EXHIBIT 10.26
AGREEMENT
Drafted and signed in Tel Aviv on the 6th day of the month of March 1998
Between
Gazit Inc.
The address of which is:
Suite 000, Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx
Address for the purpose of the service of Court documents:
Law offices of Xxxxxx - Xxxxxxxxxx - Mehulal and Co.
(hereinafter: "Gazit") ON THE ONE HAND;
And
Danbar Resources and Development Ltd.
Mashabim Holdings (Magen 1993) Ltd.
The address of which is: 0 Xxxxxxxxxxx Xxxxxx, Xxx Xxxx
(jointly and separately, hereinafter to be called by the name of the "Danbar
Group")
And Xxx Overseas Ltd.
The address of which is care of:
Havelet Trust Company (International) Ltd.
Xxxxxxx Xxxxx X.X. Xxx 000 Xxxxx Xxxxxxxxx,
Xx. Xxxxx Xxxx, Xxxxxxxx, XX00XX
(hereinafter: "Xxx")
The address for the purpose of the service of the Court documents of the Danbar
group and Xxx is:
c/o Attorney X. Xxxxx and Co., 0 Xxxxxxxx Xxxxxx, Xxx Xxxx
XX THE OTHER HAND;
Whereas Gazit and the Danbar group directly and indirectly hold
securities of Globe Reit Investments Inc. (hereinafter: "Globe
Reit") and Gazit, indirectly, and Xxx hold securities of
Equity One Inc. (hereinafter: "EQ1");
And whereas The Danbar group and Xxx wish to sell and/or to
exchange their holdings in these companies, and Gazit agrees
to purchase and/or to exchange the holdings of the Danbar
group and Xxx in these companies, all as outlined in this
agreement;
And whereas The parties have reached an agreement, as outlined below;
THEREFORE, IT HAS BEEN AGREED AND STIPULATED BETWEEN THE PARTIES AS
FOLLOWS:
1. PREFACE, APPENDICES AND HEADINGS
1.1 The preface to this agreement constitutes a main and integral section
of this agreement;
1.2 The appendices to this agreement constitute an integral part thereof;
1.3 The headings of the sections in this agreement were provided for the
sake of convenience, only, and shall not be given any interpretative
significance.
2. TERMS AND DEFINITIONS
In this contract and in its appendices, the following terms shall have the
meaning that is written alongside them:
"Options" 293,430 C series options in EQ1, which is
owned by Xxx.
"Globe Reit shares" 3,707,135 shares of Globe Reit, which is
owned by the Danbar group.
"Issue to the public" Issue to the public of shares of EQ1, under
terms which are mainly similar to the
document dated December 31, 1997, with its
attachments, which is attached to the
agreement as Appendix A.
"The shares of Xxx in EQ1" All of the EQ1 shares that are owned by Xxx,
as well as the shares that will result from
the realization of the options, to the
extent that they are realized prior to the
time of the issue to the public.
"The underwriting and
distribution commissions" Commissions that the underwriters shall
collect for the sale of the shares of Xxx in
EQ1, within the framework of the issue to
the public "underwriting discount", as long
as their rate does not exceed the
underwriting and distribution commissions
that EQ1 shall pay within the framework of
the issue to the public.
"Date of the execution
of the issue to the public" The date when EQ1 Is to receive the
consideration from the issue to the public.
"The additional shares" 2,707,135 shares out of the Globe Reit
shares.
"The rate of exchange" The exchange of every 4.47 shares of
Globe Reit for all of the following items:
1 share of EQ1 and 0.16 C series options of
EQ1, as well as $0.90 and 5.45 New Israeli
Shekels.
"Act of the distribution
of the EQ1 shares" The act of the distribution of EQI shares to
the shareholders of Globe Reit, whether by
means of a split or by any other means.
"The determining date" The later date between the two following
dates:
1) 7 months subsequent to the date of
the execution of the issue.
2) 30 days subsequent to the end of
the period of the blockage of the
shares of the founders of EQ1, as
long as the determining date shall
be no longer than 12 months after
the date of the execution of the
issue.
"The date of notification" The date when Gazit announces the option
that it has chosen, out of the alternatives
that are listed in Section 5.2, below.
"Pricing" The procedure of determining the price of
the EQ1 shares in the issue to the public
and the signature of the underwriting
agreement, within the framework of the issue
to the public.
"Spin off" The split of assets from EQ1 assets, in the
manner which is described in Appendix A to
this agreement.
"Terminating condition" As per its meaning in the Contracts Act
(General Section) 5733 - 1973.
3. DECLARATIONS AND OBLIGATIONS OF THE DANBAR GROUP AND XXX
The Danbar group and Xxx hereby declare and undertake as follows:
3.1 That Xxx is the registered owner and the possessor of all of
the rights to 1,369,602 shares and to 293,430 options of EQ1.
