SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K/A
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
For the month of: September 2023 (Report No. 3
and Report No. 4)
Commission file number: 001-37600
NANO DIMENSION LTD.
(Translation of registrant’s name into English)
2 Ilan Ramon
Ness Ziona 7403635 Israel
(Address of principal executive offices)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒
Form 40-F ☐
CONTENTS
Reference
is made to the Report on Form 6-K submitted with the Securities and Exchange Commission (“SEC”) on September 7, 2023
(the “September 7 Form 6-K”) relating to the results of the Nano Dimension Ltd. (the “Registrant”)
annual general meeting dated September 7, 2023 (the “AGM”) and the Report on Form 6-K submitted to the SEC on September
14, 2023 (the “September 14 Form 6-K”), which furnished as Exhibit 99.1, respectively, the Company’s amended
and restated articles of association (the “Restated Articles”). This amendment amends such Reports on 6-K as follows:
On
November 27, 2023, the Registrant’s board of directors (the “Board”) was presented with an external expert opinion
(the “Expert Opinion”) concluding that the Registrant’s amended and restated articles of association, which were
first submitted as Exhibit 99.3.A to the Report on Form 6-K submitted to the SEC on March 11, 2020 (the “Previous Articles”),
contained a clerical error in Article 39(g) which mistakenly referred to Article 42(e) instead of Article 42(f) in the matter of the required
vote to amend such article (the “Clerical Error”). Due to the Clerical Error, proposal 4 in the AGM, which was described
in the proxy statement for the AGM as requiring approval by a vote of more than 50% of the votes of shareholders voting at the AGM (simple
majority), in fact required a special majority of 70% of the votes of shareholders voting at the AGM. Additionally, pursuant to the Expert
Opinion, because that certain part of proposal 4 in the AGM was not approved by the required special majority in the AGM, Article 42(f)
should have remained as it appeared in the Previous Articles and should not have been amended in the way it appeared in the Restated Articles.
Therefore,
on November 27, 2023, the Board agreed to proceed with approval of the resolution as described above, subject to additional in-depth reading
by all directors of the Expert Opinion, to verify that it is indeed clearly and accurately justified. Henceforth, during December 2023,
the Board resolved to adopt the conclusions of the Expert Opinion in their entirety. Accordingly, the September 7 Form 6-K is hereby amended
to reflect that part of proposal 4 of the AGM relating to the amendment of Article 42(f) of the Previous Articles was not approved by
the required special majority at the AGM, and therefore the Registrant is now also hereby amending the September 14 Form 6-K by replacing
the Previous Articles and the Restated Articles with a form that restores the original wording of Article 42(f) of the Previous Articles
(the “New Articles”).
The
Board hereby clarifies that any proposal for shareholders to amend Article 42(f) of the New Articles shall require a majority of 70% of
the votes of shareholders voting at a general meeting.
Attached
hereto as Exhibit 99.1 are the Registrant’s New Articles, as amended based on the aforesaid Board resolutions.
This
Report of Foreign Private Issuer on Form 6-K is incorporated by reference into the Company’s registration statements on Form F-3
(File No. 333-255960, 333-233905, 333-251155, 333-252848, 333-251004 and 333-249184) and Form S-8 (File No. 333-214520, 333-248419 and
333-269436), filed with the Securities and Exchange Commission, to be a part thereof from the date on which this report is submitted,
to the extent not superseded by documents or reports subsequently filed or furnished.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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Nano Dimension Ltd. |
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(Registrant) |
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Date: December 11, 2023 |
By: |
/s/ Tomer Pinchas |
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Name: |
Tomer Pinchas |
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Title: |
Chief Operating Officer |
Exhibit 99.1
THE COMPANIES LAW, 1999
A LIMITED LIABILITY COMPANY
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
NANO DIMENSION LTD.
Preliminary
1. |
Definitions; Interpretation. |
(a) In
these Articles, the following terms (whether or not capitalized) shall bear the meanings set forth opposite to them respectively, unless
inconsistent with the subject or context.
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“Articles” |
shall mean these Articles of Association, as amended from time to time. |
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“Board of Directors” |
shall mean the Board of Directors of the Company. |
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“Chairperson” |
shall mean the Chairperson of the Board of Directors, or the Chairperson of the General Meeting, as the context provides. |
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“Company” |
shall mean NANO DIMENSION LTD. |
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“Companies Law” |
shall mean the Israeli Companies Law, 5759-1999 and the regulations promulgated thereunder. The Companies Law shall include reference to the Companies Ordinance (New Version), 5743-1983, of the State of Israel, to the extent in effect according to the provisions thereof. |
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“Director(s)” |
shall mean the member(s) of the Board of Directors holding office at any given time, including alternate directors. |
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“External Director(s)” |
shall mean as defined in the Companies Law. |
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“General Meeting” |
shall mean an Annual General Meeting or Special General Meeting of the Shareholders, as the case may be. |
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“NIS” |
shall mean New Israeli Shekels. |
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“Office” |
shall mean the registered office of the Company at any given time. |
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“Office Holder” or “Officer” |
shall mean as defined in the Companies Law. |
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“RTP Law” |
shall mean the Israeli Restrictive Trade Practices Law, 5758-1988. |
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“Securities Law” |
shall mean the Israeli Securities Law, 5728-1968. |
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“Shareholder(s)” |
shall mean the shareholder(s) of the Company, at any given time. |
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“in writing” or “writing” |
shall mean written, printed, photocopied, photographic, typed, sent via email, facsimile or produced by any visible substitute for writing, or partly one and partly another, and signed shall be construed accordingly. |
(b) Unless
otherwise defined in these Articles or required by the context, terms used herein shall have the meaning provided therefor under the Companies
Law.
(c) Unless
the context shall otherwise require: words in the singular shall also include the plural, and vice versa; any pronoun shall include the
corresponding masculine, feminine and neuter forms; the words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”; the words “herein”, “hereof” and
“hereunder” and words of similar import refer to these Articles in its entirety and not to any part hereof; all references
herein to Articles, Sections or clauses shall be deemed references to Articles, Sections or clauses of these Articles; any references
to any agreement or other instrument or law, statute or regulation are to it as amended, supplemented or restated, from time to time (and,
in the case of any law, to any successor provisions or re-enactment or modification thereof being in force at the time); any reference
to “law” shall include any supranational, national, federal, state, local, or foreign statute or law and all rules and regulations
promulgated thereunder (including, any rules, regulations or forms prescribed by any governmental authority or securities exchange commission
or authority, if and to the extent applicable); any reference to a “day” or a number of “days” (without any explicit
reference otherwise, such as to business days) shall be interpreted as a reference to a calendar day or number of calendar days; reference
to month or year means according to the Gregorian calendar; any reference to a “company”, “corporate
body” or “entity” shall include a, partnership, corporation, limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision thereof, and reference to a “person” shall mean any of the
foregoing or an individual.
(d) The
captions in these Articles are for convenience only and shall not be deemed a part hereof or affect the construction or interpretation
of any provision hereof.
Limited
Liability
2. |
The Company is a limited liability company, as set forth in the Company’s Memorandum of Association, and therefore each Shareholder’s obligations to the Company shall be limited to the payment of the nominal value of the shares held by such Shareholder, subject to the provisions of the Companies Law. |
Public
Company; Company’s Objectives
3. |
Public Company; Objectives. |
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(a) |
The Company is a Public Company as such term is defined in and as long as it so qualifies under the Companies Law. |
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(b) |
The Company’s objectives are to carry on any business, and do any act, which is not prohibited by law, subject to the purposes of the Company specified in the Company’s Memorandum of Association. |
The Company may donate a reasonable
amount of money (in cash or in kind, including the Company’s securities) for any purpose that the Board of Directors finds appropriate.
Share
Capital
5. |
Authorized Share Capital. |
(a) The
share capital of the Company shall consist of NIS 2,500,000,000 divided into 500,000,000 Ordinary Shares, of a nominal value of NIS 5.00
each (the “Ordinary Shares”).
(b) The
Ordinary Shares shall rank pari passu in all respects.
6. |
Increase of Authorized Share Capital. |
(a) The
Company may, from time to time, by a Shareholders’ resolution, whether or not all the shares then authorized have been issued, and
whether or not all the shares theretofore issued have been called up for payment, increase its authorized share capital by the creation
of new shares. Any such increase shall be in such amount and shall be divided into shares of such nominal amounts, and such shares shall
confer such rights and preferences, and shall be subject to such restrictions, as such resolution shall provide.
(b) Except
to the extent otherwise provided in such resolution, any new shares included in the authorized share capital increased as aforesaid shall
be subject to all the provisions of these Articles which are applicable to shares of such class included in the existing share capital
without regard to class (and, if such new shares are of the same class as a class of shares included in the existing share capital, to
all of the provisions which are applicable to shares of such class included in the existing share capital).
7. |
Special or Class Rights; Modification of Rights. |
(a) If
at any time the share capital of the Company is divided into different classes of shares, the rights attached to any class, unless otherwise
provided by the Companies Law or these Articles, may be modified or cancelled by the Company by a resolution of the General Meeting of
the holders of all shares as one class, without any required separate resolution of any class of shares.
(b) The
provisions of these Articles relating to General Meetings shall, mutatis mutandis, apply to any separate General Meeting of
the holders of the shares of a particular class, it being clarified that the requisite quorum at any such separate General Meeting shall
be two or more Shareholders present in person or by proxy and holding not less than one quarter (1/4) of the issued shares of such class.
