CUSIP No.: M52523103
|
SCHEDULE 13D
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Page 2 of 16 Pages
|
1 |
NAME OR REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gregory Gurtovoy
|
||
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
|
||
3 |
SEC USE ONLY
|
||
4 |
SOURCE OF FUNDS
PF
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION:
Israel
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7 |
SOLE VOTING POWER
-0-
|
|
8 |
SHARED VOTING POWER
8,971,617 Ordinary Shares (1)
|
||
9 |
SOLE DISPOSITIVE POWER
-0-
|
||
10 |
SHARED DISPOSITIVE POWER
8,971,617 Ordinary Shares (1)
|
||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
8,971,617 Ordinary Shares (1)
|
||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o
|
||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
67.76% (2)
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||
14 |
TYPE OF REPORTING PERSON
IN
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(1)
|
Consists of (i) 8,200,542 Ordinary Shares held directly by Willi-Food Investments Ltd. ("WIL"), and (ii) 771,075 Ordinary Shares held directly by B.S.D. Crown LTD. ("B.S.D."). The beneficial ownership of the Ordinary Shares is further described in Item 5.
|
(2)
|
Based on 13,240,913 Ordinary Shares outstanding as of January 23, 2017 (as provided by the Issuer).
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CUSIP No.: M52523103
|
SCHEDULE 13D
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Page 3 of 16 Pages
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1 |
NAME OR REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
B.S.D. Crown LTD.
|
||
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
|
||
3 |
SEC USE ONLY
|
||
4 |
SOURCE OF FUNDS
WC
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION:
Israel
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7 |
SOLE VOTING POWER
-0-
|
|
8 |
SHARED VOTING POWER
8,971,617 Ordinary Shares (1)
|
||
9 |
SOLE DISPOSITIVE POWER
-0-
|
||
10 |
SHARED DISPOSITIVE POWER
8,971,617 Ordinary Shares (1)
|
||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
8,971,617 Ordinary Shares (1)
|
||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o
|
||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
67.76% (2)
|
||
14 |
TYPE OF REPORTING PERSON
CO
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(1)
|
Consists of (i) 8,200,542 Ordinary Shares held directly by WIL, and (ii) 771,075 Ordinary Shares held directly by B.S.D. The beneficial ownership of the Ordinary Shares is further described in Item 5.
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(2)
|
Based on 13,240,913 Ordinary Shares outstanding as of January 23, 2017 (as provided by the Issuer).
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CUSIP No.: M52523103
|
SCHEDULE 13D
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Page 4 of 16 Pages
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1 |
NAME OR REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Willi-Food Investments Ltd.
|
||
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
|
||
3 |
SEC USE ONLY
|
||
4 |
SOURCE OF FUNDS
WC
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION:
Israel
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7 |
SOLE VOTING POWER
-0-
|
|
8 |
SHARED VOTING POWER
8,200,542 Ordinary Shares
|
||
9 |
SOLE DISPOSITIVE POWER
-0-
|
||
10 |
SHARED DISPOSITIVE POWER
8,200,542 Ordinary Shares
|
||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
8,200,542 Ordinary Shares
|
||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o
|
||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
61.93% (1)
|
||
14 |
TYPE OF REPORTING PERSON
CO
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(1)
|
Based on 13,240,913 ordinary shares outstanding as of January 23, 2017 (as provided by the Issuer).
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·
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If Israel 18 does not transfer to the Trustee all of the powers of attorney necessary in order to vote the shares of B.S.D. under its ownership, within the agreed time frame, and will not give the possibility to use these voting rights, such breach which will give Ta'aman the right to sell NewCo’s entire shareholdings and exercise all securities provided to Ta'aman under the loan agreement.
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·
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If Israel 18 will not be able to transfer to the Trustee's account, within 18 months following the execution of the MOU, all of the Israel 18 Holdings that are not shares which cannot be used due to restrictions under the lawsuit of B.S.D. against Israel 18.
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·
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If Israel 18 will not be able to release the entire holdings in the Companies from the restrictions imposed by B.S.D.’s lawsuit, within a period of 36 months.
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·
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If a final judgment is given in B.S.D.’s lawsuit, Israel 18 is required to pay the entire amount as determined in favor of B.S.D. If Israel 18 does not pay such amount, Ta'aman can pay the debt instead of Israel 18, whereas in order to pay this debt, the entire Israel 18 Holdings will be appraised at USD 10 million.
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·
|
Israel 18 will have a period of 30 days to correct any violation of the MOU as stated above.
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·
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Any payment not within ordinary course of business.
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·
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Any loan, fundraising, expansion of company debt that is not within ordinary course of business.
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·
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Providing any loan, credit, collateral or indemnification.
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·
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Announcement of any payment of dividend or any other distribution, and any adoption, amendment, implementation or cancellation of any distribution policy.
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·
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Any filing, settlement or cancellation of any legal proceeding or administrative proceeding regarding the companies in the group, including the liabilities or claim of any one of the companies.
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·
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A settlement or pledging of any of NewCo’s assets or the assets of any of the other companies in the group.
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·
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Acquisitions.
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·
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Increase or dilution of company capital.
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·
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Appointment of legal advisors and auditors for the companies in the group.
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·
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BGI will incorporate a new company (“Newco”) to which it will transfer all of its holdings in B.S.D.
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·
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The Purchaser will purchase from BGI. 50% of Newco’s share capital in consideration of an amount equal to $8.624 million (the “Consideration”), to be paid in accordance with an agreed payment schedule. The consideration amount reflects a B.S.D. valuation of $70 million (the “BSD Transaction Valuation").
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·
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BGI will act in order to enable the exercise of the right of first refusal which BGI has under a voting agreement between BGI and Israel 18 BV (“Israel 18”) dated March 20, 2014 (the “Voting Agreement”) to purchase the entire amount of Israel’s 18 direct holdings in B.S.D. ("Israel 18’s BSD Holdings").
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·
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Following the potential acquisition by Newco of Israel 18’s BSD Holdings, Newco will own approximately 43.65% of the voting rights in B.S.D. (excluding dormant shares). It should be noted that the exercise of such right of first refusal is not a condition precedent for the completion of the transactions pursuant to the Agreement.
