Exhibit 4.14
(English translation)
Made and entered into in kibbutz Shamir, this 19 day of July, 2007
By and between:
Kibbutz Shamir, agricultural cooperative society
Registered society 00-000000-0
Mobile post office Upper Galilee 12135
(Hereinafter: "The Kibbutz")
And:
Shamir Optical Industry Ltd.
Public company ID 00-0000000
From kibbutz Shamir Mobile post office Upper Galilee 12135
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(Hereinafter: "The Company", excluding |
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fully owned or partially owned |
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subsidiaries of the company) |
| Whereas |
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The
Company is the owner of a factory for the development, manufacturing, marketing and
sale of spectacles' lenses and frames for the manufacturing of
spectacles' lenses in The Kibbutz' area (hereinafter: "The Factory"); |
| Whereas |
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The
Kibbutz owns, as of the date of this agreement, some 58% of The Company's shares; |
| Whereas |
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Except
for paid employees The Company receives from The Kibbutz work services via the
kibbutz members and/or candidates for membership according to an
agreement dated February ninth 2005 (9.2.2005) (Hereinafter: "The
Current Agreement") which replaced a former agreement between the
parties dated 1999; |
| Whereas |
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The
parties have mutually reached the conclusion that it would be wise to replace The
Current Agreement with a new agreement, which its terms would be
clearer and more suitable for the business and legal environment The
Company operates in; |
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| Whereas |
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The
Company is interested in continuing receiving work services from The Kibbutz for the
operation of The Factory according to the provisions of this agreement; |
| Whereas |
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The
Kibbutz have agreed to provide The Company, for means of operating The Factory, work
services by the kibbutz members in accordance with the provisions of
this agreement; |
Now therefore it is
hereby agreed, declared and stipulated by and between the parties as follows:
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1. |
Preamble
and interpretation |
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1.1 |
The
preamble and appendixes to this Agreement constitute an integral part hereof. |
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1.2 |
The
section titles in this agreement are used for convenience only and shall not be
considered as any meaning for purposes of interpreting this agreement. |
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1.3 |
This
agreement was mutually drafted by both parties and shall not be interpreted against any
of the parties. |
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1.4 |
The
following terms shall bear the meaning next to them, except if otherwise explicitly
mentioned: |
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| "Determining Date" |
The first day of the consecutive month following the approval of the agreement by The Company's shareholders' meeting. |
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| "Current Agreement" |
As defined above. |
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| "The Services" |
Work services provided by The Kibbutz to The Company via the said Manpower in this agreement as follows. |
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| "Kibbutz Member/s" |
Kibbutz member/s or candidate/s for kibbutz membership. |
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| "Manpower" |
Kibbutz Members, which currently provide or will provide The Services according to the provisions of this agreement as specified in the agreement hereof. |
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| "Global Basic Consideration" |
The `gross' monthly consideration (before the inclusion of various expenses) for all Manpower detailed in Appendix A1 and for all future Manpower to which The Company shall determine that the consideration thereof shall be provided as a derivative of the Global Basic Consideration (as opposed to an hourly basic consideration). |
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| "Hourly Basic Consideration" |
The `gross' monthly consideration (before the inclusion of various expenses) per hour for all Manpower detailed in Appendix A2 and for all future Manpower to which The Company shall determine that the consideration thereof shall be provided as a derivative of Hourly Basic Consideration (as opposed to a Global Basic Consideration). |
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| "Working Hour" |
A full hour in which work shall be conducted for The Company by a Manpower employee. |
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2.1 |
The
Kibbutz shall conduct its utmost to provide The Company throughout the term of the
agreement, upon its request, with The Services and fill in the positions in accordance
with The Company and Manpower available to The Kibbutz. |
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2.2 |
In
any case where The Company shall need extra work services The Kibbutz shall be given the
