EXHIBIT 7(b)
AGREEMENT
---------
MADE IN TEL AVIV ON THE 22 OF APRIL, 2002
AS AN AMENDMENT TO AN AGREEMENT DATE DECEMBER 22, 1997
BETWEEN: XXXX XXXXXX
Of 00 Xxxx Xxxxxx, Xxxxxx
(hereinafter: "Xxxx Xxxxxx")
AND: ASHTROM INDUSTRIES LTD. (AND/OR AFFILIATED COMPANY)
Company no. 52 - 003715 - 1
Of 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx
(hereinafter: "Ashtrom")
WHEREAS: Xxxx Xxxxxx is a shareholder in Mivtach Shamir Holdings Ltd.
(hereinafter: "Mivtach Shamir" or the "Company");
WHEREAS: Ashtrom is a shareholder in Mivtach Shamir;
AND WHEREAS: The parties wish to engage in an agreement pursuant to which
they shall formalize the relations between them as
shareholders in Mivtach Shamir,
THE FOLLOWING HAS THEREFORE BEEN STIPULATED AND AGREED BETWEEN THE PARTIES:
PREAMBLE
--------
1. The Preamble to this Agreement forms an integral part hereof.
COOPERATION BETWEEN THE PARTIES AT THE GENERAL MEETINGS OF MIVTACH SHAMIR
-------------------------------------------------------------------------
2. a. Xxxx Xxxxxx and Ashtrom undertake to vote at the general
meetings of Mivtach Shamir, in such a manner and in
accordance with the joint resolution which the parties shall
reach prior to the date of the convening of the preliminary
meeting or prior to the passing thereby of any other
resolution at Mivtach Shamir, respectively; and in the absence
of consent with regard to such a resolution, the parties shall
apply to Xx. Xxxx Xxxxxx (hereinafter: the "Arbitrator") in
order for him to determine, in keeping with the joint
-11-
interest of Xxxx Xxxxxx and Ashtrom as shareholders in Mivtach
Shamir, given the circumstances of the matter, which is the
more appropriate resolution which the parties should pass, and
his decision shall be binding upon the parties for all intents
and purposes and the parties shall have no possibility of
appealing against his said decision.
b. Should the Arbitrator be unable to render his award, as stated
above, the parties shall apply to Xx. Xxxx Xxxxxxx
(hereinafter: the "Alternate Arbitrator") and his decision
shall be binding upon the parties for all intents and purposes
and the parties shall have no possibility of appealing against
his said decision.
c. Should the Alternate Arbitrator be unable to render his award,
as stated above, the parties shall apply to Xx. Xxxx Xxxxxxx
(hereinafter: the "Additional Arbitrator") and his decision
shall be binding upon the parties for all intents and purposes
and the parties shall have no possibility of appealing against
his said decision.
d. Should the Arbitrators be unable to render their award by the
date of the convening of the general meeting, then the parties
shall act to procure the adjournment of the date of the
convening of the said general meeting.
3. At the request of any of the parties to this Agreement, which holds at
least 12% of the outstanding capital of Mivtach Shamir, Mivtach Shamir
shall distribute a dividend at a rate of 50% of the profits that can
legally be distributed as a dividend at the Company.
APPOINTMENT OF THE BOARD OF DIRECTORS OF MIVTACH SHAMIR
-------------------------------------------------------
4. The Board of Directors of Mivtach Shamir shall appoint directors who
shall be appointed in the manner described in this section.
4.1 The parties shall cooperate at the general meetings of Mivtach
Shamir for the purpose of appointing one director, who shall
be recommended by Ashtrom and two directors who shall be
recommended by Xxxx Xxxxxx for the Board of Directors of
Mivtach Shamir.
4.2 The two additional directors shall be external directors and
the parties shall cooperate at the general meetings of Mivtach
Shamir to ensure that one of them shall be elected at the
recommendation of Xxxx Xxxxxx and the other shall be elected
at the recommendation of Ashtrom.
-12-
5. RIGHT OF FIRST REFUSAL OR TAG ALONG RIGHT
5.1 Should a party to this Agreement wish to sell any of its
shares in Mivtach Shamir (hereinafter: the "Seller") at a rate
exceeding 2% of the outstanding share capital of Mivtach
Shamir each calendar year, it shall be required to give
written notice thereof (hereinafter: the "Sale Notice") to the
other party (hereinafter: the "Offeree") in which it shall
specify the number and class of the shares which it wishes to
sell as stated (hereinafter: the " Offered Shares"), the price
for the Offered Shares and the rest of the terms of the sale
pursuant to which the Seller wishes to sell the Offered
Shares; in such an event, the Offeree shall have the right to
purchase the Offered Shares, at such price and upon such terms
as set forth in the Sale Notice or, alternatively, the right
to include in the sale of the Offered Shares part of his own
shares, as stated below.