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·
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Any consideration received by Israel 18 upon exercise of such right of first refusal is expected to be used for the repayment of certain of Israel 18’s debts and the release of security interests provided to third parties to secure the repayment of such debts (including security over B.S.D. shares owned by BGI), including the loan agreements and/or pledges with Ta'aman, Power Gate LTD, and Meinl Bank.
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·
|
The Agreement contains provisions for joint control over Newco.
|
·
|
In addition, under the Agreement, the Purchaser grants BGI a put option to sell its entire holdings in Newco to the Purchaser, upon the lapse of a period of five years from the date of signing of the Agreement in consideration for an amount equal to $8.624 million, if the right of refusal described above has not been successfully exercised, or $8 million plus any shareholder loans provided by BGI to Newco as of the date of the exercise of the put option, if the right of refusal described above has been successfully exercised.
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·
|
In connection with a claim filed by B.S.D. against Israel 18, B.S.D. has secured a lien over certain B.S.D. shares and BGI shares owned by Israel 18, to secure an amount of $13.1 million which B.S.D. considers to be owed to it by Israel 18. Under the Agreement, if it is held in a final judgment that B.S.D. is entitled to exercise such lien, then B.S.D. will be entitled to require the Purchaser to pay it an amount equal to up to $13 million, against release from the lien and transfer to the Purchaser of Israel 18's entire holdings in BGI, amounting to approximately 71.59% of the issued and paid-up share capital of BGI.
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·
|
Coming into force of the Agreement is conditional on:
|
a.
|
BGI receiving a valuation for B.S.D. from an external appraiser;
|
b.
|
If such valuation shows a B.S.D. valuation which is no more than 10% higher than the B.S.D. Transaction Valuation, the Agreement will immediately come into force; or
|
c.
|
If such valuation determines that B.S.D. has a valuation which is more than 10% higher than the B.S.D. Transaction Valuation, then the Consideration may be adjusted, at the Purchaser’s discretion, to reflect a valuation of 90% of the appraiser’s valuation. If the Purchaser is unwilling to adjust the Consideration as noted above, BGI may opt to terminate the Agreement.
|
Number | Description |
99.1 |
Joint Filing Agreement among the Reporting Persons (incorporated herein by reference to Exhibit 99.1 to Amendment No. 29 to the Schedule 13D filed on April 12, 2016).
|
99.2 |
Agreement Between B.S.D Crown Ltd. (f/k/a Emblaze Ltd.) and Zwi W. & Co. Ltd., and Yossi Willi Management & Investments Ltd., Y.M. Dekel – Holdings & Investments Ltd., Joseph Williger dated March 2, 2014 (incorporated herein by reference to Exhibit 99.3 to Amendment No. 23 to the Schedule 13D filed on June 13, 2014).
|
99.3 |
Amendment Number 1 dated March 6, 2014 to the Agreement Between B.S.D Crown Ltd. (f/k/a Emblaze Ltd.) and Zwi W. & Co. Ltd., and Yossi Willi Management & Investments Ltd., Y.M. Dekel – Holdings & Investments Ltd., Joseph Williger (incorporated herein by reference to Exhibit 99.4 to Amendment No. 23 to the Schedule 13D filed on June 13, 2014).
|
99.4 |
Amendment Number 2 dated April 3, 2014 to the Agreement Between B.S.D Crown Ltd. (f/k/a Emblaze Ltd.) and Zwi W. & Co. Ltd., and Yossi Willi Management & Investments Ltd., Y.M. Dekel – Holdings & Investments Ltd., Joseph Williger (incorporated herein by reference to Exhibit 99.5 to Amendment No. 23 to the Schedule 13D filed on June 13, 2014).
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99.5 |
Amendment Number 3 dated March 30, 2014 to the Agreement Between B.S.D Crown Ltd. (f/k/a Emblaze Ltd.) and Zwi W. & Co. Ltd., and Yossi Willi Management & Investments Ltd., Y.M. Dekel – Holdings & Investments Ltd., Joseph Williger (incorporated herein by reference to Exhibit 99.6 to Amendment No. 23 to the Schedule 13D filed on June 13, 2014).
|
99.6 |
Amendment Number 4 dated April 1, 2014 to the Agreement Between B.S.D Crown Ltd. (f/k/a Emblaze Ltd.) and Zwi W. & Co. Ltd., and Yossi Willi Management & Investments Ltd., Y.M. Dekel – Holdings & Investments Ltd., Joseph Williger (incorporated herein by reference to Exhibit 99.7 to Amendment No. 23 to the Schedule 13D filed on June 13, 2014).
|
99.7 |
Memorandum of Understanding, dated September 24, 2016, by Israel B.V., Gregory Gurtovoy, and Ta'aman Food Marketing Ltd.
|
99.8 |
Amended Memorandum of Understanding, dated September 28, 2016, by Israel B.V., Gregory Gurtovoy, and Ta'aman Food Marketing Ltd.
|
99.9 |
Agreement of Sale of Shares and Partnership, dated January 15, 2017, by Mr. Mordechai Peretz Hirshenboim, BGI Investments (1961) Ltd., and B.G. Alpha Ltd.
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Dated:
|
January 23, 2017
|
/s/ Gregory Gurtovoy | ||
Gregory Gurtovoy
|
||||
B.S.D. CROWN LTD.
|
||||
By:
|
/s/ Gregory Gurtovoy | |||
Name: Gregory Gurtovoy
|
||||
Title: Chairman
|
||||
WILLI-FOOD INVESTMENTS LTD.
|
||||
By:
|
/s/ Gregory Gurtovoy | |||
Name: Gregory Gurtovoy
|
||||
Title: Chairman
|
||||
By:
|
/s/ Iram Graiver
|
|||
Name: Iram Graiver
|
||||
Title: Chief Executive Officer
|
Name
|
Nir Netzer
|
Ziv Ironi
|
Ilan Admon
|
Board of Directors of B.S.D
|
Board of Directors of WIL
|
Board of Directors of WIL and the Chairman of the board of the Issuer
|
|
Residence or business address
|
Ayelet Hen 4, Herzeliya 4637034, Israel
|
Even Gvirol 2, Tel Aviv, Israel.
|
Ha-Zaharon 6, Rishon Le Zion, Israel
|
Present principal occupation or employment
|
CEO of DEN Financial Consultancy Ltd.
|
Lawyer
|
Acts as director for various public companies
|
Name of corporation or organization where employed
|
DEN Financial Consultancy Ltd.
