall have one vote for each share registered in his name on the Register of Members, regardless of its denomination or class.
|
|
26.2.
|
In case of equality of votes, the resolution shall be deemed to have been rejected.
|
27.
|
Attendance and Voting Rights at General Meeting
|
|
27.1.
|
Unless provided otherwise by the terms of issue of the shares, no member shall be entitled to be present or vote at a General Meeting (or be counted as part of the quorum thereat) unless all amounts due as at the date designated for same General Meeting with respect to his shares were paid.
|
|
27.2.
|
A corporate body being a member of the Company and entitled to vote and/or attend at a General Meeting may exercise such rights by authorizing any person, whether in general or for a specific General Meeting, to be present and/or vote on its behalf. Upon the request of the Chairman of the General Meeting, a writing evidence of such authorization and its validity (in a form acceptable to the Chairman) shall be furnished thereto.
|
|
27.3.
|
A member entitled to vote and/or attend at a General Meeting may appoint a proxy, whether is general or for a specific General Meeting, to exercise such rights, in a form approved by the Board.
|
|
27.4.
|
The instrument appointing a proxy shall be delivered to the Company not later than forty-eight (48) hours before the time designated for the General Meeting at which the person named in the instrument proposes to vote and/or attend.
|
|
27.5.
|
A member entitled to vote and/or attend at a General Meeting and is legally incapacitated, may exercise such rights by his custodian.
|
|
27.6.
|
If two or more persons are registered as joint owners of any share, the right to attend at a General Meeting, if attached to such share, shall be conferred upon all of the joint owners, but the right to vote at a General Meeting and/or the right to be counted as part of the quorum thereat, if attached to such share, shall be conferred exclusively upon the senior amongst the joint owners attending the General Meeting, in person or by proxy; and for this purpose seniority shall be determined by the order in which the names appear on the Register of Members.
|
|
27.7.
|
The voting on the terms of the instrument of proxy shall be legal even in case of prior death or incapacity or bankruptcy of the principal, and in respect of a corporate principal, in case of its winding up or revocation of the instrument of proxy or transfer of the respective share, unless a notice in writing of such death or incapacity or bankruptcy or winding up or revocation of share transfer shall have been received by the Register of Members.
|
|
27.8.
|
No proxy shall be valid after the expiry of 12 months from the date of its issue.
|
28.
|
Powers of the Board
|
|
28.1.
|
The Board shall be vested with the exclusive authority to exercise all of the Company’s powers which are not, by Law, the Memorandum (for as long as it is in effect), the Articles or any applicable law, required to be exercised by the General Meeting, the General Manager, or any other organ of the Company as such term is defined in the Law.
|
|
28.2.
|
The Board shall set the policy guidelines for the Company and shall supervise the performance and activities of the General Manager.
|
29.
|
Exercise of Powers of the Board
|
|
29.1.
|
The powers conferred upon the Board shall be vested in the Board as a collective body, and not in each one or more of the directors individually, and all such powers may be exercised by the Board by adopting resolutions in accordance with the provisions of the Articles.
|
|
29.2.
|
Except as otherwise required by these Articles, a resolution shall be deemed adopted at a meeting of the Board if supported by a majority of the directors attending such meeting and entitled to vote thereon. The Chairman of the Board shall have no casting vote, except as set forth in Article 41.2.
|
|
29.3.
|
The Board may hold meetings using any means of communication, provided that all of the directors participating can simultaneously hear one another.
|
|
29.4.
|
The Board may adopt resolutions without convening a meeting, as provided in the Law.
|
30.
|
Committees of Directors
|
|
30.1.
|
The Board may, subject to Section 112 of the Law, delegate any or all of its powers to committees, each consisting of two or more directors, one of which shall be an External Director, and it may, from time to time, revoke or alter the powers so delegated. Without derogating from the generality of the foregoing, subject to the Law, the Board may delegate to a committee its power to approve the terms of compensation of officers. Each committee shall, in the exercise of the powers so delegated, conform to any regulations and conditions prescribed by the Board upon the delegation or at any other time. Each resolution adopted by a committee within the powers delegated to it by the Board shall be deemed to have been held by the Board.
|
|
30.2.
|
The Board will appoint from among its members an audit committee. All External Directors shall be members of the audit committee.
|
|
30.3.
|
The provision of the Articles with respect to the meetings of the Board, their convening and adoption of resolutions thereat shall apply, mutatis mutandis, to the meetings of any such committee, unless otherwise prescribed by the Board.
|
31.
|
Number of Directors
|
32.
|
Appointment and Removal of Directors
|
|
32.1.
|
The directors shall be elected annually at a General Meeting as aforesaid and shall remain in office until the next Annual Meeting at which time they shall retire, unless their office is vacated previously as stipulated in the Articles, provided however that the External Directors shall be appointed, and shall remain in office, as prescribed in the Law.
|
|
32.2.
|
The elected directors shall assume office on the day of their election.
|
|
32.3.
|
A retiring director may be reelected. Pending the convening of an Annual Meeting at which the directors are to retire from office, all directors shall remain in office until the convening of the Annual Meeting of the Company except in case of prior vacation of a director’s office according to the Articles.
|
|
32.4.
|
If no directors are elected at the Annual Meeting, all the retiring directors shall remain in office pending their replacement by a General Meeting of the Company.
|
|
32.5.
|
Except with regard to a director whose tenure of office expires upon the convening of a General Meeting or a person recommended by the Board to serve as director, no motions for appointment of a candidate as a director shall be made unless a notice in writing signed by a member of the Company (other than the candidate himself) who is entitled to participate in and vote at the meeting, stating the intent of the said member to propose a candidate for election to the office of director, together with a document in writing by the candidate expressing his consent to be so elected, shall have been received at the office of the Company within a period of not less than forty-eight (48) hours and not more than forty-two (42) days before the appointed date of the General Meeting.
|
|
32.6.
|
The General Meeting may, by way of a resolution, remove a director from office before the expiry of his tenure, and appoint another person to serve as director of the Company in his place, and also appoint a number of directors in the event of the number of directors having decreased below the minimum established by the General Meeting.
|
|
32.7.
|
The provisions of this Article 32 shall not apply to External Directors, whose appointment and removal shall be pursuant to the relevant provisions of the Law.
|
33.
|
Qualification of Directors
|
34.
|
Vacation of Director’s Office
|
|
34.1.
|
Upon his death;
|
|
34.2.
|
On the date at which he is declared a bankrupt;
|
|
34.3.
|
On the date he is declared legally incapacitated;
|
|
34.4.
|
On the date stipulated therefor in the resolution of his election or the notice of his appointment, as the case may be;
|
|
34.5.
|
On the date stipulated therefor in the resolution or notice of his removal or on the date of the delivery of such notice to the Company, whichever is later;
|
|
34.6.
|
On the date stipulated therefor in a written notice of resignation thereby delivered to the Company or upon its delivery to the Company, whichever is later.
|
|
34.7.
|
If he is convicted in a final judgment of an offence of a nature which disqualifies a person from serving as a director, as set forth in the Law.
|
|
34.8.
|
If a court of competent jurisdiction decides to terminate his office, in accordance with the provisions of the Law, in a decision or judgment for which no stay of enforcement is granted.
|
35.
|
Remuneration of Directors
|
36.
|
Conflict of Interests
|
37.
|
Alternate Director
|
|
37.1.
|
Subject to the approval of the Board, a director may, by delivering a written notice to the Company, appoint an alternate for himself (hereinafter referred to as “
Alternate Director
”), remove such Alternate Director and appoint another Alternate Director in place of any Alternate Director appointed by him whose office has been vacated for any reason whatsoever. The appointment of the Alternate Director shall be for an indefinite period and for all purposes, unless restricted to a specific period, to a specific meeting or act of the Board, to a specific matter or in any other manner, and same restriction was specified in the appointment instrument or in a written note delivered to the Company.
|
|
37.2.
|
Any notice delivered to the Company pursuant to Article 37.1 shall become effective on the date specified therefor therein or upon delivery thereof to the Company or upon approval of the Board, whichever is later.
|
|
37.3.
|
An Alternate Director shall be vested with all rights and shall bear all obligations of the director who appointed him, provided, however, that he shall not be entitled to appoint an alternate for himself (unless the instrument appointed him expressly provides otherwise), and provided further that the Alternate Director shall have no standing at any meeting of the Board or any committee thereof whereat the director who appointed him is present.
|
|
37.4.
|
The following may not be appointed nor serve as an Alternate Director: (i) a person not qualified to be appointed as a director, (ii) an actual director, or (iii) another Alternate Director.
|
|
37.5.
|
The office of an Alternate Director shall be vacated under the circumstances, mutatis mutandis, set forth in Article 34, and such office shall further be ipso facto vacated if the director who appointed such Alternate Director ceases to be a director.
|
38.
|
Meeting of the Board
|
|
38.1.
|
Subject to Articles 40 and 41 below, the Board may meet, adjourn its meeting and otherwise determine and regulate such meetings and their proceedings as it deems fit.
|
|
38.2.
|
Upon the vacation of the office of a director, the remaining directors may continue to discharge their functions until the number of remaining directors decreases below the minimum established in the Articles. In the latter case the remaining directors may only act to convene a General Meeting of the Company.
|
|
38.3.
