CUSIP No.
686688-10-2
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Schedule 13D
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1 |
NAMES OF REPORTING PERSONS
Bronicki Investments Ltd.
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2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
x
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3 |
SEC Use Only
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4 |
SOURCE OF FUNDS
OO
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5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
o
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6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7 |
SOLE VOTING POWER
0
|
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8 |
SHARED VOTING POWER
11,607,361*
^
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9 |
SOLE DISPOSITIVE POWER
0
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10 |
SHARED DISPOSITIVE POWER
4,293,243*
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11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,607,361
^
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||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
x
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13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.91%
*
^
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14 |
TYPE OF REPORTING PERSON
CO
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CUSIP No.
686688-10-2
|
Schedule 13D
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1 |
NAMES OF REPORTING PERSONS
Lucien Bronicki
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2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
x
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3 |
SEC Use Only
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||
4 |
SOURCE OF FUNDS
OO
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
o
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6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0
|
|
8 |
SHARED VOTING POWER
11,607,361*
^
|
||
9 |
SOLE DISPOSITIVE POWER
0
|
||
10 |
SHARED DISPOSITIVE POWER
4,293,243
|
||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,607,361* ^
|
||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
x
|
||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.91%
^
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||
14 |
TYPE OF REPORTING PERSON
IN
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CUSIP No.
686688-10-2
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Schedule 13D
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1 |
NAMES OF REPORTING PERSONS
Yehudit Bronicki
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2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
x
|
||
3 |
SEC Use Only
|
||
4 |
SOURCE OF FUNDS
OO
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0
|
|
8 |
SHARED VOTING POWER
11,607,361*
^
|
||
9 |
SOLE DISPOSITIVE POWER
0
|
||
10 |
SHARED DISPOSITIVE POWER
4,293,243
|
||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,607,361* ^
|
||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
x
|
||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.91%
^
|
||
14 |
TYPE OF REPORTING PERSON
IN
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(1)
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Bronicki Investments Ltd. ("Bronicki Investments") is a company incorporated in Israel. Bronicki Investments' principal business is various business investments, including investment in the Issuer. Bronicki Investments' business address is 5 Brosh Street, Yavne 81510, Israel. The sole directors and executive officers of Bronicki Investments are Lucien Bronicki and Yehudit Bronicki who have voting control over Bronicki Investments as described in Item 5 below.
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(2)
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Lucien Bronicki is a citizen of the State of Israel. Mr. Bronicki is a member of various business and philanthropic boards, including the board of directors of Bronicki Investments (as one of the two directors, the other being his wife, Ms. Yehudit Bronicki). Mr. Bronicki's address is 5 Brosh Street, Yavne 81510, Israel.
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(3)
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Yehudit Bronicki is a citizen of the State of Israel. Ms. Bronicki is a member of various business and philanthropic board of directors, including the board of directors of Bronicki Investments (as one of the two directors, the other being her husband, Mr. Lucien Bronicki), and the board of directors of the Issuer. Ms. Bronicki's address is 5 Brosh Street, Yavne 81510, Israel.
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●
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Require the Restricted Shareholders to vote all voting securities owned by FIMI and Bronicki Investments and their respective affiliates in excess of 16% and 9%, respectively, of the combined voting power of the Issuer’s shares in proportion to votes cast by the other holders of the Issuer’s voting securities at any time any action is to be taken by the Issuer’s stockholders.
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●
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Prohibit the acquisition of Issuer voting securities by FIMI and Bronicki Investments and their respective affiliates if after giving effect to any such acquisition FIMI and Bronicki Investments and their respective affiliates would beneficially own voting securities representing in the aggregate more than 20% and 12%, respectively, of the combined voting power of the Issuer’s shares.
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●
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Prohibit the sale of more than 10% of all Issuer voting securities owned in the aggregate by the Restricted Shareholders prior to January 1, 2017.
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●
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Allow for the sale of Issuer voting securities owned by the Restricted Shareholders following January 1, 2017 only if the Restricted Shareholders are not acting in concert to sell or, if they are acting in concert, only with 20 days’ prior written notice to the Issuer, subject to certain exceptions for public sales and mergers and acquisitions transactions.
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●
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Prohibit the Restricted Shareholders from renewing their shareholder rights agreement (defined below as the “SHA”) as the beyond its expiration date, May 22, 2017.
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●
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voting and transfers of Shares held by Bronicki Investments and FIMI following the share exchange (including a right of first offer, “tag-along” right, a “bring-along” right and, by way of an amendment to the SPA, a call option right to FIMI);
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●
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the composition of the board of directors of the Issuer and its active subsidiaries and the committees of the board of directors of the Issuer, as described below;
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●
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agreements concerning various corporate policies and governance matters relating to the Issuer and its subsidiaries, to the extent subject to a vote of the Issuer stockholders (namely, that unless otherwise agreed, the parties will vote against liquidation of or entrance into any bankruptcy or similar proceeding by the Issuer (or a material subsidiary thereof, if under applicable law it is required to be brought to the parties approval), a material change in the field of operations of the Issuer (or a material subsidiary thereof, if under applicable law it is required to be brought to the parties approval) and/or amendment of the Issuer's Articles of Association with respect to the Issuer’s staggered board of directors); and
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●
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compliance with the Israeli Tax Ruling, including the internal allocation between Bronicki Investments and FIMI of the amount of Shares they are permitted to sell under the Israeli Tax Ruling.
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●
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subject to any applicable law and fiduciary duties, use their reasonable efforts to cause an equal number of designees of Bronicki Investments and FIMI to be elected or appointed to the Issuer's board of directors and to the boards of all of the Issuer's active subsidiaries and to the committees of the Issuer's board of directors. Specifically, Bronicki Investments and FIMI agreed that they will each have the right to designate four members to the Issuer's board of directors. The number of directors that Bronicki Investments and FIMI may designate is subject to staged adjustments if either Bronicki Investments or FIMI or both cease to own specified minimum numbers of Shares, within various ranges specified in the SHA, including minimum shareholdings below which such shareholder loses the right of directors designation ;
and
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●
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subject to any applicable law and subject to continued holding of certain minimum numbers of Shares set forth in the SHA in the event the current Chief Executive Officer of the Issuer ceases to act in such capacity, use their best efforts to cause the nomination of Bronicki Investments’ designee as Chief Executive Officer or Chairman of the Issuer's board or directors (as Bronicki Investments may decide in its sole discretion), and the appointment of FIMI’s designee as the Chairman of the Issuer's board of directors (if Bronicki Investments’ designee serves as Chief Executive Officer) or the Issuer's Chief Executive Officer (if Bronicki Investments’ designee serves as Chairman of the Issuer's board of directors).
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Exhibit 1 -
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Share Exchange Agreement and Plan of Merger, dated November 10, 2014, by and among the Issuer, Ormat Industries and Ormat Systems (incorporated herein by reference to Exhibit 2 of the Current Report on Form 8-K filed by the Issuer on November 17, 2014).