5.2 Should the Offeree wish to exercise right to purchase the
Offered Shares, he shall give notice thereof to the Seller
(hereinafter: the "Purchase Notice") within 7 (seven) business
days from the date on which he received the Sale Notice that
refers to all the Offered Shares. Should Purchase Notices
(that refer to all the Offered Shares) be submitted to the
Seller, within the period of time determined therefor as
stated above, then the submission to the Seller of the
Purchase Notices as stated by the Offeree shall be deemed to
be the making of a binding agreement between him and the
Seller, pursuant to which the Seller undertakes to sell to him
and he undertakes to buy from the Seller the Offered Shares at
such price and upon such terms as set forth in the Sale
Notice. If the Offeree gave notice of his wish to exercise his
right to purchase the Offered Shares, then the purchase shall
be made by him of all the Offered Shares. The purchase shall
be made in such a manner that within 3 (three) business days
from the date of the submission of the Purchase Notice, the
Seller shall submit to the Offerees a deed of transfer in
respect of the Offered Shares and any other document that is
required for the purpose of execution of the said transfer;
and against the submission of the said documents, the Offeree
shall pay to the Seller the consideration of the shares.
5.3 Should the Offeree wish to exercise his right to include in
the sale of the Offered Shares part of his own shares, notice
thereof shall be submitted to the Seller (hereinafter: the
"Tag Along Notice") within 7 (seven) business days from the
date on which he received the Sale Notice. Should Tag Along
Notices be submitted to the Seller, within the period of time
determined therefor as stated above, then the submission to
the Seller of the Tag
-13-
Along Notices as stated by the Offeree shall be deemed to be
the making of a binding agreement between him and the Seller,
pursuant to which the Seller undertakes to let him
participate, up to him proportionate share, in the sale of the
Offered Shares, at such price and upon such terms as set forth
in the Sale Notice. If the Offeree gave notice of its wish to
exercise its right, as stated, then it shall participate in
such a manner that the Seller and the participating Offeree
shall take part in the sale of the Offered Shares according to
the relative ratios of the shares held by the two of them in
the Company on the date of the submission of the Sale Notices.
5.4 Should no Purchase Notice in respect of all of the Offered
Shares and no Tag Along Notice be submitted to the Seller
within the period of 7 (seven) business days as specified
above, the Seller shall be entitled, within a period of 30
(thirty) days after the end of the said period of 7 business
days, to sell the Offered Shares to a third party, at such
price and upon such terms that are not inferior, as far as the
Seller is concerned, to those set forth in the Sale Notice.
Should the Seller fail to sell the Offered Shares within the
period of 30 (thirty) days as stated in the said terms, then
the provisions of this section shall re-apply in the event
that the Seller should wish to sell any of its shares in the
Company.
5.5 That stated in this section shall not apply to a transfer of
shares to an entity of which the Seller has control, and for
such time as it has such control, or to an entity that
directly controls the Seller, and for such time as it controls
the Seller as stated, or to an entity that is also controlled
by the entity that directly controls the Seller, and for such
time as it is so controlled, provided that the transferee took
upon itself all the obligations of the transferor pursuant to
this Agreement.
For the purposes of this section, "control" means the holding
of 50% or more of the voting power and/or of the right to
appoint the members of the Board of Directors.
5.6 That stated in this section shall not apply to a transfer of
shares to first-degree family members of the transferor,
provided that the transferee took upon itself all the
obligations of the transferor pursuant to this Agreement.
5.7 The Tag Along right that is given in this section shall not be
given to Xxxx Xxxxxx, for such time as Xxxx Xxxxxx holds
shares of the Company, whether directly or indirectly through
corporations in his control. For the avoidance of doubt, it is
hereby clarified that the restriction set forth in the
provision of this section shall not apply to any of the
-14-
successors of Xxxx Xxxxxx who shall hold the shares of Xxxx
Xxxxxx instead of him.
6. Validity of the Agreement
-------------------------
6.1 The rights that are granted to Xxxx Xxxxxx and to Ashtrom
pursuant to the provisions of this Agreement shall remain in
effect with regard to Xxxx Xxxxxx as long as he holds at least
25% of the outstanding share capital of Mivtach Shamir and
with regard to Ashtrom, as long as it holds at least 12% of
the outstanding share capital of Mivtach Shamir.
6.2 The obligations of each party to this Agreement shall be
cancelled when the holdings of the said party in the
outstanding share capital of Mivtach Shamir shall be less than
5%. Without prejudice to the generality of the foregoing, it
is hereby clarified that the foregoing shall not constitute an
undertaking, whether express or implied, by either of the
parties not to sell its shares in Mivtach Shamir, in whole or
in part.
6.3 For the purposes of this section, the holdings of the parties
shall be deemed to include the direct holdings of the parties
to this Agreement as well as their indirect holdings, through
corporations held by them in their entirety.
7. GENERAL PROVISIONS
------------------
7.1 Each of the parties undertakes to submit any approval, to sign
any document and to perform any act whereof the submission or
performance by that party is required for the purpose of the
granting validity to the provisions of this Agreement and to
the execution thereof.
7.2 The parties agree that any disputes that shall arise in
connection with the validity and the execution of this
Agreement shall be submitted for determination by a sole
arbitrator who shall be appointed by the parties, with
consent, and in the absence of consent between them, by the
person who, at that time, shall be the Chairman of the Board
of Directors of Bank Leumi LeIsrael Ltd. The arbitrator shall
not be bound by the laws of evidence or the laws of civil
procedure, however, he shall be required to render his award
pursuant to the substantive law and to give reasons for his
award.
7.3 The addresses of the parties for the purpose of this Agreement
are as set forth in the Preamble to this Agreement.
-15-
IN WITNESS WHEREOF THE PARTIES HERETO HAVE HEREUNTO SET THEIR HANDS:
/s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx
Ashtrom Industries Ltd.
By:______________________
Name:
Title:
-16-