|
The Board, by unanimous approval of all directors then in office, may at any time appoint any person to serve as director as replacement for a vacated office or in order to increase the number of directors, subject to the condition that the number of directors shall not exceed the maximum established in these Articles. Any so appointed director shall remain in office until the next Annual Meeting, at which he may be reelected.
|
39.
|
Convening Meetings of the Board
|
|
39.1.
|
The Chairman of the Board may, at any time, convene a meeting of the Board, and shall be obliged to do so (i) at least once every three months, (ii) upon receipt of a written demand from any one director, or (iii) in accordance with Section 122(4) or 169 of the Law. In the event there is no such Chairman or a meeting of the Board was not convened to a date which is no later then ten (10) days following delivery of such written demand or receipt of the relevant notice or report, any of the abovementioned directors may convene a meeting of the Board.
|
|
39.2.
|
A resolution adopted at a meeting of the Board, which had not convened in accordance with the necessary requirements set forth in the Law or these Articles may be invalidated in accordance with the applicable provisions of the Law.
|
|
39.3.
|
A director may waive his right to receive prior notice of any meeting, in general or in respect of a specific meeting, and shall be deemed to have waived such right with respect to any meeting at which he was present.
|
40.
|
Quorum
|
41.
|
Chairman of the Board
|
|
41.1.
|
The Board may from time to time elect one of its members to be the Chairman of the Board, remove such Chairman from office and appoint another in his place. However, the General Manager shall not serve as the Chairman of the Board, nor shall the Chairman of the Board be vested with the powers designated to the General Manager, except in accordance with Section 121(3) of the Law. The Chairman of the Board shall preside at every meeting of the Board, but if there is no such Chairman, or if he is not present or he is unwilling to take the chair at any meeting, the directors present shall elect one of their members to be chairman of such meeting.
|
|
41.2.
|
The Chairman of the Board shall have no casting vote, unless (i) the Chairman of the Board is then Mr. Shlomo Nehama and (ii) Nechama Investments, together with any Affiliates thereof, then holds at least 25.05% of the outstanding shares of the Company.
Notwithstanding the foregoing, in
case Mr. Shlomo Nehama elects to exercise his casting vote in respect of a specific resolution brought before the Board (the “
Triggering Resolution
”), then (a) prior to such exercise, Nechama Investments shall be required to trigger the “Buy Me Buy You” mechanism set forth in Section
6 of the Shareholders Agreement as an Offering Party (as defined in the Shareholders Agreement), whereby the Triggering Resolution will be pending until the consummation of the sale of the Restricted Shares (as defined in the Shareholders Agreement) of one party to the Shareholders Agreement to the other party of the Shareholders Agreement in accordance with such “Buy Me Buy You” mechanism; and (b) in the event that three (3) directors of the Company so require, the Triggering Resolution shall be conditioned upon the approval of the General Meeting pursuant to Article 25.1. Upon a transfer of the Restricted Shares by Kanir to third party in accordance with the terms of the Shareholders Agreement, the casting vote of the Chairman of the Board shall expire.
|
42.
|
General Manager
|
|
42.1.
|
The Board shall appoint one or more persons, whether or not directors, as General Manager(s) of the Company, either for a definite period or without any limitation of time, and may confer powers, authorities and rights and/or impose duties and obligations upon such person or persons and determine his or their salaries as the Board may deem fit and subject to the provisions of the Law. Subject to the Law, the Board may delegate to the General Manager its power to approve the terms of compensation of other officers.
|
43.
|
Minutes
|
|
43.1.
|
The proceedings of each meeting of the Board and meeting of committee of the Board shall be recorded in the minutes of the Company. Such minutes shall set forth the names of the persons present at every such meeting and all resolutions adopted thereat and shall be signed by the chairman of the meeting.
|
|
43.2.
|
All minutes approved and signed by the chairman of the meeting or the Chairman of the Board, shall constitute prima facie evidence of its contents.
|
44.
|
Internal Auditor
|
|
44.1.
|
The Board shall appoint an internal auditor in accordance with the provisions of the Law.
|
|
44.2.
|
The Internal Auditor shall submit to the audit committee a proposal for an annual or periodic work program for its approval. The Audit Committee shall approve such proposal subject to the modifications which it considers necessary.
|
|
44.3.
|
The General Manager shall be in charge of and supervise the Internal auditor’s performance of its obligations.
|
45.
|
Declaration of Dividends
|
|
45.1.
|
The Board may, from time to time, subject to the provisions of the Law, declare a dividend at a rate as the Board may deem considering the accrued profits of the Company as set forth in its financial statements, and provided that the payment of such dividends will not reasonably prevent the Company from meeting its current and expected liabilities.
|
|
45.2.
|
Subject to any special or restricted rights conferred upon the holders of shares as to dividends, all dividends shall be declared and paid in accordance with the paid-up capital of the Company attributable to the shares in respect of which the dividends are declared and paid. The paid-up capital attributable to any share (whether issued at its nominal value, at a premium or at a discount), shall be nominal value of such share. Provided, however that if the entire consideration for same share was not yet paid to the Company, the paid-up capital attribute thereto shall be such proportion of the nominal value as the amount paid to the Company with respect to the share bears to its full consideration, and further provided the amounts which have been prepaid on account of shares and the Company has agreed to pay interest thereon shall not be deemed, for the purposes of this Article, to be payments on account of such shares. In the event no amount has been paid with respect to any shares whatsoever, dividends may be declared and paid according to the nominal value of the shares.
|
|
45.3.
|
Notice of the declaration of dividends shall be published as required by applicable law.
|
46.
|
Rights to Participate in the Distribution of Dividends
|
|
46.1.
|
Subject to special rights with respect to the Company’s profits to be conferred upon any person pursuant to these Articles and the Law, all the profits of the Company may be distributed among the members entitled to participate in the distribution of dividends.
|
|
46.2.
|
Notwithstanding for foregoing, a holder of shares shall not be attributed with the right to participate in the distribution of dividends the record date for which preceded the date of issuance of such shares.
|
47.
|
Interest on Dividends
|
48.
|
Payment of Dividends
|
49.
|
Payment in Specie
|
50.
|
Setting-Off Dividends
|
51.
|
Unclaimed Dividends
|
|
51.1.
|
Dividends unclaimed by the person entitled thereto within thirty (30) days after the date stipulated for their payment, may be invested or otherwise used by the company, as it deems fit, until claimed; but the Company shall not be deemed a trustee in respect thereof.
|
|
51.2.
|
Dividends unclaimed within the period of seven (7) years from the date stipulated for their payment, shall be forfeited and shall revert to the Company, unless otherwise directed by the Board.
|
52.
|
Reserves and Funds
|
|
52.1.
|
The Board may, before recommending the distribution of dividends, determine to set aside out of the profits of the Company or out of an assets revaluation fund and carry to reserve or reserves such sums as it deems fit, and direct the designation, application and use of such sums. The Board may further determine that any such sums which it deems prudent not to distribute as dividends will not be set aside for reserve, but shall remain as such at the disposal of the Company.
|
|
52.2.
|
The Board may, from time to time, direct the revaluation of the assets of the Company, in whole or in part, and the creation of an assets revaluation fund out of the revaluation surplus, if any.
|
53.
|
Capitalization of Profits
|
|
53.1.
|
The Board may capitalize all or any part of the sums or assets allocated to the credit of any reserve fund or to the credit of the profit and loss account or being otherwise distributable as dividends (including sums or assets received as premiums on the issuance of shares or debentures), and direct accordingly that such sums or assets be released for distribution amongst the members who would have been entitled thereto if distributed by way of dividends and in the same proportion; provided that same sums or assets be not paid in cash or in specie but be applied for the payment in full or in part of the unpaid consideration of the issued shares held by such members and/or for the payment in full of the consideration (as shall be stipulated in said resolution) for shares or debentures of the Company to be issued to such members subsequent to the date of said resolution, credited as fully paid up.
|
|
53.2.
|
In the event a resolution as aforesaid shall have been adopted, the Board shall make all adjustments and applications of the moneys or assets resolved to be capitalized thereby, and shall do all acts and things required to give effect thereto. The Board may authorize any person to enter into agreement with the Company on behalf of all members entitled to participate in such distribution, providing for the issuance to such members of any shares or debentures, credited as fully paid, to which they may be entitled upon such capitalization or for the payment on behalf of such members, by the application thereto of the proportionate part of the money or assets resolved to be capitalized, of the amounts or any part thereof remaining unpaid on their existing shares, and any agreement made under such authority shall be effective and binding upon all such members.
|
54.
|
Accounting Books
|
|
54.1.
|
The Board shall cause the Company to hold proper accounting books and to prepare an annual balance sheet, a statement of Profit and Loss, and such other financial statements as the Company may be required to prepare under law.
|
|
54.2.
|
The Board may determine at its sole discretion the terms on which any of the accounts and books of the Company shall be open to inspection by members, and no member (other than a director) shall be entitled to inspect any account or ledger or document of the Company unless such right is granted by law or by the Board.
|
|
54.3.
|
At least once a year, the Board shall submit to the Annual Meeting financial statements for the period from the previous statement as required by Law. The balance sheet shall be accompanied by an auditors’ report, if available.
|
|
54.4.
|
The Company shall not be required to send copies of its financial statements to members.
|
55.
|
Authority to keep Branch Registers
|
56.
|
Provisions in respect of keeping Branch Registers
|
57.
|
The Company’s Signature
|
|
57.1.
|
A document shall be deemed signed by the Company upon the fulfillment of the following:
|
|
57.1.1.
|
It bears the name of the Company in print;
|
|
57.1.2.
|
It bears the signature of one or more persons authorized therefor by the Board; and
|
|
57.1.3.
|
The act of the person authorized by the Board as aforesaid was within its authority and without deviation therefrom.
|
|
57.2.
|
The signatory rights on behalf of the Company shall be determined by the Board.
|
|
57.3.
|
An authorization by the Board as provided in Article 57.2 may be for a specific matter, for a specific document or for a certain sort of document or for all the Company’s documents or for a definite period of time or for an unlimited period of time, provided that any such authority may be terminated by Board, at will.
|
|
57.4.
|
The provisions of this Article shall apply both to the Company’s documents executed in Israel and the Company’s documents executed abroad.
|
58.
|
Notices in Writing
|
|
58.1.
|
Notices pursuant to the Law, the Memorandum and the Articles shall be made in the manner prescribed by the Board from time to time.
|
|
58.2.
|
Unless otherwise prescribed by the Board, all notices shall be made in writing and shall be sent by mail.
|
59.
|
Delivery of Notices
|
|
59.1.
|
Each member and each director shall notify the Company in writing of his address for the receipt of notices, documents and other communications relating to the Company, its business and affairs.
|
|
59.2.
|
Any notice, document or other communication shall be deemed to have been received at the time received by the addressee, or if sent by registered mail, within three (3) days from its dispatch, whichever is earlier.
|
|
59.3.
|
The address for the purposes of Article 59.2 shall be the address furnished pursuant to Article 59.1, and the address of the Company for the purposes of Article 59.2 shall be its registered address or principal place of business.
|
60.
|
Indemnity of Officers
|
|
60.1.
|
The Company may, from time to time and subject to any provision of law, indemnify an Officer in respect of a liability or expense set out below which is imposed on him or incurred by him as a result of an action taken in his capacity as an Officer of the Company:
|
|
60.1.1.
|
monetary liability imposed on him in favor of a third party by a judgment, including a settlement or a decision of an arbitrator which is given the force of a judgment by court order;
|
|
60.1.2.
|
reasonable litigation expenses, including legal fees, incurred by the Officer as a result of an investigation or proceeding instituted against such Officer by a competent authority, which investigation or proceeding has ended without the filing of an indictment or in the imposition of financial liability in lieu of a criminal proceeding, or has ended in the imposition of a financial obligation in lieu of a criminal proceeding for an offence that does not require proof of criminal intent (the phrases “proceeding that has ended without the filing of an indictment” and “financial obligation in lieu of a criminal proceeding” shall have the meanings ascribed to such phrases in Section 260(a)(1a) of the Companies Law) or in connection with an administrative enforcement proceeding or a financial sanction. Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the Officer in favor of an injured party as set forth in Section 52[54](a)(1)(a) of the Israeli Securities Law, 1968 (as amended, the “Securities Law”), and expenses that the Officer incurred in connection with a proceeding under Chapters H'3, H'4 or I'1 of the Securities Law, including reasonable legal expenses, which term includes attorney fees; and
|
|
60.1.3.
|
reasonable litigation expenses, including legal fees, which the Officer has incurred or is obliged to pay by the court in proceedings commenced against him by the Company or in its name or by any other person, or pursuant to criminal charges of which he is acquitted or criminal charges pursuant to which he is convicted of an offence which does not require proof of criminal intent.
|
|
60.2.
|
The Company may, from time to time and subject to any provision of the law:
|
|
60.2.1.
|
Undertake in advance to indemnify an Officer of the Company for any of the following:
|
|
(i)
|
any liability as set out in Article 60.1.1 above, provided that the undertaking to indemnify is limited to the classes of events which in the opinion of the Board can be anticipated in light of the Company’s activities at the time of giving the indemnification undertaking, and for an amount and/or criteria which the Board has determined are reasonable in the circumstances and, the events and the amounts or criteria that the Board deem reasonable in the circumstances at the time of giving of the undertaking are stated in the undertaking;
|
|
(ii)
|
any liability stated in Article 60.1.2 or 60.1.3 above;
|
|
(iii)
|
any matter permitted by applicable law.
|
|
60.2.2.
|
indemnify an Officer after the occurrence of the event which is the subject of the indemnity.
|
61.
|
Insurance of Officers
|
|
61.1.1.
|
A breach of a cautionary duty toward the Company or toward another person;
|
|
61.1.2.
|
A breach of a fiduciary duty toward the Company, provided the Officer acted in good faith and has had reasonable ground to assume that the act would not be detrimental to the Company;
|
|
61.1.3.
|
A monetary liability imposed upon an Officer toward another;
|
|
61.1.4.
|
Reasonable litigation expenses, including attorney fees, incurred by the Officer as a result of an administrative enforcement proceeding instituted against him. Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the Officer in favor of an injured party as set forth in Section 52[54](a)(1)(a) of the Securities Law and expenses that the Officer incurred in connection with a proceeding under Chapters H'3, H'4 or I'1 of the Securities Law, including reasonable legal expenses, which term includes attorney fees;
|
|
61.1.5.
|
Any other matter in respect of which it is permitted or will be permitted under applicable law to insure the liability of an Officer in the Company.
|
61A.
|
Exemption
|
62.
|
Distribution of Assets
|
1.
|
Shareholder Approval and Purpose
|
|
1.1.
|
Shareholder Approval
. At the Company's December 8, 1998 Annual Meeting of Shareholders, the Plan was ratified by an affirmative vote of the holders of a majority of the Shares which were present in person or by proxy and entitled to vote at the Meeting.
|
|
1.2.
|
Purpose of the Plan
. The Plan is intended to closely align the interests of the Non-Employee Directors with the interests of the Company's shareholders. This is achieved by making a significant portion of Non-Employee Director compensation directly related to the total return performance of the Shares. The Plan also is intended to encourage Share ownership on the part of Non-Employee Directors.
|
2.
|
Definitions
|
|
2.1.
|
"
Award
" means, individually or collectively, a grant under the Plan of an Option.
|
|
2.2.
|
"
Board
" means the Board of Directors of the Company.
|
|
2.3.
|
"
Committee
" means the committee appointed pursuant to Section 3.1 to administer the
Plan.
|
|
2.4.
|
"
Company
" means NUR Macroprinters Ltd., an Israeli corporation, or any successor thereto.
|
|
2.5.
|
"
Control
" shall have the meaning ascribed thereto in Section 102 of the Ordinance.
|
|
2.6.
|
"
Director
" means any individual who is a member of the Board.
|
|
2.7.
|
"
Disability
" means a permanent and total disability, as determined by the Committee (in its discretion) in accordance with uniform and non-discriminatory standards adopted by the Committee from time to time.
|
|
2.8.
|
"
Exercise Price
" means the price at which a Share may be purchased by a Participant pursuant to the exercise of an Option.
|
|
2.9.
|
"
Fair Market Value
" means the average closing bid and sale prices of the Shares for the date in question as furnished by the National Association of Securities Dealers, Inc. through Nasdaq or any similar organization if Nasdaq is no longer reporting such information, or such other market on which the Shares are then traded, or if not then traded as determined in good faith (using customary valuation methods) by resolution of the members of the Board of Directors of the Company, based on the best information available to it.
|
|
2.10.
|
"
Grant Date
" means, with respect to 1998, October 26, 1998 and, with respect to each subsequent calendar year, August 1. For example, for 1999, the Grant Date is August 1, 1999. With respect to a particular Award, "Grant Date" means the particular Grant Date on which the Award was granted. Notwithstanding the preceding, a Non-Employee Director who is first elected or appointed on other than December 8, 1998, shall have only an initial Grant Date coincident with the date of his or her commencement of service on the Board.
|
|
2.11.
|
"
Holding Period
" means the period in which the Options granted to an Israeli Participant or, upon exercise thereof the Shares underlying thereunder, are to be held by the Trustee on behalf of such Israeli Participant, in accordance with Section 102 of the Ordinance, and pursuant to the Tax Track which the Company selects.
|
|
2.12.
|
"
Israeli Participants
" means Non-Employee Directors who do not Control the Company and who are subject to payment in Israel of tax on their income from the Company (other than withholding tax), as the Committee, in its discretion shall determine.
|
|
2.13.
|
"
Non-Employee Director
" means a Director who is an employee of neither the Company nor of any Subsidiary.
|
|
2.14.
|
"
Non-Israeli Participants
" means all Non-Employee Directors who are not Israeli Participants.
|
|
2.15.
|
"
Option
" means an option to purchase Shares granted pursuant to Section 5
|
|
2.16.
|
"
Option Agreement
" means the written agreement between the Company and a Participant setting forth the terms and provisions applicable to each Option granted under the Plan.
|
|
2.17.
|
"
Ordinance
" means the Israeli Income Tax Ordinance [New Version], 1961, as amended and any regulations, rules, orders or procedures promulgated thereunder.
|
|
2.18.
|
"
Participant
" means a Non-Employee Director who has an outstanding Award.
|
|
2.19.
|
"
Plan
" means this 1998 Share Option Plan for Non-Employee Directors, as set forth in this instrument and as hereafter amended from time to time.
|
|
2.20.
|
"
Shares
" means the Ordinary Shares of the Company, NIS 10.00 nominal value.
|
|
2.21.
|
"
Subsidiary
" means any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain then owns shares possessing fifty percent (50%) or more of the total combined voting power of all classes of shares in one of the other corporations in such chain.