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Exhibit 2 -
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Voting and Undertaking Agreement dated as of November 10, 2014 by and among the Issuer and FIMI (incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed by the Issuer on November 17, 2014).
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Exhibit 3 -
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Voting and Undertaking Agreement dated as of November 10, 2014 by and among the Issuer and Bronicki Investment (incorporated herein by reference to Exhibit 10.3 of the Current Report on Form 8-K filed by the Issuer on November 17, 2014).
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Exhibit 4 -
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Escrow Agreement, dated as of February 10, 2015 by and among the Issuer, FIMI, Bronicki Investments and the Escrow Agent.*
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Exhibit 5 -
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Voting Neutralization Agreement dated as of November 10, 2014 by and among the Issuer and FIMI (incorporated herein by reference to Exhibit 10.4 of the Current Report on Form 8-K filed by the Issuer on November 17, 2014).
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Exhibit 6 -
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Voting Neutralization Agreement dated as of November 10, 2014 by and among the Issuer and Bronicki Investments (incorporated herein by reference to Exhibit 10.5 of the Current Report on Form 8-K filed by the Issuer on November 17, 2014).
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Exhibit 7 -
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Amended and Restated Shareholders Rights Agreement, dated as of November 10, 2014 by and among Bronicki Investments and FIMI.*
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Exhibit 8 -
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Share Purchase Agreement, dated as of March 16, 2012 by and among Bronicki Investments and FIMI, and an amendment no.1 thereto dated May 22, 2012.*
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Exhibit 9 -
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Registration Rights Agreement dated as of February 12, 2015 by and among the Issuer, Bronicki Investments and FIMI.*
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Exhibit 10 -
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Joint Filing Agreement, dated as of February 17, 2015.*
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* Filed herewith.
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Bronicki Investments Ltd.
By: /s/ Yehudit Bronicki
Name:
Yehudit Bronicki
Title:
Directo
r
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Lucien Bronicki
By: /s/ Lucien Bronicki
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Yehudit Bronicki
By: /s/ Yehudit Bronicki
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1.
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APPOINTMENT OF ESCROW AGENT; ESCROW DEPOSITS
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1.1.
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Appointment of Escrow Agent
. Each of OTI and the Shareholders hereby appoints the Escrow Agent as escrow agent, and the Escrow Agent hereby agrees to assume and perform the duties of the escrow agent pursuant to this Escrow Agreement.
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1.2.
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The Escrow Deposit
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1.2.1.
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On the execution date of this Agreement, the Shareholders shall provide the Escrow Agent with the information and documents as detailed in
Exhibit E
.
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1.2.2.
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On the date hereof, Shareholders have caused the Shares to be transferred to the separate securities accounts (which will be further credited to the Escrow Agent's trust account for each of the Shareholders) of the Escrow Agent set forth in
Annex C
attached hereto (together with any dividends thereon, the "
Escrow Deposit
"), which Annex A shall indicate the Shares held of record by the Bronicki Shareholder (the "
Registered Shares
"). With respect to the Registered Shares, the Escrow Agent and Bronicki Shareholder shall execute a share transfer deed on the date hereof in order to effect said transfer and upon a prior written request of the Bronicki Shareholder the Escrow Agent will deposit such Registered Shares electronically and the Bronicki Shareholder shall provide the Escrow Agent with the cost basis of such Registered Shares and shall cover all commission related to such electronic deposit. With respect to the other Shares (being wired through electronic securities accounts), the Shareholders shall notify the Escrow Agent in writing upon transfer.
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1.2.3.
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The parties acknowledge that once the Consideration Shares are issued pursuant to the Share Exchange Agreement and remitted to the Escrow Deposit in accordance with its terms, such Consideration Shares (including any dividends thereon) shall be considered part of the Escrow Deposit. It is hereby clarified that, other than the Consideration Shares issued in exchange for the Registered Shares, the remaining Consideration Shares shall be deposited with the Escrow Agent through the facilities of the Tel Aviv Stock Exchange, unless, following the Closing, the applicable Shareholder instructs the Escrow Agent in writing to do so through NYSE.
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1.3.
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Compliance with Israeli Tax Ruling
. The Escrow Agent shall act with respect to the Escrow Deposit in accordance with Sections 3.8 (including Section 3.4 of the Bronicki Clarification), 3.11, 3.14, 3.17 and 3.52 of the Israeli Tax Ruling, including Section 103C of the Tax Ordinance (collectively, the "
Relevant Provisions
") and shall hold the Consideration Shares in trust for the benefit of the Shareholders, all pursuant to the Relevant Provisions, and the Escrow Agent is hereby irrevocably instructed to perform such actions as required to allow Shareholders to comply with the Relevant Provisions. Without derogating from the generality of the foregoing, the Escrow Agent acknowledges that:
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1.3.1
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Unless approved by OTI by a majority of the directors not affiliated or associated with a Shareholder (as evidenced by a written notice from OTI), such Shareholder is not allowed to sell more than 10% of the number of Consideration Shares (the "
Shareholder's Maximum Number
") set forth next to its name in Annex A during the period terminating on December 31, 2016;
provided, however
, that with the written consent of the other Shareholder, a Shareholder may sell more than the Shareholder's Maximum Number as long as the aggregate number of shares sold by all Shareholders does not exceed 10% of the number of Consideration Shares of all such Shareholders collectively; and
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1.3.2
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From December 23, 2014 and until the end of the period set forth in Section 3.11 of the Israeli Tax Ruling (the "
Dividend Restriction Period
"), any dividends which will be distributed to the Shareholders with respect to the Consideration Shares shall be treated in accordance with the Relevant Provisions and following the withholding of taxes, distributed to the Shareholders. To that end, with respect to each dividend distribution, the parties acknowledge and agree that the Escrow Agent shall rely on the calculation (in NIS) of such withholding tax (the calculation for all Shareholders shall be referred to herein as the "
Dividend Report
") to be prepared by Artzi ,Hiba, Elmekiesse, Cohen Ltd. or such other tax advisor reasonably acceptable to the parties ("
Tax Advisor
") that the Escrow Agent shall retain, unless the applicable Shareholder shall, within three (3) Business Days following the applicable dividend distribution, provide the Escrow Agent with a valid tax exemption or certificate issued by the ITA (the "
Tax Certificate
"), as shall be approved by the OTI, providing for the calculation (in NIS) of such withholding taxes. The Dividend Report shall be provided within ten (10) Business Days following the applicable dividend declaration; it being understood that each Shareholder and OTI undertakes to provide the Tax Advisor with true and accurate information reasonably requested by the Tax Advisor in order to perform its aforesaid task within two (2) Business Days following the applicable dividend declaration. The reasonable expenses of the Tax Advisor shall be borne and paid by OTI. If the Dividend Report containing said tax calculation is not provided by the Tax Advisor until five (5) Business Days prior to the date on which the Escrow Agent is required to remit the withholding tax to the ITA or is provided with respect to only part of the Shareholders, the Escrow Agent is instructed to deduct a maximum withholding (as of today, 30%) with respect to the applicable dividend distribution (solely as to the applicable Shareholder with respect of which the Dividend Report or the Tax Certificate were not timely provided but not with respect to the other Shareholders), and
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1.3.3
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Notwithstanding anything to the contrary hereunder (but subject to Section 1.3.1 hereof), nothing herein shall be construed to require any Shareholder to sell any Consideration Shares (the "
Selling Shareholder
") through the broker affiliated with the Escrow Agent; provided that if a Shareholder wishes to sell such shares through a different broker (the "
Selling Broker
"), such Shareholder must procure, as a condition to the transfer of such shares to the Selling Broker, for an arrangement, reasonably acceptable to OTI, that will ensure compliance of the Shareholder with the Relevant Provisions; and to that end, it is hereby clarified that in order to establish such arrangement, at least on an initial basis, ample time should be provided to all parties prior to such release. Notwithstanding the provisions in the preceding sentence, with respect to said sales through a Selling Broker, solely during the period terminating on December 31, 2016, the parties agree to the following arrangement: (i) no later than 2 Business Days after a dividend declaration, the Selling Shareholder shall, and shall cause the Selling Broker to provide, the Escrow Agent with evidence of the number of Consideration Shares sold by the Selling Broker and date of such sale, and (ii) to the extent that any dividend was due to be distributed with respect to the Consideration Shares released to the Selling Broker prior to the sale thereof (the "
Dividend Shares
"), the Escrow Agent shall be entitled to deduct (and remit to the ITA) from the Escrow Deposit applicable to such Selling Shareholder the amount of withholding tax applicable to such Dividend Shares (in accordance with Section1.3.2 above). In addition the parties agree that immediately following the execution date of this Agreement, they will cooperate in good faith to reach an arrangement with respect to sales through a Selling Broker during the period commencing on January 1, 2017.
