1.
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The Registrant’s Notice of a Annual General Meeting of Shareholders and Proxy Statement for its General Meeting of Shareholders.
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2.
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Proxy card for use in connection with the Registrant’s Annual General Meeting of Shareholders.
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OPTIBASE LTD.
(Registrant)
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By:
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/s/ Amir Philips | ||
Name: Amir Philips | |||
Title: Chief Executive Officer | |||
Very truly yours,
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Alex Hilman,
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Executive Chairman of the Board of Directors |
AS A FOREIGN PRIVATE ISSUER, WE ARE EXEMPT FROM THE RULES UNDER THE SECURITIES EXCHANGE ACT RELATED TO THE FURNISHING AND CONTENT OF PROXY STATEMENTS. THE CIRCULATION OF THIS PROXY STATEMENT SHOULD NOT BE TAKEN AS AN ADMISSION THAT WE ARE SUBJECT TO THOSE PROXY RULES.
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By Order of the Board of Directors,
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Alex Hilman,
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Executive Chairman of the Board of Directors |
Name and Address
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Number of
Shares beneficially owned1
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Percent of Shares Beneficially Owned
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||||||
Tom Wyler2
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9,880,535 | 3 | 51.57 | % | ||||
Arthur Mayer-Sommer
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1,200,000 | 4 | 6.30 | % | ||||
Gesafi Real-Estate S.A.
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2,441,098 | 5 | 12.81 | % | ||||
All directors and officers of the Company as a group (7 persons)
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10,134,996 | 6 | 52.32 | % |
1.
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Number of shares and percentage ownership is based on 19,058,808 Shares outstanding as of October 9, 2011. Such number excludes (i) 329,473 Shares held by or for the benefit of the Company which have no voting or equity rights, and (ii) 26,000 Shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter. Beneficial ownership is determined in accordance with rules of the U.S. Securities and Exchange Commission (the "SEC") and includes voting and investment power with respect to such shares. Shares subject to options that are currently exercisable or exercisable within 60 days of October 9, 2011 are deemed to be outstanding and to be beneficially owned by the person holding such options for the purpose of computing the percentage ownership of such person, but are not deemed to be outstanding and to be beneficially owned for the purpose of computing the percentage ownership of any other person. All information with respect to the beneficial ownership of any principal shareholder has been furnished by such shareholder or is based on the most recent Attachment 13D filing with the SEC and, unless otherwise indicated below, the Company believes that persons named in the table have sole voting and sole investment power with respect to all the shares shown as beneficially owned, subject to community property laws, where applicable. The Shares beneficially owned by the directors include the Shares owned by their family members to which such directors disclaim beneficial ownership.
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2.
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Mr. Tom Wyler serves as the Company's President and as a member of its board of directors.
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3.
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The information is based on Amendment No. 11 to Schedule 13D filed by Mr. Wyler on June 30, 2011. Includes 9,780,534 ordinary shares and 100,000 ordinary shares issuable upon exercise of options exercisable within 60 days of October 9, 2011. Excludes 2,000 restricted shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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4.
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The information is based on Amendment No. 6 to Schedule 13D originally filed on behalf of Tom S. Wyler and Arthur Mayer-Sommer and Festin Management Corp. on June 9, 2005.
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5.
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The information is based on schedule 13D/A filed with the SEC by Gesafi Real-Estate S.A ("Gesafi") on September 8, 2011. According to the Schedule 13D/A, Gesafi is wholly owned by The Capri Family Foundation, a foundation organized under the laws of the Republic of Panama (“Capri”) and therefore, Capri may be deemed to beneficially own such shares. Filippone Business S.A., a company organized under the laws of the Republic of Panama (“Filippone”) is the Corporate Councillor of Capri and therefore, Filippone may be deemed to may be deemed to beneficially own such shares.
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6.
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Includes 9,827,770 ordinary shares and 310,925 ordinary shares issuable upon exercise of options exercisable within 60 days after October 9, 2011
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NOMINEES
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YEAR FIRST BECAME DIRECTOR
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PRINCIPAL OCCUPATION OR EMPLOYMENT
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PERCENTAGE OF BENEFICIAL OWNERSHIP OF SHARES(1)
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Shlomo (Tom) Wyler
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2001
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President of the Company and member of the board of directors
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51.32% (2)
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Alex Hilman
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2002
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Executive Chairman of the Board of Directors of the Company and
Partner in an Israeli accounting firm
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0.52% (3)
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Danny Lustiger (i)
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2010
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President and Chief Executive Officer at Cupron Inc.
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0.1% (4)
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SERVING EXTERNAL DIRECTORS
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YEAR FIRST BECAME DIRECTOR
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PRINCIPAL OCCUPATION OR EMPLOYMENT
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PERCENTAGE OF BENEFICIAL OWNERSHIP OF SHARES(1)
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Orli Garti Seroussi (i)
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2008
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Independent consultant
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0.05% (5)
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Chaim Labenski (i)
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2010
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Independent Investor
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0.0% (6)
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(1)
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See note 1 to the "Beneficial Ownership of Securities by Certain Beneficial Owners and Management" above. Based on information provided to us by the directors, the persons named in the table have sole voting and sole investment power with respect to all the shares shown as beneficially owned, subject to community property laws, where applicable.
