[UNOFFICIAL ENGLISH TRANSLATION]
Exhibit 99.3
AGREEMENT FOR THE SALE OF HOLDINGS
ENTERED INTO AND SIGNED IN TEL AVIV ON JUNE 22, 2003
BETWEEN: CO-OP BLUE SQUARE SERVICES ASSOCIATION LTD.
Cooperative Society No. 00-000000-0
of 00 Xxxxx Xx., Xxxxx Xxx 00000
("SELLER" or "ASSOCIATION")
OF THE FIRST PART;
AND: XXXXXXXX-XXXX LTD.
Registration no. 00-000000-0
x/x Xxx. X. Xxxxx
Xxxxxxxx Xxxxx, Xxxxxx House
P.O.B. 10 Yakum
("BUYER")
OF THE SECOND PART;
AND: 1. XXXXXX XXXXXXXX
U.S. passport no. [omitted]
c/o CPA S. Zohar
6 Harkon St., Ramat Gan
2. ALON ISRAEL OIL COMPANY LTD.
Registration no. 520041690
Europark Yakum, France House
P.O.B. 10 Yakum
(hereinafter jointly and severally and with mutual guarantee:
"CONTROLLING SHAREHOLDERS")
OF THE THIRD PART;
WHEREAS pursuant to the decision of the Tel Aviv District Court (the
Hon. Chief Justice X. Xxxxx) of July 8, 2002, the Association
published a procedure for the sale of its holdings in Blue
Square Israel Ltd., Pub.C. 00-000000-0 ("COMPANY"); and
WHEREAS the Buyer has participated in the sale process in accordance
with the Sale Procedure and the terms thereof, and in this
framework has visited the data rooms, through experts on its
behalf who were appointed according to its discretion and to
its satisfaction, and has received various information and
documents; and
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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WHEREAS the Sale Procedure provides that the sale agreement shall
include an explicit provision whereby the sale is made "as
is", and that the buyer is therefore required to perform any
inquiry it deems fit by itself, with the Association having no
liability for any data related to the Company; and
WHEREAS Seller is the owner of an overall quantity of 29,999,993
ordinary shares ("SELLER'S SHARES"), which together
constitute, as of the date of execution of this Agreement,
approximately 78.1% of the Company's issued and paid-up share
capital; and
WHEREAS Seller is interested in selling to Buyer, and Buyer is
interested in Buying from Seller, all of Seller's Shares,
their being Free and Clear (as this term is defined below),
all in the manner and under the terms and conditions specified
in this Agreement below; and
WHEREAS Seller's audit committee and the Tel Aviv District Court have
approved Seller's engagement in this agreement(1); and
WHEREAS Buyer has received the Antirust Commissioner's consent to the
purchase of Seller's Shares thereby, in accordance with the
Restrictive Business Practices Law, 5748-1988(2),
THEREFORE, THE PARTIES HAVE AGREED, DECLARED AND STIPULATED AS
FOLLOWS:
1. PREAMBLE AND INTERPRETATION
1.1 The preamble to this Agreement and the footnotes and
appendices hereof - whether attached to this Agreement at the
time of Buyer's execution hereof, at the time of Seller's
execution hereof (in accordance with the provisions of the
Agreement), or at any other time in accordance with the
provisions hereof - constitute an integral part hereof.
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1 Seller shall bring this Agreement, and its choice of preferred offeror, second
offeror and third offeror (if any, from which the buyer will be elected) before
the audit committee and the Tel Aviv Jaffa District Court for approval, prior to
its execution of this Agreement and in accordance with the provisions of Section
17 of the Sale Procedure.
2 To be performed by Buyer in accordance with Section 18 of the Sale Procedure
and prior to Seller's execution of this Agreement. Immediately upon receipt of
the Commissioner's approval, Buyer shall forward a copy thereof to Seller.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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1.2 The division of this Agreement into sections and subsections,
and the headings inserted herein, were made for the sake of
convenience only, and shall not be used for the interpretation
hereof.
1.3 In the interpretation of this Agreement, no weight shall be
given to the rule of "interpretation against the author", or
to other interpretational rules under which weight is given to
the identity of the author of the agreement of the purpose of
construing the same in a manner supporting the interests of
the other party to the agreement.
1.4 In any case of conflict between the provisions of this
Agreement and the appendices hereof, the provisions of the
Agreement shall prevail, unless specifically stated otherwise
in this Agreement. It is hereby clarified that the information
included in the appendices attached to the representations of
Buyer and the Controlling Shareholders, as specified in
Section 4 hereunder, shall impose no burden on Seller nor be
used to construe this agreement against Seller.
2. DEFINITIONS
In this Agreement, the following terms shall have the meanings set
forth beside them:
2.1 "PERSON" - including a corporation.
2.2 "CONTROLLING SHAREHOLDERS" - Buyer's controlling shareholders,
as specified in APPENDIX 2.2 hereof, and if Buyer is a Group -
also the Individual Members of Buyer's Group, all as specified
in APPENDIX 2.2 hereof, and all parties to this Agreement.
2.3 "DOLLAR" - the United States dollar.
2.4 "COMPANY'S ISSUED AND PAID-UP CAPITAL" - 38,400,000 ordinary
shares existing in Company's issued and paid-up capital as of
the date of execution hereof. It should be noted that to
Seller's best knowledge, Company's issued and paid-up capital
includes no "treasury shares" (as "treasury share" is defined
in Section 308 of the Companies Law) that are held by Company
itself.
2.5 "AGREEMENT" or "THIS AGREEMENT" - this agreement.
2.6 "INDEXATION DIFFERENCES" - differences of linkage to the
Index, as between the latest index published before
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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the date of performance of any payment by Buyer under this
Agreement and the index of January 2003 (101.5 points).
