ADVOCATE ISRAEL

Civil Appeal No. 2699/92
Civil Appeal No. 2930/92 Civil Appeal No. 2971/92
Nissim Bachar
vs
.1 T.m.m. Aircraft Food Industries (JFK) Ltd.
.2 Ts"t Tourism and plants Company Holdings Ltd. AE 2699/92
Ts"t Tourism and plants Company Holdings Ltd.
vs
.1 Nissim Bachar
.2 T.m.m. Aircraft Food Industries (JFK) Ltd AE 2930/92
T.m.m. Aircraft Food Industries (JFK) Ltd.
vs
.1 Nissim Bachar

This document was translated by computer software without human contact, so there may be significant errors in translation: please do not rely on the translation without obtaining appropriate advice with a certified Israeli advocate / lawyer

.2 Ts"t Tourism and plants Company Holdings Ltd. AE 2971/92 Supreme Court sitting as - civil appeals court
[2.6.96]
Before judges from Cheshin, T. Strasberg - Cohen, Charles E. Phone


Companies Ordinance [New Version], תשמ"ג 1983, NK 764, Sections 118, 118 A, 119, 235 ¬ Companies Amendment Ordinance (No. 17), Tshm"a 1980, Book of Laws .50 respondent 2 Ltd. A 2699/92 (hereinafter - the respondent 2), all shares are held on - by Al - Israel Airlines Ltd., provides supervision and management. The date of filing of the claim held on 2nd respondent - 77% of the share capital of the respondent 1 CAC 2699/92 (hereinafter respondent ¬ 1), appellant CAC 2699/92 (hereinafter - the appellant) held on - 23% of them, which in March acquired Dutch company 186.
Mini - Ratio:
* Companies - relief in case of discrimination - meaning
* Contracts - Contract appearance - means

When he bought the shares, was in effect - that some - 10 years - a management agreement, whereby respondent gave respondent 2 in 1 production management services for aircraft delivered food, for 5% and annual turnover - 10% annual operating profit and cost reimbursement experts respondent 2 offers the respondent the appellant appealed to .1 District Court declaring void the management agreement contract Maikra claim being apparent. The court ordered the cancellation of the agreement after the verdict because it is deprive the minority, but if they all shareholders consent in writing an agreement removed from deprivation. Hence appeals, the questions turned off if the agreement because it is apparent contract, if there is to cancel due to being a pervert and if there is room for prompt claim against the appellant argued for its cancellation.

The Supreme Court ruled: N.
A.. (1) The contract is a primary tool for creating representations of reality, can rely on them (243 a).
(2) contract ostensibly creates a situation of disparity between apparent reality and situation between the two sides (243 a - b).
(3) We should distinguish between two types of contracts apparent: on fictitious contract beyond the contract has nothing to hide behind a contract was reflected from it. Contract from the second type are actually two contracts: contract and contract cover camouflaged (243 B - C).
(4) to determine that the contract apparently not enough that the management agreement came one benefit shareholders at the expense of other, what the Court as determined by Kama, the actual respondent enjoys clear economic benefits 1 (244 B).
At. (1) Section 235 Companies Ordinance [New Version], תשמ"ג 1983, establishes a general norm flexible court intervention to establish a norm of fairness even in commercial management company (244 d - f).
(2) the expression "discrimination", which replaced the phrase "minority oppression", brought with him a liberal interpretation makes it easy for underprivileged minority win remedy discriminatory against the majority (245 g).
(3) the discrimination many face it, sometimes sophisticated and sometimes borderline rational business threshold (245 g).
(4) discrimination against the minority in society is essentially a state of division of resources unfairly compound relationships controlling shareholders and minority shares in (246 a).
(5) Ngisotm majority of the stock positions of power, exceeding that of the minority, will this force will prevent harmful brought Latvian form a network of provisions "ethical" and stopped the law - to hold this power (the 246).
(6) should examine the consequences arising from the decision to recognize discrimination and a place even when the motives were legitimate (246 c - d).
(7) In the case of discrimination, the court devoted to consideration - extensive knowledge regarding the determination of the principles Hnormatibiim appropriate remedies on this issue (246 F).
(8) have to flex their standards, to ease the criteria set behavior norms of decency and high society with majority minority (246 M - 247 A).
(9) special relationship of Parent Company - a subsidiary by nature and nature require mandatory recognition of the unusually high ranking majority behavior regarding his attitude towards the minority. Relationship between the Parent Company and Subsidiary Subsidiary is often a conduit for funds to the parent company, not necessarily in favor of its subsidiary or a minority (the 248 - M).
(10) burden of proof of discrimination imposed on the petitioner, and must also prove an element of damage that the company suffered a lack of good - not in favor of heart and became the company (249 C).
(11) The question if the majority creates discrimination against minority tested - by an objective test (249 C - D).
(12) the burden imposed on shareholders who claim discrimination is alleged to prove the existence of discrimination. Such evidence was presented, will burden my shoulder the majority vote acted properly and that action does not constitute discrimination against the minority (249 d).
C. (1) purchases of shares in the company can be aware of the existence of such agreements or other company with other actors, and - the - the - yes, and the purchase, he will be a contract that constitutes discrimination against minority and attack the validity (251 C).
(2) concession of the shareholder's claim of discrimination must be done explicitly, and indeed the acquisition of shares in the company is to create a waiver, estoppel, or motivate Mltaon deprivation (251 c - d).
D.. Danan agreement is essentially cancel, and cancel it after the ruling (and 251 - M).
The. Company is entitled to proceed in law stipulated regulations rather than the minority which Tkfh. This is not to give power by a minority can paralyze the company's activities carried out - the majority decision (252 B - C).