3.2 That the Danbar group is the owner and the possessor of all of
the rights to 3,707,135 shares of Globe Reit.
3.3 That these shares and options are free of any debt, pledge,
lien or third party rights, whatsoever, and that they will
remain in this condition pending their sale and/or transfer,
as stated in this agreement.
3.4 That there is no legal or other reason to prohibit their
engagement in this agreement.
3.5 That they agree that EQ1 will perform the issue to the public,
under terms which are mainly similar to those which are
outlined in the document that is dated December 31, 1997, with
its attachments, which is attached to the agreement as
"APPENDIX A". All of this is subject to the existence of the
terms of Sections 4 and 5, below, and subject to the fact
that, in any case, the price for which the shares of EQ1 are
issued to the public, subsequent to the execution of the
Spin-off move, shall be no less than $12 (twelve U.S. dollars)
per share.
3.6 That, subject to the execution of the issue to the public, as
stated in Section 3.5, above, the Danbar group hereby
undertakes to sell the Globe Reit shares to Gazit or to a
party on its behalf, pursuant to the terms which are outlined
in Section 5, below.
4. THE SALE OF THE XXX SHARES TO EQ1 WITHIN THE FRAMEWORK OF THE ISSUE TO
THE PUBLIC
4.1 The parties shall act to the best of their ability, in order
to cause a situation whereby EQ1 shall execute the issue to
the public, and that within the framework of the issue to the
public, all of the Xxx shares in EQ1 shall be sold, including
shares that shall result from the realization of the Series C
option warrants that are in the possession of Xxx, which Xxx
wishes to realize and sell within the framework of the issue,
for the price of the issue of the shares to the public, minus
the underwriting and distribution commissions. Xxx undertakes
to give Gazit notification of up to and no later than nine
days from the date of the signature of this agreement, with
regard to the quantity of the options which Xxx will be
realizing and seeking to sell within the framework of the
issue to the public.
4.2 If, within the framework of the issue to the public, it will
not be possible to sell the shares of Xxx in EQ1, in full or
in part, the following provisions shall apply:
4.2.1 Gazit shall provide written notification, immediately
upon finding out, if it is interested in purchasing
the balance of the shares of Xxx in EQ1.
4.2.2 Should Gazit give notification that it is not
interested in purchasing the balance of the shares of
Xxx in EQ1, this shall be considered a terminating
condition, and the provisions of Section 11.4, below,
shall apply.
4.2.3 Should Gazit give notification that it is interested
in purchasing, either itself or through any party on
its behalf, all of the balance of the shares of Xxx
in EQ1 for the price of the issue to the public,
minus the underwriting and the distribution
commissions, the issue to the public shall be
executed, and Gazit shall purchase all the entire
balance of the shares of Xxx in EQ1, at the issue
price, minus the underwriting and the distribution
commissions.
Should Gazit purchase the balance of the shares of
Xxx in EQ1, as stated above, Gazit shall pay the full
consideration to Xxx, within sixty days of the date
of the execution of the issue. The payment shall be
made against the transfer of the balance of the
shares of Xxx to EQ1 into the name of Gazit or into
the name of any party which Gazit shall instruct.
5. THE SALE OF GLOBE REIT SHARES
Once the issue to the public has been executed, the Danbar group hereby
undertakes to sell to Gazit, and Gazit undertakes to purchase, either on its own
or by means of any party on its behalf, the shares of Globe Reit, in the
condition which is described in Section 3.3, above, as follows:
5.1 The Danbar group shall sell and Gazit shall purchase 1,000,000
(one million) of the shares of Globe Reit, at a price of 12
(twelve) New Israeli Shekels for each share, totaling
12,000,000 (twelve million) New Israeli Shekels. Gazit shall
pay the consideration delineated above within seven days from
the date of the execution of the issue, against the transfer
of shares into the ownership of Gazit or into the ownership of
such party as Gazit shall instruct.
5.2 2,707,135 of the additional shares of Globe Reit that are held
by the Danbar Group shall be sold to Gazit or to any party on
its behalf, and Gazit or any party on its behalf shall
purchase, all pursuant to one of the following alternatives or
a combination of the two alternatives, all pursuant to the
selection of Gazit, as long as Gazit or anyone on its behalf
purchases all of the additional shares:
5.2.1 Gazit shall purchase the additional shares or part
thereof, according to the price of 12.5 New Israeli
Shekel per share. This amount shall bear annual
dollar interest at a rate of three percent per year,
from the date of the execution of the issue to the
public, until seven months have passed from the date
of the execution of the issue to the public or until
the date of the execution of the actual payment,
whichever of the dates fall earlier.
Or
5.2.2 Gazit shall see to it that against the receipt of
every 4.47 shares of Globe Reit shares, out of the
additional shares or part thereof, one share of EQ1
and 0.16 C Series options of EQ1 shall be transferred
to the Danbar group. These shall be clear of any
debt, pledge, lien or third party rights, whatsoever.
