Exhibit 7(b)
AGREEMENT
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MADE IN TEL AVIV ON THE 22 OF APRIL, 2002
AS AN AMENDMENT TO AN AGREEMENT DATE DECEMBER 22, 1997
BETWEEN: ▇▇▇▇ ▇▇▇▇▇▇
Of ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
(hereinafter: "▇▇▇▇ ▇▇▇▇▇▇")
AND: ASHTROM INDUSTRIES LTD. (AND/OR AFFILIATED COMPANY)
Company no. 52 - 003715 - 1
Of ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
(hereinafter: "Ashtrom")
WHEREAS: ▇▇▇▇ ▇▇▇▇▇▇ 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
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1. The Preamble to this Agreement forms an integral part hereof.
COOPERATION BETWEEN THE PARTIES AT THE GENERAL MEETINGS OF MIVTACH SHAMIR
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2. a. ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ (hereinafter: the
"Arbitrator") in order for him to determine, in keeping with the
joint interest of ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (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 ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
(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
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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 ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇
▇▇▇▇▇▇ and the other shall be elected at the recommendation of
Ashtrom.
5. RIGHT OF FIRST REFUSAL OR TAG ALONG RIGHT
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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 ▇▇▇▇ ▇▇▇▇▇▇, for such time as ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇
▇▇▇▇▇▇ who shall hold the shares of ▇▇▇▇ ▇▇▇▇▇▇ instead of him.
6. Validity of the Agreement
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6.1 The rights that are granted to ▇▇▇▇ ▇▇▇▇▇▇ and to Ashtrom
pursuant to the provisions of this Agreement shall remain in
effect with regard to ▇▇▇▇ ▇▇▇▇▇▇ 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
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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/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
Ashtrom Industries Ltd.
By:
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Name:
Title:
