AGREEMENT
Made and signed on the 5th day of December, 1999
Between:
Koor Industries Ltd.
of 21 Ha'arbaaa Street, Tel Aviv
(hereinafter: the "Seller")
of the first part
And:
Clal Industries & Investments Ltd.
of Migdal Clal Atidim, 4 Devorah Haneviah Street, Tel Aviv
(hereinafter: the "Buyer")
of the other part
It is agreed and declared by the parties as follows:
1. The Seller declares that as at the date of signing this Agreement
it is, and as at the Performance Date as defined below it will be,
the owner and holder, directly and indirectly, of: (a) 5,000,000
ordinary "A" shares of a par value of NIS 0.01 each, 29,885,877
Ordinary "B" shares of a par value of NIS 0.01 each, 4,827,321,642
Ordinary "D" shares of a par value of NIS 0.01 each, in Mashav
Initiating and Development Ltd. ("Mashav"), which constitute all
the holdings of the Seller, directly and indirectly, in Mashav
("Mashav Shares"); and (b) 50% of all the issued and paid up share
capital in Tuval - General Transport Company Ltd. ("Tuval"), which
constitutes all the holdings of the Seller, directly and
indirectly, in Tuval ("Tuval Shares"); and also (c) 50% of all
parts of the partnership in Tuval Transportation M.C. 1974 -
Partnership ("Tuval Partnership"), which constitutes all the
holdings of the Seller, directly and indirectly, in Tuval
Partnership ("Tuval Rights") (Mashav Shares, Tuval Shares and
Tuval Rights are hereinafter referred to together as the "Object
of Sale"). The Seller further declares that in the two years
preceding the signing of this Agreement, it has not transferred
shares in Mashav.
2. The Seller declares that on the Performance Date, the Object of
Sale will be free of any third party rights whatsoever, and that
on the Performance Date no impediment will exist, whether under
the law or by agreement applicable to the Seller, to transfer the
Object of Sale by the Seller to the Buyer under this Agreement,
and all subject to receipt of the approvals noted in Clause 9
below. The Seller further declares that subject to the correctness
of the representations of the Buyer in this Agreement on the date
of signing this Agreement and on the date of transfer of the
Object of Sale, the Seller will sell the Object of Sale to the
Buyer in full cognizance of the condition, assets, liabilities,
plans and development possibilities of Mashav, Tuval, Tuval
Partnership and their affiliated companies.
3. The Buyer declares that on the Performance Date, no impediment
will exist, whether under the law or by agreement applicable to
the Buyer, to purchase of the Object of Sale by the Buyer from the
Seller under this Agreement, and all subject to receipt of the
approvals noted in Clause 9 below. The Buyer further declares that
subject to correctness of the representations of the Seller in
this Agreement on the date of signing this Agreement and on the
date of transfer of the Object of Sale, the Buyer will purchase
the Object of Sale in the condition of Mashav, Tuval and Tuval
Partnership "As Is", without any representations on the part of
the Seller and/or anyone on its behalf except as set forth in this
Agreement, and in full cognizance of the condition, assets,
liabilities, plans and development possibilities of Mashav, Tuval,
Tuval Partnership and their affiliated companies.
4. Upon completion of the transaction in accordance with the details
in this Agreement, on the Performance Date, all the agreements
between the Seller and the Buyer and its wholly-owned companies in
connection with the Object of Sale shall be canceled, including
the agreement between the Seller and the Buyer dated 8.4.98
concerning Mashav, its amendment dated 19.11.98 (the "Option
Agreement") and all the undertakings contained therein, except for
Clauses 22.2 and 22.3 to the Option Agreement, which shall remain
in effect and shall be binding upon the parties as if they were an
integral part of this Agreement. Furthermore, on the Performance
Date, Clause 22.2 of the Option Agreement shall be amended so that
the words "from the date of expiry of the Option as defined in
Clause 2.3 above" are replaced by the Performance Date of this
Agreement.