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1.4.
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Withholding Tax and Rule 144 Reporting
.
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1.4.1.
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Withholding Tax – The parties hereby acknowledge that the Escrow Agent shall not be required to withhold (or remit to the ITA for that matter) tax with respect to sales of Consideration Shares. The applicable Shareholder (and/or selling broker on its behalf) are the parties responsible for that. In case that the Shareholder will sell their shares through the Escrow Agent, the Shareholder shall provide the Escrow Agent with a tax exemption.
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1.4.2.
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Rule 144 – In order to assist each Shareholder to comply with Rule 144 promulgated under the Securities Act (as in effect as amended from time to time, or any successor rule thereto, “
Rule 144
”), the Escrow Agent shall, upon request report to the requesting Shareholder (or the broker or other representative of the Shareholder) the number of Consideration Shares (in the Escrow Deposit) sold through the Escrow Agent and/or transferred to a Selling Broker by all the Shareholders within the three (3) months preceding the request. The Escrow Agent shall not have any responsibility in this respect, other than in accordance with this Section 1.4.2.
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1.5.
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Voting.
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1.6.
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Release of the
Escrow Deposit
.
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1.6.1.
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Dividends – Distribute dividends to the Shareholders; and
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1.6.2.
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Transfer and Sale of Consideration Shares – Transfer and/or sell the Consideration Shares in accordance with the Shareholder's instructions.
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1.7.
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Termination
.
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1.7.1.
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This Escrow Agreement shall terminate immediately following the earlier of (i) OTI's notification to the Escrow Agent of the termination of the Share Exchange Agreement in accordance with its terms, (ii) the release of all of the Consideration Shares to the Shareholders in accordance with this Agreement, and (iii) the Dividend Restriction Period (unless, prior thereto, all of the Consideration Shares have been released to the Shareholders or sold in accordance with this Agreement), and this Escrow Agreement shall be of no further force and effect, except that the provisions of Section
3
hereof shall survive termination.
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1.7.2.
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Notwithstanding the foregoing, it is hereby agreed between OTI and the Shareholders that the Consideration Shares will be released to Shareholders promptly after the end of the Share Restriction Period; at which time OTI and Shareholders shall implement a reasonable alternative mechanism to ensure the deposit of dividends with the Escrow Agent during the Dividend Restriction Period. For this purpose, the “
Share Restrictions Period
” means the period terminating on December 31, 2016.
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2.
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DUTIES OF THE ESCROW AGENT
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Scope of Responsibility
. The Escrow Agent, by executing this Escrow Agreement, agrees to hold and distribute the Escrow Deposit in accordance with the terms of this Escrow Agreement. Notwithstanding any provision to the contrary, the Escrow Agent is obligated only to perform the duties specifically set forth in this Escrow Agreement. The Escrow Agent will not be responsible or liable for the failure of any other party to perform in accordance with this Escrow Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement (including the Share Exchange Agreement and / or the Voting Agreements), instrument, or document other than this Escrow Agreement and the Relevant Provisions, whether or not an original or a copy of such agreement has been provided to the Escrow Agent; and the Escrow Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any such agreement, instrument, or document. This Escrow Agreement sets forth all matters pertinent to the Escrow contemplated hereunder, and no additional obligations of the Escrow Agent shall be inferred or implied from the terms of this Escrow Agreement or any other agreement.
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2.2.
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Attorneys and Agents
. The Escrow Agent shall be entitled to rely on and shall not be liable for any action taken or omitted to be taken by the Escrow Agent in accordance with the advice of counsel or other professionals retained or consulted by the Escrow Agent. The Escrow Agent shall be reimbursed as set forth herein for any and all reasonable properly documented expenses (fees and “out-of pocket” expenses) paid and/or reimbursed to such counsel and/or professionals. The Escrow Agent may perform any and all of its duties through its agents, representatives, attorneys, custodians, and/or nominees, provided that the Escrow Agent shall remain fully responsible for its obligations hereunder.
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2.3.
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Reliance
. The Escrow Agent shall not be liable for any action taken or not taken by it in accordance with the joint written consent of the Shareholders (or their respective agents, representatives, successors, or assigns) and OTI. The Escrow Agent shall not be liable for acting or refraining from acting upon any notice, request, consent, direction, requisition, certificate, order, affidavit, letter, or other paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, without further inquiry into the person’s or persons’ authority.
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2.4.
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No Financia
l Obligation
. No provision of this Escrow Agreement shall require the Escrow Agent to risk or advance its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Escrow Agreement.
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2.5.
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Authority
. The Escrow Agent represents and warrants that it has full authority to execute, deliver and perform this Agreement and, in connection herewith, will comply with all applicable laws in rendering the services contemplated hereunder.
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2.6.
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Administration
. The Escrow Agent's contacts for administering this Agreement, including the times of availability, are as set forth in
Annex D
hereto. The authorized representatives of the applicable Shareholders for administering this Agreement, including their contacts, are as set forth in
Annex E
hereto.
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3.