|
Ziv Ironi Law firm
|
Not applicable
|
Address of corporation or organization where employed
|
Ayelet Hen 4., Herzeliya, Israel
|
Even Gvirol 2, Tel Aviv, Israel.
|
Ha-Zaharon 6, Rishon Le Zion, Israel
|
Description of principal business of corporation or organization where employed
|
Provides investment management services and financial consulting.
|
Law firm
|
Not applicable
|
Name
|
Alexander Gourtovoi *
|
Arik Safran
|
Iris Even-Tov
|
Director of Israel 18
|
Board of Directors of B.S.D.
|
Board of Directors of B.S.D.
|
|
Residence or business address
|
4901 HW Oosterhout, Zandheuvel 52 B, the Netherlands
|
Nahal Gamla 6.4, Kiryat – Ono, Israel
|
Lea Goldberg 20, Tel Aviv 6941220, Israel
|
Present principal occupation or employment
|
Director and owner of Advent Finance BV
|
Deputy Director General of Ravid A.R Holdings
|
CEO, founder and Director of Business Growth for RSL Electronics Ltd.
|
Name of corporation or organization where employed
|
Advent Finance BV
|
Ravid A.R Holdings Ltd.
|
RSL Electronics Ltd.
|
Address of corporation or organization where employed
|
Wijnbrugstraat 237,
3011XW Rotterdam, Netherlands |
35 Shaul Hamelech, Tel Aviv, Israel
|
Lea Goldberg 20, Tel Aviv 6941220, Israel
|
Description of principal business of corporation or organization where employed
|
Provides financial planning and other financial services
|
Private Israeli holding company which provides security, maintenance and hotel services
|
RSL Electronics Ltd. is a public company engaged in developing, designing, and manufacturing civil aviation systems, and military and marketing products for wind turbines that generate electricity
|
Name
|
Shalhevet Hasdiel
|
Ronit Zalman Malach
|
Iram Menachem Graiver
|
Board of Directors of WIL
|
Board of Directors of WIL
|
CEO of WIL and President of the Issuer
|
|
Residence or business address
|
15 Pinchas St., Bnei-Brak, Israel
|
16 Hana Rubina St.,
Rishon Lezion 7576258, Israel
|
4 Nahal Harif St., Northern Industrial Zone, Yavne 81106, Israel
|
Present principal occupation or employment
|
Publisher, CEO, Editor and owner of magazine
|
Consultant to public companies
|
CEO of WIL and Issuer
|
Name of corporation or organization where employed
|
"FINE" magazine
|
Not applicable
|
WIL and Issuer
|
Address of corporation or organization where employed
|
15 Pinhas St., Bnei-Brak, Israel
|
16 Hana Rubina St.,
Rishon Lezion 7576258, Israel
|
4 Nahal Harif St., Northern Industrial Zone, Yavne 81106, Israel
|
Description of principal business of corporation or organization where employed
|
Publisher, editor, CEO, and responsible for finance and content of magazine FINE
|
Not applicable
|
Importing and marketing of food products
|
Name
|
Shlomit Penn*
|
Eli Arad
|
Pavel Buber
|
Board of Directors of WIL
|
Board of Directors of WIL
|
CFO of WIL and Issuer
|
|
Residence or business address
|
4 Tamrir St., Jaffa, Israel
|
4 Bashari, Rishon Le Zion, Israel
|
4 Nahal Harif St., Northern Industrial Zone, Yavne 81106, Israel
|
Present principal occupation or employment
|
Consultant to high-tech companies mainly in the U.S. market regarding business development and sales
|
Board of Directors of BGI , B.S.D, and WIL; CEO of Merchavia Holdings and Investments LTD.
|
CFO of WIL and Issuer
|
Name of corporation or organization where employed
|
Self-employed
|
Merchavia Holdings and Investments LTD.
|
WIL and Issuer
|
Address of corporation or organization where employed
|
4 Tamrir St., Jaffa, Israel
|
5 Kineret, Bnei Brak, Israel
|
4 Nahal Harif St., Northern Industrial Zone, Yavne 81106, Israel
|
Description of principal business of corporation or organization where employed
|
N/A
|
Identifying and making investments in companies engaged in the field of biomedical and life sciences
|
Importing and marketing of food products
|
1. |
General
|
1.1. |
The objective of this MOU is to set out in writing the Parties interest to sign a comprehensive Shareholders Agreement with regards to their joint ownership and management of all shares owned by Gurtovoy (directly and indirectly) in BGI Investment (1961) Ltd. and BSD Crown Ltd.
|
1.2. |
This MOU will come into force and effect provided that the Parties have executed that certain Loan Agreement and Taaman has transferred the Loan Amount set forth therein to Adv. Gitzelter not later than will be provided in the Honorable Judge decision in file no. 59618-02-16 a copy of which will be attached hereto as Appendix A and according to the provisions detailed in the Loan Agreement and the mechanism specified there. For the prevention of doubts, in case the said Loan Amount is not transferred this MOU shall become null and void.
|
2. |
Cooperation
|
2.1. |
The Parties agree to sign the Agreement based on the terms and principles provided herein.
|
2.2. |
The Parties objective is to establish a new special purpose vehicle (The "SPV!') which will hold all the shares of BGI and BSD, held nowadays, directly by Israel 18, or for which Israel 18 holds ownership rights, and/or voting rights all subject to all applicable laws.
|
2.3. |
Gurtovoy undertakes on his expenses to release the shares currently deposited with Meinl Bank in Austria and to transfer them to the SPV, subject to any court decision regarding those shares if required. Alternatively (e.g. if applicable court will deny the transfer of those shares) Gurtovoy has an option to transfer the same amount of the shares from the market.
|
2.4. |
The Agreement will include the following terms and conditions:
|
2.4.1. |
SPV shall own 71.5% shares in BGI and 19% shares in BSD provided however that in case that there will be any restriction by law to transfer shares of BGI and BSD to an SPV, the Agreement will provide that each Party shall own 50% of the shares held by Israel 18 in BGI and BSD and the Parties shall establish a joint management and joint control within 90 day from the signing of this agreement.
|
2.4.2. |
Taaman will own 50% of the issued and outstanding share capital of the SPV or alternatively will own 35.75% shares of the BGI and 9.5% shares in BSD ("Alternative Structure"). In any structure All the 71.5% shares in BGI and 19% shares in BSD shall be transferred to Advocate Yaacov Amster as a trustee appointed jointly by the Parties (the "Trustee").