Rulings - Dean of the Supreme Court mentioned: N.
[1] AE 630/78 Y. Biton v. Mizrachi, PD to (2) .576
[2] AE 623/85 m Slhub v. Galia, a building contractor and Development Ltd. et al, PD Meg (2) .214
[3] AE 667/76 to. Glickman Ltd. v. EM Barkai Investment Company Ltd., PD Heart (2) .281
[4] AE 594/79 Faka Industries Ltd. v. Rothenberg, PD him (3) .309
[5] AE 817/79, 818, 585/82 Kosoi v. YL Feuchtwanger Bank Ltd. et al; Dror N. Komrsiel Bank SA Geneva; Komrsiel Bank SA J. Neve v. Bank of IL Feuchtwanger Ltd. et al, PD wet (3) .253
[6] AE 226/85 Shasha Securities and Investments Company Ltd v. Bank "foundations" mortgage loans, Ltd. et al, PD Mb (1) .17


Rulings - Dean of the District Courts mentioned: in
[7] Am"h (live) 140/89 Dr. N. assessor Haifa, Fd"a units .323

Rulings - American lawyer mentioned: and
. (1955) 173D. 2F 219perlman v. Feldmann [8]

Rulings - English law mentioned: N.
. (. ch). 1016R. All e 3 [1982]. Re halt garage ltd [9]


Notes: B
Relief in case of discrimination, see: AE 275/89 Eliezer and Davidson v. Orenstein, PD Moe (1) 125; Charles Cohen, "Remedies in case of deprivation - nature and extent of Applicability" The research trial (Tshm"z) 28; J. Gross, "Saad deprivation on drug company shareholders' notional trial calendar (Tshm"t) .273
Appeals the ruling - Dino District Court of Tel - Aviv - Jaffa (Judge A. Goren) dated 16.4.92 the "895/90. Appeals were rejected mainly.

D. Cohen, H. Peled - named appellant CAC 2699/92; D. Aaron, Y. Meltzer - named respondent 1 CAC 2699/92 (2971/92 undermines CAC); A. Grossman - named respondent 2 Ltd. "A 2699/92 (2938/92 undermines CAC).


Stopped - Dean

Justice T. Strasberg - Cohen: N. .1 ahead three appeal - Sshmiatm merged - the ruling - Dino District Court of Tel - Aviv - Jaffa, where it was decided that a management agreement signed between the Company Ts"t Tourism and plants Holdings Ltd. (hereinafter - Ts"t) and T.m.m.
Aircraft Food Industries (JFK) Ltd. (hereinafter - T.m.m.) dated 27.6.76 (hereinafter - the management agreement), "because discrimination has minority and will cancel it unless all shareholders consent in writing an agreement removed from discrimination in question. Kama Court refrained from declaring the contract contract ostensibly idle statement and therefore not apply retroactively, but - as expressed in court - it applies "henceforth."