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PROVISIONS CONCERNING THE ESCROW AGENT
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3.1.
|
Indemnification
. OTI (and, solely with respect to Section 1.3.2, the Shareholders as well) and its respective successors and assigns shall indemnify, defend and hold harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable attorneys’ fees and expenses or other professional fees and expenses (together, "
Losses
") which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent, arising out of or relating in any way to this Escrow Agreement or any transaction to which this Escrow Agreement relates, unless such Losses are due to the bad faith, willful misconduct or gross negligence of the Escrow Agent or the material breach (or other breach if not cured within 21 days following written notification thereof) of this Escrow Agreement by the Escrow Agent. The provisions of this Section 3.1 shall survive the resignation or removal of the Escrow Agent and the termination of this Escrow Agreement. Notwithstanding the foregoing, it is hereby agreed, solely as between OTI and the Shareholders, that in case that Losses that are indemnifiable by OTI hereunder arose from a breach of a Shareholder, OTI may seek contribution against the breaching Shareholder.
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3.2.
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Disagreements
. If any conflict, disagreement or dispute arises between, among, or involving any of the Shareholders and/or OTI concerning the meaning or validity of any provision hereunder or concerning any other matter relating to this Escrow Agreement or the Escrow Agent is in doubt as to the action to be taken hereunder, the Escrow Agent is authorized to retain the then Escrow Deposit (the “
Escrow Property
”) until the Escrow Agent (i) receives a final decision of the applicable courts or arbitrator (a “
Final Decision
”), (ii) receives a written agreement executed by OTI and the Shareholders, directing delivery of any of the Escrow Property, in which event the Escrow Agent shall be authorized to act in accordance with the Final Decision or any such agreement, or (iii) files an interpleader action in any court of competent jurisdiction, and upon the filing thereof, the Escrow Agent shall be relieved of all liability as to the Escrow Property and shall be entitled to recover reasonable, and properly documented, attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action. The Escrow Agent shall be entitled to act on a Final Decision or any such agreement without further question, inquiry, or consent.
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3.3.
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Resignation or
Removal
. The Escrow Agent may resign by furnishing written notice of its resignation to OTI and the Shareholders. OTI and the Shareholders may remove the Escrow Agent by furnishing to the Escrow Agent a written notice of OTI and both of the Shareholders notifying the Escrow Agent of its removal along with payment of all fees and expenses to which the Escrow Agent is entitled through the date of termination. Such resignation or removal, as the case may be, shall be effective thirty (30) days after the delivery of such notice or upon the earlier appointment of a successor, and the Escrow Agent’s sole responsibility thereafter shall be to safely keep the Escrow Deposit and to deliver the same to a successor escrow agent as shall be appointed by OTI and the Shareholders, as evidenced by a written notice of OTI and the Shareholders filed with the Escrow Agent or in accordance with a court order. If OTI and the Shareholders have failed to appoint a successor Escrow agent prior to the expiration of thirty (30) days following the delivery of such notice of resignation or removal, the Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow agent or for other appropriate relief, and any such resulting appointment shall be binding upon OTI and the Shareholders.
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3.4.
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Compensation and Expenses
. The Escrow Agent shall be entitled to compensation for its services as stated in the fee schedule attached hereto as
Annex B
. The fees agreed upon for the services rendered hereunder is intended as full compensation for the Escrow Agent’s services as contemplated by this Escrow Agreement. The Escrow Agent shall invoice (i) OTI for the establishment and annual fees set forth in Annex B and (ii) to the extent such fees and expenses are applicable, the applicable Shareholder for any of the other fees and expenses (such as broker related fees) that are incurred as a result of the Escrow Agent's facilitating such Shareholder's instructions. The Escrow Agent shall be authorized to set off all fees and expenses from the applicable deposit of a Shareholder within the Escrow Fund (e.g., a sale by FIMI Shareholder will trigger the associates fees and expenses only in the FIMI Shareholder's deposit within the Escrow Fund).
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3.5.
|
Merger or Consolidation
. Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Escrow Agent is a party, shall be and become the successor Escrow Agent under this Escrow Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.
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3.6.
|
Attachment of Escrow Deposit; Compliance with Legal Orders
. In the event that any portion of the Escrow Deposit shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the Escrow Deposit, the Escrow Agent is hereby expressly authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders or decrees so entered or issued, or which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction. In the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties or to any other person, firm or corporation, should, by reason of such compliance notwithstanding, such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
|
|
3.7.
|
Force Majeure
. The Escrow Agent shall not be responsible or liable for any failure or delay in the performance of its obligation under this Escrow Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, earthquakes; fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic; riots; loss or malfunctions of utilities, labor disputes; acts of civil or military authority or governmental action; it being understood that the Escrow Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.
|
4.
|
MISCELLANEOUS
|
|
4.1.
|
Successors and Assigns
. This Escrow Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No other persons shall have any rights under this Escrow Agreement. No assignment of this Escrow Agreement or any of the interests or obligations herein by any of the parties shall be binding or enforceable without the prior written consent of the non-assigning parties and the Escrow Agent (such consent not to be unreasonably withheld).
|
|
4.2.
|
Notices
.
All notices, requests, permissions, waivers and other communications hereunder will be in writing and will be deemed to have been duly given (a) five Business Days following sending by registered or certified mail, postage prepaid, (b) when sent, if sent by facsimile or email, provided that the facsimile or email transmission is promptly confirmed by telephone, (c) when delivered, if delivered personally to the intended recipient, and (d) one Business Day following sending by overnight delivery via a national courier service and, in each case, addressed to a party at the following address for such party:
|
|
4.3.
|
Governing Law
;
Jurisdiction
. All matters arising out of or relating to this Escrow Agreement and the transactions contemplated hereby (including without limitation its interpretation, construction, performance and enforcement) shall be governed by and construed in accordance with the internal laws of the State of Israel without giving effect to conflicts of laws principles that would result in the application of the Law of any other state. The competent courts of Tel Aviv-Jaffa shall have exclusive jurisdiction with respect to any claim arising in connection with this Escrow Agreement.
|
|
4.4.
|
Entire Agreement
. This Escrow Agreement sets forth the entire agreement and understanding of the parties related to the subject matter hereof.
|
|
4.5.
|
Amendment
. This Escrow Agreement may be amended, modified, superseded, rescinded, or canceled only by a written instrument executed by all of the parties hereto.
|
|
4.6.
|
Waivers
. The failure of any party to this Escrow Agreement at any time or times to require performance of any provision under this Escrow Agreement shall in no manner affect the right at a later time to enforce the same performance. A waiver by any party to this Escrow Agreement of any such condition or breach of any term, covenant, representation, or warranty contained in this Escrow Agreement, in any one or more instances, shall neither be construed as a further or continuing waiver of any such condition or breach nor a waiver of any other condition or breach of any other term, covenant, representation, or warranty contained in this Escrow Agreement.
|
|
4.7.
|
Headings
. Section headings of this Escrow Agreement have been inserted for convenience of reference only and shall in no way restrict or otherwise modify any of the terms or provisions of this Escrow Agreement.
|
|
4.8.
|
Counterparts
. This Escrow Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Escrow Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any party, the other party will re-execute original forms thereof and deliver them to the requesting party. No party will raise the use of a facsimile machine or other electronic means to deliver a signature or the fact that any signature was transmitted or communicated through the use of facsimile machine or other electronic means as a defense to the formation of a contract and each such party forever waives any such defense.
|
ORMAT TECHNOLOGIES, INC.