(c) Unless
otherwise provided by these Articles, an increase in the authorized share capital, the creation of a new class of shares, an increase
in the authorized share capital of a class of shares, or the issuance of additional shares thereof out of the authorized and unissued
share capital, shall not be deemed, for purposes of this Article 7, to modify or derogate or cancel the rights attached to previously
issued shares of such class or of any other class.
8. |
Consolidation, Division, Cancellation and Reduction of Share Capital. |
(a) The
Company may, from time to time, by or pursuant to an authorization of a Shareholders’ resolution, and subject to applicable law:
(i) consolidate
all or any part of its issued or unissued authorized share capital into shares of a per share nominal value, which is larger, equal to
or smaller than the per share nominal value of its existing shares;
(ii) divide
or sub-divide its shares (issued or unissued) or any of them, into shares of smaller or the same nominal value (subject, however, to the
provisions of the Companies Law), and the resolution whereby any share is divided may determine that, as among the holders of the shares
resulting from such subdivision, one or more of the shares may, in contrast to others, have any such preferred or deferred rights or rights
of redemption or other special rights, or be subject to any such restrictions, as the Company may attach to unissued or new shares;
(iii) cancel
any shares which, at the date of the adoption of such resolution, have not been taken or agreed to be taken by any person, and reduce
the amount of its share capital by the amount of the shares so canceled; or
(iv) reduce its share capital in any
manner.
(b) With
respect to any consolidation of issued shares and with respect to any other action which may result in fractional shares, the Board of
Directors may settle any difficulty which may arise with regard thereto, as it deems fit, and, in connection with any such consolidation
or other action which could result in fractional shares, may, without limiting its aforesaid power:
(i) determine,
as to the holder of shares so consolidated, which issued shares shall be consolidated into shares of a larger, equal or smaller nominal
value per share;
(ii) issue,
in contemplation of or subsequent to such consolidation or other action, shares sufficient to preclude or remove fractional share holdings;
(iii) redeem
such shares or fractional shares sufficient to preclude or remove fractional share holdings;
(iv) round
up, round down or round to the nearest whole number, any fractional shares resulting from the consolidation or from any other action which
may result in fractional shares; or
(v) cause
the transfer of fractional shares by certain Shareholders of the Company to other Shareholders thereof so as to most expediently preclude
or remove any fractional shareholdings, and cause the transferees of such fractional shares to pay the transferors thereof the fair value
thereof, and the Board of Directors is hereby authorized to act in connection with such transfer, as agent for the transferors and transferees
of any such fractional shares, with full power of substitution, for the purposes of implementing the provisions of this sub-Article 8(b)(v).
9. |
Issuance of Share Certificates, Replacement of Lost Certificates. |
(a) To
the extent that the Board of Directors determines that all shares shall be certificated or, if the Board of Directors does not so determine,
to the extent that any Shareholder requests a share certificate, share certificates shall be issued under the corporate seal of the Company
or its written, typed or stamped name and may bear the signature of one Director, the Company’s CEO, CFO or of any other person
or persons authorized therefor by the Board of Directors. Signatures may be affixed in any mechanical or electronic form, as the Board
of Directors may prescribe. For the avoidance of doubt, any transfer agent designated by the Company may issue share certificates on behalf
of the Company even if the signatories on the share certificate no longer serve in the relevant capacities at the time of such issuance.
(b) Subject
to the Article 9(a), each Shareholder shall be entitled to one numbered certificate for all the shares of any class registered in his
name. Each certificate may also specify the amount paid up thereon. The Company (as determined by an officer of the Company to be designated
by the Chief Executive Officer) shall not refuse a request by a Shareholder to obtain several certificates in place of one certificate,
unless such request is, in the opinion of such officer, unreasonable. Where a Shareholder has sold or transferred some of such Shareholder’s
shares, such Shareholder shall be entitled to receive a certificate in respect of such Shareholder’s remaining shares, provided
that the previous certificate is delivered to the Company before the issuance of a new certificate.
(c) A
share certificate registered in the names of two or more persons shall be delivered to the person first named in the Register of Shareholders
in respect of such co-ownership.
(d) A
share certificate which has been defaced, lost or destroyed, may be replaced, and the Company shall issue a new certificate to replace
such defaced, lost or destroyed certificate upon payment of such fee, and upon the furnishing of such evidence of ownership and such indemnity,
as the Board of Directors in its discretion deems fit.
Except as otherwise provided in these
Articles or the Companies Law, the Company shall be entitled to treat the registered holder of each share as the absolute owner thereof,
and accordingly, shall not, except as ordered by a court of competent jurisdiction, or as required by the Companies Law, be obligated
to recognize any equitable or other claim to, or interest in, such share on the part of any other person.
11. |
Issuance and Repurchase of Shares. |
(a) The
unissued shares from time to time shall be under the control of the Board of Directors (and to the full extent permitted by law any Committee
(as defined herein) thereof), which shall have the power to issue or otherwise dispose of shares and of securities convertible or exercisable
into or other rights to acquire from the Company to such persons, on such terms and conditions (including inter alia terms relating to
calls set forth in Article 13(f) hereof), and either at par or at a premium, or subject to the provisions of the Companies Law, at a discount
and/or with payment of commission, and at such times, as the Board of Directors (or the Committee, as the case may be) deems fit, and
the power to give to any person the option to acquire from the Company any shares or securities convertible or exercisable into or other
rights to acquire from the Company, either at par or at a premium, or, subject as aforesaid, at a discount and/or with payment of commission,
during such time and for such consideration as the Board of Directors (or the Committee, as the case may be) deems fit.
(b) The
Company may at any time and from time to time, subject to the Companies Law, repurchase or finance the purchase of any shares or other
securities issued by the Company, in such manner and under such terms as the Board of Directors shall determine, whether from any one
or more Shareholders. Such purchase shall not be deemed as payment of dividends and no Shareholder will have the right to require the
Company to purchase his shares or offer to purchase shares from any other Shareholders.
12. |
Payment in Installment. |
If pursuant to the terms of issuance
of any share, all or any portion of the price thereof shall be payable in installments, every such installment shall be paid to the Company
on the due date thereof by the then registered holder(s) of the share or the person(s) then entitled thereto.
(a) The
Board of Directors may, from time to time, as it, in its discretion, deems fit, make calls for payment upon shareholders in respect of
any sum (including premium) which has not been paid up in respect of shares held by such shareholders and which is not, pursuant to the
terms of issuance of such shares or otherwise, payable at a fixed time, and each shareholder shall pay the amount of every call so made
upon him (and of each installment thereof if the same is payable in installments), to the person(s) and at the time(s) and place(s) designated
by the Board of Directors, as any such times may be thereafter extended and/or such person(s) or place(s) changed. Unless otherwise stipulated
in the resolution of the Board of Directors (and in the notice hereafter referred to), each payment in response to a call shall be deemed
to constitute a pro rata payment on account of all the shares in respect of which such call was made.
(b) Notice
of any call for payment by a shareholder shall be given in writing to such shareholder not less than fourteen (14) days prior to the time
of payment fixed in such notice, and shall specify the time and place of payment, and the person to whom such payment is to be made. Prior
to the time for any such payment fixed in a notice of a call given to a shareholder, the Board of Directors may in its absolute discretion,
by notice in writing to such shareholder, revoke such call in whole or in part, extend the time fixed for payment thereof, or designate
a different place of payment or person to whom payment is to be made. In the event of a call payable in installments, only one notice
thereof needs to be given.
(c) If
pursuant to the terms of issuance of a share or otherwise, an amount is made payable at a fixed time (whether on account of such nominal
value of such share or by way of premium), such amount shall be payable at such time as if it were payable by virtue of a call made by
the Board of Directors and for which notice was given in accordance with paragraphs (a) and (b) of this Article 13, and the provision
of these Articles with regard to calls (and the non-payment thereof) shall be applicable to such amount or such installment (and the non-payment
thereof).
(d) Joint
holders of a share shall be jointly and severally liable to pay all calls for payment in respect of such share and all interest payable
thereon.
(e) Any
amount called for payment which is not paid when due shall bear interest from the date fixed for payment until actual payment thereof,
at such rate (not exceeding the then prevailing debitory rate charged by leading commercial banks in Israel), and payable at such time(s)
as the Board of Directors may prescribe.
(f) Upon
the issuance of shares, the Board of Directors may provide for differences among the holders of such shares as to the amounts and times
for payment of calls for payment in respect of such shares.
With the approval of the Board of
Directors, any shareholder may pay to the Company any amount not yet payable in respect of such shareholder’s shares, and the Board
of Directors may approve the payment by the Company of interest on any such amount until the same would be payable if it had not been
paid in advance, at such rate and time(s) as may be approved by the Board of Directors. The Board of Directors may at any time cause the
Company to repay all or any part of the money so advanced, without premium or penalty. Nothing in this Article 14 shall derogate from
the right of the Board of Directors to make any call for payment before or after receipt by the Company of any such advance.