2 facts needed for our purposes are briefly as follows: In

Ts"t, all shares are held on - by Al - Israel Airlines Ltd., provides supervision and management. The date of filing the claim, held Ts"t on - 77% of the share capital of T.m.m., and businessman Nissim Bachar (hereinafter - Bakr) kept on - 23% of them acquired in March 1986 which, by coming - power, attorney Gross , a Dutch company Mfi (a subsidiary of, Klm Dutch airline company routes).
When you purchased shares in -t.m.m. On - by Baker, was in effect - that some - 10 years - the management agreement, whereby gave Ts"t to -t.m.m. management services in food production Lmtoim delivered, to help streamline operations and improve sales, exchange and other financial commitments from T.m.m. to Ts"t, permanent management agreement against us.
Baker has purchased the shares T.m.m. part, did he attempts to change the management agreement, and the question failed, he filed a lawsuit to declare it void. Stopped - Dino Judge Kama, declared void the agreement "from here on, is the subject of appeals before us.

Claims Parties
3 Baker's struggle against the management agreement focuses on the desire to release T.m.m. The agreement under which it pays for - Ts"t% annual turnover and 5 - 10% annual operating profit and returns to - the cost of experts Ts"t Sts"t offers. According to Baker, the management agreement is a contract seemingly every purpose is to enrich the felt "A unlawfully because of -t.m.m. Not required at all management services and supervision of Ts"t, which can not be in practice. T.m.m. decision to forge the agreement is - the - allegedly - in practice, the decision of the majority owner of shares Ts"t T.m. m ., and is consistent with the interests of T.m.m. However, the prosecution filed a derivative lawsuit, but minority shareholders claim, the claim of discrimination - by the management agreement, which - according to the claim - seemingly contract.
.4 Bcrhoser therefore before us on petition to declare void the management agreement Maikra, ostensibly as a contract, a cancellation would be a hysterectomy, whereas Ts"t and claim that the agreement -t.m.m. muscle and attacked in every respect and that he was at the time of knowledge, Ifm whose shares acquired Baker, consent, and that he had knowledge of the pillow or come - power, Attorney Gross, when he sold the stock purchase price "deal". It also claims that there was a parallel agreement between T.m.m. L. -, Klm, including an annual fee to - Klm shaped relative symmetry between the majority and minority, Baker enjoyed it for a long time, so even for this he is entitled to bring claims against the management agreement. Another claimed that management services were given the actual management fees are reasonable, what else she went in fact did not demand and did not receive Ts"t from -t.m.m. amounts have been entitled under the management agreement (except for 5% of annual turnover), no regard for her condition of T.m.m. periodically.


Apparent contract
.5 I accepted the judge's ruling that Kamma management agreement contract is not apparent. First treat the management agreement, things sooner I apparently contract.
"The contract is a first - up to create representations of reality, can rely on them" (from UNRWA, "creates risks and risks caught - the protection of representation that relies on others the new civil legislation" Law Tz (Tshm"o - m "M) 92, 97). The contract apparently creates a situation of disparity between apparent reality and situation between the parties. We should distinguish between two types of contracts apparent: fictitious contract and has nothing behind the contract was a contract hiding behind reflected from it. Contract from the second type are the acts of two contracts: contract N. camouflaged cover contract (John Tedesco, "Jose appearance - eye which Fsloto" Law H. (ed - to ") 507). Interest contracts ostensibly says Justice Barak (described then): In
"The contract apparently made various forms. Known distinction which is behind the appearance of hiding any legal transaction between the parties (complete simulation), and the case which hides behind appearances other legal transaction between the parties (relative to simulation)" (by A. 630/78 Y. Biton v. Eastern [1], p. 581-582).

And, there, on page 581: and
"Ostensibly the contract between the parties agree that, outwardly, to a certain legal order, while the real intention was. It was found that it held about two legal systems. In one system, the external exile, a certain order Hmsocm determining the parties, the second system, hidden inside, which eliminates consent order or change it ...".
Regarding apparent contract See also article by D. Friedman, "E - legal contract ostensibly" to advocate (תש"מ - MA) .152
.6 Allegations raised against him classified management agreement contract from the second type, where there are two contracts: N. concealed disguise. Judge Kama concluded that the contract is not apparent, based on facts which he set on - the evidence was before him. I find that these interfere with regularly: on
"The question, what was the true intention of the parties under the circumstances, is a question of fact. As such there is relevant evidence to conclude that complex, including those that are circumstantial" (AE 623/85 m Slhub v. Galia, a building contractor and Development Ltd. M. et al [2], p. 218).


