Exhibit 4.21
Between
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BLUE
SQUARE ISRAEL LTD.
Publ. Co. 00-000000-0
whose address is 0 Xxxx Xxxxxx,
Xxxx Xxxx, Xxxx Ha’ayin
(hereinafter:
“Blue Square”) |
of the one part
And:
| |
BLUE
SQUARE CHAIN INVESTMENTS & PROPERTIES LTD.
Publ. Co. 00-000000-0
(hereinafter: "Properties & Investments")
And
BLUE SQUARE CHAIN (HYPER HYPER) LTD.
Pvte. Co. [sic] 00-000000-0
(hereinafter: "Hyper Hyper")
whose address is 0 Xxxx Xxxxxx,
Xxxx Xxxx, Xxxx Xx'xxxx |
of the other part
| WHEREAS |
Blue
Square is the controlling shareholder in Properties & Investments, which is the
controlling shareholder in Hyper Hyper; and |
| WHEREAS |
Blue
Square and Hyper Hyper operate supermarket branches which are known as the Blue Square
chain (hereinafter: “the Chain) under various sub-chains (such as Mega,
Supercenter and Xxxxx Xxxx); and |
| WHEREAS |
There
is a series of agreements and arrangements between Blue Square and Hyper Hyper which
relate, inter alia, to the joint operation of the Chain, receiving of various
services jointly and sharing of expenses; and |
| WHEREAS |
In
view of the development of the Chain and changes in this sector, there is a need to
update a number of arrangements and/or to institute several new arrangements which are
called for by the joint operation of the Chain; and |
| WHEREAS |
The
provisions of this Agreement, including the provisions relating to arrangements for
leasing of real estate properties as referred to in Clauses 8 and 9 below, constitute a
single unit and whereas to the extent that this Agreement is not approved, the existing
arrangements as apply at present, to the extent that same are valid and in force, will
continue to apply; and |
1
| WHEREAS |
The
parties wish to regulate arrangements on the subjects mentioned below. |
Now
therefore it is stipulated and agreed between the parties as follows:
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1.1 |
The
preamble to this Agreement constitutes an integral part hereof. |
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1.2 |
Headings
to the clauses in the Agreement are solely for the sake of convenience and shall not
serve for the interpretation of the Agreement. |
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1.3 |
The parties declare that there is no restriction on them, either by agreement or according
to law or otherwise, which prevents them or limits them from entering into this Agreement
and fulfilling the provisions hereof, subject to obtaining the approvals required
according to law, as referred to in Clause 12 below. |
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1.4 |
It is clarified and agreed that apart from the changes expressly set forth in this
Agreement, all the existing agreements and arrangements between Blue Square and Properties
& Investments and/or Hyper Hyper, which are in force, at the date of signing of this
Agreement, shall apply and shall remain in full force, including the agreements and the
arrangements mentioned in Clause 11.2 below. |
| 2. |
Advertising
and marketing |
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2.1 |
Advertising and marketing expenses which the Chain incurs in respect of any of the
Chain’s brand names will be divided between the parties according to the ratio of the
sales turnovers of the branches of each party under such brand name. In this regard an
examination will be made at the end of each month as to what the advertising and marketing
expenses were in respect of each brand name and what was the ratio of sales of the
parties’ stores which form part of such brand name. |
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2.2 |
Advertising and marketing expenses which the Chain incurs in respect of general
advertising of the Chain which is not in respect of brand names, will be divided between
the parties according to the ratio of the overall sales turnovers of the branches of each
of the parties. For these purposes an examination will be made at the end of each month as
to what the advertising and marketing expenses were in respect of general advertising of
the Chain and as to what the ratio of sales of the parties was. For these purposes,
advertising and marketing expenses also include the costs of employing brand name
managers. |
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2.3 |
The charging of advertising and marketing expenses will be effected at the end of each
month in respect of that month. |
2
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3.1 |
Blue
Square will provide Hyper Hyper with services for the management and operation of a
customers club. |
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3.2 |
The parties will share the costs for operating customers clubs, whether existing or as
will be established in the future, including with regard to the costs for the
establishment of the clubs, and including expenses for the accumulation of points,
marketing and operation expenses, employment of workers for the activities of the clubs,
as well as the cost of the discounts and gifts that are given in respect of membership of
the club. |
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3.3 |
The division of all the expenses and costs will be done according to the ratio of
accumulation of points at branches at each of the parties and will be done each month. |
| 4. |
Buying
coupons/electronic cards |
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4.1 |
Blue
Square will provide Hyper Hyper with services in the field of buying vouchers/electronic
cards. |
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4.2 |
The parties will share between them the costs associated with the issue of buying
vouchers/electronic cards, including net discounts (less a reduction of discounts that are
received from satellite businesses), expenses for issue and printing, marketing, clearing,
personnel, distribution, according to the ratio of use of the buying vouchers/electronic
cards at the branches of each of the parties. |
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4.3 |
An
accounting pursuant to this clause will be done each month. |
| 5. |
Services for guarding, cleaning, collection of trolleys, training and
instruction services, apprenticeships and regional
managers |
| |
The
parties will share the following expenses, to the extent that they are not expenses that