2.7 "COMPANY" - Blue Square Israel Ltd., a company registered in
accordance with the laws of the State of Israel, whose number
with the Registrar of Companies is 00-000000-0.
2.8 "BID" - the bid dated April 6, 2003(3), a copy of which is
attached to this Agreement as Appendix 2.8, which Buyer
submitted in accordance with the Sale Procedure, and in which
Buyer named the price offered thereby for the purchase of
Seller's Shares pursuant to the terms of this Agreement.
2.9 "AMENDED BID" - the maximum amount proposed by Buyer in the
course of the proceedings under the Sale Procedure, after the
date of filing of the Bid.
2.10 "QUESTIONNAIRE" - as defined in Section 4.3.2 hereof.
2.11 "COMPANIES LAW" - the Companies Law, 5759-1999.
2.12 "SECURITIES LAW" - the Securities Law, 5728-1968.
2.13 "INDIVIDUAL MEMBERS OF BUYER'S GROUP" - the members of Buyer's
group, if Buyer is a group, including Buyer's shareholders, if
Buyer was established for the purpose of buying Seller's
holdings in Company in accordance with the Sale Procedure, or
if Buyer's main occupation is participating in the sale
proceeding, and including the Controlling Shareholders.
2.14 "INDEX" - the consumer price index (the general index)
published from time to time by the Central Bureau of
Statistics or by any other official body or institution.
2.15 "SELLER" - Co-op Blue Square Services Association Ltd., a
party to this Agreement.
2.16 "EFFECTIVE DATE" - the date to be fixed by Seller in
accordance with the provisions of Section 8.1 hereunder.
2.17 "COMMISSIONER" - the Antitrust Commissioner under the
Restrictive Business Practices Law, 5748-1988.
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3 To be completed by Seller prior to its execution of this Agreement.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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2.18 "ORDINARY SHARES" - ordinary shares of par value NIS 1 each in
Company's Issued and Paid-up Share Capital.
2.19 "SELLER'S SHARES" - 29,999,993 ordinary shares held by Seller
on the date of execution of this Agreement, which constitute,
as of the date hereof, approximately 78.1% of Company's Issued
and Paid-up Share Capital.
2.20 "SALE PROCEDURE" - the procedure for the sale of Seller's
holdings in Company, issued on August 15, 2002, in the Hebrew
version thereof, and as amended (in accordance with its
provisions) from time to time prior to the date of Seller's
execution of this Agreement.
2.21 "CORRECT, FULL AND ACCURATE" - and the various inflections of
this term, including the lack of any misleading information
and the non-absence of information, the lack of which could be
misleading.
2.22 "FREE AND CLEAR" - free and clear of any pledge, security
interest, attachment or any third party right.
2.23 "GROUP" - a body comprising more than one Person, including a
corporation established for the purpose of buying the
Association's holdings in Company, or a corporation, the main
occupation of which is participating in the sale proceeding
pursuant to the Sale Procedure.
2.24 "BUYER" - XXXXXXXX-XXXX LTD. (being organized), a party to
this Agreement.
2.25 "INTEREST" - annual interest at the rate of the basic interest
on revolving charge accounts (prime), published by the Bank of
Israel, plus 1% (prime + 1%), as known from time to time. The
interest shall be calculated according to the number of days
between the date of filing of the Bid and the date of actual
payment, and according to the interest determined from time to
time during this period.
2.26 "ARREARS INTEREST" - arrears interest paid in accordance with
the provisions of Section 17 hereof.
2.27 "CONTROL" and "HOLDING" - as these terms are defined in
Section 1 of the Securities Law, as on the date of execution
of this Agreement by Buyer.
2.28 "CONSIDERATION FOR THE SHARES" - an amount in NIS which is the
higher of: a) the amount stated in the Bid; or b) the amount
stated in the Amended Bid; and which
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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Buyer shall pay Seller for Seller's Shares, under the terms of
payment specified in Section 6 of this Agreement (plus
Interest). The Consideration for the Shares may be amended as
provided in Section 6.2 hereof.
2.29 "CONDITION PRECEDENT" - the condition set forth in Section 7.1
hereof.
2.30 "INTERIM PERIOD" - the period commencing on the date of
execution of this Agreement by Buyer and ending on the
Effective Date, or upon termination of this Agreement in
accordance with Section 11 hereunder, as the case may be.
3. SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer that:
3.1 Seller is the sole owner and holder of Seller's Shares, and is
entitled to sell the same in accordance with the provisions of
this Agreement.
3.2 Seller's Shares are fully paid-up, are Free and Clear and
shall be Free and Clear on the date of transfer thereof to
Buyer in accordance with the provisions of this Agreement.
3.3 Subject to the fulfillment of the Condition Precedent, the
sale of Seller's Shares by Seller to Buyer under this
Agreement is neither inconsistent nor in conflict with any
contract and/or undertaking to which Seller is a party, it has
received all necessary consents and approvals, and there is no
prohibition of, restriction on or hindrance to the sale of
Seller's Shares and the transfer thereof to Buyer.
3.4 Should it transpire, after the date of execution of this
Agreement by Seller, that any of Seller's representations in
this Section 3 was incorrect as compared to the actual
situation as being on the date of execution of this Agreement
by Seller ("REPRESENTATIONAL DEFICIENCY"), and should it
transpire that had the Representational Deficiency been known
to Buyer on the date of execution of this Agreement by Seller,
the value of Seller's Shares would not have suffered any
material adverse effect, then this Agreement will not be
deemed to have been breached by Seller.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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4. REPRESENTATIONS AND WARRANTIES OF BUYER AND OF CONTROLLING SHAREHOLDERS
Buyer and Controlling Shareholders, jointly and severally, hereby
represent and warrant to Seller that:
4.1 Each one of them is a limited company which was and is still
organized lawfully, and its acts are lawful; this
representation shall not apply with respect to Buyer and/or
Controlling Shareholders who are individuals.
