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[TRANSLATED FROM THE HEBREW]
APPENDIX "G"
AGREEMENT
Made this _____ day of ___________________ 199__
BETWEEN: 1. AMPAL ISRAEL LTD (Public Company No. 52-002622-0)
of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇
(hereinafter referred to as "Ampal")
2. AMOT INVESTMENTS LTD (Public Company No. 52-002668-3)
of ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇
(hereinafter referred to as "Amot")
3. GMUL INVESTMENT CO. (Public Company No. ▇▇-▇▇▇▇▇▇▇)
of ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇
(hereinafter referred to as "Gmul")
(hereinafter jointly referred to as "the Vendors")
of the one part
AND: __________________________________________________
of________________________________________________
(hereinafter referred to as "the Purchaser")
of the other part
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Co., Law Offices and Notary
Firon, Kami, Sarov & Firon, Advocates and Notaries
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WHEREAS Ampal holds 783,778 ordinary shares of NIS 1 n.v. each in
Moriah Hotels Ltd (Private Company No. 51-0508160-1)
(hereinafter referred to as "Ampal's shares") (hereinafter
referred to as "the Company");
AND WHEREAS Amot holds 460,725 ordinary shares of NIS 1 n.v. each in the
Company (hereinafter referred to as "Amot's shares");
AND WHEREAS Gmul holds 340,773 ordinary shares of NIS 1 n.v. each in the
Company (hereinafter referred to as "Gmul's shares");
AND WHEREAS the Vendors wish to jointly sell Ampal's shares, Amot's shares
and Gmul's shares to the Purchaser pursuant to the matters
provided and set forth in this agreement below (Ampal's
shares, Amot's shares and Gmul's shares are hereinafter
referred to as "the sold shares");
AND WHEREAS the Purchaser wishes to purchase the sold shares from the
Vendor pursuant to the matters provided and set forth below in
this agreement;
AND WHEREAS the Purchaser has, to its full satisfaction, carried out a due
diligence examination of the Company, its business, assets and
liabilities, its legal, accounting and financial position and
also additional examinations which it deemed appropriate to
make, and after the examinations as aforesaid it made an offer
to the Vendors to enter into this agreement with them and to
purchase the sold shares from them, for the consideration and
upon the terms and conditions set forth below herein;
AND WHEREAS the Vendors wish to enter into this agreement with the
Purchaser and to sell the offered shares to the Purchaser for
the consideration and upon the terms and conditions set forth
below herein;
IT HAS ACCORDINGLY BEEN WARRANTED, PROVIDED AND AGREED
BY THE PARTIES AS FOLLOWS:
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1. Recitals, Appendices and Headings
1.1 The recitals and the appendices to this agreement constitute an
integral part hereof.
1.2 The headings in this agreement are for convenience purposes only,
and no regard shall be had thereto for the purposes of interpreting
this agreement or any part hereof.
1.3 Set forth below is an itemisation of the appendices annexed hereto:
Appendix "Al" - the Company's audited financial
statements as at 30th December 1997;
▇▇▇▇▇▇▇▇ "▇▇" - the Company's reviewed financial
statements as at 30th September 1998;
y Appendices "B1" to "B3" - texts of share transfer deeds;
Appendix "C" - text of minutes of a meeting of the
Company's board of directors;
Appendix "Dl" - text of HVE's notice of exercising
HVE's option;
Appendix "D2" - text of HVE's share transfer deed.
2. Definitions
In this agreement the following expressions shall bear the meanings set
forth alongside them.
"dollar" - a US dollar;
"HVE's option" - as defined in clause 9 below;
"the approvals" - the approvals specified in clause 5.2 herein
and each of them;
"the Company" - Moriah Hotels Ltd. Private Company No.
▇▇-▇▇▇▇▇▇-▇;
"the last date" - 90 days after the date of the agreement as
defined below or a later date upon which the
parties shall agree in writing;
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"the sold shares" - Ampal's shares, Amot's shares and Gmul's
shares;
"the representative rate"
and/or "the representative
rate of the dollar" - the representative rate of The US dollar as
published by the Bank of Israel; if at any
time a representative rate of the US dollar
shall not be published, "the representative
rate of the dollar shall be the average
between the lowest cash rate at which, at
the relevant time at noon, Bank Hapoalim Ltd
purchases US dollars from Israeli citizens
without rights and special exemptions and
the highest cash rate at which, at the
relevant time at noon, Bank Hapoalim Ltd
sells US dollars to Israeli residents
without rights and special exemptions;
"the consideration" - US$75,827,600 (seventy-five million, eight
hundred twenty-seven thousand, six hundred
US dollars) which is the price which the
Purchaser undertakes to pay the Vendors for
the sold shares as provided in clause 8
below;
"Ampal's part of
the consideration" - 49.44% of the consideration as provided in
clause 8.1.1 below;
"Amot's part of
the consideration" - 29.06% of the consideration as provided in
clause 8.1.2 below;
Gmul's part of
the consideration" - 21.50% of the consideration as provided in
clause 8.1.3 below;
"HVE" - HVE - Hevrat Ovdim Investments Ltd (Public
Company No. 52-002847-3);
"business day" - a day on which there is trading in foreign
currency by the banks in Israel; for the
avoidance of doubt, Sundays are not a
business day;
"the completion date" - as defined in clause 6 below;
"Ampal's shares" - 783,778 ordinary stares of NIS 1 n.v. each
in the Company;
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"Amot's shares" - 460,725 ordinary shares of NIS 1 n.v. each
in the Company;
"Gmul's shares" - 340,773 ordinary shares of NIS 1 n.v. each
in the Company;
"HVE's shares" - as defined in clause 9 below;
"the agreement date" - the date on which this agreement shall be
executed by the Vendors;
"the interim period" - the period between the agreement date and
the completion date.
3. The Vendors' Warranties
3.1 Ampal warrants that:
(a) It is the owner of Ampal's shares and that Ampal shares are
fully paid up and are free of any charge, attachment or third
party rights whatsoever and when they shall be transferred to
the Purchaser pursuant to the provisions of this agreement,
they shall be transferred free of any charge, attachment or
third party right.
(b) There is no impediment at law and/or agreement into its
entering into this agreement.
(c) It is duly incorporated and is entitled pursuant to its
documents of incorporation to enter into this agreement and to
act pursuant thereto and that all its competent organs have
passed all the resolutions required to approve its contractual
relationship in this agreement and to perform all its
obligations pursuant hereto.
3.2 Amot warrants that:
(a) It is the owner of Amot's shares and that Amot shares are
fully paid up and are free of any charge, attachment or third
party rights whatsoever and when they shall be transferred to
the Purchaser pursuant to the provisions of this agreement,
they shall be transferred free of any charge, attachment or
third party right.
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(b) There is no impediment at law and/or agreement into its
entering into this agreement.
(c) It is duly incorporated and is entitled pursuant to its
documents of incorporation to enter into this agreement and to
act pursuant hereto and that all its competent organs have
passed all the resolutions required to approve its contractual
relationship in this agreement and to perform all its
obligations pursuant hereto.
3.3 Gmul warrants that:
(a) It is the owner of Gmul's shares and that Gmul shares are
fully paid up and are free of any charge, attachment or third
party rights whatsoever and when they shall be transferred to
the Purchaser pursuant to the provisions of this agreement,
they shall be transferred free of any charge, attachment or
third party right.
(b) There is no impediment at law and/or agreement into its
entering into this agreement.
(c) It is duly incorporated and is entitled pursuant to its
documents of incorporation to enter into this agreement and to
act pursuant hereto and that all its competent organs have
passed all the resolutions required to approve its contractual
relationship in this agreement and to perform all its
obligations pursuant hereto.
