Exhibit 4.14
S.L.S. Sails Ltd. - Share Sale Agreement
1
SHARE SALE AGREEMENT
AGREEMENT
MADE AND ENTERED INTO IN TEL AVIV ON THE 14TH OF JUNE 2007
BETWEEN: 1. E.L.S. TRUST LTD.
(A Private Registered Co. No. 00-0000000)
Of Xxxxxx Xxxxx, 0 Xxxxxxxx Xxx., Xxx Xxxx,
Xxxxxx
(hereinafter: "E.L.S.")
2. ELSCINT LTD.
(A PUBLIC REGISTERED CO. NO. 00-0000000)
Of Xxxxxx Xxxxx, 0 Xxxxxxxx, Xxx., Xxx Xxxx,
Xxxxxx
(hereinafter: "ELSCINT")
(E.L.S. and Elscint shall hereinafter be
referred to jointly as: "THE SELLERS")
THE FIRST PARTY;
AND BETWEEN: MANOFIM FINANCES FOR ISRAEL (MAPAL) LTD.
(A Public Registered Co. No. 00-0000000)
Of 00 Xxxxxxxxxx Xxxx., the "Star Center"
Complex, Ashdod
(Hereinafter referred to in this Agreement as:
"THE PURCHASER")
THE SECOND PARTY;
S.L.S. Sails Ltd. - Share Sale Agreement
2
WHEREAS: The Sellers are the holders of the shares being
sold in the Company, as defined below;
AND WHEREAS: S.L.S. Sails Ltd. (hereinafter: "The COMPANY")
is duly registered with the Israel Registrar of
Companies, as reflected in the Companies
Register, as defined below;
AND WHEREAS: The Company is registered at the Israel Lands
Administration as a leaseholder in perpetuity,
and holds the right to be registered, at the
Land Registry Office, AS A LEASEHOLDER IN
PERPETUITY OF THE LAND, AS DEFINED BELOW;
AND WHEREAS: The Company holds all the rights, of any kind
and sort, including rights of use, of the
commercial and entertainment center known as
the Arena Shopping Center as defined below;
AND WHEREAS: The Company's operations include, in addition
to ownership, possession and operation of the
Arena Shopping Center (including the leasing of
commercial areas), additional business
activities dealing in entertainment, recreation
and culture by the operating of the Attractions
as defined below;
AND WHEREAS: The Purchaser is interested in acquiring from
the Sellers and the Sellers are interested in
selling to the Purchaser, all the Sale Shares
as detailed in the terms and conditions of this
Agreement below;
AND WHEREAS: The parties wish to set out and to establish
the rights and obligations between them, within
the framework of this Agreement.
THEREFORE, IT IS AGREED AND DECLARED BETWEEN THE PARTIES AS FOLLOWS:
1. In this Agreement, the following terms shall have those meanings assigned
alongside them, as follows:
A. "NET ASSET VALUE AT The Net Asset Value of the Company as at the
THE EFFECTIVE DATE" Effective Date, which shall be calculated in
accordance with the method of calculation and
the formula as set out in
S.L.S. Sails Ltd. - Share Sale Agreement
3
APPENDIX
B. "BANK SECURITIES" All securities and collaterals, including a
mortgage in the first degree, without
limitation in amount, guarantees, any security,
collateral or other right granted by the
Company in favour of the Bank in connection
with the bank loan and pursuant to the Loan
Agreement with the Bank, marked as Liens Nos. 1
- 5 in the report of the Registrar of Companies
for the Company, attached hereto as APPENDIX 4B
of this Agreement, and as stipulated in the
certificate of rights attached hereto.
C. "DEPOSIT FUNDS" THE TOTAL SUM OF NIS 20,105,000 (twenty
million, one hundred and five New Israel
Sheqels), according to the following
specification: The sum of NIS 12,201,000
(twelve million, two hundred and one thousand
New Israel Sheqels) [$3,000,000 (three million
United States Dollars according to the
representative rate of the United States Dollar
of 4.067 as of 23.4.2007)] plus NIS 7,904,000
(seven million, nine hundred and four thousand
New Israel Shekels [$2,000,000 (two million
United States Dollars according to the
representative rate of the United States Dollar
of 3.952 as of 17.5.2007)] paid by the
Purchaser to the Sellers by the date of the
signing of this Agreement.