4.2 No measures were taken for the dissolution, liquidation,
deletion, bankruptcy, receivership or proceedings under
Section 350 of the Companies Law, against or with respect to
any one of them, and there is against any one of them no
threat or intention of instituting legal proceedings as
aforesaid, or other legal proceedings, and, within this
framework, no attachment and/or security interest is imposed
on their assets, which could affect their engagement in or
performance of this Agreement.
4.3 On the date of execution of this Agreement by Buyer and
Controlling Shareholders, Buyer and Controlling Shareholders
have furnished to Seller, and attached to this Agreement, the
following appendices, all of which are Correct, Full and
Accurate:
4.3.1 APPENDIX 4.3.1 - a specification, along with
certification by Buyer's legal counsel, of:
(a) Buyer's authorized and issued share capital.
(b) Other securities, including convertible
securities and options, that were issued by
Buyer or that Buyer has undertaken to issue.
(c) The names of the holders of 5% or more of
Buyer's issued share capital and of the
holders of 5% or more of the voting rights
in Buyer, and the rates of holding of each
one.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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(d) A chart of holdings (capital and Control) in
Buyer.
(e) A list of Buyer's officers (as this term is
defined in the Companies Law).
4.3.2 APPENDIX 4.3.2 - a copy of the Questionnaire,
Appendix B to the Sale Procedure, including any
question and/or request for details, information or
additional document delivered by Seller to Buyer, and
a full and complete copy of the answers given thereto
by Buyer and by others, if any, including any and all
appendices thereto ("QUESTIONNAIRE").
4.3.3 APPENDIX 4.3.3 - a specification, along with
certification by Controlling Shareholders' legal
counsel, of:
(a) The authorized and issued share capital of
each one of the Controlling Shareholders.
(b) Other securities, including convertible
securities and options, that were issued by
each one of the Controlling Shareholders or
that any one of them had undertaken to
issue.
(c) The names of the holders, directly or
indirectly, of 5% or more of the issued
share capital of each one of the Controlling
Shareholders, and of the holders of 5% or
more of the voting rights in each one of the
Controlling
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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Shareholders, and the rates of holding of
each one.
(d) A list of the officers (as this term is
defined in the Companies Law) of each one of
the Controlling Shareholders.
APPENDICES 4.3.1 AND 4.3.3 shall be filled out by Buyer and by
the Controlling Shareholders, also where the form of
incorporation of any one of them is not a "limited company",
mutatis mutandis.
4.3.4 APPENDIX 4.3.4 - certification by Buyer's legal
counsel specifying:
(a) the agreements between Buyer and the
Controlling Shareholders, and of the
Controlling Shareholders among themselves.
(b) that aside from the agreements specified in
APPENDIX 4.3.4, there is no other agreement
or arrangement between Buyer and/or
Controlling Shareholders, directly or
indirectly, and any third party, in
connection with the purchase of Seller's
Shares.
The legal counsel's certifications included in
Appendices 4.3.1-4.3.4 will include certification
whereby, based on the inquiries performed thereby,
the information is complete, full and correct (as
this term is defined above).
4.4 All of the information contained in APPENDICES 4.3.1-4.3.4 of
this Agreement is Correct, Full and Accurate.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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4.5 Any and all answers, information and figures provided by
Buyer, the Controlling Shareholders or any other entity or by
any one of them in the Questionnaire and/or in APPENDICES
4.3.1-4.3.4 of this Agreement is Correct, Full and Accurate in
itself, subject to that any difference, modification,
amendment or disparity between the information provided in any
of the answers and the information contained in the
Questionnaire, and any other information contained therein or
the information included in APPENDICES 4.3.1-4.3.4 of this
Agreement, is explicitly specified in APPENDIX 4.5 hereof.
4.6 Buyer is not a Group, and if it is a Group, the number of
individual members thereof does not exceed 35.
4.7 Buyer and the Controlling Shareholders are capable of
fulfilling their undertakings pursuant to this Agreement and,
without derogating from the aforesaid, Buyer has the requisite
economic and financial ability to perform its undertakings as
contemplated in this Agreement.
4.8 With the exception of the representations explicitly made by
Seller in this Agreement, Seller, Company or any other on
their behalf (including the members of the Association's
appointed board, the members of the audit committee appointed
by the Tel Aviv District Court, their employees and
consultants) have neither given, nor shall be deemed to have
given Buyer or the Controlling Shareholders or any other
Person any information, representation or warranty, and
Seller, Company or others on their behalf shall not be liable
for any information given to the purchaser, the Controlling
Shareholders or any other on their behalf or to any other,
including in connection with the Company, the value of the
Company, its assets, its business or the profitability
thereof.
4.9 Buyer is buying Seller's Shares As Is, in the Company's As Is
condition and in the As Is condition of its holdings, without
being made any representations (other than representations
explicitly included in this Agreement) by Seller, Company or
any other on their behalf, and without the aforesaid imposing
any liability of any kind whatsoever on Seller, Company or the
representatives of either one or on any other on their behalf
(including the members of the Association's appointed board,
the members of the audit committee appointed by the Tel Aviv
District Court, their employees and consultants) with respect
to the
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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Company and/or any of its holdings and the valuation of
Seller's Shares, and without any undertaking of
indemnification and/or compensation and/or participation by
Seller, Company or another on their behalf (including the
aforementioned) to Buyer and/or any of the Controlling
Shareholders, and Buyer and the Controlling Shareholders waive
any claim and suit, of any kind, including a claim of
non-conformity (either overt or covert), mistake or
misleading, in connection with their engagement in this
Agreement, and their right to receive any remedy of
revocation, damages or restitution for such claims, and the
Consideration for the Shares takes into account, inter alia,
the provisions of Sections 4.8, 4.10 and this Section 4.9.