By:
/s/ Isaac Angel / Doron Blachar
Name:
Isaac Angel / Doron Blachar
Title:
CEO / CFO
|
||
FIMI Shareholder:
FIMI ENRG, L.P.
By:
/s/ Beck Gillon
Name:
Beck Gillon
Title:
Director
|
||
FIMI ENRG, Limited Partnership
By:
/s/ Beck Gillon
Name:
Beck Gillon
Title:
Director
|
||
Bronicki Investments Ltd.
By:
/s/ Yehudit Bronicki
Name:
Y. Bronicki
Title:
Director
|
||
The Escrow Agent:
ESOP Manangment and Trust Services Ltd.
By:
/s/ Odelia Pollak / Ariela Shlanger
Name:
Odelia Pollak / Ariela Shlanger
Title:
CEO / Director
|
Shareholder
|
Number of OIL Shares
|
Number of Consideration Shares
*
|
FIMI ENRG, L.P.
|
7,577,315
|
OIL Shares multiplied by the Exchange Ratio
|
FIMI ENRG, Limited Partnership
|
20,640,734
|
OIL Shares multiplied by the Exchange Ratio
|
Bronicki Investments Ltd.
|
16,563,442
|
OIL Shares multiplied by the Exchange Ratio
**
|
*
The
Exchange Ratio is equal to 0.2592.
|
**51 of the Bronicki Consideration Shares will be held by certificate.
|
RECITALS
|
1.
|
Board of Directors; Chairman of the Board of Directors; CEO
|
1.1.
|
Board of Directors of Ormat Technologies
and its Subsidiaries
|
1.1.1.
|
Bronicki and the Investor hereby agree that, subject to Sections 1.1.3 – 1.1.7 below, as of, and at all times following, the Effective Date (as defined below), they shall vote all of the shares of Common Stock of Ormat Technologies owned or controlled by them at such time (including, without limitation, shares of Common Stock of Ormat Technologies owned by them upon exercise or conversion of any options, warrants or other convertible securities they may hold), at each General Meeting of stockholders of Ormat Technologies convened for the election to the Ormat Technologies’ Board of Directors in favor of appointment of four (4) directors (including two (2) who qualify as independent directors) designated by each of the Investor, on one side, and Bronicki, on the other. The parties agree that to the extent the applicable rules of governance relating to Ormat Technologies or any agreement of Ormat Technologies require that the majority of Ormat Technologies' Board of Directors consist of independent directors, and if at any time a majority of the directors on the Board of Directors of Ormat Technologies do not qualify as independent directors, the number of members and the composition of Ormat Technologies' Board of Directors shall be revised by (i) increasing the total number of designees of each party and the number of designees who qualify as independent by one director (in addition to the two independent directors out of the four designees of such party) as to reflect an equal number of members designated by the Investor and Bronicki and (ii) amending the By-Laws of Ormat Technologies as necessary to increase the maximum number of members on its Board of Directors (all subject to Sections 1.1.3 – 1.1.7 below).
|
1.1.2.
|
To the maximum extent permitted by applicable law, subject to applicable fiduciary duties, and subject to Sections 1.1.3 – 1.1.7 below, as of, and at all times following, the Effective Date, the Investor and Bronicki shall use their reasonable efforts to cause an equal number of designees of Bronicki and of the Investor to be elected or appointed to the Board of Directors of any of Ormat Technologies’ active Subsidiaries and Ormat Technologies’ Board of Directors committees.
|
1.1.3.
|
Notwithstanding Sections 1.1.1 and 1.1.2 above, as of the date on which any Shareholder's holdings in Ormat Technologies fall below
the First Threshold (as defined below) but are more than 10.5% On An As Adjusted Basis (as defined below), of Ormat Technologies issued and outstanding share capital (the "
First Range
") while the other Shareholder's holdings in Ormat Technologies do not fall below
the First Threshold, such Shareholder whose shareholdings decreased below
the First Threshold shall have the right to designate only three (3) members of the board of directors of Ormat Technologies, including 2 (but not more than 50% of the total number required by law) who qualify as independent directors, and the other Shareholder, whose shareholdings did not decrease below
the
First Threshold, shall have the right to designate five (5) members of the board of directors of Ormat Technologies which shall include such number of additional directors qualified as independent directors, as required under applicable law minus those independent directors which the other party is obligated to nominate pursuant to this Section.
|
1.1.4.
|
Notwithstanding Sections
1.1.1 and 1.1.2 above, as of the date on which any Shareholder's holdings in Ormat Technologies fall below
10.5% On An As Adjusted Basis but are more than 6% of Ormat Technologies’ issued and outstanding share capital On An As Adjusted Basis (the "
Second Range
"), while the other Shareholder's holdings in Ormat Technologies are within the First Range or above, such Shareholder whose shareholdings are in the Second Range shall have the right to designate only two (2) members of the board of directors of Ormat Technologies, one (1) of which shall qualify as an independent director, and the other Shareholder whose holdings in Ormat Technologies are within the First Range or above shall have the right to designate six (6) members of the Board of Directors of Ormat Technologies.
|
1.1.5.
|
Notwithstanding Sections
1.1.1 and 1.1.2 above, as of the date on which any Shareholder's holdings in Ormat Technologies is in the Second Range while the other Shareholder's holdings in Ormat Technologies do not fall below the
First Threshold, such Shareholder whose shareholdings are in the Second Range shall have the right to designate only one (1) member of the board of directors of Ormat Technologies, which does not qualify as independent director, and the other Shareholder whose shareholdings do not fall below
the First Threshold, shall have the right to designate seven (7) members of the Board of Directors of Ormat Technologies.
|
1.1.6.
|
As of the date on which any Shareholder's holdings in Ormat Technologies fall below 6% of Ormat Technologies’ issued and outstanding share capital On An As Adjusted Basis while the other Shareholder's holdings in Ormat Technologies do not fall below 6% of Ormat Technologies issued and outstanding share capital On An As Adjusted Basis, such Shareholder whose shareholdings decreased below
6% On An As Adjusted Basis will lose all of its rights under this Section
1.1 (i.e., the right to designate directors to the board of directors of Ormat Technologies and/or its Subsidiaries), but shall still be subject to the obligations (i.e., the obligations to vote), under this Section
1.1 and Section 1.2 below.
|
1.1.7.
|
In the event the holding of
both
Shareholders are either (i) within the First Range, (ii) within the Second Range, or (iii) are less than 6% of Ormat Technologies’ issued and outstanding share capital On An As Adjusted Basis, the Shareholders shall vote all of the shares of Common Stock of Ormat Technologies owned or controlled by them to appoint the maximum number of directors their aggregate shareholding allow such that an equal number of directors designated by each Shareholder are elected.
|
1.1.8.
|
In the event that for any reason the shareholders of Ormat Technologies do not elect the directors as set forth in the preceding sections, then the Shareholders shall cooperate in good-faith in order to ensure compliance with the preceding sections.
|
1.2.