Judge Kama and states: and
"... No place to take the extreme step of determining the 'appearance' in the circumstances this case. Since I came to the conclusion not that this is a fictitious contract but a contract who help with one shareholder at the expense of shareholder other than to say that society is not benefited at all services felt "A is a subsidiary of Al - and thereby the company enjoyed a clear economic balances" (p. 12).
.7 These statements unacceptable. To determine our interest in the contract apparently not enough that the management agreement came one benefit shareholders at the expense of the other, and also as determined by Judge Kama, actually enjoys clear economic benefits T.m.m.. In addition not been proven that when T.m.m. signed an agreement with Ts"t management, completely lacked the intention to provide management services. Circumstances also after concluding the agreement indicate the administrative contact, even if this association was not given in relation to appropriate compensation for him. The argument that it is an open contract management arrangement of fictitious contract hidden in a conduit for funds from -t.m.m. Lts"t, is not supported by evidence.
The argument that most stocks have enjoyed at the expense of the minority, moved us to another question, is: N. What is the minority discrimination in society? Discrimination against minority .8 Section 235 Companies Ordinance [New Version], תשמ"ג - 1983 (hereinafter - the Companies Ordinance), gives relief in case of discrimination against the minority - majority. And tongue: in
"Society's affairs were conducted in which there is discrimination because of some of its members, the court may, at the request of a member, seemed to give instructions to remove the discrimination ...".
This section of the general norm setting a rally flexible intervention to establish a norm of fairness even in commercial management company. Pre-amendment section repair Companies Ordinance (No. 17), Tshm"a 1980, the Companies Ordinance adding Section 118 A, entitled "relief discrimination case." To repair, Companies Ordinance provisions included in Articles 118 and -119, which were applied in cases of contention "minority oppression" Companies Ordinance followed the English common law. The court says the CAC to 667/76. Glickman Inc. v. A.. M. Barkay Investment Company Ltd. (hereinafter - the interest Glickman [3]), p. 286: and
"... Over time he set (entire island - Betting House - court decisions of the General Meeting Board Company - T. S. c.) more and more restrictions, and - the court can intervene when there is a resolution of the general meeting of shareholders minority oppression on - by the majority ...".
תרגם מ:       
תרגם ל:   

תרגום מעברית לאנגליתהצג סקריפט אנגלי
AE 594/79 Faka Industries Ltd. v. Rothenberg [4], p. 323, says President Shamgar:
"You can say, without a general mark of the law, that the power of the majority should be executed at the end - heart for the company, the way Hmotwit corporate law, while avoiding any deviation from the authority ... but abstract expression of general obligations and ways of action does not give expression accurate and full shape, it wears minority oppression, as an excuse to sell Lfsith of action in society, and taking the general expression of a discrimination section 118 Companies Ordinance does not contribute to clarifying the meaning of the term.

Subsequently, on page 325:
"But of course, is that these examples do not exhaust the range of circumstances in which a company can certainly be considered oppressive minority, but the common denominator of these examples is the lack of good faith or Hmirmh, property rights are denied assistance from the company or the minority shareholders (see also: A. 'Flmn, corporate law in Israel (Karni, Release 3, Part B, Tshm"a) 589).
Requirement of good faith was underlined for private company shares offenses more difficult:
"A question of commercial interests in the company's elementary shareholder is to receive dividends when the company is so prosperous and puts huge profits relative term. E - distribution of dividends for 12 years the company's situation and relations between the owner says we asked for ...
Note that this assemblage of things, especially given that this is a private company and that shares are traded on the stock exchange or market and have no market price ...