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(2)
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Including 100,000 options that are currently exercisable or exercisable within 60 days as of October 9, 2011. Excludes 2,000 restricted shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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(3)
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Including 80,000 options and 10,000 restricted shares that are currently exercisable or exercisable within 60 days as of October 9, 2011. Excludes 50,000 options that are currently unvested and will remain unvested within 60 days as of October 9, 2011. Excludes 6,000 restricted shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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(4)
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Including 12,500 options and 6,000 restricted shares that are currently exercisable or exercisable within 60 days as of October 9, 2011. Excludes 37,500 options that are currently unvested and will remain unvested within 60 days as of October 9, 2011. Excludes 6,000 restricted shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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(5)
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Including 10,000 restricted shares that are currently exercisable or exercisable within 60 days as of October 9, 2011. Excludes 6,000 restricted shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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(6)
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Excludes 4,000 restricted shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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"RESOLVED, that the re-election of Messrs. Wyler, Hilman and Lustiger, as directors of the Company, and as presented to the shareholders, be, and same hereby is, approved." |
"RESOLVED, that the re-appointment of Kost, Forer, Gabbay & Kasierer, a member of Ernst & Young Global as the Company's independent auditors for the fiscal year ending on December 31, 2011, and the authorization of the Board of Directors, upon the recommendation of the Audit Committee, to determine the remuneration of said auditors in accordance with the volume and nature of their services to the Company, and as presented to the shareholders, be, and same hereby are, approved."
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"RESOLVED, that the Company's purchase of an insurance policy with respect to directors' and officers' liability, including as directors of officers of the Company's subsidiary for, which terms have been approved by the Audit Committee and Board of Directors, and as presented to the shareholders, be, and the same hereby is, approved. "
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"RESOLVED, that the acceleration of vesting of 2,000 Restricted Shares granted to Ms. Dana Tamir-Tavor as of April 18, 2011, a former director of the Company, having been approved by the Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved."
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1
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Excluding 329,473 Shares held by the Company and 26,000 Shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter.
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2
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Excluding 329,473 Shares held by the Company and 26,000 Shares issued to a trustee under the Company's 2006 Israeli Incentive Compensation Plan which have no voting rights as of October 9, 2011 or within 60 days thereafter and taking into consideration the exercise of 460,500 options and warrants exercisable into 460,500 Shares of the Company, which to the date of this Proxy Statement constitute the entire securities of the Company which may be converted or exercised into Shares.
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3
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For the purpose of the 1999 Plan, "Service Provider" means an Employee, Director or Consultant.
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5
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See supra note 4.
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"RESOLVED, that the grant of 100,000 options exercisable into 100,000 ordinary shares NIS 0.13 nominal value each of the Company to Mr. Alex Hilman, the Company's Executive Chairman of the Board of Directors, under the Company's 1999 Israeli Share Option Plan, having been approved by the Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved."
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"RESOLVED, that the Employment Agreement between the Company and Mr. Tom Wyler, the Company's President and member of the board of directors in his capacity as former Chief Executive Officer of the Company, who is also considered the controlling shareholder of the Company, having been approved by the Compensation Committee, Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved and ratified."
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"RESOLVED, that the agreement between the Company and BN Finance AG, a company affiliated with Mr. Shlomo (Tom) Wyler, the Company's President and member of the board of directors, who is also considered the controlling shareholder of the Company, for the provision of business and financial consulting services to the Company and its subsidiaries and affiliates, having been approved by the Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved."
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"RESOLVED, that the grant of 100,000 options to Mr. Shlomo (Tom) Wyler, the Company's President and member of the board of directors, who is also considered the controlling shareholder of the Company, under the Company's 1999 Israeli Share Option Plan, having been approved by the Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved."
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"RESOLVED, that the reimbursement of expenses by the Company to Mr. Shlomo (Tom) Wyler, the Company's President and member of the board of directors, who is also considered the Company's controlling shareholder, having been approved by the Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved."
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"RESOLVED, that the amendments to the articles of association of the Company so that the current Articles 32 and 33 of the Company's Articles of Association are hereby replaced by new Articles 32 and 33, as follows:
" 32. Insurance of Officers
32.1 The Company may insure the liability of an officer therein to the fullest extent permitted by law.
32.2 Without derogating from the aforesaid the Company may enter into a contract to insure the liability of an officer therein for an obligation or payment imposed on him in consequence of an act done in his capacity as an officer therein, in any of the following cases:
(a) a breach of the duty of care vis-a-vis the Company or vis-a-vis another person;
(b) a breach of the fiduciary duty vis-a-vis the Company, provided that the officer acted in good faith and had a reasonable basis to believe that the act would not harm the Company;
(c) a monetary obligation imposed on him in favor of another person.
(d) Financial liability imposed on him for payment to persons or entities harmed as a result of violations in Administrative Proceedings, as detailed in section 52(54)(A)(1)(a) of the Israeli Securities Law, 1965 (the "Securities Law").
(e) Expenses incurred by him in connection with Administrative Proceedings (as defined above) he was involved in, including reasonable litigation fees, and including attorney fees.
(f) any other matter in respect of which it is permitted or will be permitted under applicable law to insure the liability of an officer in the Company.
33. Indemnity of Officers
33.1 The Company may indemnify an officer therein, to the fullest extent permitted by law. Without derogating from the aforesaid the Company may indemnify an officer in the Company for liability or expense imposed on him in consequence of an action made by him in the capacity of his position as an officer in the Company, as follows:
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33.1.1 Any financial liability he incurs or imposed on him in favor of another person in accordance with a judgment, including a judgment given in a settlement or a judgment of an arbitrator, approved by a court.
33.1.2 Reasonable litigation expenses, including legal fees, incurred by the officer or which he was ordered to pay by a court, within the framework of proceedings filed against him by or on behalf of the Company, or by a third party, or in a criminal proceeding in which he was acquitted, or in a criminal proceeding in which he was convicted of a felony which does not require a finding of criminal intent.