15. |
Forfeiture and Surrender. |
(a) If
any shareholder fails to pay an amount payable by virtue of a call, installment or interest thereon as provided for in accordance herewith,
on or before the day fixed for payment of the same, the Board of Directors, may at any time after the day fixed for such payment, so long
as such amount (or any portion thereof) or interest thereon (or any portion thereof) remains unpaid, forfeit all or any of the shares
in respect of which such payment was called for. All expenses incurred by the Company in attempting to collect any such amount or interest
thereon, including, without limitation, attorneys’ fees and costs of legal proceedings, shall be added to, and shall, for all purposes
(including the accrual of interest thereon) constitute a part of, the amount payable to the Company in respect of such call.
(b) Upon
the adoption of a resolution as to the forfeiture of a shareholder’s share, the Board of Directors shall cause notice thereof to
be given to such shareholder, which notice shall state that, in the event of the failure to pay the entire amount so payable by a date
specified in the notice (which date shall be not less than fourteen (14) days after the date such notice is given and which may be extended
by the Board of Directors), such shares shall be ipso facto forfeited, provided, however, that, prior to such date, the Board of Directors
may cancel such resolution of forfeiture, but no such cancellation shall stop the Board of Directors from adopting a further resolution
of forfeiture in respect of the non-payment of the same amount.
(c) Without
derogating from Articles 52 and 56 hereof, whenever shares are forfeited as herein provided, all dividends, if any, theretofore declared
in respect thereof and not actually paid shall be deemed to have been forfeited at the same time.
(d) The
Company, by resolution of the Board of Directors, may accept the voluntary surrender of any share.
(e) Any
share forfeited or surrendered as provided herein, shall become the property of the Company as a dormant share, and the same, subject
to the provisions of these Articles, may be sold, re-issued or otherwise disposed of as the Board of Directors deems fit.
(f) Any
person whose shares have been forfeited or surrendered shall cease to be a shareholder in respect of the forfeited or surrendered shares,
but shall, notwithstanding, be liable to pay, and shall forthwith pay, to the Company, all calls, interest and expenses owing upon or
in respect of such shares at the time of forfeiture or surrender, together with interest thereon from the time of forfeiture or surrender
until actual payment, at the rate prescribed in Article 13(e) above, and the Board of Directors, in its discretion, may, but shall not
be obligated to, enforce or collect the payment of such amounts, or any part thereof, as it shall deem fit. In the event of such forfeiture
or surrender, the Company, by resolution of the Board of Directors, may accelerate the date(s) of payment of any or all amounts then owing
to the Company by the person in question (but not yet due) in respect of all shares owned by such shareholder, solely or jointly with
another.
(e) The
Board of Directors may at any time, before any share so forfeited or surrendered shall have been sold, re-issued or otherwise disposed
of, nullify the forfeiture or surrender on such conditions as it deems fit, but no such nullification shall stop the Board of Directors
from re-exercising its powers of forfeiture pursuant to this Article 15.
(a) Except
to the extent the same may be waived or subordinated in writing, the Company shall have a first and paramount lien upon all the shares
registered in the name of each shareholder (without regard to any equitable or other claim or interest in such shares on the part of any
other person), and upon the proceeds of the sale thereof, for his debts, liabilities and engagements to the Company arising from any amount
payable by such shareholder in respect of any unpaid or partly paid share, whether or not such debt, liability or engagement has matured.
Such lien shall extend to all dividends from time to time declared or paid in respect of such share. Unless otherwise provided, the registration
by the Company of a transfer of shares shall be deemed to be a waiver on the part of the Company of the lien (if any) existing on such
shares immediately prior to such transfer.
(b) The
Board of Directors may cause the Company to sell a share subject to such a lien when the debt, liability or engagement giving rise to
such lien has matured, in such manner as the Board of Directors deems fit, but no such sale shall be made unless such debt, liability
or engagement has not been satisfied within fourteen (14) days after written notice of the intention to sell shall have been served on
such shareholder, his executors or administrators.
(c) The
net proceeds of any such sale, after payment of the costs and expenses thereof or ancillary thereto, shall be applied in or toward satisfaction
of the debts, liabilities or engagements of such shareholder in respect of such share (whether or not the same have matured), and the
residue (if any) shall be paid to the shareholder, his executors, administrators or assigns.
17. |
Sale After Forfeiture of Surrender or in Enforcement of Lien. |
Upon any sale of a share after forfeiture
or surrender or for enforcing a lien, the Board of Directors may appoint any person to execute an instrument of transfer of the share
so sold and cause the purchaser’s name to be entered in the Register of Shareholders in respect of such share. The purchaser shall
be registered as the shareholder and shall not be bound to see to the regularity of the sale proceedings, or to the application of the
proceeds of such sale, and after his name has been entered in the Register of Shareholders in respect of such share, the validity of the
sale shall not be impeached by any person, and person, and the remedy of any person aggrieved by the sale shall be in damages only and
against the Company exclusively.
The Company may, subject to applicable
law, issue redeemable shares or other securities and redeem the same upon terms and conditions to be set forth in a written agreement
between the Company and the holder of such shares or in their terms of issuance.
Transfer
of Shares
19. |
Registration of Transfer. |
No transfer
of shares shall be registered unless a proper writing or instrument of transfer (in any customary form or any other form satisfactory
to the Board of Directors) has been submitted to the Company (or its transfer agent), together with any share certificate(s) and such
other evidence of title as the Board of Directors may reasonably require. Until the transferee has been registered in the Register of
Shareholders in respect of the shares so transferred, the Company may continue to regard the transferor as the owner thereof. The Board
of Directors, may, from time to time, prescribe a fee for the registration of a transfer, and may approve other methods of recognizing
the transfer of shares in order to facilitate the trading of the Company’s American Depositary Shares on the Nasdaq or on any other
stock exchange on which the Company’s shares are then listed for trading.
20. |
Suspension of Registration. |
The Board of Directors may, in its
discretion to the extent it deems necessary, close the Register of Shareholders for registration of transfers of shares for a period determined
by the Board of Directors, and no registrations of transfers of shares shall be made by the Company during any such period during which
the Register of Shareholders is so closed.
Transmission
of Shares
(a) In
case of a share registered in the names of two or more holders, the Company may recognize the survivor(s) as the sole owner(s) thereof
unless and until the provisions of Article 21(b) have been effectively invoked.
(b) Any
person becoming entitled to a share in consequence of the death of any person, upon producing evidence of the grant of probate or letters
of administration or declaration of succession (or such other evidence as the Board of Directors may reasonably deem sufficient (or to
an officer of the Company to be designated by the Chief Executive Officer)), shall be registered as a Shareholder in respect of such share,
or may, subject to the provisions as to transfer contained herein, transfer such share.
22. |
Receivers and Liquidators. |
(a) The
Company may recognize any receiver, liquidator or similar official appointed to wind-up, dissolve or otherwise liquidate a corporate Shareholder,
and a trustee, manager, receiver, liquidator or similar official appointed in bankruptcy or in connection with the reorganization of,
or similar proceeding with respect to a shareholder or its properties, as being entitled to the shares registered in the name of such
Shareholder.
(b) Such
receiver, liquidator or similar official appointed to wind-up, dissolve or otherwise liquidate a corporate Shareholder and such trustee,
manager, receiver, liquidator or similar official appointed in bankruptcy or in connection with the reorganization of, or similar proceedings
with respect to a shareholder or its properties, upon producing such evidence as the Board of Directors (or an officer of the Company
to be designated by the Chief Executive Officer) may deem sufficient as to his authority to act in such capacity or under this Article,
shall with the consent of the Board of Directors (which the Board of Directors may grant or refuse in its absolute discretion), be registered
as a shareholder in respect of such shares, or may, subject to the regulations as to transfer herein contained, transfer such shares.
General
Meetings
(a) An
annual General Meeting (“Annual General Meeting”) shall be held at such time and at such place, either within or out
of the State of Israel, as may be determined by the Board of Directors, no later than fifteen (15) months after the last Annual General
Meeting.
(b) All
General Meetings other than Annual General Meetings shall be called “Special General Meetings”.
24. |
Record Date for General Meeting. |
Notwithstanding any provision of these
Articles to the contrary, and to allow the Company to determine the Shareholders entitled to notice of or to vote at any General Meeting
or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or grant of any rights, or entitled to
exercise any rights in respect of or to take or be the subject of any other action, the Board of Directors may fix a record date, which
shall not be more than the maximum period and not less than the minimum period permitted by law. A determination of Shareholders of record
entitled to notice of or to vote at a meeting shall apply to any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
25. |
Shareholder Proposal Request. |
(a) Any
Shareholder or Shareholders of the Company holding at least one percent (1%) or a higher percent, as may be required by the Companies
Law from time to time, of the voting rights of the Company (the “Proposing Shareholder(s)”) may request, subject to
the Companies Law, that the Board of Directors include a matter on the agenda of a General Meeting to be held in the future, provided
that the Board determines that the matter is appropriate to be considered in a General Meeting (a “Proposal Request”).
In order for the Board of Directors to consider a Proposal Request and whether to include the matter stated therein in the agenda of a
General Meeting, notice of the Proposal Request must be timely delivered in accordance with applicable laws, and the Proposal Request
must comply with the requirement of these Articles (including this Article 25) and any applicable law and stock exchange rules and regulations.
