Exhibit 7(b)
A G R E E M E N T
Made in Tel Aviv on
the 22 of April, 2002
As an amendment to an
agreement date December 22, 1997
| Between: |
|
MEIR
SHAMIR
Of 23 Yoav Street, Zahala
(hereinafter: "Meir
Shamir") |
| And: |
|
ASHTROM
INDUSTRIES LTD. (and/or affiliated company)
Company no. 52 - 003715 - 1
Of 10 Kremnitski Street, Tel Aviv
(hereinafter:
"Ashtrom") |
| WHEREAS: |
|
Meir
Shamir 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. |
Meir Shamir 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 Mr. Yoni Caplan (hereinafter: the
“Arbitrator”) in order for him to determine, in keeping with the joint
interest of Meir Shamir 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 Mr. Zeev Feldman (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 Mr. Amos Epstein (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 Meir Shamir 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 Meir Shamir and the other shall be elected at the recommendation
of Ashtrom. |
| 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 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 Meir Shamir, for such
time as Meir Shamir 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
successors of Meir Shamir who shall hold the shares of Meir Shamir instead of him. |
| 6. |
Validity
of the Agreement |
| |
6.1 |
The
rights that are granted to Meir Shamir and to Ashtrom pursuant to the provisions of this
Agreement shall remain in effect with regard to Meir Shamir 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. |
| |
7.1 |
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. |
In Witness Whereof The
Parties Hereto Have Hereunto Set Their Hands:
|
|
/S/ Meir Shamir
——————————————
Meir Shamir |
|
|
Ashtrom Industries Ltd.
By:
——————————————
Name:
Title: |