D. "BASIC RENT" The annual rent in the sum of NIS 43,260,000
(forty three million, two hundred and sixty
thousand New Israel Shekels), constituting the
basis for the adjustment of the purchase price
pursuant to Section 7 below.
E. "RENT ADJUSTED TO The annual rent for the rent agreements as of
THE RENT AMOUNT the Rent Amount Adjustment Date calculated
ADJUSTMENT DATE" pursuant to APPENDIX 7.1.
"THE SELLERS OWNERS' All owners' loans (including interest and
LOANS" linkage differences accumulated up to the
Closing Date) yet to be
S.L.S. Sails Ltd. - Share Sale Agreement
4
paid by the Company to the Sellers and/or their
affiliates, as of the Closing Date of the
transaction.
F. "THE FINANCING LOAN" The loan granted by the Bank to the Company
pursuant to the Loan Agreement with the Bank;
G. "THE LOAN AGREEMENT The agreement for arranging the financing terms
WITH THE BANK" with the Bank dated 17.6.2003 (including
amendments thereto).
H. "THE SALE SHARES" 38,000 shares of the Company constituting the
fully issued and paid up share capital of the
Company, according to the following
distribution:
E.L.S. - 99 ordinary shares at a par value of
NIS 1.
Elscint - 37,901 ordinary shares at a par value
of NIS 1.
I. "THE EFFECTIVE DATE" 30.06.2007.
J. "THE CLOSING DATE" 28.06.2007 or at a deferred date as defined in
Section 6.5 below.
K. "THE TRADEMARK The agreement to be signed between the
LICENSE AGREEMENT" Purchaser and Elscint at the Closing Date under
which Elscint will grant the Purchaser license
to use trademarks pursuant to the provisions of
Section __________ below, in the form and
wording as attached to this Agreement AS
APPENDIX __________.
L. "THE TORNADO The agreement to be signed between the
INTELLECTUAL Purchaser and Elscint, at the Closing Date,
PROPERTY AGREEMENT" under which Elscint will grant the Purchaser a
licence to use the intellectual property
connected with the "Tornado" attraction at the
Arena Shopping Center (hereinafter: "TORNADO"),
pursuant to the provisions of Section
__________ below, in the form and wording
attached to this Agreement as APPENDIX 8.2.7.
M. "SERVICE AGREEMENTS" All the agreements (of any kind and sort) with
suppliers and/or service providers in the
framework of the management of the Arena
Shopping Center signed by Elscint with
professionals providing services in the areas
S.L.S. Sails Ltd. - Share Sale Agreement
5
of the Arena Shopping Center, including
contractors, designers, consultants etc. in
connection with the management of the Arena
Shopping Center, attached to this Agreement, as
APPENDIX.
N. "THE PURCHASE PRICE The par value of the Shares, i.e., the amount
FOR THE SALE SHARES" equivalent to NIS 38,000 (thirty eight thousand
New Israel Sheqels) plus the consideration (if
any) pursuant to the provisions of Section 6.3
below.
O. "BANK APPROVAL" The approval of the Bank for the execution of
the Transaction and the cancellation and
removal of the Bank Securities in the form
attached hereto as APPENDIX 4.O. or in any
other form, between the Bank and the
Purchaser's bank.
P. "THE SELLERS' OWNERS The total amount (100%) of the Owners Loans of
LOAN AMOUNT" the Sellers, as recorded in the Company's books
as of the Closing Date which the Company must
pay to the Sellers and/or to their affiliates.
Q. "THE FINANCING LOAN The amount to be paid to the Bank pursuant to
REPAYMENT AMOUNT" the provisions of Section 6.2 below, for the
full and final repayment of the Financing Loan,
in the amount detailed in the Bank Approval.
R. "THE ARENA SHOPPING THE "ARENA" COMMERCIAL AND ENTERTAINMENT CENTER
CENTER" IN HERZLIYAH BUILT ON THE LAND, OVER 6 LEVELS,
IN AN AREA OF APPROXIMATELY 120,000 M(2),
DELINEATED IN THE PLANS IN GREY (HEREINAFTER:
"THE AVAILABLE AREA") AND ALSO THE PARKING AREA
AS DETAILED IN THE CHANGES PLAN (HEREINAFTER:
"THE PARKING").