5. Upon completion of the transaction in accordance with the details
in this Agreement, on the Performance Date, all the rights of the
Seller, directly and indirectly, towards any of Mashav, Tuval,
Tuval Partnership, Nesher Israeli Cement Works Ltd. ("Nesher") and
Ofek Projects & Investments Ltd. ("Ofek"), shall be assigned in
full and absolutely to the Buyer, effective from the date of
signing this Agreement, including the rights to receive any
management fees, except for (1) the Seller's right to receive
management fees from Nesher for the period up to 31.12.99, (2) the
Seller's rights pursuant to the agreement Annex A to this
Agreement, and (3) undertakings made in the normal course of
business, and all at no additional consideration.
6. Upon completion of the transaction in accordance with the details
in this Agreement, on the Performance Date, the Seller shall sign
a full and absolute waiver in which it waives any allegation or
claim against the Buyer, Mashav, Ofek, Tuval, Tuval Partnership
and their subsidiary and affiliated companies, their managers and
employees and/or anyone on their behalf who is connected with
Mashav, Ofek, Tuval, Tuval Partnership and any of their subsidiary
and affiliated companies, whether as plaintiff or as defendant,
whether as third party or otherwise, but excepting a waiver as
aforesaid in relation to the performance stated in this Agreement
and except for a waiver as aforesaid in relation to undertakings
in the normal course of business (which have no bearing on the
relations between the Seller and any of the above companies by
virtue of the fact that the Seller holds shares or rights therein,
or relations between the Seller and the Buyer as shareholder in
the above companies, except in connection with management fees as
set forth in Clause 11 below).
7. Upon completion of the transaction in accordance with the details
in this Agreement, on the Performance Date, the Buyer, Mashav,
Ofek, Tuval, Tuval Partnership and Nesher shall sign a full and
absolute waiver in which they waive any allegation or claim
connected with any of Mashav, Ofek, Tuval, Tuval Partnership and
any of their subsidiary and affiliated companies, against the
Seller and/or anyone on its behalf and/or its employees and/or its
managers and the Buyer shall undertake not to bring allegations as
aforesaid in the name of Mashav, Ofek, Tuval, Tuval Partnership
and any of their subsidiary and affiliated companies against the
Seller and/or anyone on its behalf, whether as plaintiff or as
defendant, whether as third party or otherwise, but excepting a
waiver as aforesaid in relation to the performance stated in this
Agreement and except for a waiver as aforesaid in relation to
undertakings in the normal course of business (which have no
bearing on the relations between the Seller and any of the above
companies by virtue of the fact that the Seller holds shares or
rights therein, or relations between the Seller and the Buyer as
shareholders in the above companies).
8. 8.1 On the Performance Date, the Seller shall sell and transfer to
the Buyer the Object of Sale in the consideration as defined
below, and the Buyer shall purchase and receive in transfer from
the Seller the Object of Sale in the consideration as defined
below and in accordance with that set forth in this Agreement.
8.2 The parties agree that in final and absolute consideration of
purchase of the Object of Sale, the Buyer shall pay the Seller, on
the Performance Date, against sale and transfer of the Object of
Sale and in accordance with that set forth in this Agreement, a
sum in New Israel Shekels (NIS) equal to US $215,976,335 (the
"Consideration").
8.3 The value in NIS of the Consideration will be calculated at
the representative exchange rate of the U.S. dollar against the
shekel most recently published by the Bank of Israel on 5.1.2000
(the "Representative Exchange Rate"). If publication of the
Representative Exchange Rate by the Bank of Israel is ceased, the
Representative Exchange Rate for the purpose of calculating the
Consideration shall be the average of the buy and sell rates of
the U.S. dollar (checks and transfers) which was published at
10:00 on the morning of 6.1.2000 by Bank Hapoalim B.M., Bank Leumi
Le'Israel B.M. and Israel Discount Bank Ltd., at the average of
these three banks.