|
1. |
Consideration is paid in full.
|
2. |
Gurtovoy has finalized all his commitments according to above paragraph and according to this MOU.
|
2.4.3. |
Gurtovoy commits to ensure that within ten (10) days from signing this MOU, all of the proxies allowing the use of voting rights arising from the Shani Shears and remaining shares will be given to the trustee which will act according to this agreement and vote on behalf of the shares which are in his possession and on behalf of the remaining shares, that until Gurtovoy will complete all his duties and transfer all the shares to the SPV. Instructions to the trustee will be given according to a joint decision of both Parties. Any failure to provide and use the voting rights of all the shares subject to this MOU (Shani, Meinl, Fortisimo and Shimonov) within 10 days from the signing of this agreement, will be a breach of this MOU and a breach of contract of the Loan Agreement. In that case Taaman can sell all the shares of the SPV and fulfill all securities in Loan Agreement. In any event Gurtovoy shall have an option before the sale to cure the default in 14 days,
|
2.4.4. |
A failure to deliver the remaining shares to the Trustee's account, apart from those remaining shares which might be under a lien or pledge due to BSD claim, subject to this MOU within 18 months from the signature of this contract will be considered as a breach of this MOU and a breach of the Loan Agreement as above.
|
2.4.5. |
A failure to release restrictions from any shares subject of this MOU (shani, meni, fortissimo and shimonov) due to a the BSD claim against Israel 18 B.V. (Tel Aviv District Court) within 36 months from the signature of this contract will be considered as a breach of this MOU and a breach of the Loan Agreement as above.
|
2.4.6. |
In case BSD's claim will be accepted by the court, in a final judgment (herein: "BSD's Debt"), Gurtovoy will be responsible to pay BSD's debt. In the event Gurtovoy will not pay BSD's debt, Taaman will have the right, to pay out BSD's Debt, and any such payment will be charged off Gurtovoy's part where for this calculation, Gurtovoy's shares will be worth 10 million dollars if he had completed all his duties according to this agreement.
|
2.5. |
In any case (except if other remedy period is explicitly written) Gurtovoy shall have the 30 day remedy period to remedy any default under this agreement.
|
2.6. |
Operational management of the SPV and its subsidiaries.
|
2.6.1. |
Signatory rights. The following corporate actions of the SPV and its subsidiaries will be executed with a signature of a representative of each Party:
|
2.6.1.1. |
All payment orders that are not in the regular business manner;
|
2.6.1.2. |
Any borrowing or raising money (including entering into any finance lease), or increasing its indebtedness that are not in the regular business manner;
|
2.6.1.3. |
Making any loan, or granting any credit or giving any guarantee or indemnity;
|
2.6.1.4. |
The declaration or any other matters relating to payment of any dividend or other distribution, adoption, amendment, modification or cancellation of the dividend policy;
|
2.6.1.5. |
Instituting, settling, abandoning or compromising any legal, court, arbitration or administrative proceedings in any jurisdiction (or admission of liability) by any subsidiary involving a potential liability of or claim by any subsidiary;
|
2.6.1.6. |
Disposal or encumbrance of SPV's and its subsidiaries' assets;
|
2.6.1.7. |
Acquisitions;
|
2.6.1.8. |
Share increases or dilutions;
|
2.6.1.9. |
Nomination of new lawyers and accountants to the corporations.
|
2.6.2. |
The SPV or the shareholders will make Taaman and/or a representative on its behalf to have a signatory right also in the subsidiaries.
|
2.6.3. |
Until Gurtovoy will complete his duties to transfer the voting rights of all the shares to the trustee as mentioned in item 2.4.3 the trustee will vote with the shares that are in his possession and with the shares in which he received a power of attorney according to Taaman's orders.
|
2.6.4. |
Workers. The Parties will review the employees' loyalty to the Parties in the operational Companies and in subsidiaries and as long a party will think that an employee is not loyal, he will have the right to demand the replacement of the employee and inclusive in the subsidiaries.
|
2.6.5. |
Nominating directors in all subsidiaries. The parties will call for general meetings within 30 days from the day of signing this MOU and within they will ask to replace all directors that can be replaced with directors that will be agreed by all Parties. Representation will be proportionate to each of the Party's ownership in the SPV.
|
2.7. |
Both this MOU and the Agreement shall be subjected to obtaining all approvals required by the laws of Israel including the approval of the Anti-Trust commissioner of Israel as long as it is needed. Any action under this MOU or the Agreement, which requires the approval of the Anti-Trust commissioner, shall not be executed until such approval is received. The Parties agree to make all necessary announcements and releases required by any securities laws in the countries in which the shares of any subsidiary are listed provided that any report including mentioning of the other Party's name will be done in coordination with the other Party.
|
2.8. |
Share transfers. Each of the Parties will obtain first refusal, drag along and tag along rights.
|
2.9. |
Resolution of Deadlock. In case deadlock arises, Parties will seek arbitration resolution.
|
3. |
Binding Nature
|
4. |
General
|
/s/ Gregory Gurovoy
|
/s/ Taaman
|
Gregory Gurovoy
|
Taaman
|
1. |
General
|
1.1. |
The objective of this MOU is to set out in writing the Parties interest to sign a comprehensive Shareholders Agreement with regards to their joint ownership and management of all shares owned by Gurtovoy (directly and indirectly) in BGI Investment (1961) Ltd, and BSD Crown Ltd.
|
1.2. |
This MOU will come into force and effect provided that the Parties have executed the Loan Agreement and the trustee had transferred the Loan Amount set forth therein to Adv. Gitzelter according to the Honorable Judge decision in file no. 59618-02-16 dated 27 September 2016. A copy of which will be attached hereto as Appendix A and according to the provisions detailed in the Loan Agreement and the mechanism specified there and in light with the said in the court decision. A copy of the swift dated 28/09/2016 is attached Hereto as Appendix B.
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2. |
Cooperation
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2.1. |
The Parties agree to sign the Agreement based on the terms and principles provided herein.
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2.2. |
The Parties objective is to establish a new special purpose vehicle (The "SPV") which will hold all the shares of BGI and BSD, held nowadays, directly by Israel 18, or for which Israel 18
holds ownership rights, and/or voting rights all subject to all applicable laws. |
2.3. |
Gurtovoy undertakes on his expenses to release the shares currently deposited with Meinl Bank in Austria and to transfer them to the SPV, subject to any court decision regarding those shares if required. Alternatively (e.g. if applicable court will deny the transfer of those shares).