The Proposal Request must be in writing, signed by all of the Proposing Shareholder(s) making such request, delivered, either in person
or by certified mail, postage prepaid, and received by the Secretary (or, in the absence thereof by the Chief Executive Officer of the
Company). To be considered timely, a Proposal Request must be received within the time periods prescribed by applicable law. The announcement
of an adjournment or postponement of a General Meeting shall not commence a new time period (or extend any time period) for the delivery
of a Proposal Request as described above. In addition to any information required to be included in accordance with applicable law, the
Proposal Request must include the following: (i) the name, address, telephone number, fax number and email address of the Proposing Shareholder
(or each Proposing Shareholder, as the case may be) and, if an entity, the name(s) of the person(s) that controls or manages such entity;
(ii) the number of Shares held by the Proposing Shareholder(s), directly or indirectly (and, if any of such Shares are held indirectly,
an explanation of how they are held and by whom), which shall be in such number no less than as is required to qualify as a Proposing
Shareholder, accompanied by evidence satisfactory to the Company of the record holding of such Shares by the Proposing Shareholder(s)
as of the date of the Proposal Request, and a representation that the Proposing Shareholder(s) intends to appear in person or by proxy
at the meeting; (iii) the matter requested to be included on the agenda of a General Meeting, all information related to such matter,
the reason that such matter is proposed to be brought before the General Meeting, the complete text of the resolution that the Proposing
Shareholder proposes to be voted upon at the General Meeting and, if the Proposing Shareholder wishes to have a position statement in
support of the Proposal Request, a copy of such position statement that complies with the requirement of any applicable law (if any),
(iv) a description of all arrangements or understandings between the Proposing Shareholders and any other Person(s) (naming such Person
or Persons) in connection with the matter that is requested to be included on the agenda and a declaration signed by all Proposing Shareholder(s)
of whether any of them has a personal interest in the matter and, if so, a description in reasonable detail of such personal interest;
(v) a description of all Derivative Transactions (as defined below) by each Proposing Shareholder(s) during the previous twelve (12) month
period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms
of, such Derivative Transactions; and (vi) a declaration that all of the information that is required under the Companies Law and any
other applicable law and stock exchange rules and regulations to be provided to the Company in connection with such matter, if any, has
been provided to the Company. The Board of Directors, may, in its discretion, to the extent it deems necessary, request that the Proposing
Shareholder(s) provide additional information necessary so as to include a matter in the agenda of a General Meeting, as the Board of
Directors may reasonably require.
A “Derivative Transaction”
means any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Proposing Shareholder
or any of its affiliates or associates, whether of record or beneficial: (1) the value of which is derived in whole or in part from the
value of any class or series of shares or other securities of the Company, (2) which otherwise provides any direct or indirect opportunity
to gain or share in any gain derived from a change in the value of securities of the Company, (3) the effect or intent of which is to
mitigate loss, manage risk or benefit of security value or price changes, or (4) which provides the right to vote or increase or decrease
the voting power of, such Proposing Shareholder, or any of its affiliates or associates, with respect to any shares or other securities
of the Company, which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position,
note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement,
performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion
in any such class or series), and any proportionate interest of such Proposing Shareholder in the securities of the Company held by any
general or limited partnership, or any limited liability company, of which such Proposing Shareholder is, directly or indirectly, a general
partner or managing member.
(b) The
information required pursuant to this Article shall be updated as of (i) the record date of the General Meeting, (ii) five business days
before the General Meeting, and (iii) as of the General Meeting, and any adjournment or postponement thereof.
(c) The
provisions of Articles 25(a) and 25(b) shall apply, mutatis mutandis, on any matter to be included on the agenda of a Special
General Meeting which is convened pursuant to a request of a Shareholder duly delivered to the Company in accordance with the Companies
Law.
26. |
Notice of General Meetings; Omission to Give Notice. |
(a) The
Company is not required to give notice of a General Meeting, subject to any mandatory provision of the Companies Law, and any other requirements
applicable to the Company. Notwithstanding anything herein to the contrary, to the extent permitted under the Companies Law, with the
consent of all Shareholders entitled to vote thereon, a resolution may be proposed and passed at such meeting although a lesser notice
period than hereinabove prescribed has been given.
(b) The
accidental omission to give notice of a General Meeting to any Shareholder, or the non-receipt of notice sent to such Shareholder, shall
not invalidate the proceedings at such meeting or any resolution adopted thereat.
(c) No
Shareholder present, in person or by proxy, at any time during a General Meeting shall be entitled to seek the cancellation or invalidation
of any proceedings or resolutions adopted at such General Meeting on account of any defect in the notice of such meeting relating to the
time or the place thereof, or any item acted upon at such meeting.
(d) The
Company may add additional places for Shareholders to review the full text of the proposed resolutions to be adopted at a General Meeting,
including an internet site.
Proceedings
at General Meetings
(a) No
business shall be transacted at a General Meeting, or at any adjournment thereof, unless the quorum required under these Articles for
such General Meeting or such adjourned meeting, as the case may be, is present when the meeting proceeds to business.
(b) In
the absence of contrary provisions in these Articles, two or more Shareholders, present in person or by proxy and holding shares conferring
in the aggregate at least one-quarter (1/4) of the voting power of the Company, shall constitute a quorum of General Meetings. A proxy
may be deemed to be two (2) or more Shareholders pursuant to the number of Shareholders represented by the proxy holder.
(c) If
within half an hour from the time appointed for the meeting a quorum is not present, then without any further notice the meeting shall
be adjourned either (i) to the same day in the next week, at the same time and place, (ii) to such day and at such time and place as indicated
in the notice to such meeting (which may be earlier or later than the date pursuant to clause (i) above), or (iii) to such day and at
such time and place as the Chairperson of the General Meeting shall determine (which may be earlier or later than the date pursuant to
clause (i) above). No business shall be transacted at any adjourned meeting except business which might lawfully have been transacted
at the meeting as originally called. At such adjourned meeting, if the original meeting was convened upon requisition under Section 63
of the Companies Law, one or more Shareholders, present in person or by proxy, and holding the number of shares required for making such
requisition, shall constitute a quorum, but in any other case any Shareholder (not in default as aforesaid) present in person or by proxy,
shall constitute a quorum.
28. |
Chairperson of General Meeting. |
The Chairperson of the Board of Directors
or his or her designee shall preside as Chairperson of every General Meeting of the Company. If at any meeting the Chairperson is not
present within fifteen (15) minutes after the time fixed for holding the meeting or is unwilling to act as Chairperson, any of the following
may preside as Chairperson of the meeting (and in the following order): a Director, Chief Executive Officer, Chief Financial Officer,
Secretary or any person designated by any of the foregoing. If at any such meeting none of the foregoing persons is present or all are
unwilling to act as Chairperson, the Shareholders present (in person or by proxy) shall choose a Shareholder or its proxy present at the
meeting to be Chairperson. The office of Chairperson shall not, by itself, entitle the holder thereof to vote at any General Meeting nor
shall it entitle such holder to a second or casting vote (without derogating, however, from the rights of such Chairperson to vote as
a Shareholder or proxy of a Shareholder if, in fact, he is also a Shareholder or such proxy).
29. |
Adoption of Resolutions at General Meetings. |
(a) Except
as required by the Companies Law or these Articles, including, without limitation, Article 39 below, a resolution of the Shareholders
shall be adopted if approved by the holders of a simple majority of the voting power represented at the General Meeting in person or by
proxy and voting thereon, as one class, and disregarding abstentions from the count of the voting power present and voting. Without limiting
the generality of the foregoing, a resolution with respect to a matter or action for which the Companies Law prescribes a higher majority
or pursuant to which a provision requiring a higher majority would have been deemed to have been incorporated into these Articles, but
resolutions with respect to which the Companies Law allows the Company’s Articles to provide otherwise, shall be adopted by a simple
majority of the voting power represented at the General Meeting in person or by proxy and voting thereon, as one class, and disregarding
abstentions from the count of the voting power present and voting.
(b)
Every question submitted to a General Meeting shall be decided by a show of hands, but the Chairperson of the General Meeting may determine
that a resolution shall be decided by a written ballot. A written ballot may be implemented before the proposed resolution is voted upon
or immediately after the declaration by the Chairperson of the results of the vote by a show of hands. If a vote by written ballot is
taken after such declaration, the results of the vote by a show of hands shall be of no effect, and the proposed resolution shall be decided
by such written ballot.
(c) A
declaration by the Chairperson of the General Meeting that a resolution has been carried unanimously, or carried by a particular majority,
or rejected, and an entry to that effect in the minute book of the Company, shall be prima facie evidence of the fact without proof of
the number or proportion of the votes recorded in favor of or against such resolution.
A General Meeting, the consideration
of any matter on its agenda or the resolution on any matter on its agenda, may be postponed or adjourned, from time to time and from place
to place: (i) by the Chairperson of a General Meeting at which a quorum is present (and he shall if so directed by the meeting, with the
consent of the holders of a majority of the voting power represented in person or by proxy and voting on the question of adjournment),
but no business shall be transacted at any such adjourned meeting except business which might lawfully have been transacted at the meeting
as originally called, or a matter on its agenda with respect to which no resolution was adopted at the meeting originally called; or (ii)
by the Board (whether prior to or at the General Meeting).
Subject to the provisions of Article
32(a) and to any provision hereof conferring special rights as to voting, or restricting the right to vote, every Shareholder shall have
one vote for each share held by him of record, on every resolution, without regard to whether the vote thereon is conducted by a show
of hands, by written ballot or by any other means.