33.1.3 Reasonable litigation expenses, including legal fees he incurs due to an investigation or proceeding conducted against him by an authority authorized to conduct such an investigation or proceeding, and which was ended without filing an indictment against him and without being subject to a financial obligation as a substitute for a criminal proceeding, or that was ended without filing an indictment against him, but with the imposition of a financial obligation, as a substitute for a criminal proceeding relating to an offence which does not require criminal intent, within the meaning of the relevant terms in the Companies Law.
33.1.4 Financial liability he incurs for payment to persons or entities harmed as a result of violations in Administrative Proceedings, as detailed in section 52(54)(A)(1)(a) of the Securities Law. For this purpose "Administrative Proceeding" shall mean a proceeding pursuant to Chapters H3 (Imposition of Monetary Sanction by the Israel Securities Authority), H4 (Imposition of Administrative Enforcement Means by the Administrative Enforcement Committee) or I1 (Settlement for the Avoidance of Commencing Proceedings or Cessation of Proceedings, Conditioned upon Conditions) of the Securities Law, as shall be amended from time to time.
33.1.5 Expenses that he incurs in connection with Administrative Proceedings (as defined above) he was involved in, including reasonable litigation fees, and including attorney fees.
33.1.4 Any other obligation or expense in respect of which it is permitted or will be permitted under law to indemnify an officer in the Company.
33.2 Advance indemnity
The Company may give an advance undertaking to indemnify an officer therein in respect of the following matters:
33.2.1 Matters as detailed in Article 33.1.1, provided however, that the undertaking is restricted to events, which in the opinion of the Board of Directors, are anticipated in light of the Company’s actual activity at the time of granting the obligation to indemnify and is limited to a sum or measurement determined by the Board of Directors as reasonable under the circumstances. The indemnification undertaking shall specify the events that, in the opinion of the Board of Directors are expected in light of the Company’s actual activity at the time of grant of the indemnification and the sum or measurement, which the Board of Directors determined to be reasonable under the circumstances.
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33.2.2 Matters as detailed in Article 33.1.2 and 33.1.3.
33.2.3 Any matter permitted by applicable law.
33.3 Retroactive indemnity
The Company may indemnify an officer therein, save for the events subject to any applicable law.
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"RESOLVED, that the amendment, in accordance with the Amendments and subject to the adoption of a resolution to amend the Company’s Articles of Association in accordance with Proposal No. 10 above, to the Company's prospective undertaking to indemnify its current and future directors who are non-controlling shareholders of the Company and the amendment to the letters of indemnification issued by the Company accordingly, having been approved by the Company’s Audit Committee and Board of Directors, be, and as presented to the shareholders, be, and same hereby is, approved"
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"RESOLVED, that the approval of an amendment, in accordance with the Amendments and subject to the adoption of a resolution to amend the Company’s Articles of Association in accordance with Proposal No. 10 above, to the Company's prospective undertaking to indemnify Mr. Shlomo (Tom) Wyler, the Company's President and member of the Board of Directors, who is also considered the controlling shareholder of the company, and the amendment to the letter of indemnification issued by the Company accordingly, having been approved by the Company’s Audit Committee and Board of Directors, and as presented to the shareholders, be, and same hereby is, approved. "
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By Order of the Board of Directors,
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Alex Hilman,
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Executive Chairman of the Board of Directors |
ANNEX A | |||
Date: October 4, 2011 | |||
To: Optibase Ltd. (the "Company")
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Re: Declaration of a Nominee as a Director in a Public Company in Accordance with the Companies Law, 5759-1999 ("the Law")
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I, the Undersigned, Shlomo (Tom) Wyler I.D. No.X4519444, a resident of Israel whose address is 8 Herzel Rosenblum Tel Aviv after being warned that I must state the truth and that I will be subject to the punishment provided by law if I do not do so, declare and commit as follows:
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1.
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I hereby give my consent to serve as a Director of the Company, which is a public company incorporated in Israel, and whose shares are traded on the Nasdaq.
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2.
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I am qualified to serve as a director of the Company pursuant to the requirements of Sections 225 – 227 of the Law with regard to restrictions on the appointment of a minor, legally incompetent and restrictions due to prior convictions or administrative law enforcement committee decision, or bankruptcy. These Sections, as in effect as of the date of signing this deceleration, are attached hereto as Annex A and are integral parts of this deceleration.
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3.
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I have the necessary skills and the ability to devote the appropriate amount of time in order to perform the role of a director of the Company with respect to the Company's special needs and its size.
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4.
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I have the following academic degrees:
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1979 - University of Zurich- Masters degree in Business Economics,
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5.
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The documentation evidencing the aforesaid degrees is attached hereto as Annex B and is an integral part of this deceleration.
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6.
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I have work experience as specified in my CV, attached hereto as Annex C. The documentation evidencing these positions is attached hereto as Annex D.
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7.
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My other positions or affairs do not create, or are liable to create, any conflict of interest with my position as a Director of the Company, nor will they harm my ability to serve as a Director of the Company.
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8.
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I hereby undertake to fulfill all the requirements provided by law for a director. I shall fulfill my duty in the best possible way and for the benefit of the Company. Should a concern arise that I will be aware of and/or that will be brought to my attention, pursuant to which I will no longer fulfill one or more of the requirements and/or the declarations set forth above, or should there be a concern that I have breached my fiduciary duty towards the Company (as defined under Section 254 of the Law), I shall notify the Company's Chairman of the Board immediately, in accordance with Section 227a of the law as set forth in Annex A to this declaration.