S. "THE RENT AMOUNT 30.6.2009.
ADJUSTMENT DATE"
T. "THE INCREMENT FOR The increment adjustment amount to be paid by
THE RENT ADJUSTMENT" the Company to the Sellers pursuant to the
provisions of
S.L.S. Sails Ltd. - Share Sale Agreement
6
Section 7 below.
CHAPTER B: THE TRANSACTION
5. PURCHASE OF THE COMPANY BY THE PURCHASER
Subject and pursuant to the terms, conditions and provisions detailed below
in the Agreement, the Sellers will sell to the Purchaser and the Purchaser
will purchase and receive from the Sellers, at the Closing Date all the
Sale Shares (including all accompanying rights), namely the full rights of
any kind and sort in the Company and its Assets, where such are free and
clear of any debt, lien, pledge, attachment, right of first refusal,
tag-along right, lock out arrangements, debt or any other third party right
in consideration for the purchase price of the Sale Shares.
6. THE PURCHASER'S INVESTMENTS IN THE COMPANY; PAYMENT OF THE FINANCING LOAN;
AND PAYMENT OF THE OWNERS' LOAN
6.1. At the Closing Date and subject to the terms, conditions and
provisions detailed below in this Agreement, the Purchaser will make
an owners' loan available to the Company, in an amount of NIS
538,000,000 (five hundred and thirty eight million New Israel Sheqels)
(including the Deposit Funds which have already been paid by the
Purchaser) (hereinafter: "THE PURCHASER'S LOAN").
In order to remove any doubt it is clarified, that the Deposit Funds
constitute a part of the Purchaser's Loan, so that at the Closing Date
the Purchaser will be required to transfer to the Company the sum of
NIS 517,895,000 (five hundred and seventeen million, eight hundred and
ninety five thousand New Israel Sheqels).
6.2. At the Closing Date , and in accordance with the mechanism to be
agreed upon between the Sellers' Bank and the Purchaser's Bank, the
Purchaser shall be responsible and shall see to it that the Company
pay out of the Purchaser's Loans Amount, the Financing Loan Repayment
Amount and shall be responsible for the removal and cancellation of
the Bank Securities.
S.L.S. Sails Ltd. - Share Sale Agreement
7
6.3. Similarly, at the Closing Date , and after repayment of the Financing
Loan, the Purchaser shall be responsible and shall see to it that the
Company repay to the Sellers the Owners' Loans Amount of the Sellers,
and in any event no payment shall be made higher than the amount
constituting the difference between the Purchaser's Loan Amount and
the Financing Loan Repayment Amount (hereinafter: "THE SELLERS' LOANS
REPAYMENT AMOUNT"). The difference between the Purchaser's Loan Amount
and the Financing Loan Repayment Amount shall hereinafter be referred
to as: "THE PURCHASER'S LOAN BALANCE").
It is hereby agreed and clarified that should the Owners' Loan Amount
of the Sellers be lower than the Purchaser's Loan Balance, then the
Purchaser will pay the Sellers, at the Closing Date , additional
consideration for the Sale Shares, which shall be calculated as the
difference between the Purchaser's Loan Balance and the Owners' Loan
Amount of the Sellers (hereinafter: "THE ADDITIONAL CONSIDERATION").
It is hereby agreed and clarified that, the Sellers' Loans Repayment
Amount, the payment of the Sale Share Purchase Price and the payment
of the Additional Consideration (if any) constitute final and absolute
payment by the Company towards the Sellers, in connection with the
Owners' Loans of the Sellers and the sale of the Sale Shares. The
Sellers hereby waive any claim and/or suit and/or demand towards the
Company and towards the Purchaser and/or towards any one acting on
their behalf (including the shareholders, directors and other officers
therein), in connection with the Owners' Loans of the Sellers,
including in connection with the Sellers' Loans Repayment Amount, the
repayment date and such other matters related to the Sellers Owners'
Loans, as stated.