In addition, $0.90 and 5.45 New Israeli Shekels shall
be paid to the Danbar group. Should the approval of
the Bank of Israel be necessary, and this is not
received pending the determining date or pending the
date of the execution of the provisions of subsection
5.2.2 herein, whichever of the dates falls earlier,
the shares and the options that are due to the Danbar
group pursuant to the rate of exchange shall be
deposited with a trustee, the identity of whom shall
be determined by the Danbar group. The balance of the
consideration which is due to the Danbar group
pursuant to the rate of exchange shall be paid to
Danbar, in accordance with the provisions of this
agreement. The deposit of the shares and the options,
as stated, and the execution of the payment of the
balance of the consideration, pursuant to the rate of
exchange, shall be executed against the transfer of
the additional shares which are due Gazit, pursuant
to the provisions of this section, into the name or
into the possession of Gazit or into the name or into
the possession of such party that Gazit shall
instruct, with these in the condition which is
described in Section 3.3, above.
The shares of EQ1 and the shares that shall be the
product of the realization of the options which are
outlined in this section, which are to be transferred
to Danbar, shall be negotiable and available for
sale, without any limitation, this is at the end of
twelve months from the date of the execution of the
issue to the public. Should the Danbar group request
to receive the shares when they are negotiable and
available for sale, as stated, prior to the end of
twelve months from the date of the execution of the
issue to the public, then it will have to bear the
differences in the expenses that shall ensue, due to
the expedition of the date, as stated, all pursuant
to the approval of the attorneys of EQ1, who shall
perform this procedure.
Should bonus shares or any other benefits be
distributed, with the exception of a cash dividend,
for Globe Reit shares and/or EQ1, pending the date of
the execution of the actual exchange, an adjustment
to the rate of the exchange shall be made,
accordingly.
In spite of what is stated, above, if the exchange
pursuant to subsection 5.2.2, herein, is executed
after more than six months have passed from the date
of the execution of the issue to the public, then the
rate of exchange shall be adjusted, as follows: all
of the amounts of the dividends that are to be
distributed for EQ1 shares that are to be transferred
to the Danbar group, pursuant to the provision of
subsection 5.2.2., herein, for the period from the
end of six months from the date of the execution of
the issue to the public and until the date of the
execution of the actual exchange (hereinafter: "the
determining period") shall be added to the rate of
exchange. In the event that the dividends are
distributed for a period which does not overlap the
determining period (hereinafter: "the entire
period"), then the amounts of the dividends that are
due pursuant to what is stated above, shall be
computed as the relative portion of the dividends
that were distributed for the entire period, for the
total months that are included in the entire period.
In order to eliminate any doubts, if on the date of
the execution of the actual exchange, the amounts of
the dividends for the
determining period, in full or in part, this shall
not prevent or postpone the execution of exchange,
pursuant to what is stated above, and on the date of
the execution of the actual exchange, Gazit shall pay
the amounts that were actually distributed prior to
the execution of the exchange and shall complete, to
the extent that this shall be necessary, all of the
amounts of the dividends, should they exist, which
shall be actually distributed by EQ1, subsequent to
the execution of the actual exchange, for the
remainder of the determining period.
If, pending the date of the execution of the actual
exchange, Globe Reit causes the distribution of EQ1
shares to its shareholders in the form of a split or
by any other means, then the rate of exchange shall
be adjusted, in consideration of the execution of the
act of the distribution of EQ1 shares, as stated, in
a manner in which, ultimately, the Danbar group shall
receive, whether directly from Gazit and/or any party
on its behalf, or by means of the act of the
distribution of EQ1 shares, one share of EQ1 and 0.16
options of EQ1, plus $0.90 and 5.45 New Israeli
Shekels, for each 4.47 shares of Globe Reit, out of
the additional shares, or part thereof.
5.3 Gazit shall inform the Danbar group in writing, within six
months from the date of the execution of the issue, which of
the above alternatives it has selected, or whether it has
chosen to combine the two alternatives, and how many shares it
wishes to purchase, pursuant to the alternative in Section
5.2.1, above (hereinafter: "the date of notification").
5.4 Gazit hereby undertakes to pay the consideration for the
additional shares that shall be purchased pursuant to the
alternative in Section 5.2.2, above, up until and no later
than the determining date. The payment of the consideration
shall be made against the transfer of the additional shares
into the ownership of Gazit or whatever party that Gazit shall
instruct, with the shares in the condition which is described
in Section 3.3., above.
5.5 Gazit hereby undertakes to pay the consideration for the
additional shares that shall be purchased pursuant to the
alternative in Section 5.2.1, above, within seven months from
the date of the execution of the issue to the public, or by
the date which is mentioned later in subsection 5.5, herein,
all against the transfer of the additional shares, with the
shares in the condition which is described in Section 3.3,
above, into the ownership of Gazit or the ownership of
whatever party that Gazit shall instruct.