Without derogating from the generality of the aforesaid, Buyer
and the Controlling Shareholders waive any claim and suit with
regard to any implications which the sale of Seller's Shares
shall have, if any, on any agreements to which Company is a
party, including the payment of consent fees, key money,
breach or expiration.
4.10 Seller is selling Company's shares as shareholder only,
without any connection to its being a party to contracts,
engagements or undertakings with or vis-a-vis Company.
4.11 Buyer is buying Seller's Shares for itself only, and is
neither acting nor shall act as an agent, representative,
trustee and/or partner for his matter, directly and/or
indirectly, with and/or for another in connection with the
purchase of Seller's Shares or in connection with the holding
thereof, in whole or in part.
4.12 The Consideration for the Shares was offered for all of
Seller's Shares, and Buyer shall be obligated to buy the
entirety of Seller's Shares as a whole.
4.13 Without derogating from Section 4.9 above, the information
made available to them or to another on their behalf in
connection with Company and its business, including
information provided by Company in the "data room" (pursuant
to the Sale Procedure), was made available to them without
such act imposing on Seller or on Company any liability
therefor, and without it being deemed a representation for the
purpose of the engagement in this Agreement.
4.14 They are aware that Company is not a party to this Agreement,
and that neither this Agreement nor the
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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relations between Seller and Company prior to the execution
hereof, nor the furnishing of any information to Buyer or to
the Controlling Shareholders or to any other by Company, its
employees or representatives, shall impose upon Company, its
officers, employees or others on its behalf, any obligation to
Buyer and the Controlling Shareholders, nor any liability to
Buyer and the Controlling Shareholders (without derogating
from any obligation imposed on Company or on the officers
thereof other than pursuant to this Agreement). This clause
shall operate for the benefit of Company and those acting on
its behalf.
4.15 They have the experience, the know-how and the ability to
evaluate their engagement in this Agreement and the
consequences thereof and, taking into account, inter alia,
Sections 4.8, 4.9, 4.10, 4.13 and 4.14 above, they have
conducted a full and independent inquiry, to their
satisfaction, alone and through assessors on their behalf and
through others, in connection with the Company, its condition,
third party rights of any kind whatsoever, and in connection
with the purchase of Seller's Shares, including the
transaction contemplated in this Agreement, in consultation
with any and all experts they deemed fit, and while defining
the information, the investigation of which they deemed
critical for the purpose of entering into this Agreement.
If they, for any reason, did not examine any detail related to
the Company or this Agreement, either alone or through
assessors on their behalf or others, including due to
limitations imposed for any reason on the information, the
Consideration for the Shares takes the aforesaid into account,
and they waive any claim in connection therewith.
4.16 The representations of Buyer and of the Controlling
Shareholders included in this Agreement and the appendices
hereof, the information contained in the Questionnaire and any
information provided by Buyer and the Controlling Shareholders
in any other manner, from the first day on which the Sale
Procedure was available for sale, are Correct, Full and
Accurate, and contain nothing misleading, nor lack any
material detail.
Buyer and Controlling Shareholders reaffirm their awareness
that Seller is relying upon the correctness and completeness
of all of the representations of Buyer and the Controlling
Shareholders in its decision to enter into this Agreement
therewith.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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4.17 Buyer is buying Company as a going concern, and intends to
continue operating Company as a going concern.
4.18 All of the conditions determined by the Commissioner as a
condition to his consent to the purchase of Seller's Shares by
Buyer, if any, have been met and complied with.
4.19 Buyer and Controlling Shareholders (a) have full authority to
enter into this Agreement; (b) are barred by no legal or other
impediment from entering into this Agreement; (c) have
obtained all approvals required to execute this Agreement or
fulfill the provisions hereof (and have obtained all requisite
approvals by all institutions of Buyer and Controlling
Shareholders); and (d) require no approval or consent by any
third party, other than the approval and consent constituting
the Condition Precedent for this Agreement becoming effective.
4.20 Buyer and Controlling Shareholders are liable for all of
Buyer's undertakings under this Agreement jointly and
severally.
4.21 The representations of Buyer and Controlling Shareholders
specified in this Section 4 will be correct also as of the
Effective Date (as if made on the Effective Date and with
respect to the Effective Date).
4.22 Buyer and Controlling Shareholders declare and confirm their
awareness that the provisions of the Sale Procedure shall
continue to be in effect also after their execution of this
Agreement.
4.23 Buyer and Controlling Shareholders declare and confirm that
they are aware that the Association's choice of "preferred
offeror", "second offeror" and "third offeror" is subject to
the approval of the audit committee and of the Tel Aviv Jaffa
District Court, which is supervising the proceedings for the
sale of Seller's Shares, and that only after receipt of such
approvals and Seller's execution of this Agreement, will this
Agreement come into effect.
5. THE TRANSACTION - SALE OF SELLER'S SHARES
On the Effective Date, and subject to the payment of the Consideration
for the Shares in full by Buyer to Seller, Seller shall sell Seller's
Shares to Buyer as a whole, and Buyer shall buy Seller's Shares from
Seller as a whole, such shares being Free and Clear.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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6. THE CONSIDERATION FOR THE SHARES AND THE TERMS OF PAYMENT THEREOF
6.1 Buyer and Controlling Shareholders, jointly and severally,
undertake to pay Seller the Consideration for the Shares on
the Effective Date, in a single payment, by way of deposit
thereof in Seller's account, the details of which are as
follows: account no. __________, in branch ____ of bank
_________. It is clarified that only the final and absolute
crediting of the said account shall be deemed as the
fulfillment of Buyer and Controlling Shareholders' undertaking
to pay the Consideration for the Shares.