|
|
2.22.
|
"
Tax Track
" means one of the three tax tracks described under Section 102 of the Ordinance, specifically: (1) the "Capital Gains Track Through a Trustee"; (2) "Income Tax Track Through a Trustee"; or (3) the "Income Tax Track Without a Trustee"; each as defined respectively in Sections 6.2 and 6.3 of the Plan.
|
|
2.23.
|
"
Termination of Service
" means a cessation of the Participant's service on the Board for any reason.
|
|
2.24.
|
"
Trustee
" means the trustee appointed by the Company under the Trust Agreement as set forth in Section 6.5 of the Plan.
|
3.
|
Administration
|
|
3.1.
|
The Committee
. The Plan shall be administered by the Committee. The Committee shall consist of one or more Directors who shall be appointed by, and serve at the pleasure of, members of the Company's Board who are not eligible to receive Awards under the Plan. The Committee shall be comprised solely of a Director or Directors who are not eligible to receive Awards under the Plan.
|
|
3.2.
|
Authority of the Committee
. It shall be the duty of the Committee to administer the Plan in accordance with the Plan's provisions. The Committee shall have all powers and discretion necessary or appropriate to administer the Plan and to control its operation, including, but not limited to, the power to (a) interpret the Plan and the Awards, (b) adopt rules for the administration, interpretation and application of the Plan as are consistent therewith, (c) interpret, amend or revoke any such rules, and (d) adopt such procedures and subplans as are necessary or appropriate to permit participation in the Plan by Non-Employee Directors who are non-Israeli nationals or employed outside of Israel.
|
|
3.3.
|
Decisions Binding
. Subject to the provisions of any applicable law, all determinations and decisions made by the Committee related to the Plan and its application shall be final, conclusive, and binding on all persons, and shall be given the maximum deference permitted by law.
|
4.
|
Shares Subject to the Plan
|
|
4.1.
|
Number of Shares
. Subject to adjustment as provided in Section 4.3, the total number of Shares available and reserved for grant under the Plan shall not exceed 75,000. Shares granted under the Plan shall be taken from the Company's authorized but unissued Shares.
|
|
4.2.
|
Lapsed Awards
. If an Award terminates or expires for any reason, any Shares subject to such Award again shall be available to be the subject of an Award.
|
|
4.3.
|
Adjustments in
Awards and Authorized Shares
. In the event of any merger, reorganization, consolidation, recapitalization, separation, liquidation, share dividend, split-up, Share combination, or other change in the corporate structure of the Company affecting the Shares, the Committee shall adjust the number and class of Shares which may be delivered under the Plan, and the number, class, and Exercise Price of Shares subject to outstanding Awards and future grants, in such manner as the Committee (in its sole discretion) shall determine to be appropriate to prevent the dilution or diminution of such Awards. Notwithstanding the preceding, the number of Shares subject to any Award always shall be a whole number.
|
5.
|
Share Options
|
|
5.1.
|
Granting of Options
|
|
5.1.1.
|
Directors serving on the 1998 Grant Date
. Each Non-Employee Director who is such on the 1998 Grant Date, shall automatically receive, as of the 1998 Grant Date, an Option to purchase 10,000 Shares. Each Non-Employee who has received an Option pursuant to the preceding sentence shall also automatically receive, as of each subsequent Grant Date, an Option to purchase 10,000 Shares, provided that the individual shall receive an Option on any such subsequent Grant Date only if he or she both (a) is a Non-Employee Director on the Grant Date, and (b) has served as a Non-Employee Director for the entire period since the last Grant Date.
|
|
5.1.2.
|
Directors first elected or appointed after the 1998 Grant Date
. Each Non- Employee Director who first becomes such after the 1998 Grant Date, automatically shall receive on his or her initial Grant Date an option to purchase up to 10,000 Shares prorated based on the number of full months of service between the prior annual Grant Date and the next Grant Date. A Director joining the Board on or before the 15
th
day of the month will receive credit for service for the full month. For example, (a) if a Non-Employee Director joins the Company as such on June 15, 1999 such Director would be entitled to an initial grant of options to purchase 2,222 Shares and (b) if a Non-Employee Director joined the Company on June 15 of any subsequent year, such Director would be entitled to an initial grant of options to purchase 1,667 Shares. Each such Non-Employee Director also shall automatically receive, as of each subsequent Grant Date, an Option to purchase 10,000 Shares annually, provided that the individual shall receive an Option on any such Grant Date only if he or she both (y) is a Non- Employee Director on the Grant Date, and (z) has served as a Non-Employee Director for the entire period since the last Grant Date.
|
|
5.2.
|
Terms of Options
|
|
5.2.1.
|
Option Agreement
. Each Option granted pursuant to this Section 5 shall be evidenced by a written Option Agreement (satisfactory to the Committee), which shall be executed by the Participant and the Company.
|
|
5.2.2.
|
Exercise Price
. The Exercise Price for the Shares subject to each Option shall be 100% of the Fair Market Value of such Shares on the applicable Grant Date.
|
|
5.2.3.
|
Exercisability
. Each Option granted pursuant to Section 5.1 shall become fully exercisable immediately upon issuance. Options not exercised before the applicable expiration periods designated in Section 5.2.4. below shall terminate upon the expiration thereof.
|
|
5.2.4.
|
Expiration of Options
. Each Option shall
terminate upon the first
to occur of the following
events,
|
|
(a)
|
The expiration of ten (10) years from the applicable Grant Date;
|
|
(b)
|
The expiration of three (3) months from the date of the Participant's Termination of Service prior to age 70 for any reason other than the Participant's death or Disability, provided that the Committee, subject to subsequent shareholder approval, may determine to extend such period to a maximum of five years;
|
|
(c)
|
The expiration of two (2) years from the date of the Participant's Termination of Service by reason of Disability; or
|
|
(d)
|
The expiration of one (1) year from the date of the Participant's Termination of Service at or after age 70 for any reason other than the Participant's death or Disability.
|
|
5.2.5.
|
Death of Director
. Notwithstanding Section 5.2.4, if a Director dies prior to the expiration of his or her Option(s) in accordance with Section 5.2.4, his or her Option(s), which are exercisable on the date of his or her death shall terminate one (1) year after the date of death.
|
|
5.3.
|
Payment
. Options shall be exercised by the Participant's delivery of a written notice of exercise (satisfactory to the Committee) to the Company in care of Chief Financial Officer, 12 Abba Hillel Silver Street, P.O. Box 1281, Lod 71111, Israel, or at such other address as Company may hereafter designate in writing, setting forth the number of Shares with respect to which the Option is to be exercised, and accompanied by full payment for the Shares. Upon the exercise of any Option, the Exercise Price shall be payable to the Company in full in cash. As soon as practicable after receipt of a written notification of exercise and full payment for the Shares purchased, the Company shall deliver to the Participant (or the Participant's designated broker), Share certificates (which may be in book-entry form) representing such Shares.
|
|
5.4.
|
Options are not Incentive Share Options
. Options are not intended to be incentive stock options within the meaning of Section 422 of the United States Internal Revenue Code.
|
|
5.5.
|
Conditions Upon Issuance of Shares
|
|
5.5.1.
|
Investment Representation
. As a condition to the exercise of an Option, the Committee may require the person exercising such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, upon the advice of counsel for the Company, such representation is required.
|
|
5.5.2.
|
Inability to Obtain Authority
. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which requisite authority shall not have been obtained.
|
6.
|
Awards to Israeli Participants
|
|
6.1.
|
Option Subject to Section 102 of the Ordinance
. Awards to Israeli Participants shall be made under the provisions of Section 102 of the Ordinance. Anything herein to the contrary notwithstanding, the Grant Date of Options to Israeli Participants and elected to have their Options issued under the Tax Track that the Company has selected, shall not be earlier than the date at which the Plan was approved by the Israeli Tax Authorities.
|
|
6.2.
|
Trustee Tax Tracks
. If the Company elects to grant Options through (i) the Capital Gains Tax Track Through a Trustee, or (ii) the Income Tax Track Through a Trustee, then, in accordance with the requirements of Section 102 of the Ordinance, the Company shall appoint a Trustee who will hold in trust on behalf of each Israeli Participant the Options and the Shares issued upon exercise of such Options.
|
|
(1)
|
The Capital Gains Tax Track Through a Trustee
– if the Company elects to Award the Options according to the provisions of this track, then the minimum Holding Period needed to benefit from that Capital Gain Tax Track will be twenty-four (24) months from the end of the tax year in which the Options were Awarded to the Trustee on behalf of the Israeli Participant, or such shorter period as may be approved by the Israeli Tax Authorities.
|
|
(2)
|
Income Tax Track Through a Trustee
– if the Company elects to Award Options according to the provisions of this track, then the minimum Holding Period needed to benefit from that Income Tax Through a Trustee Track will be twelve (12) months from the end of the tax year in which the Options were Awarded to the Trustee on behalf of the Israeli Participant, or such shorter period as may be approved by the Israeli Tax Authorities.
|
|
6.3.
|
Income Tax Track Without a Trustee
. If the Company elects to Award Options according to the provisions of this track, then the Options will not be subject to a Holding Period.
|
|
6.4.
|
Track Selection
. The Company, in its sole discretion, shall elect under which of the above three Tax Tracks, Awards to Israeli Participants shall be made and the Option Agreement will indicate the Tax Track under which the Options are being granted.