In spite of what is stated above, should Gazit decide with
regard to the additional shares, in full or in part, to select
that alternative that is listed in Section 5.2.1., above, it
shall be entitled to postpone the date of the execution of the
payment for those shares out of the additional shares that it
wishes to purchase, pursuant to the provisions of Section
5.2.1, above, for a period of up to and including six
additional months from the end of seven months from the date
of the execution of the issue to the public, as long as it has
given notification of this in writing to the Danbar group on
the date of notification. Should Gazit give notification, as
stated, the price of the additional shares shall bear dollar
interest at a rate of nine percent per year, from the end of
seven months from the date of the execution of the issue,
until the date of actual full payment.
5.6 Within fourteen days from the date of the signature of the
agreement, the Danbar group shall deposit the Globe Reit
shares with Attorney Xx. Xxxxx Xxxxx and/or Yuri Nehoshtan
(hereinafter: "Segev") as a trustee for the parties, with
irrevocable instructions to take action in their regard, as
stated in the document of instructions that is attached to
this agreement as an integral part thereof, and which is
MARKED "B". Shortly subsequent to the deposit of the shares,
as stated, with the irrevocable instructions, Segev shall
confirm to Gazit that the Globe Reit shares have been
deposited in its trust, with the irrevocable instructions that
constitute Appendix B, and that it will take action in
accordance with these irrevocable instructions. It shall
attach to this confirmation a signed copy of the document of
irrevocable instructions.
Shortly prior to the date of the execution of the "pricing",
Gazit shall deposit with Attorney Xxxxx Xxxxx and/or Xxxxx
Xxxxx Xxxxxx (hereinafter: "Evron - Xxxxx - Xxxxxx") as a
trustee for the parties, the full consideration that is
required by the provisions of Section 5.1, above, as well as
guarantees to secure the consideration that is outlined in
Section 5.2, above, with an irrevocable instruction to handle
these funds pursuant to the document of instructions that is
attached to this agreement as an integral part thereof, and
which is MARKED "C". Shortly following the deposit of the
consideration and the guarantees that are mentioned above,
with the irrevocable instructions, Evron - Xxxxx - Xxxxxx
shall confirm to the Danbar group that the consideration and
the guarantees have been deposited with them in trust, with
the irrevocable instructions that constitute Appendix C, and
that they will take action in accordance with these
irrevocable instructions. A signed copy of the document of
irrevocable instructions shall be attached to this
confirmation. Notification, as stated, shall be delivered
prior to the commencement of the pricing procedure, and the
pricing procedure shall not begin, prior to the delivery of
notification, as stated.
It is explicitly agreed that the deposit of guarantees that
are valued at one million dollars constitutes a sufficient
guarantee, pursuant to the provision of this section, with
regard to Section 5.2, above, and that the deposit of stock
certificates that pertain to 100,000 shares of EQ1 or the
deposit of bonds (Series D) of Gazit Inc., with a nominal
value of one million and one hundred thousand dollars
constitute, each one separately, guarantees worth at least one
million dollars.
The deposit of the shares, the consideration and the
guarantees shall be for the duration of time of up to the full
execution of Sections 5.1 or 5.2, above, all as shall be
relevant, or pending the termination of the agreement,
pursuant to the provisions of Section 11, below, or until the
date when Gazit shall give notification in writing to Segev
and Evron - Xxxxx -Xxxxxx that, within the framework of the
pricing procedure, it was not possible to arrive at an issue
to the public of the EQ1 shares at a price of at least twelve
dollars per share and/or that it was not possible to sell all
of the EQ1 shares within the framework of the issue to the
public, and that it is not interested in purchasing the
balance of the shares of Xxx in EQ1, whichever of the three
falls earliest.
5.7 The Danbar group hereby instructs Gazit to pay and to transfer
to Segev the consideration to which it is due for the Globe
Reit shares, pursuant to the alternative in Section 5.2.1, and
to transfer to Segev the consideration, the shares and the
option warrants of EQ1, pursuant to the alternative in Section
5.2.2, above, pursuant to the document of irrevocable
instructions that constitute Appendix X.
Xxxxx hereby instructs the Danbar group to transfer to Evron -
Xxxxx - Xxxxxx the Globe Reit shares that are due to Gazit
pursuant to the provision of Section 5.2.1 and/or 5.2.2,
above, pursuant to the document of irrevocable instructions
that constitute Appendix C.
6. SPIN OFF
Prior to the issue to the public, Spin off shall be performed, and the
following provisions shall apply:
6.1 Should there be an issue to the public, Xxx undertakes to sell
all of the shares of Xxx in the new corporation that shall be
established within the framework of the execution of the spin
off move, and the Danbar group undertakes to cause them to be
sold, and Gazit undertakes to purchase or to cause them to be
purchased. Such shares shall amount to 1,369,602 shares, which
shall be clear of any debt, pledge, lien or third party
rights, whatsoever, in exchange for a payment of $0.90 per
shares. The payment shall be executed against the transfer of
the above mentioned shares into the name of Gazit or any party
on its behalf, within fourteen days from the end of the date
of the execution of the issue to the public.