6.2 If Company shall perform a dividend distribution (as this term
is defined in the Companies Law) in cash, during the Interim
Period, then the amount paid to Seller as a dividend shall be
deducted from the Consideration for the Shares.
7. CONDITION PRECEDENT
This Agreement, and the performance hereof, are contingent upon the
fulfillment of and compliance with the following condition precedent
within the timeframe of the First Period (as this term is defined in
Section 18.1 of the Sale Procedure) or within an additional period of
time, insofar as the said First Period shall be extended by the
Association in accordance with Section 18.2 of the Sale Procedure, and
Buyer and Controlling Shareholders reaffirm that this condition was
fulfilled prior to Seller's execution of this Agreement:
The Commissioner shall have approved the transaction
contemplated in this Agreement (a "corporate merger", as this
term is defined in the Restrictive Business Practices Law,
5748-1988).
8. CLOSING
8.1 The Effective Date and the closing will take place on a date
to be determined by Seller, within 14 (fourteen) days after
delivery of this Agreement, executed by Seller, to Buyer. This
Agreement, executed by Seller, shall be delivered to Buyer in
accordance with the provisions of the Sale Procedure, after
fulfillment of the Condition Precedent.
8.2 On the Effective Date, after receipt of the Commissioner's
approval as set out in Section 7 above and after receipt of
the approval of the audit committee and of the Tel Aviv Jaffa
District Court, the parties shall convene at 10:00 a.m. in the
law firm of Xxxx Xxxx & Co.,
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
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at 4 Itamar Ben Avi St., Tel Aviv, or at another time or
location as notified by Seller. At that time, Seller shall
sell and transfer Seller's Shares to Buyer, their being Free
and Clear, subject to (a) payment of the Consideration for the
Shares by Buyer; and (b) other acts as specified below, all of
which shall be performed simultaneously and be deemed to take
place simultaneously, and none of which shall be deemed to be
effective unless all other acts shall have been performed,
which acts are:
8.2.1 Buyer shall pay Seller the Consideration for the
Shares, by a cashier's check or a wire transfer to
Seller's bank account; and
Upon receipt of confirmation from Seller's bank regarding
payment of the Consideration for the Shares in Seller's bank
account, the parties shall perform the following acts:
8.2.2 Seller shall sign, as transferor, a share transfer
deed in the form required by Company's bylaws for all
of Seller's Shares; and
8.2.3 Buyer shall sign the share transfer deed as
transferee, as specified in paragraph 8.2.2; and
8.2.4 Company's secretary shall furnish Buyer with (a) a
new share certificate for Seller's Shares in Buyer's
name, and (b) written confirmation by Company whereby
Buyer was registered in the register of shareholders
of the Company as owner of Seller's Shares; and
8.2.5 Seller shall deliver to Company's secretary letters
of resignation by the directors _____________
_____________, in the form of the letter of
resignation attached hereto as APPENDIX 8.2.5, while
fixing the date of termination of office in the said
letters of resignation as the Effective Date; and
8.2.6 Seller shall deliver to Buyer a copy of minutes or a
written resolution by
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
16
Company's board of directors containing a decision in
the form attached hereto as APPENDIX 8.2.6, whereby
Company's board of directors has appointed the
[number of directors] Persons which Buyer shall wish
to appoint. The list of Persons shall be submitted to
Seller in writing up to 5 business days prior to the
Effective Date. With respect to each Person named in
the list, there shall be enclosed a confirmation by
Buyer's counsel, whereby there is no lawful hindrance
to his appointment as a director of Company. The date
of commencement of the foregoing directors' office as
members of Company's board of directors shall be the
Effective Date pursuant to this Agreement; and
8.2.7 A consent signed by Seller and Company, rescinding
Seller's right to management fees from Company
starting from the Effective Date, shall be delivered
to Buyer.
8.3 The acts listed in Sections 8.2.1 and 8.2.3 are the
responsibility of Buyer and Controlling Shareholders. The act
stated in Section 8.2.2, and it alone, shall be Seller's
responsibility. If any of the acts listed in Sections 8.2.1,
8.2.2 or 8.2.3 shall not have been performed, the party not
responsible for the performance thereof shall be entitled, at
its discretion and without derogating from other remedies
available thereto under any law, to waive the fulfillment of
such condition for the purpose of performing the transaction
contemplated in this Agreement. The acts listed in Sections
8.2.4-8.2.7 are the responsibility of none of the parties, and
the parties shall be able to agree in writing to waive the
fulfillment of such conditions for the purpose of performing
the transaction contemplated in this Agreement.
9. OFFICERS' LIABILITY INSURANCE AND EXEMPTION
9.1 Buyer and Controlling Shareholders confirm that they are aware
that the existing insurance arrangements with respect to the
liability of directors and officers of the
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
17
Company and its subsidiaries, shall expire after the Effective
Date.
9.2 Buyer and Controlling Shareholders undertake to take out and
maintain, either alone or through the Company, from the
Effective Date and for a period of 7 (seven) years thereafter,
officers' liability insurance covering (on a `claims made'
basis) also the liability of officers (including directors)
acting in the Company and in other corporations on its behalf
at the time of execution of this Agreement, and the liability
of officers who shall have ceased holding office prior
thereto, for claims filed for the first time against any one
of them during the insurance period, for acts or omissions
performed in the seven-year period preceding the Effective
Date; the scope of the coverage shall be as accepted on the
Effective Date for companies operating in fields of activity
and with financial volumes similar to those of the Company,
whose shares are traded on the New York Stock Exchange (NYSE).