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9.
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I am not serving as an external director in another company that one of the external directors of the company serves as a director in that other company.
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10.
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I am aware that my declaration herein shall serve the Company in considering whether I qualify to serve as a director of the Company and in particular whether I fulfill the conditions and criterion established in accordance with the Law, and that this declaration shall be kept in the Company's registered office and shall be open for inspection by any person and shall be published in the Company's public reports;
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11.
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This is my name, this is my signature and the facts stated above are true.
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Shlomo (Tom) Wyler | X4519444 |
/s/ Shlomo (Tom) Wyler
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Name |
I.D.
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Signature
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Date: October 5, 2011
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To: Optibase Ltd. (the "Company")
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Re: Declaration of a Nominee as a Director in a Public Company in Accordance with the Companies Law, 5759-1999 ("the Law")
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I, the Undersigned, Danny Lustiger I.D. No 022963763, a resident of Israel whose address is 56 Izhak Shada St Herzliya after being warned that I must state the truth and that I will be subject to the punishment provided by law if I do not do so, declare and commit as follows:
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1.
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I hereby give my consent to serve as a Director of the Company, which is a public company incorporated in Israel, and whose shares are traded on the Nasdaq.
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2.
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I am qualified to serve as a director of the Company pursuant to the requirements of Sections 225 – 227 of the Law with regard to restrictions on the appointment of a minor, legally incompetent and restrictions due to prior convictions or administrative law enforcement committee decision, or bankruptcy. These Sections, as in effect as of the date of signing this deceleration, are attached hereto as Annex A and are integral parts of this deceleration.
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3.
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I have the necessary skills and the ability to devote the appropriate amount of time in order to perform the role of a director of the Company with respect to the Company's special needs and its size.
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4.
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I have the following academic degrees:
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2004 – Stanford University, CA. Graduate School of Business - Executive program for growing companies.
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2001 – Tel Aviv University - Advanced study diploma for Executive Directors in Public corporations
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1993-1996 – Tel Aviv University - MBA in Finance and International Management
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1992-1993 – Tel Aviv University - Advance studies in accounting
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1989-1992 – Tel Aviv University - B.A. in Accounting and Economics
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The documentation evidencing the aforesaid degrees is attached hereto as Annex B and is an integral part of this deceleration.
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5.
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I have work experience as specified in my CV, attached hereto as Annex C. The documentation evidencing these positions is attached hereto as Annex D.
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6.
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My other positions or affairs do not create, or are liable to create, any conflict of interest with my position as a Director of the Company, nor will they harm my ability to serve as a Director of the Company.
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7.
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I hereby undertake to fulfill all the requirements provided by law for a director. I shall fulfill my duty in the best possible way and for the benefit of the Company. Should a concern arise that I will be aware of and/or that will be brought to my attention, pursuant to which I will no longer fulfill one or more of the requirements and/or the declarations set forth above, or should there be a concern that I have breached my fiduciary duty towards the Company (as defined under Section 254 of the Law), I shall notify the Company's Chairman of the Board immediately, in accordance with Section 227a of the law as set forth in Annex A to this declaration.
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8.
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I am not serving as an external director in another company that one of the external directors of the company serves as a director in that other company.
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9.
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I am aware that my declaration herein shall serve the Company in considering whether I qualify to serve as a director of the Company and in particular whether I fulfill the conditions and criterion established in accordance with the Law, and that this declaration shall be kept in the Company's registered office and shall be open for inspection by any person and shall be published in the Company's public reports;
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10.
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This is my name, this is my signature and the facts stated above are true.
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Danny Lustiger | 022963763 |
/s/ Danny Lustiger
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Name |
I.D.
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Signature
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Date: October 5, 2011
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To: Optibase Ltd. (the "Company")
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Re: Declaration of a Nominee as a Director in a Public Company in Accordance with the Companies Law, 5759-1999 ("the Law")
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I, the Undersigned, Alex Hillman I.D. No. 51133460, a resident of Israel whose address is 75 Hailanot St Herzliya, after being warned that I must state the truth and that I will be subject to the punishment provided by law if I do not do so, declare and commit as follows:
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11.
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I hereby give my consent to serve as a Director of the Company, which is a public company incorporated in Israel, and whose shares are traded on the Nasdaq.
|
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12.
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I am qualified to serve as a director of the Company pursuant to the requirements of Sections 225 – 227 of the Law with regard to restrictions on the appointment of a minor, legally incompetent and restrictions due to prior convictions or administrative law enforcement committee decision, or bankruptcy. These Sections, as in effect as of the date of signing this deceleration, are attached hereto as Annex A and are integral parts of this deceleration.
|
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13.
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I have the necessary skills and the ability to devote the appropriate amount of time in order to perform the role of a director of the Company with respect to the Company's special needs and its size.
|
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14.
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I have the following academic degrees:
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· 1976 - University of Tel Aviv: B.A in Accounting
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· 1976 - University of Tel Aviv: B.A in Economics
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15.
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The documentation evidencing the aforesaid degrees is attached hereto as Annex B and is an integral part of this deceleration.
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||
16.
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I have work experience as specified in my CV, attached hereto as Annex C. The documentation evidencing these positions is attached hereto as Annex D.
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17.
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My other positions or affairs do not create, or are liable to create, any conflict of interest with my position as a Director of the Company, nor will they harm my ability to serve as a Director of the Company.
|
||
18.