(a) A
company or other corporate body being a Shareholder of the Company may duly authorize any person to be its representative at any meeting
of the Company or to execute or deliver a proxy on its behalf. Any person so authorized shall be entitled to exercise on behalf of such
Shareholder all the power which the Shareholder could have exercised if it were an individual. Upon the request of the Chairperson of
the General Meeting, written evidence of such authorization (in form acceptable to the Chairperson) shall be delivered to him.
(b) Any
Shareholder entitled to vote may vote either in person or by proxy (who need not be Shareholder of the Company), or, if the Shareholder
is a company or other corporate body, by representative authorized pursuant to Article (a) above.
(c) If two
or more persons are registered as joint holders of any share, the vote of the senior who tenders a vote, in person or by proxy, shall
be accepted to the exclusion of the vote(s) of the other joint holder(s). For the purpose of this Article 32(c), seniority shall be determined
by the order of registration of the joint holders in the Register of Shareholder.
Proxies
33. |
Instrument of Appointment. |
(a) An
instrument appointing a proxy shall be in writing and shall be substantially in the following form:
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“I |
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of |
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(Name of Shareholder) |
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(Address of Shareholder) |
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Being a shareholder of NANO DIMENSION LTD. hereby appoints |
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of |
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(Name of Proxy) |
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(Address of Proxy) |
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as my proxy to vote for me and on my behalf at the General Meeting of the Company to be held on the ___ day of _______, _______ and at any adjournment(s) thereof. |
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Signed this ____ day of ___________, ______. |
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(Signature of Appointor)” |
or in any such form as may be approved
by the Board of Directors.
(b) Subject
to the Companies Law, the original instrument appointing a proxy or a copy thereof (and the power of attorney or other authority, if any,
under which such instrument has been signed) shall be delivered to the Company (at its Office, at its principal place of business, or
at the offices of its registrar or transfer agent, or at such place as notice of the meeting may specify) not less than forty eight (48)
hours (or such shorter period as the notice shall specify) before the time fixed for such meeting. Notwithstanding the above, the Chairperson
shall have the right to waive the time requirement provided above with respect to all instruments of proxies and to accept any and all
instruments of proxy until the beginning of a General Meeting. A document appointing a proxy shall be valid for every adjourned meeting
of the General Meeting to which the document relates.
34. |
Effect of Death of Appointor of Transfer of Share and or Revocation of Appointment. |
(a) A
vote cast in accordance with an instrument appointing a proxy shall be valid notwithstanding the prior death or bankruptcy of the appointing
Shareholder (or of his attorney-in-fact, if any, who signed such instrument), or the transfer of the share in respect of which the vote
is cast, unless written notice of such matters shall have been received by the Company or by the Chairperson of such meeting prior to
such vote being cast.
(b) Subject
to the Companies Law, an instrument appointing a proxy shall be deemed revoked (i) upon receipt by the Company or the Chairperson, subsequent
to receipt by the Company of such instrument, of written notice signed by the person signing such instrument or by the Shareholder appointing
such proxy canceling the appointment thereunder (or the authority pursuant to which such instrument was signed) or of an instrument appointing
a different proxy (and such other documents, if any, required under Article 33(b) for such new appointment), provided such notice of cancellation
or instrument appointing a different proxy were so received at the place and within the time for delivery of the instrument revoked thereby
as referred to in Article 33(b) hereof, or (ii) if the appointing Shareholder is present in person at the meeting for which such instrument
of proxy was delivered, upon receipt by the Chairperson of such meeting of written notice from such Shareholder of the revocation of such
appointment, or if and when such Shareholder votes at such meeting. A vote cast in accordance with an instrument appointing a proxy shall
be valid notwithstanding the revocation or purported cancellation of the appointment, or the presence in person or vote of the appointing
Shareholder at a meeting for which it was rendered, unless such instrument of appointment was deemed revoked in accordance with the foregoing
provisions of this Article 34(b) at or prior to the time such vote was cast.
Board
of Directors
35. |
Powers of Board of Directors. |
(a) The
Board of Directors may exercise all such powers and do all such acts and things as the Board of Directors is authorized by law or as the
Company is authorized to exercise and do and are not hereby or by law required to be exercised or done by the General Meeting. The authority
conferred on the Board of Directors by this Article 35 shall be subject to the provisions of the Companies Law, these Articles and any
regulation or resolution consistent with these Articles adopted from time to time at a General Meeting, provided, however, that no such
regulation or resolution shall invalidate any prior act done by or pursuant to a decision of the Board of Directors which would have been
valid if such regulation or resolution had not been adopted.
(b) Without
limiting the generality of the foregoing, the Board of Directors may, from time to time, set aside any amount(s) out of the profits of
the Company as a reserve or reserves for any purpose(s) which the Board of Directors, in its absolute discretion, shall deem fit, including
without limitation, capitalization and distribution of bonus shares, and may invest any sum so set aside in any manner and from time to
time deal with and vary such investments and dispose of all or any part thereof, and employ any such reserve or any part thereof in the
business of the Company without being bound to keep the same separate from other assets of the Company, and may subdivide or re-designate
any reserve or cancel the same or apply the funds therein for another purpose, all as the Board of Directors may from time to time think
fit.
36. |
Exercise of Powers of Board of Directors. |
(a) A
meeting of the Board of Directors at which a quorum is present shall be competent to exercise all the authorities, powers and discretion
vested in or exercisable by the Board of Directors.
(b) A
resolution proposed at any meeting of the Board of Directors shall be deemed adopted if approved by a majority of the Directors present,
entitled to vote and voting thereon when such resolution is put to a vote. In case of an equality of votes of the Board, the Chairman
of the Board shall have a second casting vote, and the proposed resolution shall be deemed to be defeated.
(c) The
Board of Directors may adopt resolutions, without convening a meeting of the Board of Directors, in writing or in any other manner permitted
by the Companies Law.
37. |
Delegation of Powers. |
(a) The
Board of Directors may, subject to the provisions of the Companies Law, delegate any or all of its powers to committees (in these Articles
referred to as a “Committee of the Board of Directors”, or “Committee”), each consisting of one
or more Directors, and it may from time to time revoke such delegation or alter the composition of any such Committee. No regulation imposed
by the Board of Directors on any Committee and no resolution of the Board of Directors shall invalidate any prior act done pursuant to
a resolution by the Committee which would have been valid if such regulation or resolution of the Board had not been adopted. The meeting
and proceedings of any such Committee of the Board of Directors shall, mutatis mutandis, be governed by the provisions herein
contained for regulating the meetings of the Board of Directors, so far as not superseded by any regulations adopted by the Board of Directors
or by the Companies Law. Unless otherwise expressly prohibited by the Board of Directors in delegating powers to a Committee of the Board
of Directors, such Committee shall be empowered to further delegate such powers.
(b) Without
derogating from the provisions of Article 49, the Board of Directors may from time to time appoint a Secretary to the Company, as well
as officers, agents, employees and independent contractors, as the Board of Directors deems fit, and may terminate the service of any
such person. The Board of Directors may, subject to the provisions of the Companies Law, determine the powers and duties, as well as the
salaries and compensation, of all such persons.
(c) The
Board of Directors may from time to time, by power of attorney or otherwise, appoint any person, company, firm or body of persons to be
the attorney or attorneys of the Company at law or in fact for such purposes(s) and with such powers, authorities and discretions, and
for such period and subject to such conditions, as it deems fit, and any such power of attorney or other appointment may contain such
provisions for the protection and convenience of persons dealing with any such attorney as the Board of Directors deems fit, and may also
authorize any such attorney to delegate all or any of the powers, authorities and discretions vested in him.
(a) The
Board of Directors shall consist of such number of Directors, not less than three (3) nor more than twelve (12), including the External
Directors (if any), which will be elected if and as required under the Companies Law, as may be fixed from time to time by the Board of
Directors.
(b) Notwithstanding
anything to the contrary herein, this Article 38 may only be amended or replaced by a resolution adopted at a General Meeting by a majority
of 70% of the voting power represented at the General Meeting in person or by proxy and voting thereon, disregarding abstentions from
the count of the voting power present and voting.
39. |
Election and Removal of Directors. |
(a) The
Directors, excluding the External Directors if any (who shall be elected and serve in office in strict accordance with the provisions
of the Companies Law, if so required by the Companies Law), shall be classified, with respect to the term for which they each severally
hold office, into three classes, as nearly equal in number as practicable, hereby designated as Class I, Class II and Class III.
(i) The term of office of the initial
Class I directors shall expire at the first Annual General Meeting to be held after January 1, 2021 and when their successors are elected
and qualified,
(ii) The term of office of the initial
Class II directors shall expire at the first Annual General Meeting following the Annual General Meeting referred to in clause (i) above
and when their successors are elected and qualified, and
(iii) The term of office of the initial
Class III directors shall expire at the first Annual General Meeting following the Annual General Meeting referred to in clause (ii) above
and when their successors are elected and qualified.
(b) Directors
(other than External Directors), may be elected only in Annual Meetings. At each Annual General Meeting, commencing with the Annual General
Meeting to be held in 2020, each of the successors elected to replace the Directors of a Class whose term shall have expired at such Annual
General Meeting shall be elected to hold office until the third Annual General Meeting next succeeding his or her election and until his
or her respective successor shall have been elected and qualified. Notwithstanding anything to the contrary, each Director shall serve
until his or her successor is elected and qualified or until such earlier time as such Director’s office is vacated.