In any event, the limit of liability shall be no less than US
$15,000,000 per incident and cumulatively for a 12-month
insurance period.
9.3 Buyer shall forward to Seller, from time to time, per Seller's
request, confirmation that the insurance is maintained and
shall, if necessary, make possible the perusal of all relevant
insurance policies at the offices of Company or Buyer, as the
case may be.
9.4 Buyer and Controlling Shareholders will not xxx the officers
of Company or the officers of Seller (including the members of
the appointed board and/or the members of the audit committee
and/or others on their behalf) on any matter pertaining to the
acts of such officers during the course of the negotiations
and the actions preceding the execution of this Agreement and
on any matter pertaining to the performance of this Agreement.
9.5 Buyer and Controlling Shareholders shall not disclaim, in any
way, the letters of exemption and indemnification issued by
Company to its officers from September 2000. Buyer and
Controlling Shareholders undertake at all times to exercise,
in any lawful manner, the control they shall have in the
Company, to rescind any decision in any way disclaiming the
said letters of exemption or indemnification.
9.6 Buyer and Controlling Shareholders confirm that their
undertakings as set out in Sections 9.1-9.5 above, are
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
18
undertakings to Seller and undertakings in favor of a third
party, namely all of the directors and officers to whom such
undertakings might apply (in this subsection:
"BENEFICIARIES"). The breach of any of the undertakings
specified in Sections 9.1-9.5 shall entitle Seller, severally,
and Beneficiaries, jointly and severally, to liquidated
damages from Buyer and Controlling Shareholders jointly and
severally, in the sum of US $15 million, without derogating
from any remedy or right to xxx for any additional damage
caused, if cased, to Seller or any of the Beneficiaries.
10. LABOR RELATIONS
Buyer represents and warrants that:
10.1 It is familiar with the appointed board's letter to Company's
workers union, dated January 24, 2002, a copy of which is
attached hereto as APPENDIX 10.1, and represents that it has
acted pursuant thereto and undertakes to continue doing so,
and, within this framework:
10.1.1 Buyer undertakes to continue maintaining the
effective collective agreements and/or collective
arrangements, as being between Company and the
employees before the first date on which the Sale
Procedure was available for sale.
10.1.2 Buyer undertakes to preserve all other rights
conferred upon the employees by law and existing on
the said date.
10.1.3 Buyer has discussed its plans for the Company with
the workers' representative body prior to Seller's
execution of this Agreement, including with regard to
the continued employment of workers after the sale of
Seller's Shares under this Agreement.
10.1.4 Buyer undertakes that a goodwill grant shall be made
to the Company's employees upon the sale of Seller's
Shares under this Agreement and/or that shares or
options of the company shall be issued to employees
in public offerings to be performed after the sale
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
19
of Seller's Shares under this Agreement, if any, all
as agreed in the negotiations with the workers'
representative body prior to the Effective Date
(which negotiations Buyer represents and warrants to
have been conducted and concluded to the satisfaction
of the parties thereto), in recognition of the
workers' contribution to the promotion of the
Company, its business and goodwill.
10.2 It is familiar with the appointed board's letter to the
Company's CEO, dated August 11, 2002, a copy of which is
attached hereto as APPENDIX 10.2, and represents that it has
acted pursuant thereto and undertakes to continue doing so,
and, within this framework:
10.2.1 Buyer undertakes that a goodwill grant shall be made
to the members of Company's management upon the sale
and/or that shares or options of the Company shall be
issued to members of Company's management in public
offerings to be performed after the sale of Seller's
Shares under this Agreement, if any, all as agreed in
the negotiations with the Company's CEO, as the
representative of Company's management (which
negotiations Buyer represents and warrants to have
been conducted and concluded to the satisfaction of
the parties thereto), in recognition of Company's
management's contribution to the promotion of the
Company, its business and goodwill.
10.3 The breach of any one of the representations or warranties
included in this Section 10 shall be deemed a fundamental
breach of this Agreement.
11. MATERIAL TERMS AND CONDITIONS
11.1 The parties hereby determine that a breach of this Agreement
shall confer upon the injured party the right to any and all
remedies and redress fixed for this purpose in the Contracts
Law (Remedies for Breach of Contract), 5731-1970, including
the right to an order of
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
20
injunction and enforcement, without derogating from the
special remedies set forth in this Agreement.
11.2 Without derogating from the provisions of Section 11.1 above
and from the provisions of the Contracts Law (Remedies for
Breach of Contract), 5731-1970, the following acts or
omissions too shall constitute a fundamental breach of this
Agreement:
11.2.1 Failure to fully and timely pay the Consideration for
the Shares.
11.2.2 Failure to fulfill the provisions of Section 4.16
above.
11.2.3 Failure to fulfill the provisions of Section 9 above.
11.2.4 Failure to fulfill the provisions of Section 10
above.
11.3 Without derogating from the aforesaid, Seller reserves the
right to move the Tel Aviv Jaffa District Court, within the
framework of the sale proceedings, to order the termination of
the engagement in this Agreement and to order an engagement
with the second offeror or the third offeror (as these terms
are defined in Section 17.5 of the Sale Procedure), in the
event that Buyer and/or Controlling Shareholders shall have
fundamentally breached this Agreement, as provided in Section
11.2 above.
12. PRESERVATION OF RIGHTS AFTER TERMINATION
12.1 In the event of termination of this Agreement, such
termination shall not derogate from the effectiveness of the
provisions of Sections 11, 12, 13, 16, 19, 20, 21, 22 and 23
and from the effectiveness of the undertakings of Buyer and
Controlling Shareholders and of others on their behalf, that
were delivered after the first date on which the Sale
Procedure was available for sale.