8.4 It is agreed between the parties that if by 6.1.2000, all the
conditions precedent as set forth in Clause 9 below have not been
met, then on 6.1.2000 by 11:00 in the morning, the Buyer shall
deposit the Consideration in a trust account which will be opened
by Adv. Kenny Lalo and by Adv. Shlomo Heller (the "Trustees") in
Bank _____________, __________ branch. The Consideration shall be
deposited in shekel or dollar deposits, as the Seller shall
instruct. On the Performance Date, all the moneys accrued in the
above account shall be transferred to the Seller by the Trustees,
net of expenses and bank charges, or the above account shall be
transferred to the name of the Seller, all as the Seller may
choose, together with full and absolute release of any liability
of the Trustees, and the aforesaid transfer of the moneys or
transfer of the account shall be deemed to be payment of the
Consideration as set forth in Clause 10.2.4 below. If the
Performance Date was not met by the Final Date as defined below in
Clause 13.2, the Trustees shall transfer to the Buyer all the
moneys accrued in the above account, net of expenses and bank
charges, on the first business day on which the bank is open after
the Final Date.
9. Performance of the Agreement is contingent upon receipt of the
approvals and completion of the following actions:
9.1 On the Performance Date of this Agreement, the agreement for
the sale of the holdings of Ofek in Mashal Alumina Industries Ltd.
("Alumina") to the Seller and the Buyer shall be effected, in
equal parts between them, in accordance with the agreement
attached hereto as Annex A to this Agreement, after receipt of all
the approvals for this transaction as set forth in Annex A to this
Agreement.
9.2 Receipt of the approval of the Restraint of Trade Commissioner
(the "Commissioner") for the transaction which is the subject of
this Agreement.
9.3 Approval of the competent organs of the Buyer for purchase of
the Object of Sale, and approval of the competent organs of the
Seller for sale of the Object of Sale.
9.4 Implementation of the resolution of the Board of Directors of
Mashav in accordance with the text attached to this Agreement as
Annex B.
10. Performance of the Agreement:
10.1 The date of performance of this Agreement shall be 11:00 on
the third business day after receipt of the last of the approvals
listed in Clause 9 above, provided that if such date falls prior
to 6.1.2000, it shall be postponed until 6.1.2000 (hereinafter and
above: the "Performance Date").
10.2 On the Performance Date, the parties shall convene in the
office of Clal Industries & Investments Ltd. (in Migdal Clal
Atidim, Building No. 4, Kiryat Atidim, Tel Aviv), and all the
following actions shall be done simultaneously and shall be
contingent one upon the other:
10.2.1 The approval of the Commissioner for performance of
the transaction shall be presented.
10.2.2 The resolution of the Board of Directors of Mashav,
attached to this Agreement as Annex B, shall be implemented,
or confirmation shall be presented, showing that the
resolution was implemented prior to the Performance Date.
10.2.3 The Seller shall convey to the Buyer deeds of transfer
of Mashav Shares and Tuval Shares, and documents for the
amendment of the Tuval Partnership agreement, signed to the
order of the Buyer, and signed share certificates in respect
of the Object of Sale in the name of the Buyer. If such share
certificates were not found in the Seller's possession, the
Seller shall transfer to the Buyer a letter confirming that
the certificates were not found. If the share certificates
were found, the Seller shall transfer them to the Buyer
immediately they are found. If during the period up to the
Performance Date or thereafter, additional shares in Mashav
held by the Seller directly or indirectly should come to
light, which are not included in the definition of the Object
of Sale in Clause 1 above, they shall be transferred to the
Buyer free of charge within 7 days of the date on which they
come to light.
10.2.4 If the Performance Date is 6.1.2000, the Buyer shall
pay the Seller the Consideration by way of bank transfer to
the bank account in the Seller's name. number 664481 at Bank
Hapoalim, Main Branch (600), Tel Aviv. Consideration which is
paid by 12:00 midday shall be calculated at the
Representative Exchange Rate. If the Performance Date is
after 6.1.2000, the amount of the deposit shall be released
by the Trustees from the trust account and transferred to the
Seller's account or transferred the account in the Seller's
name, all as provided in Clause 8.4 above.
10.2.5 The Option Agreement shall be cancelled and amended as
provided in Clause 4 above.