Gurtovoy has an option to transfer the same amount of the shares from the market.
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2.4. |
The Agreement will include the following terms and conditions:
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2.4.1. |
SPV shall own 71.5% shares in BGI and 19% shares in BSD provided however that in case that there will be any restriction by law to transfer shares of BGI and BSD to an SPV, the Agreement will provide that each Party shall own 50% of the shares held by Israel 18 in BGI and BSD and the Parties shall establish a joint management and joint control within 90 day from the signing of this agreement.
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2.4.2. |
Taaman will own 50% of the issued and outstanding share capital of the SPV or alternatively will own 35.75% shares of the BGI and 9.5% shares in BSD ("Alternative Structure"). In any structure All the 71.5% shares in BGI and 19% shares in BSD shall he transferred to Advocate Yaacov Amster as a trustee appointed jointly by the Parties (the "Trustee"),
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1. |
Consideration is paid in full.
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2. |
Gurtovoy has finalized all his commitments according to above paragraph and according to this MOU
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2.4.3. |
Gurtovoy commits to ensure that within ten (10) days from signing this MOU, all of the proxies allowing the use of voting rights arising from the Shani Shears and remaining shares will be given to the trustee which will act according to this agreement and vote on behalf of the shares which are in his possession and on behalf of the remaining shares, that until Gurtovoy will complete all his duties and transfer all the shares to the SPV. Instructions to the trustee will be given according to a joint decision of both Parties. Any failure to provide and use the voting rights of all the shares subject to this MOU (Shani, Meinlt Fortisimo and Shimonov) within 10 days from the signing of this agreement, will be a breach of this MOU and a breach of contract of the Loan Agreement. In that case Taaman can sell all the shares of the SPV and fulfill all securities in Loan Agreement. In any event Gurtovoy shall have an option before the sale to cure the default in 14 days.
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2.4.4. |
A failure to deliver the remaining shares to the Trustee's account, apart from those remaining shares which might be under a lien or pledge due to BSD claim, subject 10 this MOU within 18 months from the signature of this contract will be considered as a breach of this MOU and a breach of the Loan Agreement as above.
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2.4.5. |
A failure to release restrictions from any shares subject of this MOU (shani, menil, fortissimo and shimonov) due to a the BSD claim against Israel 18 B.V. (Tel Aviv District Court) within 36 months from the signature of this contract will be considered as a breach of this MOU and a breach of the Loan Agreement as above.
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2.4.6 |
In case BSD's claim will be accepted by the court, in a final judgment (herein: "BSDs Debt"), Gurtovoy will be responsible to pay BSD's debt. In the event Gurtovoy will not pay BSD's debt, Taaman will have the right, to pay out BSD's Debt, and any such payment will be charged off Gurtovoy's part where for this calculation, Gurtovoy's shares will be worth 10 million dollars if he had completed ail his duties according to this agreement.
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2.5. |
In any case (except if other remedy period is explicitly written) Gurtovoy shall have the 30 day remedy period to remedy any default under this agreement.
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2.6. |
Operational management of the SPV and its subsidiaries.
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2.6.1. |
Signatory rights. The following corporate actions of the SPV and its subsidiaries will be executed with a signature of a representative of each Party:
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2.6.1.1. |
All payment orders that are not in the regular business manner;
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2.6.1.2. |
Any borrowing or raising money (including entering into any finance lease), or increasing its indebtedness that are not in the regular business manner;
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2.6.1.3. |
Making any loan, or granting any credit or giving any guarantee or indemnity;
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2.6.1.4. |
The declaration or any other matters relating to payment of any dividend or other distribution, adoption, amendment, modification or cancellation of the dividend policy;
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2.6.1.5. |
Instituting, settling, abandoning or compromising any legal, court, arbitration or administrative proceedings in any jurisdiction (or admission of liability) by any subsidiary involving a potential liability of or claim by any subsidiary;
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2.6.1.6. |
Disposal or Encumbrance of SFV's and its subsidiaries' assets;
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2.6.1.7. |
Acquisitions;
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2.6.1.8. |
Share increases or dilutions;
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2.6.1.9. |
Nomination of new lawyers and accountants to the corporations.
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2.6.2. |
The SPV or the shareholders will make Taaman and/or a representative on its behalf to have a signatory right also in the subsidiaries,
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2.6.3. |
Until Gurtovoy will complete his duties to transfer the voting rights of all the shares to the trustee as mentioned in item 2.4.3 the trustee will vote with the shares that are in his possession and with the shares in which he received a power of attorney according to Taaman's orders.
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2.6.4. |
Workers. The Parties will review the employees' loyalty to the Parties in the operational Companies and in subsidiaries and as long a party will think that an employee is not loyal, he will have the right to demand the replacement of the employee and inclusive in the subsidiaries.
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2.6.5. |
Nominating directors in all subsidiaries. The parties will call for general meetings within 30 days from the day of signing this MOU and within they will ask to replace all directors that can be replaced with directors that will be agreed by all Parties.
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2.7. |
Both this MOU and the Agreement shall be subjected to obtaining all approvals required by the taws of Israel including the approval of the Anti-Trust commissioner of Israel as long as it is needed. Any action under this MOU or the Agreement, which requires the approval of the Anti-Trust commissioner, shall not be executed until such approval is received. The Parties agree to make all necessary announcements and releases required by any securities laws in the countries in which the shares of any subsidiary are listed provided that any report including mentioning of the other Party's name will be done in coordination with the other Party.
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2.8. |
Share transfers. Each of the Parties will obtain first refusal, drag along and tag along rights.
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2.9. |
Resolution of Deadlock. In case deadlock arises, Parties will seek arbitration resolution.
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3. |
Binding Nature
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4. |
General
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/s/Gregory Gurtovoy
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/s/ Israel 18
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/s/ Taaman
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Gregory Gurtovoy
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Israel 18
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Taaman
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A. |
BGI holds 27,100,000 ordinary shares of BSD Crown Ltd. (hereinafter:"BSD"), representing approximately 24.64% of its share capital.