3.4 The Vendors warrant, that as far as they are aware, the Company's
audited financial statements as at 31st December 1997 and the
Company's reviewed financial statements as at 30th September 1998,
annexed hereto as appendices "A1" and "A2", fairly reflect, in
conformity with generally accepted accounting principles, the
Company's financial position as at the respective date that each of
them were drawn up.
3.5 The Vendors warrant that they requested the Company to centralise at
the Company's offices and/or Ampal's offices, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,
Tel Aviv, material documents and data in connection with the Company
which did not include agreements with suppliers, customers and/or
agents, and to enable the Purchaser to inspect, at its election,
such documents and data and that they are unaware of any material
agreement of the Company, save for agreements with suppliers,
customers and/or agents, that were not made available for the
Purchaser's inspection nor of any material claim against the Company
the documents in connection with which were not made available for
the Purchaser's inspection.
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3.6 The Vendors warrant that, apart from the matters set forth in
sub-clauses 3.4 and 3.5 above, they and/or any of them and/or anyone
on their behalf do not expressly or impliedly make any
representation whatsoever and/or assume any undertaking whatsoever
with regard to the correctness, accuracy and/or completeness of the
documents and/or the data that were made available for the
Purchaser's inspection as in clause 3.5 above and/or that were
delivered to the Purchaser by the Company and/or the Vendors and/or
any of them and/or anyone on their behalf and/or which reached the
Purchaser's knowledge in any manner whatsoever, whether in writing
or orally, directly or indirectly, whether within the context of the
tours of the Company's hotels or in any other manner.
4. The Purchaser's Warranties
The Purchaser warrants and undertakes that:
4.1 It independently and to its full satisfaction carried out a due
diligence examination of the Company, its business, assets and
liabilities and legal, accounting and financial position and also
additional examinations which it deemed appropriate to make, that it
and/or anyone on its behalf received all the information they
requested to receive and that it was given the opportunity of
carrying out any examination it wished to make and to receive all
information, irrespective of whether it requested it, within the
context of the documents and the data that were made available for
its inspection as provided in clause 3.5 above, during the course of
the tours of the Company's hotels and also in any other manner, and
that insofar as any information was not delivered to it, whether it
requested that it should be delivered to it or otherwise, it has
decided to enter this agreement notwithstanding the fact that such
information was not delivered to it, and while giving a full waiver
of any claim and/or complaint and/or demand in such regard, and that
it has found the Company and the sold shares appropriate for its
objects and that it is purchasing the sold shares `as is' and with
the Company being `as is', and that it fully and finally waives any
claims and/or demands and/or complaints whatsoever against the
Vendors and/or the Company and/or any of them and/or anyone on their
behalf, including with regard to a patent and/or latent
non-conformity and/or defect in respect of the sold shares and/or
the Company, and that it is purchasing the sold shares without
relying upon any representation and/or undertaking on behalf of the
Vendors and/or the Company and/or any of them and/or anyone on their
behalf, save for these expressly set forth in clause 3 above.
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4.2 It waives any complaint and/or claim and/or demand against the
Vendors and/or against the Company and/or any of them and/or anyone
on their behalf in respect of incorrectness, inaccuracy and/or
incompleteness of the documents and/or the data that were made
available for its inspection as provided in clause 3.5 above and/or
that were brought to its knowledge during the course of the tours of
the Company's hotels and/or that were delivered to it by the Company
and/or the Vendors and/or any of them and/or anyone on their behalf
and/or that reached it in any other manner, directly or indirectly,
whether in writing or orally.
4.3 It is aware and it agrees that the Vendors and/or the Company and/or
any of them and/or anyone on their behalf are not making any
representation with regard to the correctness, accuracy and/or
completeness of the documents and/or the information that were
delivered to it, whether in writing or orally, directly or
indirectly, including, but without derogating from the generality of
the aforegoing, any statement, information or representation that
were made or given, if made or given, by any of the employees and/or
officers and/or shareholders of the Company and/or of the Vendors,
and without prejudice to the generality of the aforegoing, directors
and/or representatives and/or consultants (legal or others) of the
Vendors and/or of the Company and/or by any other person and/or
entity on behalf of any of those enumerated above.
4.4 It is aware and it agrees that the Company and all its subsidiaries
have confirmed to the Vendors that they do not and shall not have
and they waive in advance any claim and/or complaint and/or demand
against the Vendors, any of them and anyone on their behalf,
including anyone who served and/or is serving as a director of the
Company and/or of any of its subsidiaries, and the Purchaser hereby
undertakes to indemnify the Vendors and/or any of them and/or anyone
on their behalf and/or anyone who served and/or is serving as a
director of the Company and/or of any of its subsidiaries in respect
of any expense that shall be incurred and/or payment that shall be
made in connection with any claim and/or complaint and/or demand
that shall be raised against any of them by the Company and/or any
of its subsidiaries on its behalf in any matter whatsoever.
4.5 That there is no impediment at law and/or agreement and/or any other
impediment to its entering into this agreement and purchasing the
sold shares.
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4.6 That it is duly incorporated and is entitled pursuant to its
documents of incorporation to enter into this agreement and to act
pursuant hereto and that all its competent organs have passed all
the resolutions required to approve its contractual relationship in
this agreement and to perform all its obligations pursuant hereto.
5. Validity of the Agreement and Terms and Conditions for the Sale of the
Sold Shares
5.1 This agreement shall come into effect immediately upon the execution
hereof by the Vendors.
5.2 Notwithstanding the provisions of clause 5.1 above, the performance
of the parties' obligations pursuant to clauses 7, 8 and 9 to this
agreement is conditional upon obtaining all the approvals specified
below by the last date:
(a) unconditional and unqualified approval of the Director of
Restrictive Trade Practices pursuant to the Restrictive Trade
Practices Law, 5748-1988;
(b) approval of the Investment Centre of the Ministry of Industry
and Trade;
(c) approval of Bank Hapoalim Ltd as required pursuant to the
debentures signed in its favour by the Company.
5.3 The parties shall cooperate insofar as required to obtain the
Director of Restrictive Trade Practices' approval as provided in
clause 5.2(a) above and they shall, inter alia, within 14 days from
the agreement date, submit an appropriate application to the
Director of Restrictive Trade Practices and thereafter shall furnish
the Restrictive Trade Practices Authority with any document or
information that it shall require for the purposes of granting the
approval.
5.4 Within 14 days of the agreement date the Vendors shall make
application to the entities mentioned in sub-clauses 5.2(b) and
5.2(c) to grant the approvals mentioned in sub-clauses 5.2 and
5.2(c) above; copies of the said applications shall be sent to the
Purchaser.
The parties shall cooperate and furnish every document or
information that shall be required by any of the entities mentioned
in sub-clauses 5.2(b) and 5.2(c) in order to grant such approvals.
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5.5 All the expenses and payments that must be effected, if any, in
order to obtain the approvals shall be borne and paid by the
Company.
5.6 If any of the approvals are not received by the last date (and there
is no undertaking and/or representation by any of the parties hereto
in connection with the possibility of receiving the approvals), this
agreement shall automatically terminate at the end of 14 days from
the last date, unless all the approvals have been received prior to
the end of the said 14 days.
If the agreement terminates as aforesaid, each of the Vendors shall
refund to the Purchaser the first instalment paid made by the
Purchaser on account of its part of the consideration, as provided
in clause 8.5 below, and none of the parties shall have any
complaint and/or claim and/or demand against the others in
connection with this agreement and/or the proceeding which led to
the execution hereof and/or the failure to obtain any of the
approvals and/or the termination of this agreement.