...
... And developed the rule of intervention management decisions when these decisions were obtained not at the end - note the normal course of business of the company's business, but - to benefit some shareholders at the expense of the Aryans. These power pretty well for public companies, but even more for private companies "(Glickman interest [3], p. 285-286).
.9 Term "discrimination", which replaced the phrase "minority oppression", brought with him a liberal interpretation makes it easy for underprivileged minority win remedy discriminatory against the majority. Deprivation had many faces, sometimes sophisticated and sometimes borderline and near rational business. Many worked
And scholars - the definition of a sentence "deprivation" in an attempt to provide theoretical foundation and a sense of common sense behind the Equity section. Minority discrimination in society is essentially a state of division of resources unfairly compound relationships controlling shareholders and minority shares in it. Ngisotm majority of the stock positions of power, exceeding that of the minority, will this force will prevent harmful brought Latvian form a network of provisions "ethical" and stopped the law - in order to curb this power:
"Controlling shareholder has the power in society. He controls assets of another.'s Power comes from controlling shares, which give him the strength to vote in general meetings of shareholders ... the appointment of directors - Yes on law imposes a duty of confidence in the power to prevent the exploitation of power abuse ... " (AE 817/79, 818, 585/82 Kosoi v. Venki.l. Feuchtwanger Ltd et al; Drury v. Bank Komrsiel S.. A. Geneva; Bank Komrsiel S.. A. Geneva N. Y. Bank. to. Feuchtwanger Ltd. et al [5], p. 284).
.10 Prof. Charles Cohen, the number of shareholders in the company rights to a medicine (the Bar Association, תשנ"א) 307, holds that:
"You should check the results arising from the decision to recognize discrimination and a place even when the motives were legitimate.
Such is also the approach of J. Cohen, in his book Corporate (irises, Vol II, 1991) 454;
"Petitioner seeks the welfare of deprivation is not required to prove that Hmkfhim acted knowing they offend his rights, or because they know they are lack of good - heart. The court will examine whether a reasonable person would conclude Hmkfhim circumstances and behavior that are indeed used in Mkfht" (see Even there, the "37 A).
.11 Case of discrimination, the court devoted to consideration - extensive knowledge regarding the determination of the principles Hnormatibiim this issue, appropriate remedies. Decision is made every case individually, and cast the general framework content prescribed by law:
"The judge considered the considerations between - institutional investors. The judge be careful not to impose too heavy debts or trust too easily. Ruling he should reflect the social consensus about the proper conduct of controlling shareholders in the company" (A. Barak, Judicial discretion (Papyrus, user " M) 497).
The emerging trend in case law and by scholars following the developments in the field of corporate law and perceptions behind them and following legal developments in other countries, is
Relax the standards, to ease the criteria set behavior norms of decency and high society with majority minority.
.12 In the United - States recognized the importance of conduct "ethical" rules were set in her word. Decision - Din [8] (1955) Perlman v. Feldmann shareholders filed a lawsuit against the owners welfare block control of the company exploiting the personal profit status. Appeals court cites approvingly from the judgments - many law from various countries in the United - States: ... The responsibility of the Fiduciary is not limited to a "proper regard for the tangible balance sheet assets of the corporation for the sole benefit of the corporation, in any but dealings which includes the dedication of his Uncorrupted business judgment. (176ibid., at ) may Adversely affect it referring to the case before the court says: Looting of a helpless corporation. But on the other hand, we do not find we have here no fraud, no misuse of confidential information, no Outrght And other courts have come to expect and Fiduciaries demand of corporate compliance with that high standard which we have just stated and which we. (. ibid) detection and discrimination in the U.S. is done - by examining the likely expectations of the shareholders of the disappointment factor examination of these expectations (see l. E. Mitchell, Death of. l. Rev. pa. U 138fiduciary duty in close corporation in 1727, 1675 (90-1989)).
.13 English ruling also stated, claims of discrimination do not need proof thermal test is a test of proportionality, probability and responsibility towards society: ... The matter falls to be tested by reference to the Genuineness and "Honesty of the transaction rather than by reference to That some there was any intent to Defraud, but that can not be abstract standard of benefit ... It is not suggested here ... Conclusive Any sum they like out of the Companyss capital and leave the Liquidator ... it can not be right that Shareholder directors acting in union can draw. And the Companys Crediors without remedy in the absence of proof of (1043, at [9] [1982]. re halt garage ltd) ... intent to Defraud Hence our case management agreement.