6.2 Xxx undertakes and the Danbar group undertakes to see to it
that, proximate to the date of the execution of the issue to
the pubic, bills for the transfer of the shares and the stock
certificates that are mentioned in this section (hereinafter:
"the documents") shall be deposited with Attorney Xxxxxx
Xxxxxx of the New York law firm named Xxxxx, Rowin, Novack,
Burnbaum & Crystal, as a trustee for the parties, with
irrevocable instructions to handle them pursuant to the
document of instructions that is attached to this agreement as
an integral part thereof, and which is MARKED "D". On the same
date, Gazit shall deposit the full consideration
which is due in accordance with this section with Attorney
Xxxx Xxxxxx, as a trustee for the parties, with irrevocable
instructions to handle the funds in accordance with the
document of instructions that is attached to this agreement as
an integral part thereof, and which is MARKED "E".
The deposit of the shares and the consideration, pursuant to
this section, shall be done by the time of the full execution
of what is stated in this section, or by the time of the
termination of this contract, pursuant to the provisions of
Section 11 or 4.2.2, above, or by the date that Gazit shall
provide written notification of to Segev and Evron - Xxxxx -
Xxxxxx, that within the framework of the pricing agreement, it
was not possible to arrive at an issue to the public of the
shares of EQ1 of at least twelve dollars per share, according
to the earlier among the dates. Should what is stated in
Section 6, herein, not be fully executed, and any of the
events mentioned above take place, in addition, the documents
shall be returned to Xxx and the money, including interest,
shall be returned to Gazit.
7. RESIGNATION FROM THE BOARD OF DIRECTORS; TERMINATION OF ENGAGEMENTS
7.1 Immediately upon completion of the pricing procedure, the
Board of Directors that was appointed by the Danbar group,
from the Board of Directors of Globe Reit and from the Board
of Directors of EQ1, shall resign. In addition, all of the
persons serving in any position on behalf of the Danbar group
shall resign from all of their other positions in these
companies.
At the time of the signature of this agreement, Messrs. Xxx
Xxxxxx and Xxxxx Volkan shall sign the documents of
resignation from the Board of Directors of EQ1, and Messrs.
Volkan, Xxx Xxxxxx and Xxxxxx Xxxxxx shall sign the documents
of resignation from the Board of Directors of Globe Reit.
These documents shall be deposited in trust with Segev, with
irrevocable instructions to transfer them to Gazit,
immediately subsequent to the execution of the pricing
procedure, all pursuant to the text of the document of
irrevocable instructions that is attached to this agreement as
an integral part thereof, and which is MARKED "B". Segev shall
provide Gazit with confirmation in writing with regard to the
deposit of the documents, as stated, with the irrevocable
instructions, and shall confirm that it will act in accordance
with the irrevocable instructions.
7.2 In spite of what is stated above, the members of the Board of
Directors who were appointed on behalf of the Danbar group in
Globe Reit and EQ1 may resign and appoint new member/s of the
Board of Directors, in the place of those members of the Board
of Directors who are resigning. All of this shall be subject
to the deposit with Segev of documents of resignation, as
well, with irrevocable instructions, as stated above, by the
members of the Board of Directors who shall be appointed, as
stated. This shall be done at the same time as their
appointment as members of the Board of Directors. The parties
shall take all of the requisite steps for the purpose of the
appointment of these director/s.
7.3 All of the agreements that have been signed between Globe Reit
or EQ1 and the members of the Board of Directors or the
persons holding positions on behalf of the Danbar group and
Xxx, including the consulting agreements that have been signed
with Messrs. Makabi and Volkan, shall be terminated on the
date of the resignation of these members of the Board of
Directors from the Board of Directors of EQ1, as stated,
without this granting any of the parties to these agreements
any right of claim. Globe Reit or EQ1, as shall be relevant,
shall pay only those payments that are due pursuant to these
agreements for a period of up to the date of the termination
of the agreements, as stated. In order to eliminate doubt, any
commitment for indemnification that was made by Globe Reit or
EQ1 or any company in their control, to the extent that such
commitments were made, to any party on behalf of the Danbar
group and Xxx or members of the Board of Directors or persons
holding positions who were appointed on their behalf
(including Xxxxx Volkan, Xxx Xxxxxx and Xxxxxx Xxxxxx, to the
extent that they were given a commitment for indemnification),
shall remain in effect and shall not be canceled, in spite of
what is stated in this section.
The provisions of this section shall be considered an
obligation to the benefit of a third party, in other words, to
the benefit of Globe Reit and EQ1, and this is subject to the
execution of the issue to the public.