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I hereby undertake to fulfill all the requirements provided by law for a director. I shall fulfill my duty in the best possible way and for the benefit of the Company. Should a concern arise that I will be aware of and/or that will be brought to my attention, pursuant to which I will no longer fulfill one or more of the requirements and/or the declarations set forth above, or should there be a concern that I have breached my fiduciary duty towards the Company (as defined under Section 254 of the Law), I shall notify the Company's Chairman of the Board immediately, in accordance with Section 227a of the law as set forth in Annex A to this declaration.
|
||
19.
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I am not serving as an external director in another company that one of the external directors of the company serves as a director in that other company.
|
||
20.
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I am aware that my declaration herein shall serve the Company in considering whether I qualify to serve as a director of the Company and in particular whether I fulfill the conditions and criterion established in accordance with the Law, and that this declaration shall be kept in the Company's registered office and shall be open for inspection by any person and shall be published in the Company's public reports;
|
||
21.
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This is my name, this is my signature and the facts stated above are true.
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Alex Hillman | 051133460 |
/s/ Alex Hilman
|
||||
Name |
I.D.
|
Signature
|
||||
32.
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Insurance of Officers
|
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32.1
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The Company may insure the liability of an officer therein to the fullest extent permitted by law.
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32.2
|
Without derogating from the aforesaid the Company may enter into a contract to insure the liability of an officer therein for an obligation or payment imposed on him in consequence of an act done in his capacity as an officer therein, in any of the following cases:
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(a)
|
a breach of the duty of care vis-a-vis the Company or vis-a-vis another person;
|
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(b)
|
a breach of the fiduciary duty vis-a-vis the Company, provided that the officer acted in good faith and had a reasonable basis to believe that the act would not harm the Company;
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(c)
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a monetary obligation imposed on him in favor of another person.
|
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(d)
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Financial liability imposed on him for payment to persons or entities harmed as a result of violations in Administrative Proceedings, as detailed in section 52(54)(A)(1)(a) of the Israeli Securities Law, 1965 (the "Securities Law").
|
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(e)
|
Expenses incurred by him in connection with Administrative Proceedings (as defined above) he was involved in, including reasonable litigation fees, and including attorney fees.
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|
(f)
|
any other matter in respect of which it is permitted or will be permitted under applicable law to insure the liability of an officer in the Company.
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33.
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Indemnity of Officers
|
|
33.1
|
The Company may indemnify an officer therein, to the fullest extent permitted by law. Without derogating from the aforesaid the Company may indemnify an officer in the Company for liability or expense imposed on him in consequence of an action made by him in the capacity of his position as an officer in the Company, as follows:
|
|
33.1.1
|
Any financial liability he incurs or imposed on him in favor of another person in accordance with a judgment, including a judgment given in a settlement or a judgment of an arbitrator, approved by a court.
|
|
33.1.2
|
Reasonable litigation expenses, including legal fees, incurred by the officer or which he was ordered to pay by a court, within the framework of proceedings filed against him by or on behalf of the Company, or by a third party, or in a criminal proceeding in which he was acquitted, or in a criminal proceeding in which he was convicted of a felony which does not require a finding of criminal intent.
|
|
33.1.3
|
Reasonable litigation expenses, including legal fees he incurs due to an investigation or proceeding conducted against him by an authority authorized to conduct such an investigation or proceeding, and which was ended without filing an indictment against him and without being subject to a financial obligation as a substitute for a criminal proceeding, or that was ended without filing an indictment against him, but with the imposition of a financial obligation, as a substitute for a criminal proceeding relating to an offence which does not require criminal intent, within the meaning of the relevant terms in the Companies Law.
|
|
33.1.4
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Financial liability he incurs for payment to persons or entities harmed as a result of violations in Administrative Proceedings, as detailed in section 52(54)(A)(1)(a) of the Securities Law. For this purpose "Administrative Proceeding" shall mean a proceeding pursuant to Chapters H3 (Imposition of Monetary Sanction by the Israel Securities Authority), H4 (Imposition of Administrative Enforcement Means by the Administrative Enforcement Committee) or I1 (Settlement for the Avoidance of Commencing Proceedings or Cessation of Proceedings, Conditioned upon Conditions) of the Securities Law, as shall be amended from time to time.
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33.1.5
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Expenses that he incurs in connection with Administrative Proceedings (as defined above) he was involved in, including reasonable litigation fees, and including attorney fees.
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33.1.6
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Any other obligation or expense in respect of which it is permitted or will be permitted under law to indemnify an officer in the Company.
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1.
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Obligation to indemnify:
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1.1.
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To indemnify you for any liability or expense, as detailed below, imposed upon you for actions taken (including actions preceding the date of this Letter) and/or actions that will be taken, by virtue of your service as an Officer of the Company, or an Officer on behalf of the Company in a company controlled by the Company or in which the Company has an interest (such companies being referred to herein as the “Subsidiaries”), as follows:
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1.1.1.
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Financial liability that you incur or imposed on you in favor of another person in accordance with a judgment, including a judgment given in a settlement or a judgment of an arbitrator approved by the Court, provided that such acts pertain to one or more of the events set out in the Schedule hereto (the “Schedule”);
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1.1.2.
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Reasonable litigation expenses, including legal fees that you will incur or for which you will be ordered to pay by a court within the framework of proceedings filed against you by or on behalf of the Company or by a third party, or in a criminal proceeding in which you will be acquitted, or in a criminal proceeding in which you will be convicted of a felony but which does not require criminal intent;
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1.1.3.