5.7 The Purchaser hereby confirms that it is aware that pursuant to
various agreements between the Company and its subsidiaries and/or
any of them and Israel Land Administration, Israel Land
Administration's consent is required for the transfer of the sold
shares from the Vendors to the Purchaser, and that the Israel Land
Administration may require, as a condition for giving its said
consents, consent charge payments from the Company and/or the
Company's subsidiaries and/or any of them and that Israel Land
Administration has not given any consent to the transfer of the
offered shares to the Company. The Purchaser hereby undertakes to do
every action and to make every necessary payment, including consent
charges and/or capitalisation charges required in order to obtain
all the necessary consents from Israel Land Administration to the
transfer of the sold shares to the Purchaser. It is hereby agreed
that if the Purchaser does not obtain Israel Land Administration's
consent to the transfer of the sold shares to the Purchaser by
completion date, the Purchaser shall be entitled to act as aforesaid
in order to obtain the said consents even after the completion
dates, and that in such event the Purchaser may require the Company
and/or any of its subsidiaries to pay Israel Land Administration the
Payments that it shall require in order to grant its consents. In
any event, failure to obtain Israel Land Administration's consents
shall not impair the validity of this agreement and/or constitute a
cause for the annulment hereof, whether prior to the completion date
or thereafter, and all the liability and damages that may be
occasioned to the Purchaser and/or the Company and/or the Company's
subsidiaries and/or any of them shall be borne by the Purchaser,
without it having any claim and/or demand and/or complaint against
the Vendors and/or any of them and/or anyone on their behalf.
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6. The Completion Date and the Interim Period
6.1 After receiving all the approvals, the Vendors shall determine the
date and time at which the operations set forth in clauses 7 and 8
below shall take place, which shall not be later than the end of 14
business days from the last date, and they shall give written notice
thereof to the Purchaser (the said date and time as shall be
determined by the Vendors are hereinafter referred to in this
agreement as "the completion date").
On the completion date, the parties shall meet at the offices of
Advs. Firon, Kami, Sarov & Firon, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇ and
shall effect the operations enumerated in clauses 7 and 8 below:
6.2 (a) The Purchaser hereby confirms that it agrees that in the
interim period the Company shall declare and distribute cash
dividends in any amount whatsoever not exceeding the sum of
all the Company's distributable profits in respect of 1998 and
in respect of previous periods, as shall be determined by the
Company's auditors.
(b) The dividend amounts that shall actually be distributed by the
Company to Ampal, Amot and Gmul during the interim period, in
their dollar value according to the representative rate of the
dollar on the date of actual payment to Ampal, Amot and Gmul,
shall be deducted from the consideration which the Purchaser
is liable to pay the Vendors as provided in clause 8 below and
each of the Vendors' part of the consideration shall be
reduced respectively.
(c) Without prejudice to the generality of the provisions of
clause 4.4 above, the Purchaser warrants and undertakes to
each of the Vendors and to HVE that it is aware and it agrees
that the Company has confirmed to the Vendors that it does not
and shall not have and it waives in advance any claim and/or
complaint and/or demand against the Vendors and/or any of them
and/or anyone on their behalf, including anyone who served
and/or is serving as a director of the Company and/or against
HVE in respect at and in connection with the dividends that
shall be declared and/or distributed by the Company in the
interim period, and the Purchaser hereby undertakes to
indemnify the Vendors and/or any of then and/or anyone on
their behalf, including anyone who served and/or serves as a
director of the Company and/or HVE, in respect of any expense
that shall be incurred
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and/or payment that shall be made in connection with any claim
and/or complaint and/or demand that shall be raised against
any of them by the Company and/or anyone on its behalf in
connection with the Company's declaration and/or distribution
of dividends.
6.3 Any event or occurrence that shall occur during the interim period,
whether as a result of a decision of the Company and/or the Vendors
or otherwise, shall not confer any right upon the Purchaser to
rescind the agreement.
6.4 In the interim period, the Vendors shall inform the Purchaser of
every board of directors' meeting that shall be convened in the
interim period and they shall enable a representative on the
Purchasers behalf to be present as an observer at such meeting.
7. Transfer of the Sold Shares
On the completion date, after all the approvals have been received and
after all the payments which the Purchaser is liable to pay Ampal, Amot
and Gmul as provided in clause 8 below have been effected:
(a) Ampal shall deliver a share transfer deed to the Purchaser in the
text annexed hereto as appendix "B1" in respect of Ampal's shares;
(b) Amot shall deliver a share transfer deed to the Purchaser in the
text annexed hereto as appendix "B2" in respect of Amot's shares;
(c) Gmul shall deliver a share transfer deed to the Purchaser in the
text annexed hereto as appendix "B3" in respect of Gmul's shares;
(d) the Vendors shall deliver to the Purchaser minutes of the Company's
board of directors approving the transfer of Ampal's shares, Amot's
shares and Gmul's shares to the Purchaser in the text annexed hereto
as appendix "C", signed by the chairman of such meeting.
By delivering the aforementioned documents, the Vendors will have
fulfilled their duty to transfer and sell the sold shares to the
▇▇▇▇▇▇▇▇▇.
▇▇
▇. The Consideration
In consideration for the sold shares, the Purchaser shall pay the Vendors
the sum of US$75,827,600 (seventy-five million, eight hundred twenty-seven
thousand, six hundred US dollars) hereinafter referred to as "the
consideration") in the apportionment and instalments and at the times
specified below.
8.1 The Purchaser shall pay each of the Vendors its part of the
consideration in two instalments as specified below:
8.1.1 To Ampal - an amount equal to 49.44% as the consideration for
Ampal's shares (hereinafter referred to as "Ampal's part of
the consideration");
8.1.2 To Amot - an amount equal to 29.06% as the consideration for
Amot's shares (hereinafter referred to as "Amot's part of the
consideration");
8.1.3 To Gmul - an amount equal to 21.50% as the consideration for
Gmul's shares (hereinafter referred to as "Gmul's part of the
consideration");
8.2 The Purchaser shall pay the consideration to the Vendors in the
following instalments and at the following times:
8.2.1 The first instalment - at 08:30 hours on the second business
day after the agreement date, the Purchaser shall pay the
Vendors 20% of the consideration as a first instalment on
account of the consideration as follows:
8.2.1.1 the Purchaser shall pay Ampal 20% of Ampal's part
of the consideration;
8.2.1.2 the Purchaser shall pay Amot 20% of Amot's part of
the consideration;
8.2.1.3 the Purchaser shall pay Gmul 20% of Gmul's part of
the consideration;
8.2.2 The Second Instalment
The Purchaser shall pay the Vendors the balance of the
consideration on the completion date, that is to say 80% of
the consideration as follows:
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8.2.2.1 the Purchaser shall pay Ampal 80% of Ampal's part
of the consideration;
8.2.2.2 the Purchaser shall pay Amot 80% of Amot's part of
the consideration;
8.2.2.3 the Purchaser shall pay Gmul 80% of Gmul's part of
the consideration;
8.2.3 A breach of any of the Purchaser's obligations pursuant to
clause 8.2.1 above and/or pursuant to clause 8.2.2 above shall
constitute a fundamental breach of this agreement.
8.3 The consideration and each and every instalment in respect thereof
shall be paid by the Purchaser in new shekels according to the
representative rate at the time of actually effecting the payment.
8.4 The consideration and each and every instalment in respect thereof
shall be paid by way of bank cheques to the order of Ampal, Amot or
Gmul, as the case may be, drawn on one of the five largest
commercial banks in Israel.
The consideration amount and/or each and every instalment in respect
thereof shall only be deemed as having been paid at the time that
the bank accounts of Ampal, Amot and/or Gmul, as the case may be,
are credited with the amount of the relevant bank cheque.
8.5 If this agreement is terminated as provided in clause 5.6 above,
each of the Vendors, without mutual liability inter se, shall,
within 21 days of the last date, refund to the Purchaser its part of
the first instalment paid to it by the Purchaser on account of the
consideration as provided in clause 8.2.1 above, in its dollar value
and in new shekels according to the representative rate of the
dollar known at the time of actually effecting the refund.