are specifically related to a branch/branches of one of the parties, according to the
ratio of turnover of each of the branches of each party every month: |
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5.1 |
Services
for guarding, cleaning and collection of trolleys. |
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5.2 |
Training
and instruction services for employees and apprentices. |
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5.3 |
Services
in respect of regional managers and brand name operation managers. |
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5.4 |
An
accounting pursuant to this clause will be done each month. |
| 6. |
Contribution
towards cost of officers |
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6.1 |
Since the CEO of Blue Square also serves as CEO of Properties & Investments,
Properties & Investments will bear the cost of employing the CEO by it in the sum of
NIS 640,000 per annum. The aforesaid amount will be linked to the Consumer Price Index
published by the Central Bureau of Statistics on the basis of the index for the month of
May 2003, and will be revised and updated every quarter. |
3
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6.2 |
Since a controller holds office in Properties & Investments who is an employee of Blue
Square, Properties & Investments and/or Hyper Hyper will bear an amount of
approximately NIS 439,000 per annum of the cost of employing the controller. The aforesaid
amount will be linked to the Consumer Price Index published by the Central Bureau of
Statistics, on the basis of the index for the month of December 2004 and will be revised
and updated each quarter. |
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6.3 |
Since Blue Square’s internal auditor also serves as internal auditor of Properties
& Investments, Properties & Investments will bear the cost of employing the
internal auditor by it in a sum of NIS 370,000 per annum. The aforesaid amount will be
linked to the Consumer Price Index published by the Central Bureau of Statistics, on the
basis of the index for the month of December 2004 and will be revised and updated each
quarter. |
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7.1 |
The parties will share the expenses for elementary insurance, including insurances for
building, contracting works, insurance of cash, inventory, vehicle insurance, third party
liability insurance, employers liability insurance, etc. |
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7.2 |
The division between the insurance expenses or loss of profits, contracting works, cash
and various elementary insurances will be made according to the ratio of the turnover of
the branches of each of the parties, and an accounting will be done concurrent with
payments of the insurance premiums. |
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7.3 |
The division in respect of expenses for employers liability insurance will be according to
the ratio of the cost of wages as between the parties. |
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7.4 |
The division in respect of expenses for third party insurance, fire, building insurance
and umbrella of liabilities insurance will be done according to the ratio of the insurance
value of the areas that are operated in each company. |
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7.5 |
The charge for insurance of inventory kept under refrigeration will be paid by Blue
Square, the operator of the logistics center. |
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7.6 |
For the avoidance of doubt it is clarified that nothing in the foregoing shall derogate
from the arrangements between the companies which were approved in the past in relation to
entering into agreements and a division of expenses for directors and officers liability
insurance. |
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| 8. |
Letting
of properties by Blue Square to Hyper Hyper and/or to Properties & Investments |
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Since
Blue Square leases properties to Properties & Investments and/or to Hyper Hyper,
including properties that were purchased for their operations, it is hereby agreed that
the arrangement in regard to the conditions of lease in connection with the
leased properties will be renewed and extended and will be as follows: |
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a. |
The
lease period in respect of the properties that are leased at the date of
this Agreement by Blue Square to Properties & Investments and/or to
Hyper Hyper shall be ten years, and the commencement thereof will be as
from September 1, 2005. |
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b. |
The
rentals for a period of one year in respect of the properties in which shops
are operated will be set at 2% of the annual turnover of the shop in the
relevant year or 9% of the amount of the investment by Blue Square in the
property, where such amount is linked and adjusted to the Consumer Price
Index on the basis of the known index at the time of each investment in
the property, whichever is the higher. |
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c. |
The
rentals for a period of one year in respect of properties which do not serve
as shops will be set at 9% of the amount of the investment by Blue Square
in the property, where such amount is linked and adjusted to the Consumer
Price Index known at the time of each investment in the property. |
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d. |
The
rentals will be charged and paid once each year. |
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e. |
Letting
of new properties by Blue Square to Properties & Investments and/or to
Hyper Hyper will be done in accordance with the above conditions, provided
that such contractual arrangement has been approved by the audit committee
and the board of directors of Properties & Investments and by the
audit committee and the board of directors of Blue Square, provided that
the contractual arrangement shall be during 10 years, commencing from
September 1, 2005, for a period of 10 years, reckoned as from the date of
the contractual arrangement in respect of each of the new properties, and
that all the properties leased pursuant to this clause to Properties & Investments
and/or to Hyper Hyper shall not exceed an aggregate area of 80,000 sq.m.