13. JURISDICTION AND GOVERNING LAW
13.1 Jurisdiction over all matters pertaining to this Agreement or
deriving herefrom is conferred upon the competent courts in
the city of Tel Aviv, and upon none other.
13.2 The Agreement shall be governed by Israeli law, without
reference to the conflict of laws rules thereof.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
21
14. GENERAL UNDERTAKING TO PERFORM ACTS AND TO SIGN DOCUMENTS
The parties undertake to perform any and all acts and to sign all
documents, approvals, forms and statements, as necessary and
instrumental for the fulfillment of the provisions of this Agreement.
Without derogating from the generality of the aforesaid, the parties
undertake to comply with all reporting duties required under any law
(including to the Stock Exchange, the Securities Authority and the
Registrar of Companies) insofar as any such are involved in the
fulfillment of this Agreement.
15. GENERAL
15.1 The Sale Procedure constitutes a separate document from this
Agreement. The procedure in no way constitutes a part of this
Agreement and shall not serve as a substitute or an addendum
to or as a means of interpretation of this Agreement. In the
event of conflict between the provisions of the Sale Procedure
and the provisions of this Agreement, this Agreement shall
prevail. It is clarified, however, that the lawful fulfillment
of the provisions of the Sale Procedure and/or of the
instructions and/or requests and/or demands of the Association
by Buyer, the Controlling Shareholders and the Individual
Members of Buyer's Group - and if Buyer is a Group - pursuant
to the Sale Procedure, is a fundamental condition to Seller's
engagement in this Agreement.
15.2 Subject to the provisions of Section 15.1 above, any drafts,
charts and other documents exchanged between the parties prior
to the date of execution of this Agreement shall be deemed
never to have been made, and shall in no way be used for
purposes of interpretation, claims or any other purpose.
15.3 Insofar as omissions shall have been made in any of the
provisions of this Agreement, the omitted language shall be
deemed never to have been written, and neither such language
nor the actual omission thereof shall be relied upon for any
purpose, including the interpretation of this Agreement.
15.4 Any promise or statement in any form whatsoever, either in
writing or orally or by way of conduct or inaction prior to
the date of execution of this Agreement shall be deemed to be
null and void, and this Agreement shall be deemed to include,
reflect and exhaust all of the parties' representations and
warranties in all matters pertaining to the subject matter
hereof, without derogating from the provisions of Section 15.1
above.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
22
15.5 Seller shall be entitled to institute any proceeding and to
receive any remedy against Buyer and against any one of the
Controlling Shareholders, independently of the institution of
such proceeding or the receipt of remedy against Buyer or any
other of the Controlling Shareholders.
15.6 The representations and warranties of Buyer and of the
Controlling Shareholders are in no way dependent on the
signing of this Agreement by the Controlling Shareholders or
any one of them, even if Buyer or the Controlling Shareholders
or any one of them shall have intended that a certain
Controlling Shareholder sign this Agreement.
16. TAXES AND EXPENSES
16.1 Seller shall bear any tax or other levy, if and insofar as any
is imposed pursuant to any law on sellers of shares.
16.2 Buyer shall bear any tax or other levy, if and insofar as any
is imposed pursuant to any law on buyers of shares.
16.3 Any payment to be made pursuant to the provisions of this
Agreement shall be paid subject to withholding tax or against
the presentation of an exemption from withholding tax.
16.4 The aforesaid notwithstanding, it is agreed that Buyer shall
bear the costs of duly stamping this Agreement.
16.5 Each party shall bear the expenses thereof, including the fees
of its legal and other advisers, in connection with the
preparation and performance of this Agreement.
16.6 V.A.T. as set out in the law shall be added to each payment
under this Agreement (for Indexation Differences, Interest and
Arrears Interest, if any shall be imposed), against delivery
of a lawful tax invoice. Payment of the V.A.T. imposed as
aforesaid, if any, on any payment shall be made by delivery of
a postdated check on the date of payment for the 14th day of
the month following the month in which the payment is made as
aforesaid.
16.7 Buyer shall be entitled to turn to the Value Added Tax
authorities for a pre-ruling whereby the Indexation
Differences and the Interest on the sum of the consideration
are not subject to V.A.T. (the "PRE-RULING"). If the
Pre-Ruling is received, to Seller's satisfaction, according to
the absolute discretion thereof,
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
23
prior to the date of payment of the Consideration for the
Shares, Seller shall charge no V.A.T. on the Indexation
Differences and the Interest imposed on such payment.
16.8 The aforesaid notwithstanding, if and insofar as Seller shall
not charge Buyer V.A.T. on the Indexation Differences, the
Interest and the Arrears Interest, based on the Pre-Ruling,
and it is subsequently required, for any reason and despite
the Pre-Ruling, to transfer V.A.T. payments due to the said
Indexation Differences and Interest payments (the "LATE V.A.T.
PAYMENTS"), then Buyer undertakes to indemnify Seller,
immediately upon the demand thereof, for the Late V.A.T.
Payments and the expenses involved therein.
17. ARREARS INTEREST
In the event that Seller or the Controlling Shareholders shall fail to
pay any sum which any one of them is liable to pay Seller under the
provisions of this Agreement, on the date fixed therefor, then in such
a case Buyer and the Controlling Shareholders shall be liable to pay
Seller Arrears Interest, in addition to V.A.T. as set out in the law,
on the amount in arrears, at the rate charged at that time by Bank
Leumi Le'Israel Ltd. for overdrafts on approved credit facilities in
revolving charge accounts, without derogating from any right or remedy
conferred on Seller pursuant to the provisions of this Agreement or the
provision of any law.