8.6 It is hereby agreed that if the Purchaser breaches its obligation to
pay the Vendors on due date the full amount of the first instalment
as provided in clause 8.2.1, or the full amount of the second
instalment as provided in clause 8.2.2 above, the Vendors shall in
each of the said events be entitled to rescind this agreement upon
written notice to the Purchaser, without giving it any advance
notice thereof and without giving it any opportunity to rectify the
breach.
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8.7 The parties hereby determine, after a cautious evaluation, that the
damage that can be anticipated at the time of entering into this
agreement as a reasonable consequence of a breach of the Purchaser's
obligation to pay the Vendors on due date the full amount of the
first instalment, as provided clause 8.2.1 above, and/or the full
amount of the second instalment, as provided in clause 8.2.2 above,
and of the rescission of the agreement by the Vendors as provided in
clause 8.6 above, is 10% of the consideration (in dollar values).
Without prejudice to any other and/or additional right and/or relief
of the Vendors, it is hereby agreed that if the Purchaser breaches
its obligation to pay the Vendors the first instalment, as provided
in clause 8.2.1 above, and/or the second instalment, as provided in
clause 8.2.2 above, and if the Vendors rescind the agreement as
provided in clause 8.6 above, the Purchaser shall pay each of the
Vendors, by way of liquidated damages, and immediately upon being
required to do so by the Vendors, an amount equal to 10% of the
consideration (in dollar values) (hereinafter referred to as "the
liquidated damages").
The liquidated damages shall be apportioned between the Vendors as
follows: to Ampal - 49.44% of the liquidated damages; to Amot -
29.06% of the liquidated damages and to Gmul - 21.50% of the
liquidated damages. The Purchaser hereby agrees that if this
agreement is rescinded by the Vendors as provided in clause 8.6
above, each of the Vendors shall be entitled, without prejudice to
any right and/or relief available to it at law and/or agreement, to
set-off its part of the liquidated damages or part thereof, at its
election, against any amount due from it to the Purchaser.
9. Purchase of HVE's Shares by the Purchaser
The Purchaser warrants and confirms that it is aware that HVE is the owner
of 118,589 ordinary shares of NIS 1 n.v. each in the Company (hereinafter
referred to as "HVE's shares"). The Purchaser hereby grants HVE an option
(hereinafter referred to as "HVE's option") to sell it all HVE's shares as
follows:
9.1 The exercise of HVE's option is conditional upon all the approvals
being received, that the Vendors shall determine the completion date
as provided in clause 6 above, and that on the completion date the
Vendors shall deliver to the Purchaser the share transfer deeds and
the minutes of the Company's board of directors as provided in
clause 7 above.
16
9.2 Immediately after the completion date and the performance of the
matters set forth in clause 7 above, the Purchaser and/or the
Vendors shall give notice thereof to HVE.
9.3 HVE shall be entitled to exercise HVE's option within 14 days of the
date on which the Purchaser's and/or the Vendors' notice is
delivered to HVE as provided in clause 9.2 above by giving the
Purchaser, within the 14 days, written notice of its decision to
exercise HVE's option in the text annexed hereto as appendix "D1" to
which shall be annexed a share transfer deed in the text annexed
hereto as appendix "D2" signed by HVE (hereinafter referred to as
"HVE's notice").
If HVE's notice is not delivered to the Purchaser together with a
share transfer deed as aforesaid within the said 14 days, HVE's
option shall expire, and HVE and/or the Purchaser shall not be
granted any right whatsoever.
9.4 By twelve noon on the seventh business day after the date on which
HVE's notice is delivered to the Purchaser, the Purchaser shall pay
HVE, in consideration for HVE's shares (and in addition to the full
amount of the consideration that it paid the Vendors as provided in
clause 8 above, an amount equal to 7.48% of the consideration in new
shekels according to the representative rate known on the date of
actual payment.
If the Company distributes cash dividends in the interim period, the
value of the dividends which HVE shall actually receive in the
interim period, in their dollar value according to the
representative rate of the dollar on the date of the actual payment
thereof to HVE, shall be deducted from the amount that shall be paid
by the Purchaser in consideration for HVE's shares as aforesaid.
The Purchaser hereby undertakes that if it directly or indirectly
purchases HVE's shares within twelve months of the agreement date,
whether in consequence of exercising HVE's option or in any other
manner it shall deduct 1% (one percent) of the amount of the payment
to HVE together with VAT and shall remit it to the Vendors as HVE's
contribution to the costs of preparing this agreement. The payment
shall be effected by way of a bank cheque to HVE's order drawn on
one of the five large commercial banks in Israel; the payment amount
shall only be deemed as having been paid at the time HVE's bank
account is credited with the amount of the bank cheque as aforesaid.
17
9.5 If HVE exercises HVE's option, the Purchaser shall be deemed as also
having given HVE all the warranties and undertakings in clause 4
above and in clause 10.2 below, mutatis mutandis, in connection with
HVE's shares and HVE.
9.6 The Purchaser warrants and confirms that it is aware and it agrees
that the Vendors and/or the Company and/or any of them and/or anyone
on their behalf do not make any representation with regard to HVE's
shares and/or the possibility of HVE's option being exercised by
HVE, and it waives any complaint and/or claim and/or demand against
the Vendors and/or against the Company and/or any of them and/or
anyone on their behalf in connection with HVE's shares and/or HVE's
option, including, but without prejudice to the generality of the
aforegoing, the exercise or non-exercise thereof by HVE.
9.7 The provisions of this clause 9 constitute a contract in favour of a
third party - HVE; however, it is hereby expressly agreed that the
Vendors and the Purchaser are entitled to amend the provisions of
this clause 9 at any time, either prior to or after notice thereof
is given to HVE.
10. Taxes, Expenses and Various Payments
10.1 Income tax and/or capital gains tax that shall apply, if at all, to
Ampal, Amot or Gmul in connection with the sale of the sold shares
pursuant to this agreement shall be borne by Ampal, Amot or Gmul, as
the case may be. Any tax and/or levy and/or other official fee,
including, but without prejudice to the generality of the
aforegoing, stamp duty, shall be borne and paid by the Purchaser.
10.2 Save for those deductions of income tax at source which the
Purchaser shall be statutorily liable to deduct the Purchaser shall
not deduct and shall not set-off any amount from any payment it is
liable to make to the Vendors and/or to any of them and/or to HVE,
and any such deduction and/or set-off, whether justified or
otherwise, shall constitute a breach of the provisions of this
agreement.
For the avoidance of doubt if a certificate of the income tax
authorities is produced to the Purchaser exempting the payment to
the Vendors and/or any of them from deduction of income tax at
source, tax shall not be deducted at source from the payments to
such party.
18
10.3 In addition, but without prejudice to the provisions of clause 5
above, it is hereby expressly agreed that any tax, official fee,
levy, consent charges, capitalisation charges and/or other payment
and/or other expense which the Company and/or any of its
subsidiaries (hereinafter jointly and severally referred to as "the
Group") paid and/or incurred and/or shall pay and/or shall incur in
accordance with a determination of the Vendors in connection with
the preparation of this agreement and/or in connection with the
proceeding within the context whereof this agreement was executed
and/or in connection with the implementation of this agreement
and/or the exercise of HVE's option, and, but without prejudice to
the generality of the aforegoing, any payment of capitalisation
charges and/or consent charges to Israel Land Administration which
the Group shall pay in accordance with the Vendors' determination in
connection with obtaining the approvals, shall be borne and paid by
the Group, without the Group and/or the Purchaser having any
complaint and/or claim and/or demand whatsoever against the Vendors
and/or any of them and/or anyone on their behalf and/or against any
officers of the Group, and the Purchaser hereby undertakes to
indemnify the Vendors and/or any of them and/or anyone on their
behalf and/or any officer of the Group in respect of any expense
that shall be incurred and/or payment that shall be made in
connection with any claim and/or complaint and/or demand that shall
be raised against any of them by the Group and/or the Purchaser
and/or anyone on their behalf.