(an increase of approximately 20% as against the areas currently leased by
Blue Square to Properties & Investments and/or to Hyper Hyper). |
| 9. |
Letting
of properties by Hyper Hyper and/or Properties & Investments to Blue Square |
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Since
Hyper Hyper and/or Properties & Investments lease various properties to Blue Square
for its activities, it is hereby agreed that the arrangement in regard to the
conditions of lease in connection with the leased properties will be renewed and
extended and will be as follows: |
5
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a. |
The period of lease in respect of all the properties which are leased at the
date of this Agreement by Properties & Investments and/or by Hyper Hyper to
Blue Square will be set at ten years, and the commencement thereof will be as
from September 1, 2005. |
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b. |
The rentals for a period of one year in respect of properties in which shops are
operated will be set at 2% of the annual turnover of the relevant shop or 9% of
the amount of the investment in the property by Properties & Investments
and/or Hyper Hyper, as the case may be, where such amount is linked and adjusted
to the Consumer Price Index on the basis of the known index at the time of each
investment in the property. |
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c. |
With respect to each of the properties mentioned below, the rentals will be as
stated in Clause 9(b) above, but under no circumstances shall be less than the
amount set forth opposite each of the following properties: |
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With
respect to a property located in Netanya in Azorim, the annual rental shall not be less
than a sum of NIS 252,323. |
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In
respect of a property located in Tel Aviv in Tel Kabir, the annual rental shall not be
less than NIS 479,810. |
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With
respect to a property located in Petach Tikva in Beilinson Street, the annual rental shall
not be less than a sum of NIS 903,171. |
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With
respect to the property located in Ramat Aviv Gimmel, Tel Aviv, the annual rental shall
not be less than a sum of NIS 1,772,473. |
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The
aforesaid amounts will be linked and adjusted to the Consumer Price Index on the basis of
the index for March 2005. |
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d. |
Rentals for a period of one year in respect of properties that do not serve as
shops will be set at 9% of the amount of the investment in the property by
Properties & Investments and/or by Hyper Hyper, where such amount is linked
and adjusted to the Consumer Price Index on the basis of the known index at the
time of each investment in the property. |
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e. |
The rentals will be charged and paid once each year. |
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f. |
The letting of new properties by Properties & Investments and/or Hyper Hyper
to Blue Square will be effected in accordance with the above conditions,
provided that such contractual arrangement was approved by the audit committee
and the board of directors of Properties & Investments and by the audit
committee and the board of directors of Blue Square, and provided that the
contractual arrangement shall be during 10 years, commencing from September 1,
2005, for a period of up to 10 years, reckoned as from the date of the
contractual arrangement in respect of each of the new properties, and that all
the properties leased pursuant to this clause by Properties & Investments
and/or Hyper Hyper to Blue Square shall not exceed an aggregate area of 45,000
sq.m. (an increase of approximately 20% as compared with the areas currently
leased by Properties & Investments and/or Hyper Hyper to Blue Square). |
6
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It
is hereby clarified that the lease arrangements mentioned in Clauses 8 and 9 above apply
to all the properties leased between the parties and shall apply thereto as a single unit. |
| 10. |
Expenses
and payments in respect of various proceedings |
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10.1 |
Subject to the law, if one of the parties to this Agreement is ordered to pay any amount
in the field of business of the parties, whether in the scope of a legal proceeding,
administrative proceeding, judgment, arbitration award, compromise arrangement, decision,
administrative sanction and/or otherwise, the other party will indemnify the first party
in respect of a pro rata share of the payment according to its proportionate share
in the income from the type of activity in respect of which the proceeding was instituted
in the period relevant to such proceeding, and if it is not possible to determine the
aforesaid relevant period, its proportionate share of the income from such activities in
the calendar year preceding the date of payment. As an example for the sake of
illustration only, if one of the parties is obliged to pay compensation in respect of the
sales by the entire Blue Square Chain of a particular product in a particular period, that
party will be indemnified by the other party in respect of its pro rata share of
the payment according to its proportionate share of the sales of such product in the
aforesaid period as a percentage of the chain’s total sales. If the relevant activity
does not produce income, the division between the parties will be made according to their
proportionate quantitative share in the activities in the period relevant to the
proceeding, and if it is not possible to determine the aforesaid relevant period,
according to their proportionate share of the activities in the calendar year preceding
the date of payment. |
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10.2 |
The provisions of Clause 10.1 will apply correspondingly also to a participation in
expenses incurred for purposes of conducting such proceedings. |
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10.3 |
The payment pursuant to this clause will be made shortly after the date on which the