(c) If
the number of Directors (excluding External Directors) that constitutes the Board of Directors is hereafter changed, the then-serving
Directors shall be redesignated to other Classes and/or any newly created directorships or decrease in directorships shall be apportioned
by the Board of Directors among the classes so as to make all classes as nearly equal in number as is practicable, provided that no decrease
in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
(d) Prior
to every Annual General Meeting of the Company at which Directors are to be elected, and subject to clauses (a) and (f) of this Article,
the Board of Directors (or a Committee thereof) shall select, by a resolution adopted by a majority of the Board of Directors (or such
Committee), a number of Persons to be proposed to the Shareholders for election as Directors at such Annual General Meeting (the “Nominees”).
(e) Any
Proposing Shareholder requesting to include on the agenda of an Annual General Meeting a nomination of a Person to be proposed to the
Shareholders for election as Director (such person, an “Alternate Nominee”), may so request provided that it complies
with this Article 39(c) and Article 25 and applicable law. Unless otherwise determined by the Board, a Proposal Request relating to Alternate
Nominee is deemed to be a matter that is appropriate to be considered only in an Annual General Meeting. In addition to any information
required to be included in accordance with applicable law, such a Proposal Request shall include information required pursuant to Article
25, and shall also set forth: (i) the name, address, telephone number, fax number and email address of the Alternate Nominee and all citizenships
and residencies of the Alternate Nominee; (ii) a description of all arrangements, relations or understandings between the Proposing Shareholder(s)
or any of its affiliates and each Alternate Nominee; (iii) a declaration signed by the Alternate Nominee that he consents to be named
in the Company’s notices and proxy materials relating to the Annual General Meeting, if provided or published, and, if elected,
to serve on the Board of Directors and to be named in the Company’s disclosures and filings, (iv) a declaration signed by each Alternate
Nominee as required under the Companies Law and any other applicable law and stock exchange rules and regulations for the appointment
of such an Alternate Nominee and an undertaking that all of the information that is required under law and stock exchange rules and regulations
to be provided to the Company in connection with such an appointment has been provided (including, information in respect of the Alternate
Nominee as would be provided in response to the applicable disclosure requirements under Form 20-F or any other applicable form prescribed
by the U.S. Securities and Exchange Commission); (v) a declaration made by the Alternate Nominee of whether he or she meets the criteria
for an independent director and/or External Director of the Company under the Companies Law and/or under any applicable law, regulation
or stock exchange rules, and if not, then an explanation of why not; and (vi) any other information required at the time of submission
of the Proposal Request by applicable law, regulations or stock exchange rules. In addition, the Proposing Shareholder shall promptly
provide any other information reasonably requested by the Company. The Board of Directors may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing. The Company shall be entitled to publish any information provided by a Proposing
Shareholder pursuant to this Article 39(c) and Article 25, and the Proposing Shareholder shall be responsible for the accuracy and completeness
thereof.
(f) The
Nominees or Alternate Nominees shall be elected by a resolution adopted at the Annual General Meeting at which they are subject to election.
(g) Notwithstanding
anything to the contrary herein, this Article 39 and Article 42(e) may only be amended, replaced or suspended by a resolution adopted
at a General Meeting by a majority of 70% of the voting power represented at the General Meeting in person or by proxy and voting thereon,
disregarding abstentions from the count of the voting power present and voting.
(h) Notwithstanding
anything to the contrary in these Articles, the election, qualification, removal or dismissal of External Directors shall be only in accordance
with the applicable provisions set forth in the Companies Law.
(i) Directors
whose terms of office have expired or terminated may be re-elected. The aforesaid will not apply to external directors, whose reappointment
shall be in accordance with the provisions of the Companies Law and the regulations promulgated thereunder.
40. |
Commencement of Directorship. |
Without derogating from Article 39,
the term of office of a Director shall commence as of the date of his appointment or election, or on a later date if so specified in his
appointment or election.
41. |
Continuing Directors in the Event of Vacancies. |
The Board may at any time and from
time to time appoint any person as a Director to fill a vacancy (whether such vacancy is due to a Director no longer serving or due to
the number of Directors serving being less than the maximum number stated in Article 38 hereof). In the event of one or more such vacancies
in the Board of Directors, the continuing Directors may continue to act in every matter, provided, however, that if they number less than
the minimum number provided in Article 38 hereof, they may only act in an emergency or to fill the office of director which has become
vacant up to a number equal to the minimum number provided for pursuant to Article 38 hereof. The office of a Director that was appointed
by the Board of Directors to fill any vacancy shall only be for the remaining period of time during which the Director whose service has
ended was filled would have held office, or in case of a vacancy due to the number of Directors serving being less than the maximum number
stated in Article 38 hereof, the Board shall determine at the time of appointment the class pursuant to Article 39 to which the additional
Director shall be assigned.
The office of a Director shall be
vacated and he or she shall be dismissed or removed:
(a) ipso
facto, upon his or her death;
(b) if
he or she is prevented by applicable law from serving as a Director;
(c) if
he or she is declared bankrupt;
(d) if
the Board determines that due to his or her mental or physical state he or she is unable to serve as a director;
(e) if
his or her directorship expires pursuant to these Articles and/or applicable law;
(f) by
a resolution adopted at an Annual Meeting by a majority of 70% of the voting power represented at the Annual Meeting in person or by proxy
and voting thereon, disregarding abstentions from the count of the voting power present and voting. Such removal shall become effective
on the date fixed in such resolution.
(g) by
his or her written resignation, such resignation becoming effective on the date fixed therein, or upon the delivery thereof to the Company,
whichever is later;
(h) with
respect to an External Director, and notwithstanding anything to the contrary herein, only pursuant to applicable law; or
(i) if
his or her office is vacated by virtue of the order or decision of a competent court (in a litigation to which the Company is a party).
Such removal shall become effective on the date fixed by the court order or decision.
43. |
Conflict of Interests; Approval of Related Party Transactions. |
Subject to the provisions of the Companies
Law and these Articles, no Director shall be disqualified by virtue of his office from holding any office or place of profit in the Company
or in any company in which the Company shall be a Shareholder or otherwise interested, or from contracting with the Company as vendor,
purchaser or otherwise, nor shall any such contract, or any contract or arrangement entered into by or on behalf of the Company in which
any Director shall be in any way interested, be avoided, nor, other than as required under the Companies Law, shall any Director be liable
to account to the Company for any profit arising from any such office or place of profit or realized by any such contract or arrangement
by reason only of such Director’s holding that office or of the fiduciary relations thereby established, but the nature of his interest,
as well as any material fact or document, must be disclosed by him at the meeting of the Board of Directors at which the contract or arrangement
is first considered, if his interest then exists, or, in any other case, at no later than the first meeting of the Board of Directors
after the acquisition of his interest.
(a) Subject
to the provisions of the Companies Law, a Director may, by written notice to the Company, appoint, remove or replace any person as an
alternate for himself; provided that the appointment of such person shall have effect only upon and subject to its being approved by the
Board (in these Articles, an “Alternate Director”). Unless the appointing Director, by the instrument appointing an
Alternate Director or by written notice to the Company, limits such appointment to a specified period of time or restricts it to a specified
meeting or action of the Board of Directors, or otherwise restricts its scope, the appointment shall be for all purposes, and for a period
of time concurrent with the term of the appointing Director.
(b) Any
notice to the Company pursuant to Article 44(a) shall be given in person to the Chairperson of the Board of Directors, or by sending the
same in writing to the attention of the Chairperson of the Board of Directors at the principal office of the Company or to such other
person or place as the Board of Directors shall have determined for such purpose, and shall become effective on the date fixed therein,
upon the receipt thereof by the Company (at the place as aforesaid) or upon the approval of the appointment by the Board, whichever is
later.
(c) An
Alternate Director shall have all the rights and obligations of the Director who appointed him, provided however, that (i) he may not
in turn appoint an alternate for himself (unless the instrument appointing him otherwise expressly provides), and (ii) an Alternate Director
shall have no standing at any meeting of the Board of Directors or any Committee thereof while the Director who appointed him is present.
(d) Any
individual, who qualifies to be a member of the Board of Directors, may act as an Alternate Director. One person may not act as Alternate
Director for several directors.
(e) The
office of an Alternate Director shall be vacated under the circumstances, mutatis mutandis, set forth in Article 42, and such
office shall ipso facto be vacated if the office of the Director who appointed such Alternate Director is vacated, for any reason.
Proceedings
of the Board of Directors
(a) The
Board of Directors may meet and adjourn its meetings and otherwise regulate such meetings and proceedings as the Directors think fit.
(b) Any
Director may at any time, and the Secretary, upon the request of such Director, shall, convene a meeting of the Board of Directors, but
not less than forty-eight (48) hours’ notice shall be given of any meeting so convened, unless such notice is waived by all of the
Directors as to a particular meeting or unless the matters to be discussed at such meeting are of such urgency and importance, as determined
by the Chairperson, that notice ought reasonably to be waived under the circumstances.
(c) Notice
of any such meeting shall be given in writing, including by email.