|
Chairman of the Board of Directors; CEO
|
2.
|
Limitations On Transferability
|
2.1.
|
Each Shareholder agrees that, for as long as the other Shareholder's holdings in Ormat Technologies do not fall below the First Threshold, it shall not purchase from any third party any shares of Common Stock of Ormat Technologies, without first obtaining the consent of the other Shareholder (which consent shall not be unreasonably withheld).
|
2.2.
|
Right of First
Offer.
|
2.2.1.
|
If a Shareholder wishes to sell or otherwise transfer any or all of such Shareholder’s shares in Ormat Technologies
(the "
Selling Party
"), such Selling Party shall send to the other Shareholder a written notice (the "
Sale Notice
") in which the Selling Party shall specify the following information: (i) the number of shares of Common Stock of Ormat Technologies
that the Selling Party proposes to sell or transfer (the "
Offered Shares
"); (ii) the price that the Selling Party intends to receive in respect of the Offered Shares, which shall be stated in cash, and the terms of payment thereof. Such Sale Notice shall constitute an irrevocable offer to sell the Offered Shares to the other Shareholder (the "
ROFO Shareholder
"), on the basis described below, at a purchase price equal to the price contained, and on the same terms and conditions as set forth, in the Sale Notice.
|
2.2.2.
|
At any time within ten (10) Business Days, after delivery of the Sale Notice (the “
ROFO
Shareholder Option Period
”), the ROFO Shareholder, may elect to accept the offer to purchase all (and not less than all) of the Offered Shares by giving written notice of such election (the “
ROFO
Shareholder Acceptance Notice
”) to the Selling Party within the ROFO Shareholder Option Period, which notice shall indicate that the ROFO Shareholder is willing to purchase all of the Offered Shares. A ROFO Shareholder Acceptance Notice shall constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Offered Shares covered by such ROFO Shareholder Acceptance Notice. The closing for the purchase of the Offered Shares by the ROFO Shareholder under this Section 2.2 shall take place within thirty (30) days following the expiration of the ROFO Shareholder Option Period at the offices of the Selling Party or on such other date or at such other place as may be agreed to by the Selling Party and the ROFO Shareholder.
|
2.2.3.
|
Notwithstanding anything to the contrary, and subject to the Tag Along Right set forth in Section 2.3 below, if the ROFO Shareholder does not elect within the ROFO Shareholder Option Period to exercise the rights to purchase under this Section 2.2 all of the Offered Shares proposed to be sold, the Selling Party may, within one hundred and twenty (120) days after the expiration of the ROFO Shareholder Option Period (the "
Sale Period
"), sell all such Offered Shares to a third party, on terms and conditions that are not less favorable to the Selling Party than those set forth in the Sale Notice. Following the Sale Period, any sale or transfer by a Shareholder will be made in accordance with the provisions of this Section 2.2.
|
2.3.
|
Tag-Along Rights
.
|
2.3.1.
|
Without derogating from the provisions of Section 2.2 above, if the ROFO Shareholder does not elect within the ROFO Shareholder Option Period to exercise the rights to purchase under Section 2.2 all of the Offered Shares proposed to be sold, the Selling Party shall send notification to the other Shareholder, at least ten (10) Business Days prior to the closing of any transaction during the Sale Period with respect to such shares, which shall identify the proposed purchaser (the "
Proposed Purchaser
"), or, alternatively, that the sale is to be conducted on a stock exchange, and the terms and conditions of the sale (the "
Tag Along Notice
"). The Shareholder receiving the Tag Along Notice (the "
Tag Along Shareholder
") shall have the right to notify the Selling Party, within (a) two (2) Business Day after it has received the Tag Along Notice with respect to any sale or transfer of shares of Common Stock on the New York Stock Exchange, and (b) four (4) Business Days after it has received the Tag Along Notice, with respect to any sale of shares of Common Stock outside of the New York Stock Exchange, of its intention to exercise its Tag Along Right pursuant to this Section (the "
Tag Along Confirmation
"). Following receipt of the Tag Along Confirmation, the Selling Party shall add to the Offered Shares being sold by it that number of securities which bears the same ratio to the total number of shares of Common Stock held by the Tag Along Shareholder, as the ratio that the number of Offered Shares to be sold by the Selling Party (without taking into account such number of shares held by the third parties set forth in Schedule 2.3.1 with respect to which the Investor is obligated under tag along obligations) bears to the Selling Party’s total number of shares of Common Stock, and such shares shall be sold upon the same terms and conditions under which the Selling Party’s securities are sold.
|
2.3.2.
|
In the event that the Tag Along Shareholder exercises its right hereunder, the Selling Party must cause the Proposed Purchaser (to the extent that the transaction is not effected on the New York Stock Exchange) to add such securities to the Offered Shares to be purchased by the Proposed Purchaser, as part of the sale agreement or, in the event that: (i) the Proposed Purchaser declines to purchase the total number of shares that the parties wish to sell; or (ii) the sale is made on the New York Stock Exchange, the Selling Party shall reduce the number of securities that it proposes to sell (in which case each of the Tag Along Shareholder and the Selling Party will sell their respective Pro Rata Share (as defined below) of the Offered Shares), and either complete the transaction in accordance with such revised structure or withdraw from completing the transaction.
As used herein, a Shareholder’s “
Pro Rata Share
” shall be equal to the product obtained by multiplying the total number of Offered Shares subject to the Tag Along Right (excluding such number of shares held by third parties to whom the Investor is obligated to sell under tag along obligations) by a fraction, the
numerator
of which is the total number of shares of Common Stock owned by such Shareholder, and the
denominator
of which is the total number of shares of Common Stock held by all Shareholders as of the date of the Tag Along Notice, provided that any shares purchased by a Shareholder after May 16, 2012 from third parties which are not Shareholders shall not be included in the calculation of the Pro Rata Share.
|
2.4.
|
The Tag Along Right under Section 2.3 and Right of First Offer under Section 2.2 of each Shareholder may be assigned to such Shareholder's Permitted Transferees (as defined below). Each Shareholder who elects to assign its Tag Along Right or Right of First Offer shall notify the Selling Party of such assignment, in writing.
|
2.5.
|
In the event of a proposed sale of shares of Ormat Technologies by a Shareholder on a stock exchange, the Shareholder shall coordinate such sale with the other Shareholder so as to comply to the maximum extent possible with the principles of the provisions of Sections
2.2 and 2.3 hereof.
|
2.6.
|
Notwithstanding the foregoing, the provisions of this Section 2 (excluding Section 2.7 (Bring Along Rights)) shall not apply to (i) the transfer of securities of the Company by a Shareholder to its Permitted Transferees, (ii) sales in accordance with Section 6 below, and (iii) the transfer on a stock exchange of up to 0.5% of the issued and outstanding share capital of Ormat Technologies On An As Adjusted Basis by a Shareholder in any calendar quarter, which percentage shall accumulate to the extent unused over a period of up to three (3) calendar quarters; provided that in any event the total percentage of shares transferred pursuant to this sub-section 2.6(ii) shall not exceed an aggregate of 2.5% On An As Adjusted Basis during the Term of this Agreement and, provided further, that for so long as sales by a Shareholder are governed by Rule 144 of the Securities Act and impact the number of shares which the other Shareholder is entitled to sell under such Rule 144, and subject to Section 6 below, all sales by the Shareholder shall be coordinated with the other Shareholder so as to permit each Shareholder to sell a Pro Rata Portion of Common Stock shares allowed to be sold during the relevant calendar quarter under Rule 144, unless otherwise agreed by the Shareholders.
