EXHIBIT 4.7
AMENDMENT
AMENDMENT TO AMENDMENT AND EXCHANGE AGREEMENT (the "AGREEMENT"), dated as of
January 9, 2008 by and among RADA Electronic Industries Ltd., a company
organized under the laws of the State of Israel, with headquarters located at ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the "COMPANY") and each of the
investors listed in SCHEDULE I hereto (each an "INVESTOR" and collectively the
"INVESTORS"):
WHEREAS:
A. The Investors and the Company have entered on June 29, 2007 into an
Amendment and Exchange Agreement (the "EXISTING AGREEMENT") under which the
Investors have, inter alia, granted the Company loans in the aggregate amount of
US$300,000 as further detailed opposite each Investor's name in Schedule I (each
a "LOAN" and together the "LOANS");
B. The Company and the Investors have agreed to convert the Loans into
ordinary shares of the Company, par value NIS 0.015 per share (the "SHARES") at
a price per share which is equal to the average price of the Shares at the close
of business on the NASDAQ Capital Market during the last 10 trading days prior
to the date hereof.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the Company and the Investors hereby agree as
follows:
1. DEFINITIONS
1.1. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Existing Agreement.
1.2. The preamble and Schedules attached to this Agreement constitute an
integral part hereof.
2. CONVERSION OF LOAN
2.1. The Loans (and the interest accrued thereupon and not yet paid until
the date hereof) shall be converted into Shares at a price of US$1.964
per Share, so that each Investor shall receive, within 15 days of the
date hereof the amount of Shares listed opposite each Investor's name
in SCHEDULE I.
3. REPRESENTATIONS
3.1. Company Representations and Warranties.
The Company hereby represents and warrants to the Investors, and
acknowledges that the Investors are entering into this Agreement in
reliance thereon, that the conversion of the Loans into Shares as
aforesaid has been duly approved by the Audit Committee and the Board
of Directors of the Company.
3.2. Investor's Representations and Warranties
Each of the Investors hereby represents and warrants to the Company as
of the date hereof as follows:
3.2.1. STATUS OF INVESTOR. The Investor either: (a) is an "accredited
investor" within the meaning of Securities and Exchange
Commission ("SEC") Rule 501 of Regulation D promulgated under the
Securities Act, as presently in effect; and/or (b) (i) is not a
"U.S. Person" (within the meaning of SEC Rule 902 of Regulation S
promulgated under the Securities Act ("Regulation S"), as
presently in effect) and is not making this loan on behalf of or
acquiring any shares for the account or benefit of any "U.S.
Person"; (ii) will purchase the shares in an "offshore
transaction" (within the meaning of SEC Rule 902 of Regulation S,
as presently in effect); (iii) will not resell the shares except
in accordance with the provisions Regulation S, pursuant to
registration under the Securities Act, or pursuant to an
available exemption from registration under the Securities Act;
and (iv) will not engage in hedging transactions with regard to
the Shares unless in compliance with the Securities Act.
3.2.2. NO PUBLIC SALE OR DISTRIBUTION. Such Investor is acquiring the
Amended Warrants and upon the exercise of the Amended Warrants,
will acquire the Amended Warrant Shares, for its own account and
not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; PROVIDED,
HOWEVER, that by making the representations herein, such Investor
does not agree to hold any of such Securities for any minimum or
other specific term and reserves the right to dispose of such
Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act.
Such Investor does not presently have any agreement or
understanding, directly or indirectly, with any Person to
distribute any of such Securities.
3.2.3. RELIANCE ON EXEMPTIONS. Such Investor understands that the
Securities are being offered and sold to it in reliance on
specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is
relying in part upon the truth and accuracy of, and such
Investor's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Investor
set forth herein in order to determine the availability of such
exemptions and the eligibility of such Investor to acquire the
Securities.
3.2.4. INFORMATION. Such Investor and its advisors, if any, have been
furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the offer
and sale of the Securities which have been requested by such
Investor. Such Investor and its advisors, if any, have been
afforded the opportunity to ask questions of the Company and have
received to their satisfaction answers to such questions. Neither
such inquiries nor any other due diligence investigations
conducted by such Investor or its advisors, if any, or its
representatives shall modify, amend or affect such Investor's
right to rely on the Company's representations and warranties
contained herein. Such Investor understands that its investment
in the Securities involves a high degree of risk. Such Investor
has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with
respect to its acquisition of the Securities.
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3.2.5. NO GOVERNMENTAL REVIEW. Such Investor understands that no
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or
endorsement of the Securities or the fairness or suitability of
the investment in the Securities nor have such authorities passed
upon or endorsed the merits of the offering of the Securities.
3.2.6. VALIDITY; ENFORCEMENT. This Agreement has been duly and validly
authorized, executed and delivered on behalf of such Investor and
shall constitute the legal, valid and binding obligations of such
Investor enforceable against such Investor in accordance with its
terms, except as such enforceability may be limited by general
principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of
applicable creditors' rights and remedies.
3.2.7. EXISTING AGREEMENT. Such Investor has no claims against the
Company in connection with the Existing Agreement and the
transactions contemplated thereby including in connection with
the delayed registration of the Amended Warrants or Extended
Warrants (as applicable) held by such Investor. Except as
expressly provided herein the provisions of the Existing
Agreement shall remain in full force and effect and un amended or
otherwise effected by this Agreement.
4. MISCELLANEOUS
4.1. GOVERNING LAW; JURISDICTION;. All questions concerning the
construction, validity, enforcement and interpretation of this
Agreement shall be governed by the laws of the State of Israel,
without giving effect to any choice of law or conflict of law
provision or rule thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the competent courts sitting in Tel
Aviv, Israel, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or
discussed herein.
4.2. COUNTERPARTS. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party; provided that a
facsimile signature shall be considered due execution and shall be
binding upon the signatory thereto with the same force and effect as
if the signature were an original, not a facsimile signature.
4.3. FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
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4.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and
assigns, including any purchasers of the Amended Warrants. The Company
shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Majority Investors. The
Investor may assign some or all of its rights hereunder without the
consent of the Company in connection with a transfer by the Investor
of any of the Securities, in which event such assignee shall be deemed
to be the Investor hereunder with respect to such assigned rights.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each Investor and the Company have caused their
respective signature page to this Amendment and Exchange Agreement to be
duly executed as of the date first written above.
RADA ELECTRONIC INDUSTRIES LTD.:
BY: ______________________
NAME: ______________________
TITLE:
SCHEDULE I
SCHEDULE OF INVESTORS
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INVESTOR PRINCIPAL AMOUNT INTEREST AMOUNT NUMBER OF SIGNATURE
(US$) (US$) SHARES
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