first option to offer employees to The Company among the Kibbutz Members and The Company
shall have the exclusive discretion whether to accept The Kibbutz’ offer. |
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2.3 |
The
parties hereby agree that the consideration for the Manpower services shall be done in
reasonable process accustomed in the economy. |
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2.4 |
It
is hereby agreed upon that a change in the consideration provided to The Kibbutz for any
of the Manpower shall only be done whether the Manpower’s position has differ,
increased or decreased and/or The Company’s requirements were amended as for the
essence of its work and/or the position in question was cancelled by The Company subject
to the provisions of this agreement. |
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2.5 |
Without
derogating from the generality of the abovementioned in subsections 2.2 and 2.3 above,
The Company shall be entitled to determine and update, according to its exclusive
discretion the number of position provided to it by The Kibbutz, the type of positions
provided to it by The Kibbutz, the number of Working Hours provided to it by any of the
Manpower employees, the basic consideration (hourly or global) of any of the Manpower
staff which is (a) included as part of the agreement upon its conclusion; (b)
shall commence upon the performance of The Services following the conclusion of this
agreement (c) that the type of services it provides The Company shall alter following the
conclusion of this agreement and the increment added to the consideration which will be
provided for Manpower exceeding the fixed consideration according to this agreement
(whether Manpower employed on an hourly basis or Manpower employed on a global basis). |
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2.6 |
The
Company shall not directly employ or address any of the Manpower or a Kibbutz Member,
without a prior written consent on the part of The Kibbutz, with an offer to employ him
not through The Kibbutz in accordance with this agreement, except for the CEO and Deputy
CEO who will be employed directly by The Company. |
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2.7 |
The
Kibbutz hereby undertakes to do its utmost to provide The Company with The Services via
Manpower that poses the required capabilities, training and experience for the
performance of its appointed role in The Company. |
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2.8 |
The
Kibbutz hereby undertakes to do its utmost that the Manpower that shall provide The
Services shall perform its role with dedication, expertise and loyalty, in accordance
with the instructions of The Company and its direct supervisors. |
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2.9 |
The
Company is hereby entitled to, at its exclusive discretion and from practical reasoning
to stop receiving services from a certain Kibbutz Member, to refuse employing a certain
Manpower employee and/or to cancel a current position, all out of practical reasoning.
Depending on the case, The Kibbutz hereby undertakes to do its utmost to provide a
substitute Manpower employee. Shall there be no suitable substitute Manpower, at the
exclusive discretion of The Company, the latter shall not be prevented from employing an
employee who is not a Kibbutz Member for filling the vacant position or cancelled the
said position. |
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2.10 |
Without
derogating from the generality of the aforementioned in subsection 2.8 above, the parties
hereby undertake that The Company shall provide The Kibbutz with a prior written notice
thirty (30) days in advance specifying its desire to stop receiving services via a
certain Kibbutz Member (“The Prior Notice”). Likewise, the parties
hereby undertake that during The Prior Notice The Kibbutz shall continue to receive the
consideration for the employee’s services to The Company according to the specific
case. During the term of The Prior Notice, The Kibbutz shall act to provide The Company
with suitable manpower for the stated position. If The Kibbutz does not manage to do
provide it, the position will be cancelled and well as the consideration for it upon the
end of The Prior Notice term. |
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2.11 |
The
Company is entitled to send, on its expense, Manpower to professional or theoretical
education or other continuing education programs related to The Company’s
activities. |
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2.12 |
For
the avoidance of any doubt, The Kibbutz’s notice to The Company that it can not
and/or does not possess the suitable Manpower for performing the required position by The
Company, shall not be regarded as a breach of this agreement by The Kibbutz. |
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In
consideration for The Services provided, The Company shall pay The Kibbutz consideration
as detailed hereinafter: |
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3.1 |
Each
month The Company shall pay The Kibbutz payment calculated as detailed hereinafter: |
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3.1.1 |
For
each Kibbutz Member whose name is mentioned in Appendix A1: the
Global Basic Consideration as written next to his name in the Appendix (or as
occasionally updated as mentioned in section 2.4 above) added by 30% for associated