6.4. At the Closing Date , the Purchaser will pay the Sellers the Company's
liabilities for payment to the Sellers, the sum of NIS 1,000,000 (one
million New Israel Sheqels), as interest for the deferral of the
repayment of the Owners' Loans of the Sellers for a period commencing
at the date of the signing of this Agreement and ending at the date of
the repayment of the Owners' Loans (hereinafter: "THE INTEREST FOR THE
DEFERRAL OF THE REPAYMENT DATE"). It is hereby clarified that the
Sellers shall not be entitled to receive any further and/or other
payment (from the Company or from the Purchaser) for the
S.L.S. Sails Ltd. - Share Sale Agreement
8
deferral of the payment to the Transaction date, other than the
Interest for the deferral of the Repayment Date.
Should the Closing Date be brought forward to a date earlier than the
Effective Date (including if the Closing Date of this Agreement is
executed at the Closing Date), an amount of NIS 50,000 (fifty thousand
New Israel Sheqels) will be deducted from the Interest for the
Deferral of the Repayment Date for each day brought forward as stated.
6.5. It is clarified and agreed that should the sale of the Sale Shares not
be completed by the Closing Date and/or at a later date to be agreed
upon by the parties (hereinafter: "THE DEFERRED DATE") and where the
Sellers notified the Purchaser in writing of the cancellation of this
Agreement within 14 days from the Closing Date or from the Deferred
Date, accordingly, the Sellers will forfeit the Deposit Funds, as
final and agreed compensation for the non completion of the
transaction and they will be released from all their undertakings
towards the Purchaser for this Agreement.
Notwithstanding that stipulated in Section 9 below, should the Closing
Date be postponed to the Deferred Date, the Purchaser will pay to the
Sellers, in addition to all undertakings of the Purchaser to pay any
payments to the Sellers and/or the Company and/or to see to it that
the Company and/or a financial institution will pay to the Sellers any
payment under the provisions of this Agreement, agreed compensation
for each day's delay up to 1.7.2007 (inclusive) in the sum of NIS
50,000 (fifty thousand New Israel Sheqels) and for each day's delay
after 1.7.2007 and up to the Deferred Date an amount equivalent to
interest at the Prime interest rate plus 3%, calculated annually, on
the sum of NIS 517,895,000 (five hundred and seventeen million, eight
hundred and ninety five thousand New Israel Sheqels) (hereinafter:
"THE AGREED COMPENSATION AMOUNT').
7. Adjustments to the Rent
7.1. On the Rate Adjustment Date, the parties will calculate the adjusted
rate amount for the Rent Adjustment Date, pursuant to the provisions
of APPENDIX 7.1, and will act in accordance therewith;
7.2. In the event, in accordance with the calculation in Appendix 7.1 the
Adjusted Rent for
S.L.S. Sails Ltd. - Share Sale Agreement
9
the Rent Rate Adjustment Date exceeds the Basic Rent by an amount of
NIS 5,335,000 (five million, three hundred and thirty five thousand
New Israel Sheqels) or higher ("THE RENT DIFFERENCE TARGET"), then the
Purchaser will pay the Sellers, as an addition to the rent difference,
a maximum sum of NIS 10,500,000 (ten million, five hundred thousand
New Israel Sheqels) (hereinafter: "THE MAXIMUM INCREMENT TO BE PAID TO
THE SELLERS"), pursuant to the provisions of the above Appendix and
against a tax invoice to be issued by each one of the Sellers to the
Company.
7.3. In the event that according to the calculation in Appendix 7.1 the
Adjusted Rent at the Rent Rate Adjustment Date is higher than the
Basic Rent, by an amount which is lower than the Rent Difference
Target ("THE ACTUAL RENT INCREMENT"), then the increment amount to be
paid to the Sellers shall be calculated as an amount bearing the same
ratio to the Maximum increment paid to the Sellers as to ratio between
the Actual Rent Increment and the Rent Target Difference, pursuant to
the provisions of the above Appendix.
8. THE CONDITIONS FOR THE CLOSING
The Closing and its consummation shall be subject to the terms and
conditions detailed below, namely:
8.1. Pro Forma Invoices for the Effective Date
The Sellers have executed and delivered to the Purchaser the pro forma
invoices for the Effective Date, including the report indicating the
Net Asset Value at the Effective Date and the Purchaser has approved
the pro forma invoices as stated in Section _____ above.