payment was actually made by the party that was ordered to do so. |
| 11. |
Additional
provisions |
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11.1 |
Nothing contained in the provisions of this Agreement shall cancel acts performed pursuant
to prior agreements and arrangements between the parties. |
7
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11.2 |
The provisions of this Agreement do not cancel existing agreements between the parties
that have not been amended in the framework of this Agreement, and this includes an
agreement for the locating of properties dated January 1, 1990; an agreement for the
employment and loaning of employees dated July 23, 1996; an agreement for providing
administrative and computer services dated January 1, 1990; an agreement for providing
accounting and computer services, and office services dated July 23, 1996; an agreement
for use and receiving services from the central warehouse dated January 1, 1990; an
agreement for the division of maintenance expenses dated January 1, 1990, and resolutions
for the division of costs of directors and officers insurance; an agreement for regulating
the use of the electronic Internet site Blue Center dated January 6, 2003; reciprocal
financing and accounts arrangements. |
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11.3 |
Value Added Tax as prescribed by law shall be added to each of the amounts and payments
mentioned in this Agreement, if and to the extent that V.A.T. applies in respect of such
payments. |
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11.4 |
The provisions of this Agreement, including the provisions relating to the arrangements
for the leasing of real estate properties as stated in Clause 8 and 9 below [sic],
constitute a single unit. |
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The
coming into force of this Agreement is subject to obtaining the approval of the competent
organs of each of the parties, including approvals of the audit committee, the board of
directors and a shareholders meeting of Properties & Investments and approvals from
the audit committee, the board of directors and the shareholders meeting of Blue Square,
to the extent that same are required. |
| 13. |
Period
of the Agreement |
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13.1 |
The commencement of this Agreement is on the date of fulfillment of all the conditions
precedent mentioned in Clause 12 above, and the period of the Agreement is for five years.
The Agreement will automatically be extended for three additional periods of five years
each, unless one of the parties gives written notice regarding the termination hereof at
least six months before the end of the agreement period or at least six months before the
end of each of the periods of extension as aforesaid, as the case may be (hereinafter:
“the Prior Notice Period”). If the validity of this Agreement is not
extended this will not derogate from the validity of lease arrangements in accordance with
Clauses 8 and 9 above. |
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13.2 |
In the Prior Notice Period the parties will continue to fulfill their obligations and will
be entitled to payment of the considerations mentioned in this Agreement. |
| 14. |
Governing
law, jurisdiction and resolution of disputes |
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14.1 |
The Israeli law will apply exclusively to this Agreement and to any dispute that may arise
in connection with this Agreement. |
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14.2 |
Sole jurisdiction on all matters connected with this Agreement shall be vested in the
courts in the central district only. |
8
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14.3 |
Any dispute and/or difference of opinion that may arise in connection with the provisions
of this Agreement, including connection with the interpretation hereof and/or the validity
hereof and/or the implementation hereof, shall be referred firstly for resolution in the
scope of a forum that will include the CEO of the Chain, a representative of Blue Square
and a representative of Properties & Investments, on a basis that the representatives
will be the chairman of the audit committee of each of the companies or another director
of each of the companies who will be appointed by the audit committee, provided that he
does not have a personal interest in the dispute. If the aforesaid forum is unable to
resolve the dispute by consensus agreement, the dispute will be referred for adjudication
before an arbitrator who shall be agreed to by the parties and who receives the approval
of the audit committee of each of them, and in the absence of agreement as aforesaid, will
be appointed by the chairman of the Institute of Certified Public Accountants in Israel
(hereinafter: “the Arbitrator”). For these purposes, the provisions of
this clause shall be deemed to be an arbitration agreement. The Arbitrator will not be
bound by the provisions of civil procedure, rules of evidence or the substantive law
applied by the courts. Likewise, the Arbitrator will not be obliged to give reasons for
his decision. |
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15.1 |
The addresses of the parties for purposes of this Agreement are those mentioned at the
head of this Agreement. |
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15.2 |
No waiver, refraining from taking action and/or procrastination and/or delay on the part
of a party to this Agreement in exercising any of its rights under this Agreement and/or
according to law, will be deemed to be a waiver of any rights, unless made expressly and
in writing. |
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15.3 |
Any notice pursuant to this Agreement shall be sent by registered mail according to the
addresses mentioned in this Agreement, and shall be deemed to have been received by the
addressee within 72 hours from the time of its dispatch by registered mail. A notice
delivered by hand or sent by fax with confirmation of delivery shall be deemed to have
been received at the time of its delivery/transmission. |
In Witness Whereof We
have Hereunto Signed
on the 11th
day of October 2005:
Blue Square Israel Ltd.