expenditures. |
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3.1.2 |
For
each Kibbutz Member whose name is mentioned in Appendix A2: the
Hourly Basic Consideration as written next to his name in the Appendix (or as
occasionally updated as mentioned in section 2.4 above) added by 30% for associated
expenditures and all doubled by the number of hours he actually worked that month. |
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3.1.3 |
For
each Kibbutz Member whose employment as part of this agreement shall commence following
the Determining Date: |
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3.1.3.1 |
If
The Company decided to transfer a Global Basic Consideration to him – the Global
Basic Consideration determined (or as occasionally updated as mentioned in section 2.4
above) added by 30% for associated expenditures. |
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3.1.3.2 |
If
The Company decided to transfer an Hourly Basic Consideration to him – the Hourly
Basic Consideration determined (or as occasionally updated as mentioned in section 2.4
above) added by 30% for associated expenditures doubled by the number of hours he will
actually work that month. |
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3.2 |
For
the avoidance of any doubt it is hereby agreed that the consideration which The Company
transfers to The Kibbutz is based on an individual calculation and that the amount of the
consideration each month shall be the total of individual considerations for the Manpower
for that month: if a Kibbutz Member ceased from providing work services to The Company,
the consideration The Company is bound to transfer The Kibbutz shall decrease by the
amount of consideration for that Kibbutz Member. |
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3.3 |
Payment
as aforementioned in section 3.1 will be paid on the 10th of each month for
the previous month and the cost-of-living allowance accustomed in the economy will be
added to it. |
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3.4 |
VAT
shall be added to each payment by law and will be paid to The Kibbutz against a tax
invoice provided to The Company. |
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3.5 |
Each
payment, tax or duty of any kind, except for VAT, which applies on the aforementioned
payments in this section shall be applied and paid exclusively by The Kibbutz following
the receiving of a written notice from The Company. Once The Company paid such payment
and/or duty and/or tax as aforementioned, The Kibbutz shall indemnify it for any such
expense immediately upon The Company’s first demand. |
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3.6 |
Any
such payment specified in this section, which was not paid on time, shall bear arrears at
the average rate accustomed at the time by Bank Leumi Le’Israel for payments made in
arrears, as of the date set for payments until the actual payment. |
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4. |
Vacation,
sickness and convalescence |
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4.1 |
The
Company shall allocate each person included or who will be included as part of this
agreement with sickness leave as if he were an employee of The Company until the full
usage of the sickness leave by him. The Company shall continue to provide payments to The
Kibbutz until the total accumulated sickness leave available to the Manpower. |
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4.2 |
The
Company shall allocate each person included or who will be included as part of this
agreement with vacation leave as if he were an employee of The Company until the full
usage of the vacation leave by him. The Company shall continue to provide payments to The
Kibbutz until the total accumulated vacation leave available to the Manpower. |
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4.3 |
The
Company shall allocate each person included or who will be included as part of this
agreement with convalescence pay as if he were an employee of The Company until the full
usage of the convalescence pay by him. The Company shall continue to provide payments to
The Kibbutz for the Manpower’s convalescence pay in addition to the consideration
set in section 3 above. |
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4.4 |
The
parties hereby agree that the accumulation of convalescence pay, vacation leave and
sickness leave will be in accordance with The Company’s Manpower seniority. |
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5. |
Bonuses,
premiums and special benefits |
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In
any case where The Company shall distribute, at its exclusive discretion, bonuses,
premiums, including performance premiums or special bonuses (money or perquisites) to The
Company’s employees or part of them, The Company shall pay The Kibbutz, for Manpower
thorough whom The Kibbutz provides the work services according to this agreement, bonus,
premiums or benefits according to the matter at an amount set for each one of the
Manpower employees according to the same criteria according to which the bonuses to The
Company’s employees who received the bonuses, premiums or benefits were set, taking
into account the position and status of the relevant Kibbutz Members in each and every