8.2. Actions Which Must be Carried Out at the Closing
At the Closing Date the following actions and documents shall be
simultaneously executed and signed upon. All the actions shall be
considered as having been executed jointly and no one action shall be
valid unless all have been executed:
8.2.1. The Sellers will sell, transfer and deliver to the Purchaser
and the Purchaser will acquire the Sale Shares from the Sellers
by means of signing on the share
S.L.S. Sails Ltd. - Share Sale Agreement
10
transfer deeds attached to this Agreement as APPENDIX 8.2.1
together with any other accompanying document required in law,
including the documents and notices required for reporting to the
tax authorities / Company Registrar;
8.2.2. The Sellers shall deliver to the Purchaser letters of
resignation of each one of the directors in the Company appointed
by the Sellers, which shall be valid at the Closing Date, and
shall also sign on all approvals and/or resolutions required for
the appointment of directors on behalf of the Purchaser and to
report on their appointment to the Company Registrar. Letters of
waiver and release shall be attached to the letters of
resignation in which the directors shall declare and undertake,
towards the Company and towards the Purchaser (jointly and
severally) that they have no claim and/or suit and/or demand, of
any kind and sort, in connection with their appointment and/or
tenure and/or actions as directors and/or their resignation from
the Company.
8.2.3. The Purchaser shall determine and appoint, in the manner
required in law, a director / directors for the Company, as well
as the signatories, who shall serve as directors and exclusive
signatories in the Company.
8.2.4. The Sellers will deliver to the Purchaser a letter in the form
attached hereto as APPENDIX 8.2.4, confirming that all the
representations, warranties and undertakings given by them within
the framework of this Agreement are also fully accurate and
correct as of the Closing Date, as if given again at the Closing
Date (further to the declarations and undertakings of the Sellers
that such are correct as of the date of the execution of this
Agreement) and relating to that date.
8.2.5. Elscint shall assign to the Purchaser all its rights under the
management contracts and the service agreements as stipulated in
Section _____ above. Elscint undertakes to deliver the documents
endorsing the rights in the form attached as APPENDIX 8.2.5.
8.2.6. The Trademark Licence Agreement as attached hereto as APPENDIX
8.2.6 will be signed.
S.L.S. Sails Ltd. - Share Sale Agreement
11
8.2.7. The Tornado Intellectual Property License Agreement will be
signed in the form attached hereto in APPENDIX 8.2.7.
8.2.8. The Sellers will provide the Purchaser with the (original) tax
certificates as well as a powers of attorney from the Herzliyah
Marina, for the transfer and registration of the Company's rights
in the Land at the Land Registry Office (Property Betterments
Tax, Property Tax, Purchase Tax certificates, except for the
municipality certificate.
8.2.9. Subject to the provisions of this Agreement, the Purchaser:
8.2.9.1. Will pay to the Sellers the Purchase Price for the Sale
Shares.
8.2.9.2. Will transfer to the Company the sum of NIS 517,895,000
(five hundred and seventeen million, eight hundred and
ninety five thousand New Israel Sheqels).
8.2.9.3. Shall be responsible for and shall see to it that the
Company pay to the Bank the Financing Loan Repayment Amount
and shall be responsible for the removal and cancellation of
the Bank Securities; and -
8.2.9.4. Shall be responsible for and shall see to it that the
Company repay to the Sellers the Owners' Loans Amount of the
Sellers.
8.2.9.5. Will pay the Sellers additional consideration [in the
case where the "Owners' Loans of the Sellers Amount" is
lower than the "Balance of the Purchaser's Loan"].
8.2.9.6. Will pay to the Sellers the INTEREST FOR THE DEFERRAL OF
THE REPAYMENT DATE [NIS 1,000,000].
8.2.9.7. Shall deposit the Net Asset Value at the Effective Date
in trust pursuant to Section _____ [in the case where there
is a surplus of assets over the liabilities of the Company].
8.2.10. The Sellers will pay the Purchaser the sum of NIS 1,000,000
(one million New
S.L.S. Sails Ltd. - Share Sale Agreement
12
Israel Sheqels) pursuant to Section _____ above.