8. INTEREST AND LINKAGE DIFFERENTIALS
8.1 The amounts that are mentioned in this agreement in dollars
shall be computed in accordance with the representative rate
of exchange of the US. Dollar on the date of the execution of
payment, while the amounts that are stated in New Israeli
Shekels shall be linked to the representative rate of the U.S.
dollar, while the basic rate is the rate that was known on
February 18, 1998 - in other words: 1 U.S. dollar - 3.602 New
Israeli Shekels.
8.2 Any amount that a party must pay the other, pursuant to the
provisions of this agreement, which is not paid on time and in
full, shall bear interest for arrears at the rate of twelve
percent per year, in addition to the above rate differentials.
For the purpose of this section, payment on time also means
payment on a date that has been postponed, pursuant to the
provisions of this agreement.
Nothing that is stated in this subsection shall detract from
any other right or remedy that is available to the party that
is upholding the agreement against the party that is violating
it.
9. EXECUTION OF THE ISSUE TO THE PUBLIC
The parties hereby undertake as follows:
9.1 To act to the best of their ability in order to cause a
situation in which the issue to the public of EQ1, within the
framework of which the shares of Xxx in EQ1 will be sold,
shall be executed as soon as possible and, for this purpose,
to do whatever is necessary and without detracting from the
generality of what is stated above, to make all of the
necessary decisions in any forum, to sign all of the documents
and to deposit all of the requisite documents, and to perform
all of the actions that are necessary for the purpose of the
execution of what is stated, above.
9.2 Without detracting from the generality of what is stated
above, it is hereby agreed between the parties as follows:
9.2.1 The parties hereby agree that a change to the bylaws
of EQ1, which are attached to this agreement as
APPENDIX E, shall be confirmed shortly following the
signature of this agreement, by the Board of
Directors and within the framework of the general
meeting of EQ1.
9.2.2 To make all of the decisions that are necessary for
the purpose of the change of the bylaws of EQ1,
pursuant to the text of the resolutions that are
outlined in the document that is dated December 31,
1997, which is attached to this agreement as APPENDIX
A, and the change of the memorandum of EQ1 which is
required by the change in the bylaws, and any
additional resolutions, as they may be necessary from
time to time, for the purpose of the execution of the
issue to the public and the sale of the shares of Xxx
within the framework of the issue to the public, in
an optimal manner, all within any forum, whatsoever,
including within the framework of a general meeting.
Such resolutions shall be made shortly subsequent to
the signature of this agreement, however they shall
go into effect upon the execution of the pricing.
9.2.3 To make any additional decisions as shall be required
on a periodic basis, for the purpose of the execution
of the issue to the public and the sale of Xxx
shares, within the framework of the issue to the
public and the execution of this agreement, including
the signature of any additional documents that shall
be necessary, such as lock-up agreements,
underwriting agreements, questionnaires, signature of
the prospectus of EQ1, etc..
9.2.4 Without detracting from what is stated in this
agreement, the Danbar group and Xxx undertake to act
in accordance with the guidelines of the chief
underwriter of the issue to the public and of the
attorneys for the issue to the public, with regard to
the sale of their shares, within the framework of the
issue to the public, to produce any document,
including stock certificates, which refer to all of
the shares of Xxx in EQ1 and the bills of transfer of
shares with regard to these shares, and to take any
action that shall be necessary, including the
signature of all of the
documents that shall be necessary, including custody
agreements, by whatever party that the underwriter
shall instruct, underwriting agreements, bills for
the transfer of shares, questionnaires, etc., and to
take any additional actions that shall be necessary,
on the date that shall be required by the underwriter
for the issue, for the purpose of realizing the
option warrants that are in the possession of Xxx,
including payment for the price of the realization,
on the date that shall be determined by the
underwriter for the issue, and under the condition
that this shall not take place prior to the
completion of the pricing process.
9.2.5 Any document that Xxx and/or the Danbar group shall
be asked to do [Translator's note: as written] or to
sign shall be produced to it, to the extent that this
is possible, five business days prior to the date
when the signature or the action is required.
Xxxxx, Xxx and the Danbar group undertake to do
whatever they are asked to do, so that no delays will
be caused to the execution of the issue to the public
or to any other move that is related to this issue.
For this purpose, Xxx and the Danbar group further
undertake that they will give approval to the
underwriter, to whatever extent this shall be
required, on the date of the execution of the
pricing, with regard to their consent to the price of
the issue to the public, as shall be agreed upon by
EQ1, under the condition that this shall be no less
than twelve dollars per share.