case. For instance, performance premium, as will be paid to The Company’s
manufacturing employees, shall credit The Company with performance premium for
performances of the Manpower employed in manufacturing. |
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6.1 |
The
Kibbutz hereby declares that the supply of services to The Company shall be conducted by
it as an independent contractor. |
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6.2 |
As
of the Determining Date according to its definition in section 1 above The Kibbutz shall
be solely responsible for the performance of the undertakings applied to, if any, the
Manpower as an employer in relation to employer-employee relationships. |
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6.3 |
In
accordance with the aforementioned, commencing at the Determining Date, The Kibbutz alone
shall bear any expense and payments stemming from employer-employee relationships and/or
the annulment of employer-employee relationships, including any tax which applied as a
result of the aforementioned relationship. |
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6.4 |
It
is hereby agreed upon and declared that the consideration The Kibbutz is entitled to
according to the provisions of this agreement is the full comprehensive and exclusive
expense The Kibbutz shall be given for The Services provided by the Manpower and detailed
in this agreement. |
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6.5 |
Likewise
and without derogating from the aforementioned, if despite the aforementioned in this
appendix the Labor Court and/or any other authorized authority decided that The Company
and/or an affiliated company must pay The Kibbutz and/or any of the Manpower and/or the
substitutes and/or their employees and/or their managers and/or any of their
shareholders, any amounts for this agreement and/or The Services provided by it for means
of any payment and/or any right and/or benefit provided for all kinds and purposes at
part of the working relationships between The Kibbutz and/or any of the Manpower and/or
The Company and/or one of the companies affiliated to The Company – then The Kibbutz
hereby declares and undertakes to indemnify The Company and/or companies affiliated to
The Company immediately upon receiving a written demand from The Company for any amount
and/or right and/or benefit The Company shall be bound to and/or one of the companies
affiliated to The Company to pay The Kibbutz and/or any of the Manpower and/or anyone on
their behalf as a result of and/or in relation with and/or The Kibbutz’s claim
and/or any of the manpower, including and without derogating from the generality of the
aforementioned: legal costs, lawyer’s fees, delay in wage compensation, delay in
payment of severance pay, interest and linkage, etc., any tax (including payments to the
National Insurance Institute and health tax) imposed on The Company, including tax The
Company had to withhold, fines, interest and linkage, etc. (Hereinafter jointly: “Indemnity
Amount”). |
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6.6 |
The
Company shall be entitled to offset the Indemnity Amount of any amount it shall owe The
Kibbutz and/or any of the Manpower. |
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6.7 |
For
the avoidance of any doubt it is hereby clarified that the parties to this agreement
hereby agree that the terms of section 6 above shall apply to the term of the supply of
Manpower services agreement signed between the parties in 1999, on February 9, 1995 and
this agreement as of the Determining Date. |
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7.1 |
The
Company shall be responsible for the acquisition of employers’ liability insurance,
on its expense, which shall cover all Manpower, and whose beneficiaries shall be The
Kibbutz and/or The Company, and for the maintenance of the validity of this policy
throughout the term of this agreement. |
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7.2 |
The
Company shall provide The Kibbutz with a copy of the said policy in section 7.1, and of
any policy renewal and/or documents related to it, immediately upon their receiving. |
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8. |
Confidentiality,
copyrights and anti competition |
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8.1 |
The
Kibbutz hereby undertakes to keep confidentiality and do its utmost that the Manpower
shall keep confidentiality of any technical commercial or other knowledge it receives
from The Company and/or become known to it as part of The Services provided to The
Company, including but not limited to development and manufacturing techniques,
contracts, software, lists of clients, suppliers and price lists, expect for knowledge
which is common knowledge (Hereinafter: “The Knowledge”). Likewise The
Kibbutz hereby undertakes not to make use of and to make sure that the Manpower does not
make use of The Knowledge not for the purposes of The Company’s activities and shall
avoid the disclosure of The Knowledge or part of it to any third party, except as
required to for providing The Services to The Company, subject to The Company’s
terms in this matter and/or as required to from him by any authorized authority in
accordance with the stipulations of the law. |
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This
section shall remain valid even after the annulment and/or termination of this agreement