8.2.11. A document of assignment of engagements from Elscint to the
Company in connection with the service agreements will be signed
in the form attached hereto as APPENDIX 8.2.10.
8.2.12. The Sellers will deliver to the Purchaser the approval of the
Bureau of Standards, approving the proper functioning of the
Attractions.
8.2.13. Legal counsel for Elscint will deliver to the Purchaser the
applications to revoke the licenses relating to the trademarks
and the intellectual property rights, which shall be delivered to
legal counsel for Elscint under the Trademark Agreement and under
the Intellectual Property Agreement.
8.2.14. The parties will sign any other document required under any
law in order to validate the Transaction which is the subject
matter of this Agreement, such as reports to the Registrar of
Companies.
9. Collection of Accounts Receivable: The Purchaser shall see to it that the
Company makes all reasonable commercial efforts in order to collect the
outstanding accounts receivable at the Closing Date .
9. INDEMNIFICATION
Each party shall indemnify the other party for damages provided that any
damage was pursuant to a final and absolute judgement due to any one of the
incidents detailed in the Agreement.
9.1. Certain Limitations
The liability of the Sellers or of the Purchaser, as the case may be,
for claims under this Section, shall be limited as follows:
9.1.1. Notwithstanding anything stipulated in any other provision in
this Agreement, those Purchaser's Indemnitees shall not be
entitled to collect their damages from the Sellers pursuant to
Section _____, unless and until the accumulated amount of the
damages in connection with the Company, the
S.L.S. Sails Ltd. - Share Sale Agreement
13
business and the Arena Shopping Center exceeds an amount
equivalent to NIS 500,000 (five hundred thousand New Israel
Sheqels) ("THE SELLERS' INDEMNIFICATION THRESHOLD"); subject to
that stipulated, it is clarified that the Sellers will indemnify
any of the Purchaser's indemnitee against damages provided only
for any cause of action where the extent of the damage exceeds an
amount equivalent to NIS 20,000 (twenty thousand New Israel
Sheqels).
The above said shall also apply accordingly to claims of the
Sellers Indemnitees towards the Purchaser, except in the matter
of the Purchaser's undertakings to pay any payment to the Sellers
and/or the Company and/or to see to it that the Company and/or
the third party pay to the Sellers any payment and/or make any
loan available to the Company (before or after the Closing Date)
pursuant to the provisions of this Agreement.
9.1.2. Notwithstanding anything else stated in any other provision in
this Agreement, in the absence of fraud or an intentional breach
of this Agreement (cases in which no limitation shall apply),
under no circumstance will the overall maximum liability of the
Sellers in connection with all the claims of the Purchaser's
Indemnitees against the Sellers under Section _____ of this
Agreement for damages caused or incurred by Purchaser's
Indemnitees in connection with the Company, the Arena Shopping
Center and this Agreement, shall exceed an amount which is
equivalent to 50% (fifty per cent) of the Owners' Loans of the
Sellers.
9.1.2.1. Notwithstanding anything stipulated in any other
provision of this Agreement, any demand for indemnification
made by the Purchaser's Indemnitee in connection with taxes,
is subject to the Purchaser and/or the Company authorising
and permitting the Sellers' tax consultants, at the
exclusive account of the Sellers, to execute, administer and
handle all contacts with the tax authorities in connection
with all affairs and/or tax years and/or the assessments
relating to the period before the Closing Date.
9.1.3. Notwithstanding anything stipulated in any other provision in
this Agreement, the
S.L.S. Sails Ltd. - Share Sale Agreement
14
included limitations shall not apply, inter alia to claims for
indemnification of the Purchaser's Indemnitees against the
Sellers with respect of the fact that the Company is registered
at the Israel Land Administration as a leaseholder in perpetuity
and that it has the right to be registered, in the Land Registry
Office, as a leaseholder in perpetuity on the Land and also in
relation to its rights to operate and own the Business as defined
above.
9.2. In any event of a dispute between the parties in connection with this
Agreement, the dispute shall be referred to an arbitrator in
accordance with the arbitration mechanism set out in the Agreement.