10.2.6 All the rights of the Seller, direct or indirect,
towards any of Mashav, Tuval, Tuval Partnership, Nesher and
Ofek, shall be assigned in full and absolute assignment to
the Buyer, effective from the date of signing this Agreement,
including the rights to receive any management fees (except as
determined in Clause 11 below and except for the rights of
the Seller pursuant to the agreement Annex A to this
Agreement)all without additional consideration.
10.2.7 All the directors and members of the executive
committee who were appointed by, at the request of or on
behalf of the Seller, to the Boards of Directors of Mashav,
Ofek, Tuval and to the executive committee of Tuval
Partnership and any of their subsidiary and affiliated
companies (including Nesher), shall resign from all the
aforesaid Boards of Directors and from the executive
committee, including from any committees of those bodies,
except for the Board of Directors of Alumina.
10.2.8 The agreement for the sale of all of Ofek's holdings
in Alumina to the Seller and to the Buyer in equal parts,
shall be implemented, in accordance with the agreement
attached to this Agreement as Annex A, after receipt of all
the approvals for this transaction as set forth in Annex A to
this Agreement.
11. The Buyer shall ensure that immediately after publication of the
annual financial statements of Nesher for 1999, the Seller shall
receive, by bank transfer to the account referred to in Clause
10.2.4 above, its share of the management fees which are paid by
Nesher to the Seller for the period up to 31.12.99, plus VAT.
12. 12.1 Capital gains tax or any other tax, if applicable, on the
transaction which is the subject of this Agreement, shall be paid
by the party upon which this obligation is imposed by law.
12.2 Tax shall be withheld at source from the Consideration as
required by law, unless the Seller submits to the Buyer an
exemption from such withholding from the tax authorities.
12.3 The parties shall bear the stamp duty for this Agreement and
for any other related documents which are issued, if any, in equal
parts between them.
13. This Agreement, and all the obligations included therein, shall be
cancelled outright in any of the following situations:
13.1 On 6.12.1999 at 9:30 in the morning - if either partyfails to
transfer to the other (and the other party recievesby that date
and time, confirmation of the legal counsel or company secretary
of that party that approval of all the competent organs of that
party has been received for the commitment in this Agreement and
for performance of all of its requirements.
13.2 On 30.3.2000 (the "Final Date") - if approval of the
Commissioner as set forth in Clause 9 above is not obtained by
29.3.2000 inclusive, or one of the conditions precedent as set
forth in Clause 9 above is not met, and neither of the parties to
this Agreement is at fault.
If the Agreement is cancelled as aforesaid where neither of the
parties is at fault, neither party shall have any demand or claim
against the other.
14. Each party undertakes towards the other to do any act for which
its signature or doing is required to validate this Agreement or
for its performance, and the parties declare that they are aware
that each of the conditions set forth in Clause 10 to this
Agreement is material and fundamental to this Agreement.
15. Purchase of the Object of Sale (including assignment of the rights
as set forth in Clause 10.2.6 above) or any of its parts, shall be
effected by the Buyer and/or by a wholly-owned subsidiary company
or companies of the Buyer, directly or indirectly, as the Buyer
chooses, provided that the Buyer or whoever it may choose as
aforesaid, shall mutually guarantee and undertake, jointly and
severally, to fulfill all of the undertakings of the Buyer as
defined in this Agreement.
16. This Agreement puts in writing all of the agreements between the
parties in the maters, which are the subject of this Agreement,
including sale of the Object of Sale by the Seller and purchase of
the Object of Sale by the Buyer.
In witness whereof, the parties have affixed their
signatures:
Signed: ( - ) Signed: ( - )
------------------------------------ -----------------------------------
Clal Industries & Investments Ltd. Koor Industries Ltd.
Affirmation:
-----------
We affirm and take upon ourselves everything stated in this Agreement
relating to us, including the provisions of Clauses 7 - 14.
Signed: ( - )
---------------------------
The Central Israeli Company for Trade
and Investments Ltd.