(d) Notwithstanding
anything to the contrary herein, failure to deliver notice to a director of any such meeting in the manner required hereby may be waived
by such Director, and a meeting shall be deemed to have been duly convened notwithstanding such defective notice if such failure or defect
is waived prior to action being taken at such meeting, by all Directors entitled to participate at such meeting to whom notice was not
duly given as aforesaid. Without derogating from the foregoing, no Director present at any time during a meeting of the Board of Directors
shall be entitled to seek the cancellation or invalidation of any proceedings or resolutions adopted at such meeting on account of any
defect in the notice of such meeting relating to the date, time or the place thereof or the convening of the meeting.
Until otherwise unanimously decided
by the Board of Directors, a quorum at a meeting of the Board of Directors shall be constituted by the presence in person or by any means
of communication of a majority of the Directors then in office who are lawfully entitled to participate and vote in the meeting. No business
shall be transacted at a meeting of the Board of Directors unless the requisite quorum is present (in person or by any means of communication)
when the meeting proceeds to business.
47. |
Chairperson of the Board of Directors. |
The Board of Directors shall, from
time to time, elect one of its members to be the Chairperson of the Board of Directors, remove such Chairperson from office and appoint
in his place. The Chairperson of the Board of Directors shall preside at every meeting of the Board of Directors, but if there is no such
Chairperson, or if at any meeting he is not present within fifteen (15) minutes of the time fixed for the meeting or if he is unwilling
to take the chair, the Directors present shall choose one of the Directors present at the meeting to be the Chairperson of such meeting.
The office of Chairperson of the Board of Directors shall not, by itself, entitle the holder to a second or casting vote.
48. |
Validity of Acts Despite Defects. |
(a) All
acts done or transacted at any meeting of the Board of Directors, or of a Committee of the Board of Directors, or by any person(s) acting
as Director(s), shall, notwithstanding that it may afterwards be discovered that there was some defect in the appointment of the participants
in such meeting or any of them or any person(s) acting as aforesaid, or that they or any of them were disqualified, be as valid as if
there were no such defect or disqualification.
(b) The
General Meeting shall be entitled to ratify any act taken by the Board or any committee without authority or which was tainted by some
other defect. From the time of such ratification, every act ratified shall be treated as though lawfully preformed from the outset.
Chief
Executive Officer
49. |
Chief Executive Officer. |
(a) The
Board of Directors shall from time to time appoint one or more persons, whether or not Directors, as Chief Executive Officer of the Company
and may confer upon such person(s), and from time to time modify or revoke, such titles and such duties and authorities of the Board of
Directors as the Board of Directors may deem fit, subject to such limitations and restrictions as the Board of Directors may from time
to time prescribe. Such appointment(s) may be either for a fixed term or without any limitation of time, and the Board of Directors may
from time to time (subject to any additional approvals required under, and the provisions of, the Companies Law and of any contract between
any such person and the Company) fix their salaries and compensation, remove or dismiss them from office and appoint another or others
in his or their place or places.
(b) Unless
otherwise determined by the Board of Directors, the Chief Executive Officer shall have authority with respect to the management and operations
of the Company in the ordinary course of business.
Minutes
Any minutes of the General Meeting or
the Board of Directors or any committee thereof, if purporting to be signed by the Chairperson of the General Meeting, the Board or a
committee thereof, as the case may be, or by the Chairperson of the next succeeding General Meeting, meeting of the Board or meeting of
a committee thereof, as the case may be, shall constitute prima facie evidence of the matters recorded therein.
Dividends
51. |
Declaration of Dividends. |
The Board of Directors may from time
declare, and cause the Company to pay, such dividend as may appear to the Board of Directors to be justified by the profits of the Company
and as permitted by the Companies Law. The Board of Directors shall determine the time for payment of such dividends and the record date
for determining the Shareholders entitled thereto.
52. |
Amount Payable by Way of Dividends. |
(a) Subject
to the provisions of these Articles and subject to the rights or conditions attached at that time to any share in the capital of the Company
granting preferential, special or deferred rights or not granting any rights with respect to dividends, any dividend paid by the Company
shall be allocated among the shareholders (not in default in payment of any sum referred to in Article 13 hereof) entitled thereto in
proportion to their respective holdings of the shares in respect of which such dividends are being paid.
No dividend shall carry interest as
against the Company.
54. |
Capitalization of Profits, Reserves, etc. |
The Board of Directors may determine
that the Company (i) may cause any moneys, investments, or other assets forming part of the undivided profits of the Company, standing
to the credit of a reserve fund, or to the credit of a reserve fund for the redemption of capital, or in the hands of the Company and
available for dividends, or representing premiums received on the issuance of shares and standing to the credit of the share premium account,
to be capitalized and distributed among such of the Shareholders as would be entitled to receive the same if distributed by way of dividend
and in the same proportion, on the footing that they become entitled thereto as capital, or may cause any part of such capitalized fund
to be applied on behalf of such shareholders in paying up in full, either at par or at such premium as the resolution may provide, any
unissued shares or debentures or debenture stock of the Company which shall be distributed accordingly, in payment, in full or in part,
of the uncalled liability on any issued shares or debentures or debenture stock; and (ii) may cause such distribution or payment to be
accepted by such Shareholders in full satisfaction of their interest in the said capitalized sum.
55. |
Implementation of Powers. |
For the purpose of giving full effect
to any resolution under Article 54, and without derogating from the provisions of Article 56 hereof, the Board of Directors may settle
any difficulty which may arise in regard to the distribution as it thinks expedient, and, in particular, may fix the value for distribution
of any specific assets and may determine that cash payments shall be made to any Shareholders upon the footing of the value so fixed,
or that fractions of less value than a certain determined value may be disregarded in order to adjust the rights of all parties, and may
vest any such cash, shares, debentures, debenture stock or specific assets in trustees upon such trusts for the persons entitled to the
dividend or capitalized fund as may seem expedient to the Board of Directors. Where requisite, a proper contract shall be filed in accordance
with Section 291 of the Companies Law, and the Board of Directors may appoint any person to sign such contract on behalf of the persons
entitled to the dividend or capitalized fund.
56. |
Deductions from Dividends. |
The Board of Directors may deduct
from any dividend or other moneys payable to any Shareholder in respect of a share any and all sums of money then payable by such Shareholder
to the Company on account of calls or otherwise in respect of shares of the Company and/or on account of any other matter of transaction
whatsoever.
57. |
Deductions from Retaining Dividends. |
(a) The
Board of Directors may retain any dividend or other moneys payable or property distributable in respect of a share on which the Company
has a lien and may apply the same in or toward satisfaction of the debts, liabilities, or engagements in respect of which the lien exists.
(b) The
Board of Directors may retain any dividend or other moneys payable or property distributable in respect of a share in respect of which
any person is, under Articles 26 or 27, entitled to become a Shareholder, or which any person is, under said Articles, entitled to transfer,
until such person shall become a Shareholder in respect of such share or shall transfer the same.
All unclaimed dividends or other moneys
payable in respect of a share may be invested or otherwise made use of by the Board of Directors for the benefit of the Company until
claimed. The payment by the Directors of any unclaimed dividend or such other moneys into a separate account shall not constitute the
Company a trustee in respect thereof, and any dividend unclaimed after a period of seven years from the date of declaration of such dividend,
and any such other moneys unclaimed after a like period from the date the same were payable, shall be forfeited and shall revert to the
Company, provided, however, that the Board of Directors may, at its discretion, cause the Company to pay any such dividend or such other
moneys, or any part thereof, to a person who would have been entitled thereto had the same not reverted to the Company. The principal
(and only the principal) of any unclaimed dividend of such other moneys shall be, if claimed, paid to a person entitled thereto.
59. |
Mechanics of Payment. |
Any dividend or other moneys payable
in cash in respect of a share may be paid by check or payment order sent through the post to, or left at, the registered address of the
person entitled thereto or by transfer to a bank account specified by such person (or, if two or more persons are registered as joint
holders of such share or are entitled jointly thereto in consequence of the death or bankruptcy of the holder or otherwise, to the joint
holder whose name is registered first in the Register of Shareholders or his bank account or the person who the Company may then recognize
as the owner thereof or entitled thereto under Article 21 or 22 hereof, as applicable, or such person’s bank account), or to
such person and at such other address as the person entitled thereto may by writing direct, or in any other manner the Board deems appropriate.
Every such check or warrant or other method of payment shall be made payable to the order of the person to whom it is sent, or to such
person as the person entitled thereto as aforesaid may direct, and payment of the check or warrant by the banker upon whom it is drawn
shall be a good discharge to the Company.
60. |
Receipt from a Joint Holder. |
If two or more persons are registered
as joint holders of any share, or are entitled jointly thereto in consequence of the death or bankruptcy of the holder or otherwise, any
one of them may give effectual receipts for any dividend or other moneys payable or property distributable in respect of such share.
Accounts
The Company’s books of account
shall be kept at the Office of the Company, or at such other place or places as the Board of Directors may think fit, and they shall always
be open to inspection by all Directors. No Shareholder, not being a Director, shall have any right to inspect any account or book or other
similar document of the Company, except as conferred by law or authorized by the Board of Directors. The Company shall make copies of
its annual financial statements available for inspection by the Shareholders at the principal offices of the Company. The Company shall
not be required to send copies of its annual financial statements to the Shareholders.