11. Arbitration
11.1 All the disputes, contentions or differences that may arise between
the parties in all matters relating to this agreement or the
rescission hereof or any of the terms and conditions hereof
(including the issue of the validity thereof) shall be referred to
the decision of a sole arbitrator who shall agreed upon by the
parties.
11.2 If the parties to not reach agreement as to the arbitrator's
identity, he shall be appointed by the Tel Aviv-Jaffa District Court
upon written application by any party.
11.3 The arbitrator shall be released from the laws of evidence and the
rules of procedure, but he shall make his award in accordance with
the substantive law, he shall give reasons for his decision and his
decision shall be final and bind the parties.
19
12. Miscellaneous
12.1 The parties' rights and duties in connection with the subject matter
of this agreement shall only be determined in accordance with the
provisions hereof and any amendment or addendum thereto shall
require the parties' written consent.
12.2 Without prejudice to the Purchaser's duty to make every payment
pursuant to this agreement on due date, it is agreed that any
payment made by the Purchaser after the date on which it was under a
duty to make it pursuant to the provisions hereof shall be linked to
the representative rate of the dollar and shall bear interest at the
rate of 9% per annum.
12.3 This agreement annuls and replaces any agreement, consent and/or
undertaking whatsoever between the Purchaser and the Vendors and/or
any of them, and/or anyone on their behalf.
12.4 This agreement shall be governed by Israeli law and exclusive
jurisdiction in connection herewith, subject to the provisions of
clause 11 above, is hereby given to the Tel Aviv-Jaffa courts alone.
12.5 Notices
For so long as a party does not give another written notice to the
other, the parties' addresses for the purpose of this agreement are
as appear in the recitals and any such notice sent by any party to
another shall be deemed as having been received by the party to
which it was sent; if delivered or left at its address - at the time
of delivery thereof; if sent by registered post - three (3) business
days from the date of delivery thereof to the post office for
dispatch by registered post; and if transmitted by facsimile - at
the end of the first business day after the time of transmission.
For so long as any party does not give another notice to the other,
the parties' addresses for the purpose of this agreement shall be as
follows:
(a) Ampal Israel Ltd -
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., Tel Aviv, Fax: ▇▇-▇▇▇▇▇▇▇, with a copy to
Adv. Zvi Firon of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., Tel Aviv, Fax:
03-6953802;
20
(b) Amot Investments Ltd.
8 ▇▇▇▇▇ Hamelech Blvd, Tel Aviv, Fax: ▇▇-▇▇▇▇▇▇▇, with a copy
to Adv. ▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Tel Aviv, Fax:
03-6867533;
(c) Gmul Investments Co. Ltd.
8 ▇▇▇▇▇ Hamelech Blvd, Tel Aviv, Fax: ▇▇-▇▇▇▇▇▇▇, with a copy
to Adv. ▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Tel Aviv, Fax:
03-6867533;
(d) The Purchaser --
Sheraton Intercontinental Ltd. and Koor Tourism Ltd., Fax: For
Sheraton Intercontinental Ltd: 32 2 224 3592; for Koor Tourism
Ltd.:_________________________________________________________
12.6 Each of the Vendors (hereinafter referred to as "the selling party")
is entitled to sell its shares in the Company to the other Vendors.
In such event, the selling party shall assign and transfer to the
other Vendors all the selling party's rights pursuant hereto, and
such rights and obligations shall be apportioned between the other
Vendors in a form and manner that shall be determined in a notice to
be given by the other Vendors to the Purchaser.
AS WITNESS THE HANDS OF THE PARTIES:
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------- ------------------------- ---------------------
Ampal Israel Ltd. Gmul Investment Co., Inc. Amot Investments Ltd.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
The Purchaser
I the undersigned, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Adv., hereby certify that on January 20,
1999 Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ signed this agreement in my presence on behalf of
Sheraton Intercontinental Ltd. (hereinafter, together with Koor Tourism Ltd.,
referred to as "The Purchaser") and that the signatures of Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ to
this agreement, together with the signature of the authorized representative of
Koor Tourism Ltd., collectively on the Purchaser's behalf, binds the Purchaser
for all intents and purposes.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Adv.
20.1.99 [ILLEGIBLE TRANSLATION OF A HEBREW PARAGRAPH]
[ILLEGIBLE - HEBREW]
[ILLEGIBLE - HEBREW]
[ILLEGIBLE - HEBREW]
/s/ [ILLEGIBLE]
----------------------
[ILLEGIBLE - HEBREW]
21
PUT OPTION SIDE LETTER AGREEMENT
Dated: April 12, 1999
Further to an Agreement dated the 27th day of January, 1999, by and between
Ampal Israel Ltd. ("Ampal"), Amot Investments Ltd. ("Amot") and Gmul Investments
Company Ltd. ("Gmul"), (collectively, the "Vendors") of the one part, and
Sheraton Intercontinental Ltd. ("Sheraton") and Koor Tourism Ltd. ("Koor")
(jointly and severally, the "Purchasers"), of the other part (the "Main
Agreement").
WHEREAS the Purchasers entered into the First Closing SLA with Gmul (attached
hereto as Appendix A) and the Purchasers entered into the Second Closing SLA and
the Dividend Side Letter Agreement with Ampal and Amot (attached hereto as
Appendices B and C) (collectively the "Other SLAs"); and
WHEREAS the bifurcation of the Completion Date under the Main Agreement into the
First Closing and the Second Closing (as specified in the Other SLAs) was made
at Ampal's and Amot's request and the Purchasers have agreed thereto subject to
Ampal granting the Put Option as herein defined, so that in the event that the
First Closing is completed but the Second Closing is not completed, and if the
Purchasers exercise the Put Option, Ampal shall purchase the Gmul's Shares and
for all purposes Ampal shall be deemed to have purchased such Shares from Gmul
in accordance with Section 12.6 of the Main Agreement as if the First Closing
had never happened, and Ampal, Amot and the Purchasers shall have the same
rights and obligations as they would have had under the Main Agreement in the
event of such purchase under Section 12.6 of the Main Agreement and as if the
above bifurcation had never happened.
Now therefore the Parties have agreed:
1. If, for reasons other than the acts or omissions of the Purchasers, the
Second Closing is not completed as provided for in Section 2.2 of the
Second Closing SLA, within fourteen days of the First Closing, Purchasers
shall hold a put option against Ampal (the "Put Option") for the MHL
shares purchased by the Purchasers from Gmul at the First Closing (the
"Option Shares").
1.1 The Put Option shall be in effect and exercisable as of the
fifteenth day following the First Closing until the one hundred and
twentieth day following the First Closing (the "Option Period").
Delivery to Ampal during the Option Period of written notice from
the Purchasers of the exercise of the Put Option (the "Notice")
shall require Ampal to purchase the Option Shares for a
consideration equal to the full consideration paid by the Purchasers
22
-2-
to Gmul pursuant to Sections 8.2.1.3 and 8.2.2.3 of the Main
Agreement (in US dollars), i.e. $16,302,934, less the US dollar
equivalent of any dividends actually paid by MHL with respect to the
Option Shares after the completion of the First Closing (the
"Consideration"). The said US dollar equivalency shall be determined
by the Bank of Israel representative rate in effect at the time of
the payment of the said dividends by MHL.