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B. |
Between BGI and its controlling shareholder, Israel 18 B.V. (Hereinafter: "Israel 18"), exists a shareholders' agreement dated March 20, 2014, attached as Appendix A to this agreement (the "Voting Agreement"), which provides BGI among other things, with the voting rights of shares of BSD that Israel 18 owns, and also grants BGI a right of refusal to purchase BSD shares prior to Israel 18 selling, transferring or pledging any of the shares to a third party (the "right of refusal").
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C. |
Israel 18 engaged with Taaman Food Marketing Ltd. a loan agreement and in addition a memorandum of understanding to that transaction, under which Israel 18 is trying to sell its direct holdings in BSD to Taaman Food Marketing Ltd ("Taaman").
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D. |
BGI believes that following the signing of a memorandum of understanding between Israel 18 and Taaman, as mentioned above, there arose to BGI the right to refuse the sale of BSD shares by Israel 18, in accordance with the voting agreement;
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E. |
The Purchaser seeks to engage with BGI for the acquisition of shares in a way that a new company shall be established by BGI, which will hold 27,100,000 ordinary shares of BSD, representing approximately 24.64% of the issued and outstanding share capital of BSD (the "New Company" or "New Co"), and the purchaser will acquire 50% of the new company in return for 8.624 million USD, reflecting a company value of 70 million USD to BSD (the "purchase price").
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F. |
Immediately following the execution of this agreement, BGI is intends to exercise its right of refusal towards Israel 18, so BGI will acquire the entire holding of Israel 18 in BSD, representing 19.01% of the issued and outstanding capital of BSD, which will be held by the new company, in which the purchaser will hold 50%.
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G. |
Israel 18 pledged part of its holdings in BSD shares to third parties, including Taaman, Bank Meinl and Power Gate (the "pledgers"), so in addition to the payment of the consideration for the exercise of the right of refusal, it will be required that BGI shall pay additional amounts in order to release the liens that apply to these shares.
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H. |
Following the sale of the NewCo shares to the Purchaser, BGI will not have all of the necessary funds for the realization of the right of refusal and the additional capital required for the release of the pledged shares from the pledgers; therefore, the parties agree that the purchaser will provide all the necessary funds, over and above the funds provided by BGI, to complete the purchase of shares as part of the right of refusal, and the release of the pledged shares from the pledgers.
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I. |
BGI's board of directors approved this agreement in a legal manner, and the BGI board of directors protocol confirming the sale and the authorized signatories to this agreement on its behalf are attached as Appendix B to this agreement.
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1. |
The valuation
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1.1 |
Immediately upon signing of this agreement, BGI will contract with an appraiser to perform a valuation of BSD (the "valuation").
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1.2 |
If the valuation received will determine a BSD value that is greater than 77 million USD, which means a value greater by more than 10% of the purchase price, then BGI will turn to the purchaser to update the purchase price, so that it will be consistent with the valuation so that the gap between the purchase price and the valuation does not exceed 10%. If the acquirer chooses not to update the purchase price as stated, then BGI will be entitled to cancel the transaction without any penalty or sanction.
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1.3 |
The time available to perform a valuation is until 30 January 2017. If no valuation is accepted by the date mentioned, then the agreement enters into force on 1 February 2017
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2. |
The consideration for the acquisition of 50% of the new company by the purchaser (and later the total transaction amount, respectively)
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2.1 |
As specified in paragraph 1 above, with the purchase price updated, as required, the purchaser will acquire from BGI 50% of the issued and outstanding capital of the new company, which will hold 27,100,000 ordinary shares of BSD, representing 24.64% of the issued and outstanding capital of BSD.
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2.1.1 |
In return for the purchase of the shares of the new company, the purchaser will pay to BGI a total of 8.624 million USD, or the adjusted purchase price, as determined in accordance with the updated valuation, as specified in paragraph 1 above (the "purchase price of the shares"), purchase price of the shares will be paid by the buyer in the order of payments as follows:
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2.1.1.1 |
Immediately upon signing of this agreement, the buyer shall transfer to BGI a total of 1 million NIS, in addition to a total of 1 million NIS transferred by the buyer to BGI prior to signing of this agreement, as a loan that does not bear interest. Immediately upon signing of this agreement the loan will become part of the payment for the acquisition of shares in the new company, so that the first payment will constitute 2 million NIS (the "First Payment"). The first payment funds will be returned to the purchaser in the event that, as a result of the valuation received, the deal does not continue.
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2.1.1.2 |
A total of 2.310 million USD (with a deduction of 2 million NIS that has already been paid upon signing the agreement) shall be paid by the purchaser to BGI within 30 business days from the date of signing (the "Second Payment").
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2.1.1.3 |
A total of $2 million shall be paid by the purchaser to BGI within 90 days from the date of the second payment.
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2.1.1.4 |
A total of $2.157 million shall be paid by the purchaser to BGI within 180 days of the second payment .
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2.1.1.5 |
A total of 2.157 million shall be paid by the purchaser to BGI within 270 days from the date of the second payment.
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2.1.2 |
BGI commits to a sum of $7 million in funds that will be transferred to a trustee account which will be opened by Yaron Kaiser (the "Trustee") in order to ensure the payment of BGI's right of refusal. Accordingly, BGI ensures by signing this agreement that the last $7 million payment of the amount for the purchase will be transferred directly to the trust account and Trustee, and this will be considered as having receiving the money by hand. The commitment of BGI to hold the funds in order to exercise the right of refusal will end no later than 180 days from the date of signing the agreement, as in the date the period to exercise the right of refusal ends as specified in paragraph 3.2.
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3. |
Continue the transaction and the consideration respectively
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3.1 |
BGI will contract with an appraiser to obtain an economic opinion for the extraction of the price right of refusal to acquire shares BSD, as a result of the transaction with Taaman.
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3.2 |
BGI will turn to Israel 18 and announce its intention to exercise its right of first refusal, and that for this purpose the buyer in the agreement entered into with the sale of shares and financing. The period for exercising the right of refusal to stand by BGI will be a period of 180 days from the date of signing of this agreement (hereinafter: "The completion of the right of first refusal") after which the following will occur:
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3.2.1 |
upon receipt by Israel 18 that it respects the right of refusal, or alternatively, a final court decision ordering Israel 18 to respect the right of refusal, and letters of intent will received from the pledgers that for the sums stated in the letter of intent they will release their shares, and Israel 18 and pledgers or the trustee will undertake to transfer the shares representing 19.01% of the issued and outstanding capital of BDS, to BGI or to the new company as directed by her BGI, and received a letter from attorney who manages the lawsuit on behalf of BSD against Israel 18 (and the following paragraph 9) that it does not oppose the transaction (the "right of first refusal successful completion"), the following provisions shall apply:
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3.2.1.1 |
The remainder of the full purchase price, in a total amount of 8.624 million USD, instead of the payment dates set out in section 2.1.1 above.