18. CONDITIONS MUTUAL
Seller's undertakings to sell and transfer Seller's Shares to Buyer on
the Effective Date, and the undertakings of Buyer and of the
Controlling Shareholders to pay Seller the sum of the Consideration for
the Shares on the Effective Date, are conditions mutual as defined by
any law.
19. AMENDMENTS AND WAIVERS
19.1 Any and all modifications of or amendments to this Agreement
shall be made in writing and signed by the parties hereto.
19.2 Without derogating from the provisions of this Agreement, in
any event in which a party to this Agreement shall not demand
the performance hereof or the performance of any part hereof,
the aforesaid shall not constitute a waiver of its right to do
so, and no waiver of a breach of any of the provisions of this
Agreement shall be deemed a lasting waiver of the breach.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
24
20. NO RIGHTS FOR THIRD PARTIES
This Agreement does not confer, and the parties hereto do not intend to
confer, rights on any third party, other than as explicitly stated
herein. Thus, provisions on the waiver of suits and claims, the
exemption or non-liability of or vis-a-vis persons acting on Seller's
behalf (including, but without derogating from the generality of the
aforesaid, its attorneys, members of the Association's appointed board,
members of the Association's audit committee, and others on their
behalf) shall operate for the benefit of the aforementioned.
21. WAIVER
Buyer and the Controlling Shareholders confirm and undertake that they
waive any suit or claim of any kind whatsoever against Seller and
against anyone having acted on behalf of Seller in Seller's actions in
the Company and/or in connection with this Agreement, including against
members of the appointed board, members of the audit committee, any
person having acted on their behalf and their legal, accounting and
other advisers. Buyer and the Controlling Shareholders undertake not to
cause Company to raise any such claim or suit and not to raise the same
in the name of Company or in the name of any of Company's shareholders.
If such a claim is raised despite the aforesaid, Buyer and the
Controlling Shareholders, jointly and severally, shall be liable to
indemnify Seller or each one of the aforementioned entities (as the
case may be), for any sum charged to them and for the legal and other
expenses incurred by them in their defense against such claims. The
term "Company", for the purpose of this Section 21, shall mean the
Company and the Company's subsidiaries.
22. NOTICES
22.1 All notices required to be given pursuant to the provisions of
this Agreement, as well as service of process hereunder or in
connection herewith, shall be made in writing and sent to the
addresses specified below:
Seller:
Co-op Blue Square Services Association Ltd.
00 Xxxxx Xx., Xxxxx Xxx 00000
With a copy (which shall not constitute service of process)
to:
Xxxx Xxxx & Co., Law Offices
4 Itamar Xxx Xxx Xx., Xxx Xxxx 00000
Attn.: Xx. Xxxx Xxxx, Adv.
Buyer or the Controlling Shareholders:
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
25
c/o Alon Israel Oil Company Ltd.
Attn.: Legal Counsel, Adv. Xxxxx Xxxxx
Europark Yakum, France House
P.O.B. 10, Kibbutz Yakum
[Buyer and Controlling Shareholders to provide a single joint
address in Israel).
22.2 Notice under this Agreement shall be deemed to have been
received: if sent by registered post - within three days from
the date of dispatch thereof; if delivered by hand - at the
time of delivery; if sent by facsimile: at 12:00 p.m. on the
first business day following the transmission thereof.
22.3 The parties may give notice of a change of address, in a
notice to be delivered pursuant to the provision of this
Section 22, provided that the address of the parties and of
the Controlling Shareholders shall be in the territory of the
State of Israel.
23. REPRESENTATION OF BUYER AND OF THE INDIVIDUAL MEMBERS OF BUYER'S GROUP
23.1 In its execution of this Agreement (and independently of
Seller's execution of the Agreement), Buyer irrevocably
appoints CPA Xxxxxx Xxxxx as its representative for the
purpose of this Agreement ("REPRESENTATIVE"), without
derogating from Buyer's authority to act by itself in all
matters pertaining hereto. Representative shall be authorized
to bind Buyer for all intents and purposes involved in this
Agreement and in the performance hereof.
23.2 By signing on the margins of this Agreement (and independently
of Seller's execution of the Agreement), the Controlling
Shareholders, jointly and severally, appoint Representative as
their representative for the purpose of this Agreement,
without derogating from the authority of each one of the
Controlling Shareholders to act by itself in all matters
pertaining hereto. Representative shall be authorized to bind
each one of the Controlling Shareholders for all intents and
purposes involved in this Agreement and in the performance
hereof.
23.3 Nothing in this Section 23 shall derogate from the validity of
any previous or other appointment of a representative or
attorney made and/or to be made by Buyer, the Controlling
Shareholders or others.
[ stamps and signatures of Xxxxxx Xxxxxxxx, Alon Israel Oil Company Ltd., and
Xxxxxxxx-Xxxx Ltd. ]
26
IN WITNESS WHEREOF, THE PARTIES HAVE HERETO SET THEIR HANDS,
Buyer and Controlling Shareholders: Signed on February 26, 2003
Buyer:
[ stamp and two signatures ]
Name: XXXXXXXX-XXXX LTD. (BEING ORGANIZED)
By: Xxxxxx Xxxxxxxx, Title: Director
and by: Xxxxx Xxxxxxxx, Title: Director
Controlling Shareholders:
[ signature ]
Name: Xxxxxx Xxxxxxxx
[ stamp and signature ]
Name: Alon Israel Oil Company Ltd.
By: Xxxxx Xxxxxxxx, Title: President
Seller: Signed on: June 22, 2003
Name: Co-op Blue Square Services Association Ltd.
By: _____________, Title _____________
and by: _____________, Title _____________