|
|
6.5.
|
Trust Agreement
|
|
6.5.1.
|
The terms and conditions applicable to the trust relating to Awards to Israeli Participants under the Tax Track selected by the Company shall be set forth in an agreement signed by the Company and the Trustee (the "
Trust Agreement
").
|
|
6.5.2.
|
The Company shall cause the Trustee to exercise the Options by countersigning and delivering to the Company a notice of exercise, upon receipt of written instructions from the Participant thereof, provided, that the Israeli Participant has made appropriate arrangements for the payment of the Exercise Price of the Shares issuable upon such exercise.
|
|
6.6.
|
Tax Matters
|
|
6.6.1.
|
Awards to Israeli Participants shall be governed by, and shall conform with and be interpreted so as to comply with, the requirements of Section 102 of the Ordinance and any written approval from the Israeli Tax Authorities. All tax consequences under any applicable law (other than stamp duty) which may arise from the Award of Options, from the exercise thereof or from the holding or sale of underlying Shares (or other securities issued under the Plan) by or on behalf of an Israeli Participant, shall be borne solely on such Israeli Participant. An Israeli Participant shall indemnify the Company and hold it harmless against and from any liability for any such tax or any penalty, interest or indexing.
|
|
6.6.2.
|
If the Company elects to Award Options according to the provisions of the Income Tax Track Without a Trustee (Section 6.3 of the Plan), and if prior to the exercise of any and/or all of these Options, an Israeli Participant ceases to be a director of the Company, such Israeli Participant shall deposit with the Company a guarantee or other security as required by law, in order to ensure the payment of applicable taxes upon the exercise of such Options.
|
|
6.6.3.
|
Until all taxes relating to Awards to Israeli Participants have been paid in accordance with the Ordinance, Options and/or the Shares underlying thereunder may not be sold, transferred, assigned, pledged, encumbered, or otherwise willfully hypothecated or disposed of, and no power of attorney or deed of transfer, whether for immediate or future use may be validly given. Notwithstanding the foregoing, the Options and/or the Shares underlying thereunder may be validly transferred in a transfer made by will or laws of descent, provided that the transferee thereof shall be subject to the provisions of Section 102 of the Ordinance and the rules thereunder as would have been applicable to the deceased Israeli Participant were he or she to have survived.
|
7.
|
Miscellaneous
|
|
7.1.
|
No Effect on Service
. Nothing in the Plan shall (a) create any obligation on the part of the Board to nominate any Participant for reelection by the Company's shareholders, or (b) interfere with or limit in any way the right of the Company to terminate any Participant's service.
|
|
7.2.
|
Successors
. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.
|
|
7.3.
|
Beneficiary Designations
. If permitted by the Committee, a Participant may name a beneficiary or beneficiaries to whom any vested but unpaid Award shall be paid in the event of the Participant's death. Each such designation shall revoke all prior designations by the Participant and shall be effective only if given in a form and manner acceptable to the Committee. In the absence of any such designation, any vested benefits remaining unpaid at the Participant's death shall be paid to the Participant's estate and, subject to the terms of the Plan and of the applicable Option Agreement, any unexercised vested Award may be exercised by the administrator or executor of the Participant's estate.
|
|
7.4.
|
Nontransferability of Awards
. No Award granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will, by the laws of descent and distribution, or to the limited extent provided in Section 7.3. All rights with respect to an Award granted to a Participant shall be available during his or her lifetime only to the Participant.
|
|
7.5.
|
No Rights as Shareholder
. Except to the limited extent provided in Section 7.3, no Participant (nor any beneficiary) shall have any of the rights or privileges of a shareholder of the Company with respect to any Shares issuable pursuant to exercise of an Option, unless and until certificates representing such Shares shall have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to the Participant, beneficiary or Company (as escrow agent).
|
|
7.6.
|
Withholding Requirements
. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof), the Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy governmental, federal, state, and local taxes (including the Participant's FICA obligation) required to be withheld with respect to such Award (or exercise thereof).
|
8.
|
Amendment, Termination and Duration
|
|
8.1.
|
Amendment or Termination
. The Board, in its sole discretion, may amend or terminate the Plan, or any part thereof, at any time and for any reason. The amendment, suspension, or termination of the Plan shall not, without the consent of the Participant, alter or impair any rights or obligations under any Award theretofore granted to such Participant.
|
|
8.2.
|
Duration of the Plan
. The Plan shall commence on the date specified herein, and subject to Section 8.1 (regarding the Board's right to amend or terminate the Plan), shall remain in effect thereafter until December 8, 2018, unless terminated earlier by the Board.
|
9.
|
Legal Construction
|
|
9.1.
|
Gender and Number
. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural.
|
|
9.2.
|
Severabilitv
. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.
|
|
9.3.
|
Requirements of Law
. The granting of Awards and the issuance of Shares under the Plan shall be subject to all applicable laws, rules, and regulations, whether of the State of Israel or of the United States or any other state having jurisdiction over the Company and the Participant, including the registration of the Shares under United States Securities Act of 1933, and to such approvals by any governmental agencies or national securities exchanges as may be required.
|
|
9.4.
|
Compliance with Rule 16b-3
. For the purpose of ensuring that transactions under the Plan do not subject Participants to liability under Section 16(b) the Securities Exchange Act of 1934, as amended (the "
1934 Act
"), if the Participants shall become subject thereto, all transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 promulgated under the 1934 Act, and any future regulation amending, supplementing or superseding such regulation. To the extent any provision of the Plan, Option Agreement or action by the Committee or a Participant fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee.
|
|
9.5.
|
Governing Law
. The Plan and all Option Agreements shall be construed in accordance with and governed by the laws of the State of Israel without giving effect to any choice or conflict of law provision or rule (whether of Israeli or otherwise) which would cause the application of the laws of any jurisdiction other than Israel.
|
|
9.6.
|
Captions
. Captions provided herein are for convenience only, and shall not serve as a basis for interpretation or construction of the Plan.
|
1.
|
Establishment, Purpose, and Definitions
|
|
(a)
|
This, the 2000 Stock Option Plan (the "
Plan
") of NUR Macroprinters Ltd. (the "
Company
"), has been adopted and approved by the Board of Directors of the Company (the "
Board
") on August 9, 2002 and amended on July 15, 2003, June 23, 2008 and June 9, 2011.
|
|
(b)
|
The purpose of the Plan is to provide a means whereby Eligible Individuals (as defined in paragraph 4, below) may acquire ordinary shares of the Company par value NIS 10.00 each (the "
Shares
") pursuant to the exercise of options granted under the Plan (respectively the "
Options
" and "
Grant
"). Options may be Granted on the basis of past or future services by employees of the Company or of Affiliates ("
Service Options
"), or on the basis of past or future services by non-employees of the Company or of Affiliates ("
Non-Employee Options
").
|
|
(c)
|
The term "
Affiliate
" or "
Affiliates
" as used in the Plan means a present or future company that either (i) Controls the Company or is Controlled by the Company; or (ii) is Controlled by the same person or entity that Controls the Company.
|
|
(d)
|
The term "
Control
" as used in the Plan shall have the meaning ascribed thereto in Section 102 of the Israeli Income Tax Ordinance [New Version], 1961, as amended, and any regulations, rules, orders or procedures promulgated thereunder (all referred to together as "
Section 102
").
|
|
(e)
|
The term "
Employee
" as used in this Plan means an employee, officer - "Nosei Misra" - as such term is defined in the Companies law 5759-1999 ("
Officers
" and the "
Companies law
" respectively), or director of the Company or any Affiliate, provided that such person does not Control the Company.
|
|
(f)
|
The term "
Non-Employees
" as used in this Plan means consultants or Employees if such Employees Control the Company.
|
|
(g)
|
The terms "
Participant
" Participant as used in this Plan shall mean any Employee or Non-Employee Granted Options under this Plan.
|
2.
|
Administration of the Plan
|
|
(a)
|
The Plan shall be administered by the Board or by a committee elected by the Board (the "
Committee
"), under such terms and conditions, as the Board shall determine. Members of the Committee shall serve at the pleasure of the Board. At least one member of the Committee shall be an independent director, such that such person would be qualified to serve on the Committee under the provisions of paragraph 2(b)(ii) below. The Committee shall select one of its members as chairman, and the provisions of the Articles of Association of the Company as to committees of the Board shall apply to the meetings of the Committee, including the provisions relating to the convening of meetings, the adoption of resolutions, and the adoption of resolutions in writing. Until such time as the Board shall delegate the administration of the Plan to the Committee or if the Board chooses not to delegate the administration of the Plan to the Committee, each reference in this Plan to "the Committee" shall be construed to refer to the Board.
|
|
(b)
|
In the event that the Company becomes subject to the requirements of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended ("
Rule 16b-3
"), then, notwithstanding the provisions of paragraph 2(a) above, (i) the Committee shall consist of two or more members of the board or such lesser number of members of the Board as permitted by Rule 16b-3, and (ii) none of the members of the Committee shall receive, while serving on the committee, or during the one-year period preceding appointment to the Committee, a grant or award of equity securities under (y) the plan, or (z) any other plan of the Company or its Affiliates under which the Participants are entitled to acquire Shares (including restricted Shares), stock, options, stock bonuses, related rights, or stock appreciation rights of the company or any of its Affiliates, other than pursuant to transactions in any such other plan which do not disqualify a director form being a disinterested person under Rule 16b-3. The limitations set forth in this paragraph 2(b) shall automatically incorporate any additional requirements that may in the future be necessary for the Plan to comply with Rule 16b-3.