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3.2.1.2 |
An additional amount of $8.7 million. These amounts will be called collectively "transaction amount".
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3.2.2 |
The trustee will use 15.7 million USD of the funds deposited in trust to make the following payments:
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a. |
Pay Taaman for the cancellation of the memorandum of understanding between Israel 18, or release of 10,278,253 BSD shares held by them in respect of a loan granted by them to Israel 18 (9.34% of the issued and outstanding capital of BSD) and transfer them to the Trustee or the new company.
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b. |
Pay Power Gate for release of 4,541,524 BSD shares representing 4.13% of the issued and outstanding capital of BSD, pledged in their favor.
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c. |
Pay Meinl Bank for the release of 6,092,233 BSD shares representing 5.54% of the issued and outstanding capital of BSD held and pledged in favor of Meinl Bank.
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3.2.3 |
The balance remaining in the trust account will be transferred to BGI.
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3.2.4 |
In the event the letters will be received from Meinl, Powergate and Israel 18 regarding the specific amounts for which the shares can be released, the buyer will commit to pay the debt on the shares in exchange for transferring the shares to the NEWCO or to the trustee until transferring the shares to the NEWCO and the payment for these shares would be made even before receiving such a letter from Taaman. Should the right of first refusal be successfully exercised, these shares will be part of the shares purchased by NEWCO within the payments specified in paragraph 3.2.2 above, and, should the right of first refusal not be successfully exercised, the buyer will transfer the shares to the NEWCO in exchange for 50% of the price paid for the shares by the NEWCO and both parties will equally split the cost of the owners' loan needed in order to purchase the shares.
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3.2.5 |
The total transaction will be recorded in the books of BGI or the books of the new company, respectively, as follows:
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3.2.5.1 |
8.624 million USD from the transaction amount will be recorded as consideration from the purchaser in respect of the acquisition of a 50% stake in the new company that will establish by BGI (hereinafter: "the acquisition consideration").
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3.2.5.2 |
An amount equal to half of a right of refusal from the acquisition consideration will be recorded as a shareholders loan that was granted by BGI to the new company, as part of BGI participation in cost of exercising the right of refusal to Israel 18 (the "Shareholders loan BGI").
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3.2.5.3 |
An amount equal to half of the right of refusal from the transaction amount will be recorded at a shareholders loan provided by the buyer to the new company for participation in share half the cost of the right of refusal of Israel 18 (the "Shareholders loan Peretz").
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3.2.5.4 |
Monetary difference between: (a) transaction amount as specified in paragraph 3.2.1 above, and (b) for the acquisition consideration as described in section 3.2.5.1 plus shareholders loan as described in section 3.2.5.3 that will be used for the remainder of the payment to the pledgers in order to clear the pledged shares, will be written in the books of the NEWCO as an owners loan that the buyer gave to the NEWCO (Hereby: the buyers loan). The NEWCO will use the money from the buyers loan in order to redeem an equivalent amount out of Shareholders Loan BGI ("Funds for Clearing the Pledge") to BGI. BGI will used the Funds for Clearing the Pledge in order to clear the debt on the remainder of the pledged shares, against the transfer of the shares to the NEWCO. BGI will deduct an amount equal to the Funds for Clearing the Pledge from the owners loan it owes Israel 18.
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3.2.5.5 |
The buyers loan will be paid only from the amounts that will be received by the NEWCO from funds that will be received by the companies held by them from dividend or management fees that will be received by the NEWCO.
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4. |
Bridge Loans
|
4.1 |
Purchaser undertakes to provide bridge loan to BGI as follows:
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4.1.1 |
On 01/01/2018, a loan of US $250 thousand.
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4.1.2 |
On 01/01/2019, a loan of US $250 thousand.
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4.1.3 |
On 01/01/2020, a loan of US $250 thousand.
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4.1.4 |
On 01/01/2021, a loan of US $250 thousand.
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4.2 |
Bridge loans will bear an interest rate of 7% per annum from the date of the actual granted to BGI, and will be paid principal plus interest in one payment at the end period 'Put' option as defined below. If the 'Put' option will be exercised, repayment will be done by way of offsetting the proceeds of the Put.
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5. |
Put option
|
5.1 |
The buyer gives BGI a put option to sell its remaining holdings in the new company (50%). Option will be exercisable from the end of 5 years from the date of signature of this agreement until the end of the six (6) months later (the "Put option"), as follows:
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5.1.1 |
In the event that the transaction for the right of refusal, Peretz will pay to BGI, to the extent BGI exercises the put options, a total of 8 million USD plus shareholders 'loan of BGI as well as all other shareholders' loan provided by BGI to new company until the date of exercise of put options.
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5.1.2 |
In the event that the right of refusal was not completed, the new company will hold 27,100,000 BSD shares only, and Peretz will pay to BGI, as long as BGI exercise the Put option, 8.624 million USD for the acquisition of 50% of the issued and outstanding capital of the new company of BGI.
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5.2 |
Over the life of 'Put' option, as long it is has not expired, first lien will apply on the new company shares held by the purchaser in favor of BGI, to ensure the commitment of the purchaser to pay for the shares 'Put' option in the event a put option is exercised.
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6. |
Joint Control Agreement
|
6.1 |
The parties will sign a management agreement which shall grant equal rights in relation to all voting rights in the new company, and will maintained the same number of representatives from each side for all the directors on board of directors of the new company and its subsidiary and affiliated companies, including the right to appoint by mutual agreement only the chairman, CEO and all senior positions in any corporation held or controlled.
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6.2 |
In the event that no agreement of the parties will reached regarding how to vote in the new company or subsidiary and affiliated companies, the parties will appoint a mediator, whose identity will be agreed upon by the parties, and in the absence of agreement between the parties the identity of the mediator will be determined by the chairman of the Israel Bar Association. The mediator's decision in an arbitration proceeding shall be final and binding on the parties.
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6.3 |
In addition, provisions will be established regarding the right of first refusal and the right to join in the event that a party will seek to sell its holdings in the new company, while during the 'Put' option the buyer will not be entitled to make a sale of its holdings in the new company, directly or indirectly, unless he preceded Put 'option and BGI agreed to sell his shares Put 'option.
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6.4 |
Each party undertakes that as it acquires additional shares in the subsidiaries, BSD, Willi-Food Investments and Willi-Food International (hereby: the subsidiaries), it will vote these shares according to the decision of the new company only.
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6.5 |
Without breaching the voting agreement, as is written in paragraph 6.4 above, each sides commits that in the event that a side to this agreement purchases shares of any of the subsidiaries, they will grant the other side the right to purchase 50% of the shares purchased by them, under the same conditions. Exercising this right will be done in writing to the other side, while they will have 21 days from the notice to declare their intent to join the purchase of the shares.
|
7. |
Cooperation
|
8. |
Violations
|
8.1 |
Without prejudice to any other remedy of BGI, in case of violation the following provisions shall apply:
|
8.1.1 |
In the event that the buyer did not meet its obligations while transferring funds to BGI or the trustee on the dates provided, it will be considered a fundamental breach of this agreement, and BGI may cancel the agreement immediately without any compensation to the buyer.
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8.1.2 |
Failure of the buyer to meet its obligations for the payment dates set out in the agreement shall be considered a fundamental breach of this agreement and the Purchaser shall not be entitled to shares of the new company.
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8.1.3 |
In the event that Israel 18 will announce that it respects the right of refusal, or alternatively a court ruling ordering Israel 18 to respect the right of refusal, and the buyer will not pay the full amount of the transaction at the time, it is determined that all funds paid to BGI or deposited with the trustee will constitute an agreed compensation for BGI, without proof of damage by BGI and BGI will have any other right against the purchaser in relation to non-compliance with obligations under the agreement.
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8.2 |
Delay in meeting the commitments of the parties for 7 days will not be considered as a violation.
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9. |
BSD Claim
|
10. |
The agreement
|
11. |
Bearing BGI costs
Peretz undertakes to bear the legal expenses of BGI in connection with the transaction totaling 75 thousand USD plus legal VAT to be paid to the law firm of BGI - Gluzman Co., Advocates, within 180 days from the date of signature of this agreement - this salary includes the trustee services. |
12. |
Changes in the agreement.
|
12.1 |
This agreement contains, merges, and expresses fully and completely all the conditions agreed between the parties. Any guarantee, understanding, agreement, whether oral or whether in writing, warranties or representations regarding the subject of this agreement given or made by the parties prior to the date of signing this agreement, and which are not expressed explicitly in it, is not sufficient to add to charges and rights under this agreement or arising therefrom, detract from or alter, and parties will not be related to them.
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12.2 |
Beginning from the signing of this agreement, any change and / or the acceptance and / or clarification that is not written in this agreement shall not be valid unless it is signed by the parties in writing, through a new document to be signed between the parties.
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12.3 |
Any behavior by either party shall not be deemed a waiver of any rights under this agreement or under any law, unless the waiver, acceptance, rejection, modification, cancellation or addition is made explicitly and in writing. Consent or waiver of any of the parties in this agreement, in a particular case regarding a certain party, shall not constitute a precedent enabling one to learn from analogy to other cases or other parties.
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13. |
Arbitration
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14. |
Jurisdiction
|
15. |
This agreement is subject to all applicable laws and the approval of any regulatory authority should it be required.
|
16. |
Posts
|
i. |
open a trust account at Bank Leumi , which is benefiting from its BGI Investments (1961) Ltd. and - Mr. Mordechai Peretz Hirshenboim and / or its subsidiary (hereinafter "Purchaser").
|
ii. |
The buyer will deposit the funds in the trust account according to the agreement that signed between the parties on ___
|
iii. |
You will trust funds as follows:
|
a. |
In the event that the right of refusal will exercised you will act the trust funds as follows:
|
1. |
You will transfer from the trustee an amount of 2.2 to Power Gate Ltd against _____________ shares BSD Crown Ltd which will be deposited in a trust account.
|
2. |
A total of $ 10.5 million will be transferred to Taaman Food Marketing Ltd against the transfer of __________________ BSD Crown Ltd shares representing 9.5% of the issued and outstanding capital of BSD, to the Trust Account.
|
3. |
A total of 2.95 million USD will be transferred by you to Meinl Bank, against Transfer of ____________ BSD Crown shares representing ___% of the issued and outstanding capital of BSD, to the Trust Account.
|
4. |
The balance of funds remaining in the trust account after the payment set forth above will be transfer to BGI Investments (1961) Ltd.
|
iv. |
Where the right of refusal is not paid, then transfer the funds to BGI trust.
|
v. |
In addition to the finals of all payments incumbent on the buyer, including consideration for the put options as disposed of, in accordance with the share purchase agreement, we instruct you that you hold in trust, the shares of the new company that same buyer purchased, representing 50% of the shares in the new company, and will register a first degree lien in BGI favor the said shares, in accordance with the wording of the bond and pledge to be prepared by you.
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vi. |
In addition, the trust will hold shares in BGI new company, in order to guarantee the right of first refusal provisions in connection with the sale of shares in the new company, as exercised by the purchaser.
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vii. |
In any case where you informed by BGI that there was an event of default by the purchaser and an injunction from a court orders has received so you should delay the transfer of funds within 7 days from the date it received as BGI stated,you will transfer all trust funds to BGI, including the pledged shares to BGI without it may be purchaser any claim to suit you.
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viii. |
The Parties undertake to absolve you in advance of any claim in respect of any acts within the framework of this mutual, provided that made in good faith. The Parties undertake to indemnify you in advance for any expense that will be to you as part of this Trust, including where you go to court for ruling on any question or action necessary to it under this Trust Agreement.
|
ix. |
The parties to this agreement shall bear all the expenses of the Trust, including bank account opening fees, banking fees, charges on the trust account and other expenses related to your role as a trustee.
|
x. |
The parties, by mutual agreement, be allowed to inform you that your role as a trustee, also be entitled to announce your role as a trustee at any time with prior notice of 30 days and the parties will be required to provide a replacement for you, as it will not find a replacement within 30 days, shall be entitled to call the an alternate trustee, when the parties will be committed to any replacement trustee expenses, including fee as determined as part of the fee to be determined by agreement between you and him.
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xi. |
The parties waive in advance any claim or lawsuit to you as a trustee.
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xii. |
IN WITNESS WHEREOF the parties have signed
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