for any reason whatsoever. |
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8.2 |
All
rights relating to technological developments and/or inventions to be developed by the
Manpower during the supply of services by it to The Company and in the term of 12 months
as of the end of the supply of services by it, in relation with The Company’s
activities, shall be the exclusive property of The Company, and The Kibbutz and/or the
Manpower shall have no claim and/or demand in relation with the aforementioned rights. |
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8.3 |
The
Kibbutz shall do its utmost for the performance of the stipulation of this section by the
Manpower and it undertakes to sign and do its utmost for signing the Manpower employees
on any document required for the performance of the stipulations of this section,
including documents required for the transfer and/or endorsement of rights and/or waiving
the rights. |
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9. |
Term
of the agreement and its termination |
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9.1 |
This
agreement shall be valid for a term of five years as of the Determining Date
(Hereinafter: “The First Term”), and it shall automatically be extended
to additional terms of five years each time, unless a party to this agreement provided a
written notice to the counter party as for his wish not to extend this agreement at least
180 days prior to the end of The First Term or any extended term. |
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9.2 |
Each
party shall be entitled to bring about an end to this agreement providing a written
notice to the counter party, if the counter party breached this agreement a fundamental
breach and did not amend it within 30 days from the date he received a written notice
from the counter party as for the existence of the fundamental breach. |
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9.3 |
For
the avoidance of any doubt, The Kibbutz’s undertakings as stated in sections 6 and 8
above shall remain valid and impose The Kibbutz even after the termination of this
agreement or its annulment of any reason. |
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9.4 |
Upon
the signature of the parties on this agreement the Current Agreement it shall come to an
end and shall bear no validity and the parties shall act according to this agreement.
Upon the validation of this agreement, the parties declare and undertake that they have
no claims and demands against each other and they waive any demand, if any. |
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10. |
Completeness
of the agreement, amendment and waive |
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10.1 |
This
agreement and all its appendixes exclusively determine and exhaust all terms and
stipulations applied to the contractual relationship between the parties, in relation to
the aforementioned. As of the Determining Date this agreement shall prevail all
agreements, declarations and understandings reached, if reached, between any of the
parties to this agreement and/or other parties to this agreement, whether orally or in
writing, prior to the signature of this agreement. |
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The
parties regard all stipulations of this agreement as one piece and declare that they have
entered contractual relations in this agreement aiming to implement all its stipulations
as one piece. |
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10.2 |
Any
amendment made to this agreement shall be valid and binding only if drafted in writing
and lawfully signed by all parties. |
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Any
waive of a party to this agreement on any of his rights shall be invalid unless done in
writing, and if valid, shall be valid for its purposes solely, and shall not create an
estoppel or in respect of the future. |
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10.3 |
Even if the agreement can be separable as said in section 19 to the Contracts Law (General
Part) 5733-1973, thus if a cause for annulment is raised by one of the parties which
concerns only part/s of it, it will be impossible to annul this part only. |
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Each
party shall bear its expenses in relation with this agreement. |
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12.1 |
Each
notice sent by one part to the other shall be sent by registered mail according to the
addresses that appear in the preamble to this agreement and/or by personal delivery. A
notice delivered by mail shall be considered as received within 72 hours from its posting
by registered mail as aforementioned; a notice delivered personally shall be considered
as received upon the delivery. |
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12.2 |
For
purposes of this section Shabbats (Jewish weekend) and Israeli holiday shall not be
counted. |
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In
witness whereof the parties have signed this Agreement. |
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The Kibbutz |
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The Company |
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Appendix A1
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Appendix A2
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