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Reasonable litigation expenses, including legal fees that you will incur due to an investigation or proceeding conducted against you by an authority authorized to conduct such investigation or proceeding and which was ended without the filing of an indictment against you and without being subject to a financial obligation as a substitute for a criminal proceeding, or which was ended without the filing of an indictment against you but with the imposition of financial obligation as a substitute for a criminal proceeding relating to an offence which does not require criminal intent, within the meaning of the relevant terms in the Companies Law;
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1.1.4.
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Financial liability that you incur for payment to persons or entities harmed as a result of violations in Administrative Proceedings, as detailed in section 52(54)(A)(1)(a) of the Israeli Securities Law, 1965 (the "Securities Law"). For this purpose "Administrative Proceeding" shall mean a proceeding pursuant to Chapters H3 (Imposition of Monetary Sanction by the Israel Securities Authority), H4 (Imposition of Administrative Enforcement Means by the Administrative Enforcement Committee) or I1 (Settlement for the Avoidance of Commencing Proceedings or Cessation of Proceedings, Conditioned upon Conditions) of the Securities Law, as shall be amended from time to time.
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1.1.5.
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Expenses that you incur in connection with Administrative Proceedings (as defined above) you were involved in, including reasonable litigation fees, and including attorney fees.
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1.2.
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The aggregate and accumulated indemnification amount that the Company shall pay to its Officers (in addition to sums that may be received from insurance companies in connection with insurance policies that the Company has purchased, see also section 1.3 below) pursuant to all the letters of indemnification issued and/or that shall be issued by the Company pursuant to the indemnification decisions, shall not exceed the higher of: (i) 25% of the shareholders’ equity of the Company, as set forth in the Company’s most recent consolidated financial statements prior to such payment; (ii) 7.5 million U.S. Dollars (the “The Maximum Indemnification Amount”).
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1.3.
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The Maximum Indemnification Amount shall not be affected in any way by the existence of, or payment under, insurance policies. Payment of the indemnification shall not affect your right to receive insurance payments, if you receive the same (either personally or through the Company or on your behalf) and the Company will not be required to indemnify you for any sums that were, in fact, already paid to you or for you in respect of insurance or any other indemnification obligations made to you by any third party. In the event there is any payment made under this Letter and such payment is covered by an insurance policy, the Company shall be entitle to collect such amount of payment from the insurance proceeds.
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1.4.
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In the event the indemnification amount the Company is required to pay to its Officers, as set forth in Section 1.1 above, exceeds at a certain time the Maximum Indemnification Amount (or the balance thereof after deducting any indemnification amounts paid or payable by the Company to any of its Officers at such time) in accordance with Section 1.2 above, the Maximum Indemnification Amount or its remaining balance will be allocated between the Officers entitled to indemnification, in the manner that the amount of indemnification that each of the Officers will actually receive will be calculated in accordance with the ratio between the amount each individual Officer may be indemnified for, and the aggregate amount that all of the relevant Officers involved in the event may be indemnified for.
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1.5.
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Upon the occurrence of an event that by its virtue you are likely to be entitled to indemnification in accordance with Section 1.1 above, the Company shall place at your disposal, from time to time, the funds required to cover the expenditures and payments that are connected to handling the legal proceeding, in a manner that you shall not be required to pay for, or personally finance the legal expenses, subject to the conditions and instructions in this Indemnification Letter.
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1.6.
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In order to avoid any doubt, upon the occurrence of an event that may entitle you to indemnification, you shall be entitled to appoint an advocate of your choice, with the exception of an advocate whom the Company deems unacceptable for reasonable cause, provided that you shall immediately inform the Company of the identity of the advocate, when it becomes necessary to appoint such advocate. In the event you do not inform the Company regarding your choice of advocate in compliance with the above mentioned, the Company shall have discretion to appoint an advocate on your behalf.
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2.
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The obligation to indemnify in accordance with this Letter is subject to the statements set forth in this Section 2 and to any applicable law:
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2.1.
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There is nothing by law to prevent your being indemnified.
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2.2.
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You shall inform the Company of every legal proceeding that shall be brought against you in connection with any event that may entitle you to indemnification, and of every warning made to you in writing, pertaining to legal proceedings that may be commenced against you, and this shall be done in a timely manner, immediately after you shall first be aware of such, and you shall provide the Company or to whom the Company shall instruct you to, all documents in connection with such proceedings.
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2.3.
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Despite the provisions of Section 1.6 above, the Company is entitled to take upon itself the care of your defense in the legal proceeding and/or to give the above care to any prominent advocate that the Company shall select for this purpose (except an advocate that shall not be reasonably acceptable to you) subject to the fulfillment of all of the following conditions: (a) The Company shall inform the holder of this Indemnification Letter, within 45 days from the time of receiving the notice as said in Section 2.2 above (or within a shorter period of time – if the matter requires filing a statement of defense or a response to a proceeding), that it shall indemnify the holder of the Indemnification Letter according to this Letter; and (b) The legal proceeding against the holder of the Indemnification Letter shall solely entail a claim for monetary damages. The Company and/or the aforementioned advocate shall be entitled to act with their exclusive discretion and to bring the proceeding to a close; the appointed advocate shall act and shall owe its duty of loyalty to the Company and to you. In the event that a conflict of interest shall arise between you and the Company, you shall inform the Company of such conflict and shall be entitled to appoint an advocate on your behalf, and the provisions of this Indemnification Letter shall apply to expenses you may incur as a result of such appointment. In the event that the Company decides to settle a monetary obligation or to decide a monetary obligation by arbitration, or by mediation or by settlement the Company shall be entitled to do so as long as the lawsuit or the threat of a lawsuit against you shall be fully withdrawn. Following the request of the Company you shall sign any document that shall empower the Company and/or an advocate as mentioned above, to act on your name with regard to your defense in the above-mentioned proceedings and to represent you in all matters pertaining to these proceedings, as set forth above.