The appointment, authorities, rights
and duties of the auditor(s) of the Company, shall be regulated by applicable law, provided, however, that in exercising its authority
to fix the remuneration of the auditor(s), the Shareholders in General Meeting may act (and in the absence of any action in connection
therewith shall be deemed to have so acted) to authorize the Board of Directors (with right of delegation to management) to fix such remuneration
subject to such criteria or standards, and if no such criteria or standards are so provided, such remuneration shall be fixed in an amount
commensurate with the volume and nature of the services rendered by such auditor(s).
To the extent required by the Companies
Law the Board of Directors will appoint an internal auditor according to the audit committee’s recommendation (“Internal
Auditor”).
The Internal Auditor shall submit, for
the approval of the Board of Directors or the audit committee, as determined by the Board of Directors, a proposal for an annual or periodic
work plan, and the Board of Directors or the audit committee shall approve such plan with such changes as it deem fit. Unless the Board
of Directors determines otherwise, the work plan shall be submitted to the Board of Directors and approved by it.
Supplementary
Registers
63. |
Supplementary Registers. |
Subject to and in accordance with
the provisions of Sections 138 and 139 of the Companies Law, the Company may cause supplementary registers to be kept in any place outside
Israel as the Board of Directors may think fit, and, subject to all applicable requirements of law, the Board of Directors may from time
to time adopt such rules and procedures as it may think fit in connection with the keeping of such branch registers.
Exemption,
Indemnity and Insurance
Subject to the provisions of the Companies
Law with regard to such matters, the Company may enter into a contract for the insurance of the liability, in whole or in part, of any
of its Office Holders imposed on such Office Holder due to an act performed by or an omission of the Office Holder in the Office Holder’s
capacity as an Office Holder of the Company arising from any matter permitted by law, including the following:
(a) a
breach of duty of care to the Company or to any other person;
(b) a
breach of duty of loyalty to the Company, provided that the Office Holder acted in good faith and had reasonable grounds to assume that
the act that resulted in such breach would not prejudice the interests of the Company;
(c) a
financial liability imposed on such Office Holder in favor of any other person; and
(d)
any other event, occurrence, matter or circumstance under any law with respect to which the Company may, or will be able to, insure an
Office Holder, and to the extent such law requires the inclusion of a provision permitting such insurance in these Articles, then such
provision is deemed to be included and incorporated herein by reference (including, without limitation, in accordance with Section 56h(b)(1)
of the Securities Law, if and to the extent applicable, and Section 50P of the RTP Law).
(a) Subject
to the provisions of the Companies Law, the Company may retroactively indemnify an Office Holder of the Company with respect to the following
liabilities and expenses, provided that such liabilities or expenses were imposed on such Office Holder or incurred by such Office Holder
due to an act performed by or an omission of the Office Holder in such Office Holder’s capacity as an Office Holder of the Company:
(i) a
financial liability imposed on an Office Holder in favor of another person by any court judgment, including a judgment given as a result
of a settlement or an arbitrator’s award which has been confirmed by a court in respect of an act performed by the Office Holder;
(ii) reasonable
litigation expenses, including attorneys’ fees, expended by the Office Holder as a result of an investigation or proceeding instituted
against him or her by an authority authorized to conduct such investigation or proceeding, or in connection with a financial sanction,
provided that (1) no indictment (as defined in the Companies Law) was filed against such office holder as a result of such investigation
or proceeding; and (2) no financial liability in lieu of a criminal proceeding (as defined in the Companies Law) was imposed upon him
or her as a result of such investigation or proceeding or if such financial liability was imposed, it was imposed with respect to an offence
that does not require proof of criminal intent;
(iii) reasonable
litigation costs, including attorney’s fees, expended by an Office Holder or which were imposed on an Office Holder by a court in
proceedings filed against the Office Holder by the Company or in its name or by any other person or in a criminal charge in respect of
which the Office Holder was acquitted or in a criminal charge in respect of which the Office Holder was convicted for an offence which
did not require proof of criminal intent; and
(iv) any
other event, occurrence, matter or circumstance under any law with respect to which the Company may, or will be able to, indemnify an
Office Holder, and to the extent such law requires the inclusion of a provision permitting such indemnity in these Articles, then such
provision is deemed to be included and incorporated herein by reference (including, without limitation, in accordance with Section 56h(b)(1)
of the Securities Law, if and to the extent applicable, and Section 50P(b)(1) of the RTP Law).
(b) Subject
to the provisions of the Companies Law, the Company may undertake to indemnify an Office Holder, in advance, with respect to those liabilities
and expenses described in the following Articles:
(i) Sub-Article
65(a)(ii) to 65(a)(iv); and
(ii) Sub-Article
65(a)(i), provided that:
(1) the
undertaking to indemnify is limited to such events which the Board of Directors shall deem to be likely to occur in light of the operations
of the Company at the time that the undertaking to indemnify is made and for such amounts or criterion which the Directors may, at the
time of the giving of such undertaking to indemnify, deem to be reasonable under the circumstances; and
(2) the
undertaking to indemnify shall set forth such events which the Directors shall deem to be likely to occur in light of the operations of
the Company at the time that the undertaking to indemnify is made, and the amounts and/or criterion which the Directors may, at the time
of the giving of such undertaking to indemnify, deem to be reasonable under the circumstances.
The maximum amount of indemnification
payable by the Company with respect to those liabilities and expenses described in Sub-Article 65(a)(i), for each Office Holder and for
all Office Holders together, individually or in aggregate, under all letters of indemnification issued or to be issued by the Company,
shall not exceed 25% of the Company’s equity as set forth in its latest consolidated financial statements as of the date of indemnification.
Subject to the provisions of the Companies
Law and the Securities Law, the Company may exempt and release, in advance, any Office Holder from any liability to the Company for damages
arising out of a breach of the Office Holder’s duty of care towards the Company.
Notwithstanding the foregoing, the Company
may not exempt a Director in advance from his liability for damages with respect to violation of his duty of care to the Company with
respect to distributions. In addition, the Company may not exempt an Office Holder from his liability to the Company with regard to a
resolution and/or a transaction in which the controlling Shareholder and/or any Office Holder has a personal interest.
67. |
The provisions of Articles 64 through 66 shall also apply to an alternate director. |
(a) Any amendment to the Companies Law
adversely affecting the right of any Office Holder to be indemnified or insured pursuant to Articles 64 to 68 and any amendments to Articles
64 to 68 shall be prospective in effect, and shall not affect the Company’s obligation or ability to indemnify or insure an Office
Holder for any act or omission occurring prior to such amendment, unless otherwise provided by applicable law.
(b) The provisions of Articles 64 to
68 (i) shall apply to the maximum extent permitted by law (including, the Companies Law, the Securities Law and the RTP Law); and (ii)
are not intended, and shall not be interpreted so as to restrict the Company, in any manner, in respect of the procurement of insurance
and/or in respect of indemnification (whether in advance or retroactively) and/or exemption, in favor of any person who is not an Office
Holder, including, without limitation, any employee, agent, consultant or contractor of the Company who is not an Office Holder; and/or
any Office Holder to the extent that such insurance and/or indemnification is not specifically prohibited under law.
Winding
Up
If the Company is wound up, then,
subject to applicable law and to the rights of the holders of shares with special rights upon winding up, the assets of the Company available
for distribution among the Shareholders shall be distributed to them in proportion to the nominal value of their respective holdings of
the shares in respect of which such distribution is being made.
Notices
(a) Any
written notice or other document may be served by the Company upon any Shareholder either personally, by facsimile, email or other electronic
transmission, or by sending it by prepaid mail (airmail if sent internationally) addressed to such Shareholder at his address as described
in the Register of Shareholders or such other address as he may have designated in writing for the receipt of notices and other documents.
(b) Any
written notice or other document may be served by any Shareholder upon the Company by tendering the same in person to the Secretary or
the Chief Executive Officer of the Company at the principal office of the Company, by facsimile transmission, or by sending it by prepaid
registered mail (airmail if posted outside Israel) to the Company at its Office.
(c) Any
such notice or other document shall be deemed to have been served:
(i) in
the case of mailing, forty-eight (48) hours after it has been posted, or when actually received by the addressee if sooner than forty-eight
hours after it has been posted;
(ii) in
the case of overnight air courier, on the next business day following the day sent, with receipt confirmed by the courier, or when actually
received by the addressee if sooner than three business days after it has been sent;
(iii) in
the case of personal delivery, when actually tendered in person, to such addressee; or
(iv) in
the case of facsimile, email or other electronic transmission, on the first business day (during normal business hours in place of addressee)
on which the sender receives automatic electronic confirmation by the addressee’s facsimile machine that such notice was received
by the addressee or delivery confirmation from the addressee’s email or other communication server.
(d) If
a notice is, in fact, received by the addressee, it shall be deemed to have been duly served, when received, notwithstanding that it was
defectively addressed or failed, in some other respect, to comply with the provisions of this Article 70.
(e) All
notices to be given to the Shareholders shall, with respect to any share to which persons are jointly entitled, be given to whichever
of such persons is named first in the Register of Shareholders, and any notice so given shall be sufficient notice to the holders of such
share.
(f) Any
Shareholder whose address is not described in the Register of Shareholders, and who shall not have designated in writing an address for
the receipt of notices, shall not be entitled to receive any notice from the Company.
(g) Notwithstanding
anything to the contrary contained herein, notice by the Company of a General Meeting, containing the information required by applicable
law and these Articles to be set forth therein, which is published, within the time otherwise required for giving notice of such meeting,
in the manner required by applicable law.
* * *
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