1.2 Ampal shall be required to pay to the Purchasers the Consideration
within fourteen days of delivery of the Notice (the "Payment
Period") but only if the Purchasers deliver to Ampal against such
payment a share transfer deed with respect to all Option Shares, in
the text annexed hereto as Appendix D, and a written confirmation by
the person or entity registered as shareholder with respect to the
Option Shares, confirming that upon payment of the Consideration
Ampal is the beneficial owner of the Option Shares and all rights
attached thereto, and that the Option Shares are registered in such
person or entity's name as trustees for Ampal until they are
registered in Ampal's name.
2. In the event the Second Closing is not completed within forty-eight hours
of the First Closing as a result of acts or omissions attributed to any
third party ("Third Party"), the parties will cooperate fully in pursuing
any claim against such Third Party.
3. The provisions of this agreement do not prejudice, unless expressly stated
herein, in any way existing legal and/or contractual rights of the parties
hereto including, but not limited to, with respect to sale and purchase of
Ampal's Shares and Amot's Shares (as defined in the Main Agreement) under
the Main Agreement.
4. If the Put Option is exercised, Ampal shall be deemed to have purchased
from Gmul all the Gmul Shares (as defined in the Main Agreement) in
accordance with Section 12.6 of the Main Agreement, together with all of
Gmul's rights and obligations under the Main Agreement, as if the First
Closing has never happened, so that if the purchase of the Ampal Shares
(as defined in the Main Agreement) by the Purchasers and/or any of their
affiliates will be completed by virtue or as a result of the Main
Agreement, the Purchasers will purchase, simultaneously with the purchase
of Ampal Shares (as defined in the Main Agreement), and as a condition to
the purchase of the Ampal's Shares, all the Option Shares for an amount
equal to the Consideration plus interest at an annual rate of LIBOR as of
the date on which Ampal pays the Consideration to the Purchasers until the
payment by the Purchasers to Ampal.
The above does not reflect on the question of whether or not interest
should accumulate on other payments made or due under the Main Agreement.
23
-3-
Koor Industries Ltd. AMPAL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- -----------------------
SHERATON
--------------------------
24
-3-
Koor Industries Ltd. AMPAL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- ------------------------
SHERATON
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
I confirm that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, by his above signature, is authorized to
represent Sheraton Intercontinental Ltd.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel
Sheraton Intercontinental Ltd.
25
DIVIDEND SIDE LETTER AGREEMENT
Dated: April 12, 1999
Further to an Agreement dated the 27th day of January, 1999, by and between
Ampal Israel Ltd. ("Ampal"), Amot Investments Ltd. ("Amot") and Gmul Investments
Company Ltd. ("Gmul"), (collectively, the "Vendors") of the one part, and
Sheraton Intercontinental Ltd. ("Sheraton") and Koor Tourism Ltd. ("Koor")
(jointly and severally, the "Purchasers"), of the other part (the "Main
Agreement").
WHEREAS, in accordance with the Main Agreement, Ampal shall sell 783,778 shares
of Moriah Hotels Ltd. ("MHL") to the Purchasers ("Ampal's Shares") for
consideration in the amount of US$37,489,165, Amot shall sell 460,725 shares of
MHL to the Purchasers ("Amot's Shares") for consideration in the amount of
US$22,035,509, and Gmul shall sell 340,773 shares of MHL to the Purchasers
("Gmul's Shares") for consideration in the amount of US$16,302,934;
WHEREAS the Purchasers paid on January 27, 1999, to each of the Vendors as
required by the Main Agreement, their share of 20% of the consideration for the
shares of the Vendors in MHL;
WHEREAS the Purchasers entered into the First Closing SLA with Gmul (attached
hereto as Appendix A) and the Purchasers entered into the Second Closing SLA
with Ampal and Amot (attached hereto as Appendix B);
WHEREAS Ampal, Amot and the Purchasers have agreed to separate the closing of
the sale of Ampal's Shares and Amot's Shares (the "Second Closing" as specified
in the Second Closing SLA), from the closing of the sale of Gmul's Shares to the
Purchasers (the "First Closing" as specified in the First Closing SLA) so that
the Second Closing will take place no earlier than 24 hours and no later than 48
hours following the First Closing;
Now therefore the Parties have agreed:
1. DIVIDEND DISTRIBUTION AFTER THE FIRST CLOSING
1.1 The board of directors of MHL shall be convened immediately
following the First Closing to discuss the distribution of dividends
in the amount of NIS.69,000,000 (the "Dividends"). The Board will
take note of the legal opinion of ▇▇▇▇. ▇. ▇▇▇▇▇, ▇▇▇▇▇ & Co. and
the expert opinion of the independent auditors of MHL and shall
decide whether MHL can distribute such dividends. If so decided by
the board of directors of MHL, the Dividends shall be distributed to
the shareholders in accordance with their pro rata shareholding in
26
-2-
MHL. Thus if the Board will decide to distribute dividends in the
total amount of NIS.69,000,000, such dividend will be distributed as
follows:
To Ampal - 46%, namely, NIS.31,740,000
To Amot - 27.04%, namely, NIS.18,657,600
To the Purchasers and to their Affiliates, to which the Gmul Shares
will be transferred at the First Closing, in the total - 20%,
namely, NIS.13,800,000
To Hevrat Haovdim - 6.96%, namely, NIS.4,802,400.
1.2 Since the Second Closing SLA requires implementation of the Second
Closing within forty-eight hours of the First Closing, the Dividends
shall be paid by MHL to the shareholders within twenty-four hours of
the First Closing, by bank transfer to the said shareholders' bank
accounts.
2. REDUCTION OF CONSIDERATION
2.1 In accordance with the provisions of Section 6.2(b) of the Main
Agreement the US dollar equivalent of the portion of the Dividends
which shall be distributed and actually paid by MHL to Ampal shall
be deducted from the remainder of Ampal's Part of the Consideration,
and the US dollar equivalent of the portion of the Dividends which
shall be distributed and actually paid by MHL to Amot shall be
deducted from the remainder of Amot's Part of the Consideration.
2.1.1 Thus, it is agreed by the parties hereto that for purposes of
the Second Closing SLA, the dollar figure constituting the
term "Remaining Ampal Consideration" (Section 2.2 of the
second Closing SLA) shall be reduced by the US Dollar
equivalent of the portion of the Dividends actually paid to
Ampal and the dollar figure constituting the term "Remaining
Amot Consideration" (Section 2.2 of the second Closing SLA)
shall be reduced by the US Dollar equivalent of the portion of
the Dividends actually paid to Amot.
2.1.2 Also for the avoidance of doubt, the unconditional
confirmation included in the Bank Documentation (as defined in
Section 2.3 of the Second Closing SLA) shall confirm without
any reservation the payment to Ampal and Amot of the Remaining
Ampal Consideration and of the Remaining Amot Consideration
(as defined in Section 2.2 of the Second Closing SLA), as
reduced by the portion of the Dividend actually paid to Ampal
and Amot respectively as provided hereunder, and the Trustees
are hereby instructed accordingly.
27
-3-
2.2 For purposes of calculating the US dollar equivalent of the said
portions of the Dividends, the Bank of Israel's representative rate
in effect at the time of the bank transfer of the said portions of
the Dividends to Ampal's and Amot's accounts shall apply.
3. The Purchasers undertake to convene a general meeting of the
shareholders of MHL, no later than 30.6.99, for the purpose of
approving the dividends to be distributed as provided above as final
dividends for the periods ending 31.12.98, and to vote in favor of
such approval. The Purchasers will provide Ampal and Amot with a
copy of the minutes of such meeting.
4. In this side letter agreement each of the terms defined in the Main
Agreement shall have the same meaning ascribed to it therein.