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2.4.
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You shall cooperate with the Company and/or with any advocates as set forth above in every reasonable manner that shall be required from you by any of them in connection with the handling of such legal proceedings, all in accordance with Section 1.2 above. You shall not bear any additional legal expenses due to such cooperation.
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2.5.
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Subject to the provisions of this Indemnification Letter, whether or not the Company shall act in accordance with section 2.3 above, the Company shall cover litigation expenses in a manner that you shall not be required to pay or finance such litigation expenses yourself.
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2.6.
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Your indemnification in connection to the legal proceeding of any actions against you, as set forth in this Letter, will not be enforceable in connection with amounts that you shall be required to pay as a result of a settlement or arbitration, unless the Company agrees, in advance and in writing, to the settlement, or to the arbitration award.
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2.7.
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The Company shall not be required to pay, pursuant to this Letter, monies that were actually paid, to you, or on your behalf or in your stead, through an insurance policy that the Company procured or through an obligation to any indemnification that was made by any other person other than the Company. In addition, in the event of the indemnification hereunder is being paid in respect of your serving as an Officer in any Subsidiary, such indemnification will only be paid after all your rights to insurance and indemnification from such Subsidiary will have been exhausted, if and to the extent they exist.
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2.8.
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Upon your request to an execution of a payment in connection with any event pursuant to this Letter, the Company shall take all necessary steps according to any applicable law to pay such payment and will do all that is required to obtain any approval that is required. If any approval is required for the above payment and that payment shall not be approved for any reason, such payment, or any part of it, that will not be approved, as said above, shall be subject to the approval of a court and the Company shall take all necessary steps to obtain the court’s approval.
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3.
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The obligations of the Company according to this Letter shall remain valid even if you have ceased to be an Officer of the Company, provided that acts for which you are given a commitment of indemnification were performed or shall be performed during your service as an Officer of the Company.
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4.
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In the event the Company pays to you, or in your place, any amount pertaining to this Letter in connection with a legal proceeding as stated above, and afterwards it shall be determined that you are not entitled to any indemnification from the Company for any reason whatsoever, the sums paid by the Company shall be considered a loan that was granted to you by the Company, and shall be linked to the Consumer Price Index and accrue interest in accordance with the Income Tax Regulations (Determination of the interest rate), 1985, as amended from time to time. You will be required to repay these sums to the Company when requested to do so in writing by the Company and in accordance with a payment schedule that the Company shall determine.
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5.
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The terms contained in this Letter will be construed in accordance with the Companies Law, and in the absence of any definition in the Companies Law, pursuant to the Securities Law, 5728-1968.
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6.
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The obligations of the Company according to this Indemnification Letter shall be interpreted broadly and in a manner that shall facilitate its execution, to the extent permitted by law, and for the purposes for which it was intended. In the event of a conflict between any provision of this Letter and any provision of the law, said provision of the law shall supersede the specific provision in this Letter, but shall not limit or diminish the validity of the remaining provisions of this Letter.
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7.
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The indemnification under this Letter will enter into effect upon your signing a copy of the same in the appropriate place, and the delivery of such signed copy to the Company. It is hereby expressly agreed and understood that this Indemnification Letter does not derogate in any way from any indemnification undertaking the Company has made to you; provided however, that the aggregate indemnification amount pursuant to all the Indemnification Letters issued or that shall be issued by the Company will not exceed the Maximum Indemnification Amount.
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8.
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The Company may, at its sole discretion and at any time, may revoke its undertaking to indemnify you hereunder, or reduce the Maximum Indemnification Amount, or limit the events to which it applies, either in regard to all the Officers or to some of them, to the extent it relates only, to events that will apply after the date of such change, provided that prior notice has been given to the Officer of the Company’s intention to do so, in writing at least 60 days before the date on which such decision will enter into effect. For the avoidance of any doubt, it is hereby clarified that any such decision will not have retroactive effect of any kind whatsoever and the Indemnification Letter, prior to such change or revocation, as the case may be, will continue to apply and be in full force and effect for all purposes in relation to any event that has preceded such change or revocation, even if the proceeding in respect thereof has been filed against the Officer after the change or revocation of the Indemnification Letter. In all other cases, this Indemnification Letter may not be changed, unless the Company and yourself have signed it.
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9.
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This Letter does not constitute a contract for the benefit of any third party and is not assignable. For the avoidance of any doubt, in the event of death (God forbids), this Letter will apply to you and your estate.
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10.
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No waiver, delay, forbearance to act or extension granted by the Company or by you will be construed in any circumstances as a waiver of the rights hereunder or by law, and will not prevent any such party from taking all legal and other steps as will be required in order to enforce such rights.
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11.
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The foregoing does not derogate from the Company’s right to indemnify you retroactively in accordance with the articles of association of the Company and subject to any applicable law.
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12.
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The law of the State of Israel shall govern this Letter and all issues related thereto, without giving effect to any conflicts of law principles. The courts in Tel Aviv, Israel shall have the exclusive local and international jurisdiction, in connection with this Indemnification Letter, except if an indemnification claim is related to legal proceeding, already filed by a third party in a different court.
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13.
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In this Indemnification Letter-
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14.
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The Schedule to this Letter is an integral and inseparable part of it.
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1.
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Any issuance of securities, including without limitation, a public offering pursuant to a prospectus, a private offering, the issuance of bonus shares or any offer of securities in any other manner;
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2.