|
|
(c)
|
None of the members of the Committee shall receive, while serving on the Committee, or during the one-year period preceding appointment to the Committee, a Grant or award of Options or Shares under the Plan.
|
|
(d)
|
The Committee shall determine, from time to time, which Eligible Individuals (as defined and detailed in paragraph 4, below) shall be granted Options under the Plan, the timing of such Grants, the terms thereof (including any restrictions on the Shares), and the number of Shares subject to such Options.
|
|
(e)
|
Subject to paragraph 13(b) below, the Committee may amend the terms of any outstanding Option Granted under this Plan, provided however that the Exercise Price (as defined in paragraph 5 below) of an outstanding Option may not be amended, and further provided that any amendment which would adversely affect the Participant's rights under an outstanding Option shall not be made without the Participant's written consent. The Committee may, with the Participant's written consent, cancel any outstanding Options or accept any outstanding Option in exchange for a new Option.
|
|
(f)
|
Subject to paragraph 13(b) below, the Committee shall have the sole authority, in its absolute discretion, to adopt, amend, and rescind such rules and regulations as, in its opinion, may be advisable in the administration of the Plan; to construe and interpret the Plan, the rules and regulations, and the instruments evidencing Options Granted under the Plan; and to make all other determinations deemed necessary or advisable for the administration of the Plan. All decisions, determinations, and interpretations of the Committee shall be binding on all Participants.
|
3.
|
Shares Subject to the Plan
|
|
(a)
|
The aggregate number of Shares available through the Grant of Options under the Plan (the "
Option Shares
" or "
Underlying Shares
") shall be as provided for by the Board and approved by the Shareholders of the Company from time to time. The Option Shares shall be available through Service Options and/or Non-Employee Options.
|
|
(b)
|
If there is any change in the Shares subject to the Plan, or the Shares subject to any Option Granted under the Plan, through merger, consolidation, reorganization, recapitalization, reincorporation share split, distribution of bonus shares, a rights offering, or other change in the corporate structure of the Company, appropriate adjustments shall be made by the Committee in order to preserve but not to increase the benefits to the individual, including adjustments to the aggregate number and kind of Shares subject to the Plan, and the number and kind of Shares and the Exercise Price, as defined in paragraph 5 below.
|
4.
|
Eligible Individuals
|
|
(a)
|
Subject to paragraph 2(c) above: (i) Employees shall be eligible to receive Service Options; and (ii) Non Employees shall be eligible to receive Non-Employee Options, as the Committee, in its discretion, shall designate from time to time. Notwithstanding this paragraph 4(a) all Grant of Options to Officers of any Israeli Company, shall be authorized and implemented only in accordance with the provisions of the Companies Law, as in effect from time to time.
|
|
(b)
|
Employees of the Company or an Affiliate who are subject to payment in Israel of tax on their income from the Company or an Affiliate (other than withholding tax), as the Committee, in its discretion shall determine, shall be defined for the purpose of the Plan as "Israeli Employees". All other Employees of the Company or an Affiliate shall be defined for the purpose of the Plan as "
Non-Israeli Employees
". Israeli Employees who Control the Company, or are otherwise not entitled to the benefits granted pursuant to Section 102, shall be defined for the purpose of the Plan as "
Controlling Employees
".
|
5.
|
The Option Price
|
|
(a)
|
The exercise price of the Shares covered by each Option (the "
Exercise Price
") shall be as determined by the Committee; provided, however, that the Exercise Price of any Option Granted, shall not be less than eighty percent (80%) of the Stock Value at the time of issuance of such Options. The "
Stock Value
" at any time shall be equal to the then current Fair Market Value of the Shares. For purposes hereof, the "
Fair Market Value
" shall mean, as of any date, the last closing price, on Date of Grant, of the Shares in respect of which options Granted under the Plan may then be exercised on the NASDAQ National Market System (or, in the event that the National Market System is not the principal securities exchange on which the Shares are then traded, on such other principal securities exchange), or, in the event that no sales of the Shares took place on such date, the last closing price of the Shares on such principal securities exchange on the most recent prior date on which a sale of the Shares took place; provided, however, that if the Shares are not publicly traded on the date on which the Fair Market Value is to be determined, then the "Fair Market Value" shall mean the per share Fair Market Value of the Company as determined by the Board of Directors. If the Committee is unable to agree on the Fair Market Value, then the Fair Market Value shall be determined by an independent valuation expert satisfactory to the Committee. The Fair Market Value as determined by such independent valuation expert shall be conclusive. The Exercise Price of an Option shall be subject to adjustment to the extent provided in paragraph 3(b) above.
|
|
(b)
|
Options Granted to Employees subject to US Tax: at an Exercise Price which is not less than the "fair market value" (as described in Section 422 of the Internal Revenue Code of 1986 (the "Code")) of the Shares on the grant date (110% of such fair market value in the case of an individual who owns more than 10% of the combined voting power of all classes of stock in the Company or an Affiliate (a "
10% Stockholder
")).
|
6.
|
Grant of Options: Dividends and Voting Rights
|
|
(a)
|
The effective date of the Grant of an Option (the "
Date of Grant
") shall be the date specified by the Committee in its determination relating to the award of such Option. The Committee shall promptly give the Participant written notice (the "
Notice of Grant
") of the Grant of an Option. The terms of such Notice of Grant shall be determined by the Committee, subject to the terms of the Plan.
|
|
(b)
|
Subject to the vesting provisions of paragraph 9(c), each Option may be exercised, in whole or in part, at any time during the period (the "
Option Period
") set forth in the Notice of Grant. However, Underlying Shares derived from Options Granted under one of the Section 102 Trustee Tracks, may not be sold or transferred from the Trustee (as hereinafter defined) before the end of the applicable Holding Period as defined in Section 102 and paragraph 7 of this Plan. Options not exercised during the Option Period shall terminate upon the expiration thereof.
|
|
(c)
|
To the extent that any dividend is payable on the Shares under applicable law, or the Articles of Association of the Company, all Underlying Shares (whether or not held in Trust) shall entitle beneficial Participants ("
Beneficial Employees
") to receive dividends with respect thereto. For so long as such Shares are held in Trust, any and all dividends received by the Trustee on such Underlying Shares shall be paid by the Trustee to the Beneficial Employees thereof, subject to any required withholding of tax in respect thereof.
|
|
(e)
|
Except as provided in the immediately following sentence, in order to exercise an Option, the Participant shall complete and execute a notice of exercise ("
Notice of Exercise
") in such form as may be prescribed by the Committee from time to time and shall deliver the same to the Company together with the purchase price of the Shares pursuant to paragraph 13 hereof. In the case of any Beneficial Employee who's Options are held by the Trustee, such Beneficial Employee shall instruct the Trustee to countersign such Notice of Exercise (the same having been signed by such Beneficial Employee) and to deliver the same to the Company.
|
|
(f)
|
The Participant shall have no rights as a shareholder with respect to Shares under a Grant of Options until a share certificate has been delivered to the Participant and is fully paid for. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such share certificate is issued
|
7.
|
Trust Arrangement and Holding Period
|
|
(a)
|
Option Subject to Section 102: Grants to Israeli Employees shall be made under the provisions of Section 102. Grants to Non-Israeli Employees or Controlling Employees shall not be made under Section 102. Anything herein to the contrary notwithstanding, the Date of Grant of Options to Israeli Employees, who are not Controlling Employees, and elected to have their Options issued under the Trustee Track of Section 102 that the Company has selected, shall not be earlier than the date at which the Option Plan was approved by the Israeli Tax Authorities.
|
|
(b)
|
Trustee Tax Tracks: If the Company elects to Grant Options through (i) the Capital Gains Track Through a Trustee, or (ii) the Income Tax Track Through a Trustee then, in accordance with the requirements of Section 102, the Company shall appoint a Trustee who will hold in trust on behalf of each Participant the Options and the Underlying Shares issued upon exercise of such Options in trust on behalf of each Participant. The Company shall allocate such Options to the Trustee on behalf of such Israeli Employees in a letter specifying all details required under Section 102 Rules ("
Allocation
").
|
|
(1)
|
The Capital Gains Tax Track Through a Trustee – if the Company elects to Allocate the Options according to the provisions of this track, then the Holding Period will be 24 months from the end of the tax year in which the Options were Allocated to the Trustee on behalf of the Participant, or such shorter period as may be approved by the Israeli Tax Authorities.
|
|
(2)
|
Income Tax Track Through a Trustee – if the Company elects to Allocate Options according to the provisions of this track, then the Holding Period will be 12 months from the end of the tax year in which the Options were Allocated to the Trustee on behalf of the Participant, or such shorter period as may be approved by the Israeli Tax Authorities.
Subject to Section 102, Israeli Employees shall not be able to receive from the Trustee, nor shall they be able to sell or dispose of Underlying Shares before the end of the applicable Holding Period.
|
|
(c)
|
Income Tax Track Without a Trustee: If the Company elects to Allocate Options according to the provisions of this track, then the Options will not be subject to a Holding Period.
|
|
(d)
|
Track Selection: The Company, in its sole discretion, shall elect under which (and if to Allocate Options under one) of the above three Tracks, Allocations to Israeli Employees shall be made.
|
|
(e)
|
Concurrent Conditions: The Holding Period, if any, is in addition to the vesting period as specified in paragraph 9 (c) of the Plan. The Holding Period and vesting period may run concurrently, but neither is a substitute for the other, and each are independent terms and conditions for Options Granted.
|
|
(f)
|
Trust Agreement:
|
|
(i)
|
The terms and conditions applicable to the Trust relating to the Trustee Tax Track selected by the Company, as appropriate, shall be set forth in an agreement signed by the Company and the Trustee (the "
Trust Agreement
").
|
|
(ii)
|
The Company shall cause the Trustee (subject to the vesting provisions of paragraph 9(c) hereof) to exercise the Options by countersigning and delivering to the Company a Notice of Exercise, upon receipt of written instructions from the Beneficial Employee thereof, provided the Beneficial Employee has made appropriate arrangements for the payment of the Exercise Price of the Shares issuable upon such exercise.
|
|
(iii)
|
Subject to paragraph 9(a) of this Plan, Options and/or Underlying Shares held by the Trustee shall continue to be held by the Trustee, on behalf of the Beneficial Employee at least until the end of the later of the (a) applicable Holding Period and (b) Vesting Period ("
Release Date
"). At any time after the Release Date and upon the receipt of a written request of any Beneficial Employee, the Trustee shall release from the Trust the Underlying Shares, by executing and delivering to the Company such instrument(s) as the Company may require, giving due notice of such release to such Beneficial Employee, provided, however, that the Trustee shall not so release any such Shares to such Beneficial Employee unless the latter, prior to, or concurrently with, such release, provides the Trustee with evidence, satisfactory in form and substance to the Trustee, that all taxes, if any, required to be paid upon such release have, in fact, been paid.
|
|
(iv)
|
Alternatively, from and after the Release Date, upon the written instructions of the Beneficial Employee to sell any Shares issued upon exercise of Options, the Trustee shall take such steps as may be required to effect such sale and shall transfer such Shares to the purchaser concurrently with the receipt, or after having made suitable arrangements to secure the payment of the proceeds of the purchase price in such transaction. The Trustee shall withhold from such proceeds any and all taxes required to be paid in respect of such sale, shall remit the amount so withheld to the appropriate tax authorities and shall pay the balance thereof directly to the Beneficial Employee, reporting to such Beneficial Employee and to the Company the amount so withheld and paid to said tax authorities.
|
|
(g)
|
Option Subject to the Trustee Tax Track without a Trustee: If the Company determines to Allocate Options subject to a Trustee Tax Track without a Trustee, the Company shall Allocate all Options Granted under the Plan to Israeli Employees (and a copy of the Notice of Grant shall be given) to a trustee designated by the Board (who may be the Trustee). The Trustee shall hold each such Option in trust (the "
Trust
") for the Beneficial Employee. No Options shall be released from the Trust until the vesting of such Option pursuant to paragraph 9(c) hereof (the "
Vesting Date
"). From and after the Vesting Date, upon the written request of any Beneficial Employee, the Trustee shall release from the Trust the Options Allocated and exercise them on behalf of such Beneficial Employee, by executing and delivering to the Company such instrument(s) as the Company may require, giving due notice of such release to such Beneficial Employee, provided, however, that the Trustee shall not so release and exercise any such Options on behalf of the Beneficial Employee unless the latter, prior to, or concurrently with, such release and exercise, provides the Trustee with evidence, satisfactory in form and substance to the Trustee, that all taxes and/or compulsory payments, if any, required to be paid upon such release and exercise have, in fact, been paid.
|
8.
|
Option Subject to Section 3(i)
|
9.
|
Options Granted to Non-Israeli Employees
|
|
(a)
|
All Options Granted under the Plan to Non Israeli Employees shall be Granted (and a copy of the Notice of Grant shall be given) subject to all applicable laws, rules and regulations, whether of Belgium, Hong Kong or of the United States of America, or of any other country or state having jurisdiction over the Company and the Participant. The Company shall Allocate the Options to a trustee designated by the Board (who may be the Trustee). The Trustee shall hold each such Option in trust (the "
Trust
") for the Non Israeli Employee. No Options shall be released from the Trust until the vesting of such Option pursuant to Section 10 hereof (the "
Release Date
"). From and after the Release Date, upon the written request of any Non Israeli Employee, the Trustee shall release from the Trust the Allocated Options and exercise them on behalf of such Non Israeli Employee, by executing and delivering to the Company such instrument(s) as the Company may require, giving due notice of such release to such Non Israeli Employee, provided, however, that the Trustee shall not so release and exercise any such Options on behalf of the Non Israeli Employee unless the latter, prior to, or concurrently with, such release and exercise, provides the Trustee with evidence, satisfactory in form and substance to the Trustee, that all taxes and/or compulsory payments, if any, required to be paid upon such release and exercise have, in fact, been paid.
|
|
(b)
|
The Options Granted subject to this Plan to Employees subject to payment in the US of tax on their income from the Company or an Affiliate are intended to be "incentive stock option" as described in Section 422 of the Code ("
ISOs
"). To the extent some or all of the Options subject to a certain Grant exceed the $100,000 rule of Code Section 422(d), the certain Option Grant or the lesser excess part will be treated as a nonqualified stock option under the United States tax law. Notwithstanding any inconsistent or contrary provision of this Plan, if an Option Grant has not expired on the relevant date as provided for in section 10 below, the Options shall cease to be treated as ISOs 91 days after the Participant ceases to be a common law employee of the Company or an Affiliate corporation as defined in Code Sections 424(e) and 424(f)) (a "
Common Law Employee
"), unless the Participant ceases to be a Common Law Employee by reason of death or disability (as defined in code Section 22(e)(3)), in which case the term "1 year and 1 day" shall replace the term "91 days" in this clause above.
|
10.
|
Terms and Conditions of Options
|
|
(a)
|
The Committee shall determine the term of each Option Granted under the Plan; provided, however, that the term of an Option shall not be for more than ten (10) years.
|
|
(b)
|
Upon termination of employment (regardless of whether or not termination is by the employee or employer, due to death or disability), all unvested Options shall lapse, and within three (3) months from such termination all vested but not-exercised Options shall lapse.
|
|
(c)
|
Upon termination of the service contract with a Participant, which is not employed by the Company or an Affiliate, all unvested Options shall lapse, and within three months from such termination all vested but not exercised Options shall lapse. In the event that the termination is the result of a material breach of the service contract by the Participant, all unvested and vested but not exercised Options shall lapse immediately.
|
|
(d)
|
Upon termination of employment by employer for cause (as defined hereunder), all unvested and vested but not exercised Options shall lapse immediately.
|
|
(e)
|
All Granted Service Options shall vest over a three or four- year period as detailed in the Notice of Grant. One-third of such Options will vest after the first or second anniversary of the Date of Grant, the second third will vest after the second or third anniversary of the Date of Grant, and the remaining Options will vest after the third or fourth anniversary of the Date of Grant. Notwithstanding the foregoing and subject to paragraph 2(f) above, the Committee may determine different vesting schedules for Service Options. Non-Employee Options shall vest at the discretion of the Committee.
|
|
(f)
|
Notwithstanding the aforesaid, if the Participant ceases to be a full-time Employee of the Company or any of its Affiliates and becomes a part-time Employee, such Options (to the extent exercisable at the time the Participant ceases to be a full-time Employee) shall be exercisable for a period of six (6) months following such cessation of the full-time employment, and shall thereafter terminate. All Options that are not vested at the time of cessation of the full-time employment shall ipso facto expire and be of no legal effect.
|
|
(g)
|
If a Participant should retire (as such term is defined by the Committee at its sole and absolute discretion), he shall, subject to the approval of the Committee, continue to enjoy such rights, if any, under the Plan and on such terms and conditions, with such limitations and subject to such requirements as the Committee in its discretion may determine.
|
|
(h)
|
Notwithstanding the foregoing provisions of Section 10, the Committee may provide, either at the time an Option is granted or thereafter, that such Option may be exercised after the periods provided for in Section 9 above, but in no event beyond the Option Period.
|
|
(i)
|
The Company or any of its Affiliates are not obligated by the Plan or by a Grant of Options to continue the Participant's employment or service engagement.
|
11.
|
Use of Proceeds
|
12.
|
Amendment, Suspension, or Termination of the Plan
|
|
(a)
|
The Board may at any time amend, extend, suspend, or terminate the Plan as it deems advisable; provided that such amendment, extension, suspension, or termination complies with all applicable legal requirements.
|
|
(b)
|
Notwithstanding anything herein to the contrary, the Board shall in no event amend the Plan in the following respects without the consent of shareholders then sufficient to approve the Plan in the first instance:
|
|
(i)
|
To increase the maximum number Shares subject to Options issued under the Plan; or
|
|
(ii)
|
To change the designation or class of persons eligible to receive Options under the Plan.
|
|
(c)
|
No Option may be Granted under the Plan during any suspension of, or after the termination of, the Plan, and no amendment, suspension, or termination of the Plan, shall without the affected individual's consent, alter or impair any rights or obligations under any Option previously Granted under the Plan.
|
13.
|
Assignability
|
14.
|
Payment Upon Exercise of Options
|
15.
|
Restrictions on Transfer of Shares
|
16.
|
Tax Matters
|
17.