Koor Industries Ltd. AMPAL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------------------
SHERATON AMOT
/s/ [ILLEGIBLE]
----------------------------- ---------------------------
APPENDICES
Appendix A: The First Closing SLA
Appendix B: The Second Closing SLA
28
-3-
2.2 For purposes of calculating the US dollar equivalent of the said
portions of the Dividends, the Bank of Israel's representative rate
in effect at the time of the bank transfer of the said portions of
the Dividends to Ampal's and Amot's accounts shall apply.
3. The Purchasers undertake to convene a general meeting of the
shareholders of MHL, no later than 30.6.99, for the purpose of
approving the dividends to be distributed as provided above as final
dividends for the periods ending 31.12.98, and to vote in favor of
such approval. The Purchasers will provide Ampal and Amot with a
copy of the minutes of such meeting.
4. In this side letter agreement each of the terms defined in the Main
Agreement shall have the same meaning ascribed to it therein.
Koor Industries Ltd. AMPAL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------------------
SHERATON AMOT
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ [ILLEGIBLE]
----------------------------- ---------------------------
I confirm that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, by his above signature, is authorized to
represent Sheraton Intercontinental Ltd.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel,
Sheraton Intercontinental Ltd.
APPENDICES
Appendix A: The First Closing SLA
Appendix B: The Second Closing SLA
29
Side Letter Agreement on the First Closing
(hereinafter, the "First Closing SLA")
Dated: April 12, 1999
Further to an Agreement dated the 27th day of January, 1999, by and between
Ampal Israel Ltd. ("Ampal"), Amot Investments Ltd. ("Amot") and Gmul Investments
Company Ltd. ("Gmul"), (collectively, the "Vendors") of the one part, and
Sheraton Intercontinental Ltd. (hereinafter, "Sheraton") and Koor Tourism Ltd.
(hereinafter, "Koor") (jointly and severally, the "Purchasers"), of the other
part (hereinafter the "Main Agreement").
Whereas, in accordance with the Main Agreement, Ampal shall sell 783,778 shares
of Moriah Hotels Ltd. ("MHL") to the Purchasers ("Ampal's Shares") for
consideration in the amount of US$37,489,165, Amot shall sell 460,725 shares of
MHL to the Purchasers ("Amot's Shares") for consideration in the amount of
US$22,035,509, and Gmul shall sell 340,773 shares of MHL to the Purchasers
("Gmul's Shares") for consideration in the amount of US$16,302,934;
Whereas the Purchasers paid on January 27, 1999, to each of the Vendors as
required by the Main Agreement, their share of 20% of the consideration for the
shares of the Vendors in MHL; and
Whereas Ampal, Amot and the Purchasers have agreed to separate the closing of
the sale of Ampal's Shares and Amot's Shares (the "Second Closing"), from the
closing of the sale of Gmul's Shares to the Purchasers (the "First Closing") so
that the Second Closing will take place no earlier than 24 hours and no later
than 48 hours following the First Closing.
NOW THEREFORE THE PARTIES AGREE:
1. Gmul and the Purchasers hereby agree that Gmul's Shares shall be sold at
the First Closing.
2. For purposes of the First Closing and pursuant to Section 7(d) of the Main
Agreement, Gmul shall deliver minutes of the board of directors of MHL in
the form of Appendix C-1 hereto, instead of delivering minutes in the form
of Appendix C of the Main Agreement.
3. The Purchasers shall have the right to execute the acts required of them,
in the Main Agreement and in this First Closing SLA, through either of the
Purchasers and/or any of their affiliates or together in any proportion
the Purchasers deem fit. In light thereof, the share transfer deeds
attached as Appendix B3 to the Main Agreement shall be delivered to the
Purchasers such that
30
-2-
the Purchasers shall be able to fix in writing on the said deed the names
of the transferees and distribution of Gmul's Shares among them in any
proportion the Purchasers deem fit.
4. Gmul confirms that it is aware of the Second Closing SLA and has no
objection thereto.
5. This First Closing SLA constitutes an integral part of the Main Agreement
and shall be read and interpreted as an integral part thereof.
Koor Industries Ltd. SHERATON GMUL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
--------------------- -------------------- --------------------
APPENDICES
Appendix C-1: Resolution of the Board of Directors regarding transfer of Gmul's
Shares
31
-2-
the Purchasers shall be able to fix in writing on the said deed the names
of the transferees and distribution of Gmul's Shares among them in any
proportion the Purchasers deem fit.
4. Gmul confirms that it is aware of the Second Closing SLA and has no
objection thereto.
5. This First Closing SLA constitutes an integral part of the Main Agreement
and shall be read and interpreted as an integral part thereof.
Koor Industries Ltd. SHERATON GMUL
/s/ [ILLEGIBLE] /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ [ILLEGIBLE]
--------------------- -------------------- --------------------
I confirm that Sheraton Intercontinental Ltd. is duly represented by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who has signed above on behalf of the Company.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel,
Sheraton Intercontinental Ltd.
APPENDICES
Appendix C-1: Resolution of the Board of Directors regarding transfer of Gmul's
Shares
32
Side Letter Agreement on the Second Closing
(the "Second Closing SLA")
Dated: April 12, 1999
Further to an Agreement dated the 27th day of January, 1999, by and between
Ampal Israel Ltd. ("Ampal"), Amot Investments Ltd. ("Amot") and Gmul Investments
Company Ltd. ("Gmul"), (collectively, the "Vendors") of the one part, and
Sheraton Intercontinental Ltd. ("Sheraton") and Koor Tourism Ltd. ("Koor")
(jointly and severally, the "Purchasers"), of the other part (the "Main
Agreement").
Whereas, in accordance with the Main Agreement, Ampal shall sell 783,778 shares
of Moriah Hotels Ltd. ("MHL") to the Purchasers ("Ampal's Shares") for
consideration in the amount of US$37,489,165, Amot shall sell 460,725 shares of
MHL to the Purchasers ("Amot's Shares") for consideration in the amount of
US$22,035,509, and Gmul shall sell 340,773 shares of MHL, to the Purchasers
("Gmul's Shares") for consideration in the amount of US$16,302,934;
Whereas the Purchasers paid on January 27, 1999, to each of the Vendors as
required by the Main Agreement, their share of 20% of the consideration for the
shares of the Vendors in MHL; and
Whereas Ampal, Amot and the Purchasers have agreed to separate the closing of
the sale of Ampal's Shares and Amot's Shares (the "Second Closing"), from the
closing of the sale of Gmul's Shares to the Purchasers (the "First Closing", as
specified in the First Closing SLA attached here as Appendix A) so that the
Second Closing will take place no earlier than 24 hours and no later than 48
hours following the First Closing.
1. In this Second Closing SLA, each of the terms defined in the Main
Agreement shall have the same meaning ascribed to it therein.
2. The transfer of the Sold Shares and payment of the Second Installment
shall be carried out in two (2) stages as follows:
2.1 In the First Closing, the Purchaser shall pay Gmul the remainder of
Gmul's Part of the Consideration (80% [eighty percent] of Gmul's
Part of the Consideration) against delivery to the Purchaser of a
share transfer deed in the text annexed to the Main Agreement as
Appendix B3 and as stipulated in Section 3 of the First Closing SLA,
and the Minutes of MHL's Board of Directors approving the transfer
of the Gmul Shares in the text annexed hereto and marked "Appendix
C-1".
33
-2-
2.2 In the Second Closing, the Purchaser shall pay to Ampal the
remainder of Ampal's Part of the Consideration, namely, $29,991,332
(hereinafter - the "Remaining Ampal Consideration") and to Amot the
remainder of Amot's Part of the Consideration, namely, $17,628,407
(hereinafter - the "Remaining Amot Consideration") against delivery
to the Purchaser of the Minutes of the Company's Board of Directors
approving the transfer of Ampal's Shares and Amot's Shares to the
Purchaser in the text annexed hereto and marked "Appendix C-2".