|
2.7.
|
Bring Along Rights.
|
2.7.1.
|
In the event that a Shareholder holding more than 15% of Ormat Technologies issued and outstanding share capital On An As Adjusted Basis (the "
Proposing Shareholder
") wishes to accept an offer to sell all of Ormat Technologies’ shares it holds to any third party (the "
Buyer
") at a price per share of not less than the Trigger Price (as adjusted for dividend distributions, stock splits and consolidations, bonus shares, and any other similar recapitalization event following the Effective Date), by way of a share sale, merger or otherwise, and such Buyer has made its offer contingent upon the sale to such Buyer of all of Ormat Technologies' shares held by the other Shareholder (the "
Sale Transaction
"), then, at the closing of such Sale Transaction, the other Shareholder shall be obligated to (i) sell all of Ormat Technologies’ shares it holds to the Buyer at the same price per share and upon the same terms and conditions as the Proposing Shareholder, and/or (ii) execute and deliver such instruments of conveyance and transfer and take such other action, including voting such Shareholder’s shares of Common Stock in favor of any Sale Transaction proposed by the Proposing Shareholder and executing any purchase agreements, or related documents, as such Proposing Shareholder and the Buyer execute that are reasonably required in order to carry out the terms and provisions of this Section 2.7, provided that no Shareholder shall be required to undertake or be obligated to terms and conditions which do not similarly apply to the Proposing Shareholder.
|
2.7.2.
|
In the event of a Sale Transaction, the Right of First Offer provisions contained in this Agreement shall not be operative as between the Shareholders with respect to the sale and transfer of their shares in such Sale Transaction.
|
3.
|
Discussions Prior to Meetings; Voting
. The Shareholders shall meet regularly and in any event prior to each general meeting of shareholders of Ormat Technologies and will review, discuss and attempt to reach a unified position with respect to principal issues on the agenda of each such meeting.
|
3.1.
|
Liquidation or entrance into any bankruptcy or similar proceedings;
|
3.2.
|
Effecting a material change in Ormat Technologies’ Field of Operations (as defined below); or
|
3.3.
|
The matters set forth in subsections 3.1 and 3.2 above with respect to any of Ormat Technologies’ material Subsidiaries if, under applicable law, such matter is required to be brought to the approval of the Shareholders; or
|
3.4.
|
Amendment of the Ormat Technologies’ Articles of Association with respect to the provision relating to the Ormat Technologies’ staggered board.
|
4.
|
Dividend Distribution
.
It is the view of the Shareholders that Ormat Technologies should distribute in each calendar year dividends in an amount equal to twenty percent (20%) of its profits available for distribution, all subject to the provisions of applicable law.
|
5.
|
Term
. This Agreement shall enter into effect contingent upon the closing of the Transaction (the “
Effective Date
”) and shall terminate on May 22, 2017 (the "
Term
"); provided that between January 1, 2017 and May 22, 2017, any exercise of rights under Section 2 above shall be subject to the respective Voting Neutralization Agreements executed by Ormat Technologies and each of the Shareholders in connection with the Transaction.
|
6.
|
Ruling
.
Each of the parties hereby acknowledges that it is familiar with the terms and conditions of a ruling obtained from the Israeli Tax Authorities with respect to the Transaction (the “
Ruling
”) and undertakes to comply with the terms and conditions of the Ruling to the fullest extent applicable to it. Notwithstanding the foregoing, the Investor agrees
to permit Bronicki to sell up to such number of shares of Ormat Technologies equal to 1,300,000 multiplied by the Exchange Ratio, as part of the 10% of Investor's shares of Ormat Technologies that the Investor is permitted to sell during the two-year restrictions period applicable to the Ruling; provided, however, that (i) such shares are sold at a price per share that is not less than U.S. Dollar equivalent of NIS 25.00, calculated based on the representative exchange rate of US$-NIS on the Effective Date (or, if not published on the Effective Date, last preceding rate known then) divided by the Exchange Ratio, (ii) the shares are sold only after Bronicki has sold all of the 10% of its shares of Ormat Technologies that it is permitted to sell during the two-year restrictions period applicable to the Ruling, and (iii) notwithstanding the provisions of Section 1.1.3 above, any sale of one or more of such shares by Bronicki shall be deemed to constitute a fall by Bronicki below
the First Threshold.
|
7.
|
Amendment to the Purchase Agreement.
|
7.1.
|
The parties hereby agree that effective as of the closing of the Transaction, (i) the Call Option as set forth in the Purchase Agreement shall apply to the number of shares of Ormat Technologies issued to Bronicki in exchange for the Pledged Shares that have not been sold by it, and (ii) the Call Option Exercise Price shall be equal to (i) U.S. Dollar equivalent of the sum of (A) NIS 29.17, minus (B) all dividends per share received following March 22, 2012 and prior to the Effective Date, calculated based on the representative exchange rate of US$-NIS on the Effective Date (or, if not published on the Effective Date, last preceding rate known then), divided by (ii) the Exchange Ratio. The Call Option Exercise Price shall be adjusted for dividend distributions, stock splits and consolidations, bonus shares, and any other similar recapitalization event following the Effective Date.
|
7.2.
|
This Section shall be deemed an amendment to the Purchase Agreement effective as of the Effective Date and shall survive the termination of this Agreement. All other provisions of the Purchase Agreement and attachments and appendices thereto shall remain unchanged.
|
8.
|
Miscellaneous
|
8.1.
|
Additional Shares
. In the event of any share split, share dividend, recapitalization, reorganization, combination or the acquisition or receipt of additional Ormat Technologies shares, the provisions of this Agreement shall apply also to any shares of Common Stock issued to or otherwise held by the Shareholders and all calculations that are based upon numbers affected thereby, shall be equitably adjusted to the extent necessary to provide the parties the same economic effect as contemplated by this Agreement prior to such event.
|
8.2.
|
Governing Law; Forum for Dispute Resolution
. This Agreement shall be governed by the laws of the State of Israel. Any dispute arising under or with respect to this Agreement shall be resolved exclusively in the appropriate court in Tel Aviv, Israel.
|
8.3.
|
Notices
. All notices required or permitted hereunder to be given to a party pursuant to this Agreement shall be in writing and shall be deemed to have been duly given to the addressee thereof (i) if hand delivered, on the day of delivery, (ii) if given by facsimile or e-mail transmission, on the Business Day on which such transmission is sent and confirmed, (iii) if mailed by registered mail, return receipt requested, two (2) Business Days following the date it was mailed, to such party’s address as set forth below or at such other address as such party shall have furnished to each other party in writing in accordance with this provision:
|
8.4.