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Conducting tender offers and any thing related thereto;
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3.
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A "Transaction" within the meaning of Section 1 of the Companies Law1, including without limitation negotiations for entering into a transaction, the transfer, sale or purchase or charge of assets or liabilities, including securities, or the grant or receipt of a right to any of the foregoing, receiving credit and the grant of collateral and any act directly or indirectly involved in such "Transaction";
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4.
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Report or notice filed in accordance with any applicable law, including the Companies Law and/or the Israeli Securities Law of 1968, and/or the Securities Exchange Act of 1933 and/or the Securities Exchange Act of 1934 including regulations promulgated thereunder, or in accordance with rules or instructions prevailing on an Israeli stock exchange or on Nasdaq-NM, or a stock exchange outside of Israel, or any law of another country regulating similar matters and/or the omission to act accordingly;
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5.
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Any resolution with respect to distribution, as defined in the Companies Law;
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6.
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Amendment to the Company’s structure or its reorganization or any resolution with respect to such matters, including without limitation, a merger, split, change in the Company’s capital structure, incorporation of subsidiaries, dissolution or sale thereof, issuance or distribution;
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7.
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Taking part in tenders;
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8.
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The making of any statement, including a bona fide statement or opinion made by an officer of the Company in such capacity, including during meetings of the Board of Directors or any committee thereof;
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9.
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An act in contradiction to the articles or memorandum of association of the Company;
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10.
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Any action or decision in relation to employer-employee relations, including the negotiation for, signing and performance of individual or collective employment agreements, other employees benefits (including allocation of securities to employees) and harassment suits;
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11.
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Any action or decision in relation to work safety and/or working conditions;
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12.
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Negotiation for, signing and performance of insurance policy;
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13.
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Formulating working programs, including pricing, marketing, distribution, directives to employees, customers and suppliers and collaborations with competitors;
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14.
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Decisions and/or acts pertaining to the environment, including dangerous substances;
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15.
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Decisions and/or acts pertaining to the Consumer Protection Law, 5741-1981, and/or orders and/or Regulations thereunder;
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16.
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Negotiating, making and performing of contracts of any kind and type with suppliers, distributors, agents, franchisees and the like of the products that are marketed and/or sold by, or by those serving, the Company;
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17.
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Negotiating, the making and performing agreements with manpower contractors, service contractors, building contractors, renovations contractors, etc;
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18.
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Reporting and/or filing of applications to the state authorities and other authorities;
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19.
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Any of the foregoing events relating to the capacity of such officer as an officer of a corporation controlled by the Company or otherwise affiliated therewith; and
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19.20.
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Any event or action for which indemnification is allowed to be granted under the Efficiency of Enforcement Proceedings in the Israel Securities Authority Law (Legislation Amendments) of 2011.
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x Please mark your votes as in this example.
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Re-election of Shlomo (Tom) Wyler to the Company's board of directors.
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|||||
FOR | AGAINST | ABSTAIN | |||
o | o | o |
Re-election of Alex Hilman to the Company's board of directors.
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|||||
FOR | AGAINST | ABSTAIN | |||
o | o | o |
Re-election of Danny Lustiger to the Company's board of directors.
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|||||
FOR | AGAINST | ABSTAIN | |||
o | o | o |
FOR | AGAINST | ABSTAIN | |||
o | o | o |
FOR | AGAINST | ABSTAIN | |||
o | o | o |
FOR | AGAINST | ABSTAIN | |||
o | o | o |
FOR | AGAINST | ABSTAIN | |||
o | o | o |
FOR | AGAINST | ABSTAIN | |||
o | o | o |
Do you have a personal interest in the transaction underlying Proposal 6? (Please note: If you do not mark either Yes or No, your shares will not be voted for Proposal 6.)
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|||||
YES | NO | ||||
o | o |
FOR | AGAINST | ABSTAIN | |||
o | o | o |
Do you have a personal interest in the transaction underlying Proposal 7? (Please note: If you do not mark either Yes or No, your shares will not be voted for Proposal 7.)
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|||||
YES | NO | ||||
o | o |
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FOR | AGAINST | ABSTAIN | ||
o | o | o |
Do you have a personal interest in the transaction underlying Proposal 8? (Please note: If you do not mark either Yes or No, your shares will not be voted for Proposal 8.)
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|||||
YES | NO | ||||
o | o |
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FOR | AGAINST | ABSTAIN | ||
o | o | o |
Do you have a personal interest in the transaction underlying Proposal 9? (Please note: If you do not mark either Yes or No, your shares will not be voted for Proposal 9.)
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|||||
YES | NO | ||||
o | o |
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FOR | AGAINST | ABSTAIN | ||
o | o | o |
Do you have a personal interest in the transaction underlying Proposal 10? (Please note: If you do not mark either Yes or No, your shares will not be voted for Proposal 10.)
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YES | NO | ||||
o | o |
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FOR | AGAINST | ABSTAIN | ||
o | o | o |
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FOR | AGAINST | ABSTAIN | ||
o | o | o |
Do you have a personal interest in the transaction underlying Proposal 12? (Please note: If you do not mark either Yes or No, your shares will not be voted for Proposal 12.)
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YES | NO | ||||
o | o |
Dated: ___________, 2011
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(Signature of Stockholder) | |||||
(Signature of Stockholder)
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Please sign exactly as your name(s) appears on your stock certificate. If signing as attorney, executor, administrator, trustee or guardian, please indicate the capacity in which signing. When signing as joint tenants, all parties to the joint tenancy must sign. When the proxy is given by a corporation, it should be signed by an authorized officer.
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