10. CANCELLATION OF PRIOR AGREEMENTS, MUTUAL WAIVER
10.1 It is hereby agreed that the agreements dated November 28,
1993 and the shareholders agreement dated May 21, 1996, which
were signed between the parties, shall be rendered void. In
addition, with regard to the investment contract, dated May
21, 1996, the Danbar group and Xxx waive all of their rights
pursuant to this agreement vis-a-vis Globe Reit, EQ1 and
Gazit, and Gazit takes upon itself all of the obligations of
the Danbar group and Xxx vis-a-vis Globe Reit and EQ1,
pursuant to this agreement. This is subject to the execution
of the issue to the public and the deposit of the guarantees,
pursuant to this agreement.
The provisions of this section shall be considered to be an
obligation to the benefit of a third party.
This section shall go into effect on the date of the execution
of the issue to the public and the deposit of the
consideration and the guarantees, pursuant to this agreement.
10.2 The parties undertake to see to it that within three days from
the date when this
agreement goes into effect, all of the legal proceedings that
have been instituted by them against the parties to this
agreement or any one of them shall be terminated, and that the
legal proceedings that have been instituted against Xxxx
Xxxxxxx, XX0, Gazit Holding, Xxx Xxxxxx and Xxxxx Volkan shall
be terminated, as well, without any order with regard to
costs.
10.3 Subject to the execution of the issue to the public and all of
the other provisions to this agreement, in full, the parties
declare to one another that they do not and shall not have any
claims, demands or complaints of any type or sort toward one
another, or toward any of the members of the Board of
Directors or persons holding positions or consultants and/or
service providers of any of the above mentioned entities. In
addition, all of the elements that are listed above have or
shall have any claim and/or demand and/or complaint vis-a-vis
Globe Reit and/or EQ1, all as is relevant, their shareholders
or their officers or their consultants and/or service
providers, subject to the fact that Globe Reit and/or EQ1, as
relevant, also does not and shall not have any claims or
demands or complaints toward the Danbar group, Xxx, their
officers and their shareholders.
Messrs. Xxxx Xxxxxxx, Xxxx Xxxxx, Xxx Xxxxxx and Xxxxx Volkan,
by their signatures in the margins of this agreement, hereby
declare that what is stated in this section applies and refers
to them, as well, and is, in addition, subject to the
execution of the issue to the public and all of the other
provisions of this agreement, in their entirety. They, as
well, do not have and shall not have any mutual claims or
demands or complaints of any type or sort whatsoever,
vis-a-vis each other or vis-a-vis the other elements that are
mentioned in this section, above, as long as, to the extent
that this refers to Globe Reit and/or EQ1, as is relevant,
what is stated above is subject to the fact that Globe Reit
and/or EQ1, as is relevant, does not have any claims or
demands or complaints against them.
The provisions of this section constitute an obligation to the
benefit of a third party, if and when the issue to the public
is executed.
11. TERMINATING CONDITION
11.1 If the issue to the public of the EQ1 shares is not executed
by August 15, 1998, this shall be considered a terminating
condition, and the provisions of Section 11.4, below, shall
apply.
11.2 If, subsequent to the signature of this agreement, written
notification is given by the chief underwriter of the issue of
EQ1 (the lead manager), that the range of prices of the issue
of the shares of EQ1 shall be lower than what is stated in
APPENDIX A of this agreement (hereinafter: "the notification
of the underwriter"), this shall be a terminating condition,
and the provisions of Section 11.4, below, shall apply.
The side to this agreement that received the notification of
the chief underwriter, as stated, undertakes to produce it to
the other side, immediately subsequent to its receipt.
11.3 In spite of what is stated above, it is explicitly agreed
that, should written notification be given by Gazit to the
Danbar group and to Xxx (with copies to Segev and Evron -
Xxxxx -Xxxxxx), that it is not interested in purchasing the
balance of the shares of Xxx in EQ1, all as stated in Section
4.2, above, this shall be considered a terminating condition,
and the provisions of Section 11.4 shall apply.
The termination of this agreement, pursuant to the provisions of
Section 11.1, Section 11.2 and Section 11.3, shall not grant any of the
parties any remedy, whatsoever.
11.4 In any event in which this agreement is terminated, for any
reason whatsoever, then on the date of termination the
obligations of the parties, pursuant to this agreement, shall
become null and void, and the parties shall return to the
state in which they were prior to the signature of this
agreement, and all of the actions and decisions shall be
canceled (including, inter alia, the changes in bylaws of EQ1)
and all of the actions of any type or sort whatsoever, with
the exception of acts of ongoing management, during the
regular course of business, both in EQ1 and Globe Reit and all
of their subsidiaries, and the rights and claims of the
parties of any type or sort whatsoever, shall remain as they
were prior to the signature of this agreement.
What is stated above does not refer to payments that were made
or that must be made for the issue to the public to service
providers that constitute third parties.
To eliminate doubt, in this case, none of the provisions of
Section 10.3, above, shall apply, and all of the members of
the Board of Directors and the officers, as they were prior to
the signature of this agreement shall return to the positions
that they held prior to the signature of the agreement.