|
Entire Agreement
. This Agreement, the Purchase Agreement and all exhibits attached hereto and thereto constitute the entire agreement among the parties regarding the transactions contemplated herein and therein and, as of the Effective Date, supersedes the Original SHA and amends the Purchase Agreement.
|
8.5.
|
Headings
. The headings contained in this Agreement are solely for convenience of reference and shall not affect the interpretation of this Agreement.
|
8.6.
|
Defined Terms
. Unless otherwise specifically stated herein, all capitalized terms used herein shall have the meaning ascribed to them in the Purchase Agreement.
|
8.7.
|
Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
|
8.8.
|
Delays or Omissions; Waiver
. No delay or omission to exercise any right, power, or remedy accruing to either Bronicki or the Investor upon any breach or default by the other party under this Agreement shall impair any such right or remedy nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein or in any similar breach or default thereafter occurring.
|
8.9.
|
Further Actions
. At any time and from time to time, each party agrees, without further consideration, to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement.
|
8.10.
|
Fees & Expenses.
Each Shareholder shall bear its own legal fees and all related expenses in connection with this Agreement.
|
8.11.
|
Amendments.
This Agreement may be amended or modified in whole or in part only by a duly authorized written agreement that refers to this Agreement and is signed by the parties hereto.
|
8.12.
|
Limitations on Rights of Third Parties
. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person, other than the Shareholders and Permitted Transferees, any rights or remedies under this Agreement.
|
8.13.
|
Severability
. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected, impaired or invalidated thereby.
|
8.14.
|
Assignment.
Other than to Permitted Transferees, each of the parties hereto shall not assign or otherwise transfer this Agreement, and/or any of its rights or obligations hereunder to any third party. Except as expressly permitted herein, this Agreement is not assignable by any party hereto, and each of the parties hereto shall not assign or otherwise transfer, in whole or in part, this Agreement, and/or any of its rights, interests or obligations hereunder to any third party, without the prior written consent of the other party hereto, and any such assignment without such prior written consent shall be null and void. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
|
s/s Beck Gillon
FIMI ENRG, Limited Partnership
By:
Name:
Beck Gillon
Title:
Director
FIMI ENRG, L.P.
By:
Name:
Beck Gillon
Title:
Director
|
s/s
Yehudit Bronicki
Bronicki Investments Ltd.
By:
Name:
Y. Bronicki
Title:
Director
|
Term
|
Section
|
Additional Pledged Shares
Agreement
|
Section 2.03(b)
Preamble
|
Assumption
Assumption Closing
Bank Agreement
Bank Hapoalim Letter
|
Section 2.04(a)
Section 2.04(a)
Section1.01(a)
Section 6.01(e)
|
Board
|
Section 6.01(l)
|
Buyer
|
Preamble
|
Buyer Pledged Shares
Call Exercise Notice
Call Option Closing
Call Option Exercise Period
Closing
|
Section 2.03(a)
Section 2.05(a)
Section 2.05(a)
Section 2.05(a)
Section
2.02
|
Company
Company Ordinary Shares
Confidentiality Undertakings
|
Preamble
Preamble
Section 8.02
|
Consents and Approvals
Damages
Deducted Shares
|
Section 3.03
Section 7.01
Section 2.04(a)
|
Deposit
Disclosure Schedules
e-mail
|
Section 2.03(c)
Article 3
Section 9.01
|
End Date
|
Section 8.01(b)
|
Exercise Notice
Exercise Period
Fixed Charge
Foreign Fund
GM
Indemnified Parties
Indemnification Shares
Initial Deposit
Israeli Fund
ITA
Option
Ormat Industries
|
Section 2.04(a)
Section 2.04(a)
Section 2.03(a)
Preamble
Section 2.02(a)(iv)
Section 7.01
Preamble
Section 2.03(b)
Preamble
Section 2.07
Section 2.04(a)
Preamble
|
Term
|
Section
|
Ormat Industries Reports
|
Section 3.10(a)
|
Ormat Technologies
Ormat Technologies Reports
Paying Agent
|
Preamble
Section 3.10(b)
Section 2.06
|
Purchased Shares
Purchase Price
Remaining Pledged Shares
|
Preamble
Section 2.01
Section 2.04(a)
|
Security Interest
|
Section 2.03(a)
|
Seller
|
Preamble
|
Surplus Shares
Tax Certificate
Termination Date
Third Party Claim
|
Section 2.01
Section 2.06
Section 2.03(b)
Section 7.02
|
Warranty Breach
Warranty Breaches Cap
Withholding Drop Date
|
Section
7.01
Section 7.01
Section 2.06
|
s/s Ishay David / Beck Gillon
FIMI ENRG, Limited Partnership
By:
Name:
Ishay David / Beck Gillon
Title: ____________________
|
s/s Yehudit Bronicki
Bronicki Investments Ltd
.
By:
Name:
Y. Bronicki
Title:
Director
|
1.
|
To amend and replace any and all reference to "
share certificate no. 367
", in the SPA and its attachments and appendices, to "
share certificate no. 371
".
|
2.
|
To amend Section 2.03(c) such that the words "any additional deposit pledged to Bank Hapoalim in the Seller's account (together, the "
Deposit
")" in the fourth line, shall be replaced with the following wording: "the specific additional deposit in the Seller's bank account (which is pledged to the Bank) and used solely for the payment of the upcoming interest payment pursuant to the Seller's irrevocable instructions (so long that there is no legal restriction, including any third party's Encumbrance to use such deposit) (together, the "
Deposit
")".
|
3.
|
All other provisions of the SPA and attachments and appendices thereto shall remain unchanged.
|
s/s Beck Gillon
FIMI ENRG, Limited Partnership
By:
Name:
Beck Gillon
Title:
Director
|
s/s Yehudit Bronicki
Bronicki Investments Ltd
.
By:
Name:
Y. Bronicki
Title:
Director
|
ORMAT TECHNOLOGIES, INC.
|
|
By:
|
/s/ Isaac Angel
|
Name: Isaac Angel
|
|
Title: Chief Executive Officer
|
BRONICKI INVESTMENTS LTD.
|
|
By:
|
/s/ Yehudit Bronicki
|
Name: Yehudit Bronicki
|
|
Title: Director
|
FIMI ENRG, LIMITED PARTNERSHIP
|
||
By:
|
FIMI IV 2007 LTD., its General Partner
/s/ Beck Gillon
|
|
Name:
|
Beck Gillon
|
|
Title:
|
Director
|
FIMI ENRG L.P.
|
||
By:
|
FIMI IV 2007 LTD., its General Partner
/s/ Beck Gillon
|
|
Name:
|
Beck Gillon
|
|
Title:
|
Director
|
Bronicki Investments Ltd.
By: /s/ Yehudit Bronicki
Name:
Yehudit Bronicki
Title:
Director
|
|
Lucien Bronicki
By: /s/ Lucien Bronicki
|
|
Yehudit Bronicki
By: /s/ Yehudit Bronicki
|