|
Miscellaneous
|
|
(a)
|
Currency Control Provisions: For so long as, and to the extent that, the Israel Currency Control Law, 1978 (the "
Control Law
") shall so require, the following provisions shall apply:
|
|
(i)
|
Certificates, if any, representing Shares issued hereunder shall be delivered to a bank in Israel which is an authorized dealer in foreign currency (within the meaning of the Control Law) ("
Authorized Dealer
") to hold the same for the benefit of the Participant pursuant to the terms of the Plan and any applicable Share Option Agreement, and in conformity with the applicable requirements of the Controller of Foreign Currency in the Bank of Israel;
|
|
(ii)
|
All payments of the purchase price shall be effected by the Participants through an Authorized Dealer; and
|
|
(iii)
|
The proceeds of any sale by the Participant (or by the Trustee at the discretion and on behalf of any Participant) of Shares which is effected in foreign currency shall be remitted to Israel, and deposited with an Authorized Dealer, immediately upon receipt thereof, and in all events not later than sixty (60) days after the date on which the certificate, if any, representing such Shares is received by the Trustee (on behalf of such Participant) for purposes of sale.
|
|
(b)
|
Governing Law: The Plan, and the Granting and exercise of the Options thereunder, and the Company's obligation to sell and deliver the Option Shares or cash under the Options, are subject to all applicable laws, rules and regulations, whether of Israel, Belgium, Hong Kong or of the United States of America, or of any other country or state having jurisdiction over the Company and the Participant, including the registration of the Option Shares under the United States Securities Act of 1933, and to such approvals by any governmental agencies or national securities exchanges as may be required.
|
18.
|
Participant Undertakings
|
|
(a)
|
If the Options shall be Granted to a Participant under one of the Section 102 Tax Tracks, then in the Notice of Grant the Participant shall: (1) agree and acknowledge that he or she have received and read the Plan, and the Option Agreement and the Notice of Grant; (2) undertake all the provisions set forth in: Section 102 (including provisions regarding the applicable Tax Track under which the Options have been Granted), the 102 Rules, the Plan, the Notice of Grant and the Trust Agreement; and (3) subject to the provisions of Section 102 and the Section 102 Rules, undertake not to sell or release the Underlying Shares from Trust before the end of the applicable Holding Period (if any).
|
|
(b)
|
Agreement to Purchase for Investment. The Shares represented by the Options Granted under the terms of the Plan are subject to registration and prospectus requirements of the United States Securities Act of 1933, as amended ("
Unregistered Shares
"). By acceptance of Options, the Participant agrees that a purchase of Unregistered Shares under such Options will not be made with a view to their distribution, as that term is used in the aforesaid Act, unless in the opinion of counsel to the Company such distribution is in compliance with or exempt from the said registration and prospectus requirements, and the Participant agrees, if required by the Board at the time of exercise, to sign a certificate to such effect at the time or times he exercises the Options in respect of Unregistered Shares. The Participant further acknowledges and understands that the Unregistered Shares purchased upon exercise of these Options must be held indefinitely unless they are subsequently registered under the United States Securities Act or an exemption from such registration is available. The Participant understands that the certificate evidencing the Unregistered Shares will be imprinted with a legend in substantially the following form:
|
|
(c)
|
In the event Participant sells or otherwise disposes of Shares within one year of exercise or two years of Grant, Participant agrees to notify the Company in advance in writing of this action.
|
Signature:
|
|
|
Name:
|
[Name]
|
|
Date:
|
[Date]
|
|
1.
|
Subject to the restrictions imposed by the Companies Law, and the limitations set forth herein, but without derogating from any of your rights under applicable law, the Company hereby irrevocably and unconditionally exempts you in advance from all of your liability for any and all Liabilities which may result, directly or indirectly, from a breach of your duty of care towards the Company, to the fullest extent permitted by law (including, without limiting the generality of the foregoing, damages sought through a derivative action filed by a director or shareholder on the Company’s behalf, except for derivative actions filed by you in your capacity as a director).
To the extent you hold or will hold office as an Office Holder of any of its wholly owned subsidiaries (the “
Subsidiaries
”) and subject to the applicable laws of the Subsidiaries, the Company further undertakes to use its best efforts to cause the Subsidiaries to exempt you from breaches of your duty of care towards them under the terms of this letter or similar terms permitted under applicable law.
|
|
2.
|
No exemption under this letter will be valid or available in the event that:
|
2.1.
|
you receive payment under an insurance policy with respect to the breach of duty of care giving rise to such liability, other than amounts which are in excess of such insurance coverage;
|
|
2.2.
|
you breached your fiduciary duty towards the Company;
|
|
2.3.
|
you breached your duty of care towards the Company intentionally or recklessly, except for a breach done in negligence only; or
|
|
2.4.
|
you acted with intent to make unlawful personal profit.
|
|
3.
|
The Company’s obligations hereunder shall commence on the date on which you commenced your office or employment as an Office Holder (the “
Effective Date
”) and will continue after termination of your office or employment by the Company with respect to actions or omissions giving rise to liability covered by the terms of this letter and which occur on or after the Effective Date and through the termination of your office or employment.
|
|
4.
|
The exemption provided by this letter shall not be deemed exclusive of or derogating from any rights to which you may be entitled under the Company’s organizational documents, any agreement, any vote of shareholders, applicable laws, or otherwise, both as to action in your official capacity and as to action in another capacity while holding such office.
|
|
5.
|
Subject to Section 4 above, this letter supersedes any and all prior discussions, representations, agreements and correspondence with regard to the subject matter hereof, and may not be amended, modified or supplemented in any respect, except by a subsequent writing executed by both the Company and you.
|
|
6.
|
This letter will not derogate from nor will it be deemed an amendment of any indemnification or insurance commitment previously made by the Company to you, subject to the compliance of any such commitment with the restrictions imposed by the Companies Law and the Company’s Amended and Restated Articles of Association.
|
|
7.
|
The headings of the paragraphs of this letter are inserted for convenience only and shall not be deemed to constitute part of this letter or to affect the construction thereof.
|
|
8.
|
In the event of any change in any applicable law, statute or rule which narrows the right of an Israeli company to exempt or exculpate an Office Holder, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this letter shall have no effect on the terms hereof or the parties’ rights and obligations hereunder.
|
|
9.
|
If all or any part of the terms hereof is held invalid or unenforceable by local law and/or a court of competent jurisdiction, such invalidity or unenforceability will not affect any of the other provisions hereof that are valid and enforceable all of which shall remain in full force and effect, as applicable. Furthermore, if such invalid or unenforceable provision may be modified or amended so as to be valid and enforceable as a matter of law and to give effect to an outcome which is consistent with that what was intended by the parties hereto, such provisions will be deemed to have been automatically modified or amended accordingly.
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10.
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This letter shall be binding upon the Company and its successors and assigns. The terms of this letter are personal and therefore you may not assign, delegate or transfer any of its rights hereunder, and any attempt to do so shall be null and void; provided, however, that this letter shall inure to the benefit of your administrators, executors and heirs.
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11.
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This letter 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. This letter may be executed by facsimile transmission.
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12.
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This letter shall be governed by and construed and enforced in accordance with the laws of the State of Israel, without application of the conflict of laws principles thereof. Any dispute arising out of or in connection with this letter shall be subject to the sole and exclusive jurisdiction of the competent courts in the District of Tel Aviv any claim of inconvenient forum is hereby irrevocably waived.
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Signature:
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|
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Name:
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[Name]
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Date:
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[Date]
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Name of Subsidiary
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Percentage of Ownership
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Jurisdiction of Incorporation
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|||
Ellomay Clean Energy Ltd.
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100 | % |
Israel
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||
Ellomay Clean Energy LP
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100 | % |
Israel
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Ellomay Luxemburg Holdings S.àr.l.
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100 | % |
Luxemburg
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Ellomay PV One S.r.l.
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100 | % 1 |
Italy
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||
Ellomay PV Two S.r.l.
|
100 | % 1 |
Italy
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||
Ellomay PV Five S.r.l.
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100 | % 1 |
Italy
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||
Ellomay PV Six S.r.l.
|
100 | % 1 |
Italy
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||
Ellomay PV Seven S.r.l. (formerly Energy Resources Galatina S.r.l.)
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100 | % 1 |
Italy
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||
Pedale S.r.l.
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100 | % 1 |
Italy
|
||
Luma Solar S.r.l.
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100 | % 1 |
Italy
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||
Murgia Solar S.r.l.
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100 | % 1 |
Italy
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Ellomay Spain S.L.
2
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85 | % 1 |
Spain
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1.
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Held by Ellomay Luxemburg Holdings S.àr.l.
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2.
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Ellomay Spain owns 21 Spanish companies, each holding a 90 kW solar installation portion of the Riconada II, the first named Energía Solar Fotovoltaica Parque 15, S.L. and the others bear a similar name with references to different numbers (16-34 and 69).
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1.
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I have reviewed this annual report on Form 20-F of Ellomay Capital Ltd.;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
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4.
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The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
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5.
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The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
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1.
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I have reviewed this annual report on Form 20-F of Ellomay Capital Ltd.;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
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4.
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The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
|
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
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5.
|
The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
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(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
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A)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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B)
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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/s/ Ran Fridrich_________________
Ran Fridrich
Chief Executive Officer
/s/ Kalia Weintraub______________
Kalia Weintraub
Chief Financial Officer
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Tel Aviv, Israel
March 25, 2013
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/s/ Kost Forer Gabbay & Kasierer
KOST FORER GABBAY & KASIERER
A Member of Ernst & Young Global
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