12. THE PERIOD UP TO THE ISSUE TO THE PUBLIC
It is explicitly declared that the parties shall act to the best of
their ability, so that by a date that is proximate to the issue to the
public, EQ1 shall continue in the policy of the distribution of the
dividends, as it existed prior to the signature of this agreement; in
other words, at a rate of 25 cents per share for each complete quarter.
The parties shall act to the best of their ability to cause a situation
whereby EQ1 shall distribute a dividend prior to the issue to the
public, with regard to the period that preceded the date of the issue
to the public, even if this does not refer to a complete quarter.
13. PURCHASE OF SHARES FROM SHAREHOLDERS
13.1 Gazit hereby undertakes to purchase or to cause the purchase
of all of the holdings of Messrs. Xxx Xxxxxx, Xxxxx Volkan,
Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxxx (hereinafter: "the
shareholders") in Globe Reit; in other words, 712,027 shares,
in a state in which they are clear of any lien, pledge, debt,
or third party right, whatsoever, all subject to the execution
of the issue to the public and execution of all of the other
obligations of the Danbar group and Xxx, pursuant to this
agreement.
13.2 Gazit hereby undertakes to pay the shareholders the sum of
10.5 (ten and a half) New Israeli Shekels for each share. The
payment shall be made at the same time as the execution of the
payment, pursuant to Section 5.1, above, against the transfer
of the shares into the name of or to Gazit, or to the order of
Gazit.
The transaction of the sale of the shares of the shareholders shall be
subject to the receipt of the approval of the general meeting of Danbar
Resources and Development Ltd. , up to the end of 45 days from the date
of the signature of this agreement. The Danbar group shall notify Gazit
in writing, within seven days from the date when the resolution of the
general meeting is passed, as stated, if the said sales transaction is
approved. If the said approval is not received, as stated, for the
execution of the sale of the shares that is outlined in this section,
by the date that is mentioned, above, the provisions of this section
shall become null and void, but this shall not prejudice the validity
of all of the other sections of this agreement, and the shareholders
and the parties to the agreement shall not have any complaint or claim
toward each other in this regard. The shareholders shall confirm, by
their signatures, their consent to everything that is stated in this
section.
The provisions of Section 5.6, above, with regard to the deposit of the
shares and the deposit of the consideration for them, shall also apply
to this section, all as outlined in the documents of irrevocable
instructions that constitute APPENDIX G and APPENDIX H, which are
attached to this agreement as an integral part thereof, subject to the
fact that the deposit of the shares shall be executed within seven days
after the passing of the resolution of the general meeting of Danbar
Resources, as stated below.
14. Each party shall be responsible for the taxes which apply to it, should
they apply, as well as for its attorney's fees.
15. It is agreed that the competent Courts in Tel Aviv and in New York,
only, shall have the exclusive, concurrent jurisdiction to hear any
matter that is related to this agreement, its interpretation and its
execution, while the law of the state of the forum, in other words,
Israeli law or the law of New York, all as is relevant, shall apply to
this agreement.
The parties undertake not to oppose the place of jurisdiction that the
plaintiff selects, as long as it is Tel Aviv or New York.
16. The validity of this agreement is contingent upon the receipt of the
approval of the Board of Directors of Gazit, the Board of Directors of
Danbar and the Board of Directors of Xxx
to this agreement, up to and no later than seven days from the date of
the signature of this agreement.
17. The addresses of the parties shall be as noted in the heading to this
agreement.
18. All notifications pursuant to this agreement, which are intended for
Gazit, shall be delivered to Evron - Xxxxx - Xxxxxx, and all of the
notifications that are intended for the Danbar group and Xxx shall be
delivered to Segev.
AND IN WITNESS WHEREOF, THE PARTIES HAVE AFFIXED THEIR SIGNATURES:
_____________________
Danbar Resources and Development Ltd.
_____________________
Xxx Overseas Ltd.
_____________________
Mashabim Holdings (Magen 1993) Ltd.
/s/ GAZIT INC.
---------------------
Gazit Inc.
We, the undersigned, Xxx Xxxxxx and Xxxxx Volkan, agree to the provisions of
Sections 7, 10.3 and 13, above, and I, the undersigned, Xxxxxx Xxxxxx, agree to
the provisions of Section 7, above.
_____________________
Xxx Xxxxxx
_____________________
Xxxxx Volkan
_____________________
Xxxxxx Xxxxxx
We, the undersigned, Xxxx Xxxxxxx and Xxxx Xxxxx, agree to the provision of
Section 10.3, above.
/S/ XXXX XXXXXXX
---------------------
Xxxx Xxxxxxx
_____________________
Xxxx Xxxxx
We, the undersigned, Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxxx, agree to the
provisions of Section 13, above.
_____________________
Xxxxxxxx Xxxxxxxx
_____________________
Xxxxxxx Xxxxxxxxxx