/s/ Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx Xxxxxx
——————————————
Blue Square - Israel Ltd. |
Blue Square Chain
(Hyper Hyper) Ltd.
/s/ Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx Xxxxxx
——————————————
Blue Square Chain
(Hyper Hyper) Ltd. |
Blue Square Chain
Investments &
Properties Ltd.
/s/ Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx Xxxxxx
——————————————
Blue Square Chain
Investments &
Properties Ltd. |
9
AMENDMENT TO AGREEMENT
Between
| |
BLUE
SQUARE ISRAEL LTD.
Publ. Co. 00-000000-0
whose address is 0
Xxxx Xxxxxx, Xxxx Xxxx, Xxxx Ha’ayin
(hereinafter: “Blue Square”) |
of the one part
And:
| |
BLUE
SQUARE CHAIN INVESTMENTS & PROPERTIES LTD.
Publ. Co. 00-000000-0
(hereinafter: "Properties & Investments")
And
BLUE SQUARE CHAIN (HYPER HYPER) LTD.
Pvte. Co. [sic] 00-000000-0
(hereinafter: "Hyper Hyper")
whose address is 0 Xxxx Xxxxxx,
Xxxx Xxxx, Xxxx Xx'xxxx |
of the other part
| WHEREAS |
An
Agreement was signed between the parties on October 11, 2005 which regulates certain
matters pertaining to arrangements between the parties (hereinbefore and hereinafter: “the
Agreement”), including the aspect of customers clubs; and |
| WHEREAS |
The
parties wish to amend the arrangement that was stipulated in the Agreement with regard to
customers clubs. |
Now therefore it is stipulated and
agreed between the parties as follows:
| 1. |
The
preamble to this Agreement constitutes an integral part hereof. |
| 2. |
After
Clause 3 of the Agreement the following Clause 3A will be inserted: |
| 3.A |
Notwithstanding
the contents of Clause 3 above, with regard to customers clubs that will be established
by Blue Square together with others, or customers clubs which are a separate legal entity
(hereinafter in this clause: “The Customers Clubs”) the following
provisions will apply: |
| |
a. |
Blue
Square will, itself or through others, provide services for the management
and operation of a customers club for Hyper Hyper, and branches of Hyper
Hyper will participate in the activities of Blue Square’s Customers
Clubs, including Customers Clubs that may be established together with
others. |
1
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b. |
Amounts which Blue Square is due to transfer for the activities of the Customers
Club; |
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Charging
of expenses and other costs of operating the Customers Clubs; |
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Income
which Blue Square will be entitled to in respect of its holdings in the Customers Clubs; |
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Profits
of the Customers Club or its losses from the aspect of Blue Square’s share therein; |
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All
these will be shared between Blue Square and Hyper Hyper according to the ratio of the
purchases by members of the club at branches of each of the parties. The aforesaid
accounting shall be done between the parties quarterly. |
| |
c. |
Except as stated in sub-clause (d) below, in respect of benefits that will be
given to customers of the Customers Clubs by either of the parties, the
Customers Club will be debited according to the selling prices to the customers. |
| |
d. |
Each party will bear the gifts and benefits that will actually be given at its
branches, “in hand and immediately”, which are exercisable at the time
of the purchase only. |
| 3. |
The
remaining provisions of the Agreement will continue to be in full force without
any change. |
| 4. |
The coming into force of this amendment is subject to obtaining the appropriate
approvals in each of the parties in accordance with the provisions of the
Companies Law, 5759-1999. |
In Witness Whereof We
have Hereunto Signed
on the 2nd
day of February 2006:
Blue Square Israel Ltd.
/s/ Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxx
——————————————
Blue Square - Israel Ltd. |
Blue Square Chain
(Hyper Hyper) Ltd.
/s/ Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxx
——————————————
Blue Square Chain
(Hyper Hyper) Ltd. |
Blue Square Chain
Investments &
Properties Ltd.
/s/ Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxx
——————————————
Blue Square Chain
Investments &
Properties Ltd. |
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