2.3 Upon paying the Remaining Ampal Consideration and the Remaining Amot
consideration, the Purchasers shall deliver to the Trustees (as
hereinafter defined) documents signed by either Bank Hapoalim Ltd.
confirming, without any reservation, the payment of the Remaining
Ampal Consideration to Ampal's Account No.277002 in Bank Hapoalim
Ltd. Arlozorov Branch, and of the Remaining Amot Consideration to
Amot's Account No.44670 in Bank Hapoalim Ltd. Hameasfim Branch (the
"Bank Documentation").
3. Upon execution of this Second Closing SLA, Ampal and Amot shall deliver to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Adv. and Zvi Firon, Adv. (the "Trustees") in trust the
following documentation:
3.1 Share transfer deeds (the "Deeds") attached as Appendices B1* and B2
to the Main Agreement. The Deeds shall be delivered so that if and
when such deeds of transfer are delivered to the Purchasers by the
Trustees in accordance with this Section 3, the Purchasers shall be
able to fix in writing on the Deeds the distribution of Ampal's
Shares and Amot's Shares to either of the Purchasers and/or any of
their affiliates in any proportion the Purchasers deem fit.
*the serial numbers recited for Ampal's Shares in the English
language Appendix B1 are short by around 550,000 Shares of the total
of 783,778 Shares to be transferred. The Hebrew version is correct.
3.2 Letters of resignation from the Board of Directors of MHL of the
following directors: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Raz ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Gleitman, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
BenAmi ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇, to become effective only upon
delivery thereof, if at all, to MHL.
The parties hereby instruct the Trustees, and the Trustees hereby
undertake to fulfill the following instructions:
If the Trustees have received:
34
-3-
(a) a written confirmation signed by Ampal and Amot confirming that they
have received all the consideration due to them under the Main
Agreement (the "Confirmation"); or
(b) The Bank Documentation.
Then, and only then, will the Trustees transfer the Deeds and the said
letters of resignation to the Purchasers.
If the Trustees do not receive either the Confirmation or the Bank
Documentation within fourteen days of the date of First Closing, the
Trustees shall return the Deeds and the said letters of resignation to
Ampal and Amot.
4. The Purchasers shall have the right to execute the acts required of them,
in the Main Agreement and in this Second closing SLA, through either of
the Purchasers and/or any of their affiliates or together in any
proportion the Purchasers deem fit.
5. All the terms of the Main Agreement with respect to the Completion Date
will apply with the respect to both the First Closing and the Second
Closing, and whenever the term Completion Date is referred to, it shall
mean the First closing and the Second Closing, or either of them, as
appropriate. To avoid doubt, for the purpose of Section 9 of the Main
Agreement - the Completion Date shall mean the date of the completion of
the Second Closing.
6. To avoid doubt:
6.1 The acts referred to in Sections 7(c) and 8.2.2.3 of the Main
Agreement shall be performed on the First Closing.
6.2 The Interim Period is the period between the date of the Main
Agreement and the Second Closing.
6.3 Appendix C to the Main Agreement is hereby replaced by Appendices
C-1 and C-2 annexed hereto. Appendix C-1 shall be delivered to the
PURCHASER on the First Closing, and Appendix C-2 shall be delivered
to the PURCHASER on the Second Closing and the provisions of Section
7(d) to the Main Agreement are amended accordingly.
7. Between the First Closing and the Second Closing, Koor, Sheraton, Ampal
and Amot shall make their best effort to prevent the taking of any
decisions and/or acts by MHL which are not in the ordinary course of
business. The act and decisions required under the Main Agreement, the
First Closing SLA, this Second Closing SLA and/or any other written
agreement between the above parties shall constitute exceptions to the
aforesaid prohibition.
35
-4-
8. All other terms and conditions of the Main Agreement remain unchanged, and
the terms of this Second Closing SLA do not prejudice, unless expressly
stated herein, in any way existing legal and/or contractual rights of the
parties hereto.
9. This Second Closing SLA constitutes an integral part of the Main Agreement
and shall be read and interpreted as an integral part thereof.
Koor Industries Ltd. AMPAL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- -----------------------------
SHERATON AMOT
/s/ [ILLEGIBLE]
-------------------------- -----------------------------
APPENDICES
Appendix A: The First Closing SLA
Appendix C-1: Resolution of Board of Directors approving transfer of Gmul's
Shares
Appendix C-2: Resolution of Board of Directors approving transfer of Ampal's
Shares and Amot's Shares
We hereby agree to act in accordance with the instructions in Section 3 of this
Second Closing SLA.
------------------------- -----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Zvi Firon
36
-4-
8. All other terms and conditions of the Main Agreement remain unchanged, and
the terms of this Second Closing SLA do not prejudice, unless expressly
stated herein, in any way existing legal and/or contractual rights of the
parties hereto.
9. This Second Closing SLA constitutes an integral part of the Main Agreement
and shall be read and interpreted as an integral part thereof.
Koor Industries Ltd. AMPAL
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- ------------------------------
SHERATON AMOT
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ [ILLEGIBLE]
-------------------------- ------------------------------
I confirm that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is authorized to sign on behalf of
Sheraton Intercontinental Ltd.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel,
Sheraton Intercontinental Ltd.
APPENDICES
Appendix A: The First Closing SLA
Appendix C-1: Resolution of Board of Directors approving transfer of Gmul's
Shares
Appendix C-2: Resolution of Board of Directors approving transfer of Ampal's
Shares and Amot's Shares
We hereby agree to act in accordance with the instructions in Section 3 of this
Second Closing SLA.
------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Zvi Firon
37
April 12, 1999
Ampal (Israel) Ltd.
Amot Investments Ltd.
Gmul Investments Company Ltd.
Gentlemen,
Re: Sale of Holdings in Moriah Hotels Ltd.
Further to the agreement dated 27.1.99 (hereinafter "the Agreement") for the
sale of your holdings in Moriah Hotels Ltd. (hereinafter "the Company"), we
hereby confirm as follows:
In all matters concerning authorizations of the Company and other companies of
the Moriah group, that were given to you as set out in Sections 4.4 and 6.2(c)
of the Agreement, we or the Company or another company in the Moriah group will
not have any claim against you emanating from the change in identity of the
purchasers of your holdings in the Company.
Sincerely yours,
Koor Industries Ltd.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
------------------------- ------------------- ------------------------------
Koor Industries Ltd. Koor Tourism Ltd. Sheraton Intercontinental Ltd.
Authorization
I, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, attorney of Koor Industries Ltd., Koor
Tourism Ltd., and Sheraton International Ltd. (hereinafter "my Clients") hereby
confirm that the above signatures are binding on my Clients in everything
connected with this document or emanating herefrom.
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Adv.
38
April 12, 1999
Ampal (Israel) Ltd.
Amot Investments Ltd.
Gmul Investments Company Ltd.
Gentlemen,
Re: Sale of Holdings in Moriah Hotels Ltd.
Further to the agreement dated 27.1.99 (hereinafter "the Agreement") for the
sale of your holdings in Moriah Hotels Ltd. (hereinafter "the Company"), we
hereby confirm as follows:
In all matters concerning authorizations of the Company and other companies of
the Moriah group, that were given to you as set out in Sections 4.4 and 6.2(c)
of the Agreement, we or the Company or another company in the Moriah group will
not have any claim against you emanating from the change in identity of the
purchasers of your holdings in the Company.
Sincerely yours,
Koor Industries Ltd.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE] /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ------------------- ------------------------------
Koor Industries Ltd. Koor Tourism Ltd. Sheraton Intercontinental Ltd.
Authorization
I, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, attorney of Koor Industries Ltd., Koor
Tourism Ltd., and Sheraton International Ltd. (hereinafter "my Clients") hereby
confirm that the above signatures are binding on my Clients in everything
connected with this document or emanating herefrom.
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Adv.