Management agreement - an agreement to discriminate against?
.14 Judge Kama management agreement provides that absent an economic logic of her T.m.m.
Although he has such a sense of perspective Ts"t. The assertions is that the foundation's financial obligations towards T.m.m. Ts"t were not any loose relationship management services rendered on - by Ts"t Lt.m.m. subject judge accepted the testimony of Kamma expert witnesses contemplating the Sbiroth of consideration paid for - by T.m.m. to - Ts"t rate of 5% and annual turnover - 10% operating profit. Witness a wolf medicine, director of the Government Companies Authority, clarified that: "the principle of a management agreement of such a high percentage of turnover regardless of the consequences in return opposed We recommended its cancellation. So Mr. Meltzer, Attorney General of T.m.m., which recommended "to withdraw from the contract."
According to the Ts"t, they did not back the amounts they came under the management agreement. The first management agreement has not been canceled original framework has been saved. Flexibility on - by the behavior of the parties over the years points to the problematic economic Sbcdaioto guard will begin and flexible conduit for transferring funds according to need and demand m -t.m.m. Lts"t. These things have to support the claim management services which were not justified such a high financial return from T.m.m..
Ts"t and -t.m.m. reasonable requests to the management agreement of tenure Sbam"h 140/89 (live) Dr. N. assessor Haifa [7], where the Court examined the total number of services to the company Hnisum with the rate of management fees prescribed 0.75%, stating that the rate is reasonable and that the deal is a deal for artificial tax evasion. In our case, the rate rises infinitely, when consideration is managing the other hand the actual value, but value-added management. Where discussion focused on the essence of receipts for Hnisum, while our case we focus on the question of economic feasibility of the management agreement, to -t.m.m..
.15 Moreover, the special relationship of Parent Company - a subsidiary require recognition by the very nature nature unusually high duty rating of behavior majority attitude toward minority interest:
"Determine that the relationship between a system - if the company - is a compulsory level of integrity and fair secret maximum.'s Proportionate share of the company private matter - is minimal compared to some Joktan good company - the daughter and balance will be held into account the risk of abuse of minority Berthe - daughter "(A Flmn, corporate law in theory and in practice (Carta, 4th edition, The Bar - Moore, editor, 1994) 886).
Relationship between the Parent Company and Subsidiary Subsidiary is often a central conduit for money transfer to the parent company, not necessarily in favor of its subsidiary or a minority. Be
Learn analogy in the case where the company executives draining the guise of salaries.
That the expert says Charles Cohen, the aforementioned book, p. 315-316;
"If the claim (of a friend - T. S. c.) is based on that, the executives draining the company's profits under the guise of salaries, when the sums are taken Salary on the market are only accepted division of profits to shareholders to cover the majority of salaries, Comrade may claim discrimination. This argument is based on the unlikely expenditure of salaries, not on an island dividing the dividend. Although the court normally does not bet the company pays high wages to the manager, he may check whether it is paid, or is a wage payment but the distribution profits to shareholders, Shosooth guise of salary.

The burden of proof
.16 Burden of proof of discrimination imposed on the petitioner, and must "prove that in addition to the damage element, too, that the company suffered a lack of an end - or Bmirmh heart became not benefit society" (AE 226/85 Shasha Securities and Investments Company Ltd v. Bank Mortgage loans Adanim Ltd. et al [6], page 23); question if the majority creates discrimination against minority tested - by an objective test. the burden imposed on shareholders who claim discrimination is alleged to prove the existence of discrimination. such evidence was presented, will burden my shoulder the majority vote acted properly and that action does not constitute discrimination against the minority. You can learn analogy regarding burden of proof from the burden imposed on the plaintiffs claim is derived.
"It seems that today, shareholders will be able to get through the obstacles and formulate a derivative lawsuit lawsuit reveals grounds alleged by them to see action not benefited the company for one reason or another; vote on fragments of information to base a suspicion that provide real business rationale that motivated the board is running just as , argue that the action was in breach of duty of care. or so, to show that the standing requirements of Article 96 Ko, will have company executives - defendants to bring evidence ... [that] operated on the basis of a decision aimed at maximize the value of a company "(A. Habib - Segal, "Corporate" Book of the Year in Court תשנ"א (Bar Association - to district Tel - Aviv, A. Rosen - deer skin, Tsn"b) 2, 11-12).
Baker was the burden of proof, evidence indicates that brought about the alleged discrimination against a minority. As mentioned above, adopted the decision on -t.m.m., h - Ts"t holds - 77% of its shares, on contact with Ts"t contract. Result this connection is, the funds coming out funds T.m.m. On - the actual resolution obtained on - by Ts"t, enter practice
Pocket of Ts"t. Suffice to indicate the transfer of discrimination and prefer to -t.m.m. - Ts"t the burden of proof, that the management agreement does not cause discrimination. Burden is not lifted on - their hands.

Baker knowledge of the existence of the management agreement

.17 Kama Court ruled that:
"From reading the evidence brought before the testimony of applicant impression I concluded that this applicant was unaware of the existence of the agreement (ie, the management agreement - T. S. R.). The testimony of the faithful Ali Baruch Gross's statement that the existence of the agreement he learned only after completing the deal.
This statement is surprising, since the management agreement was visible and not hidden by T.m.m., certainly not intentionally, and was accessible prefer to purchase actual shares purchased in the company. Can be attributed to such purchaser test editing rights and obligations of the society in which he acquires 23% stake. No - the - the - yes, there is no splitting Lhtarbotno this, since it is based on direct personal impression of Judge Kama testimony of Baker and Mr. Gross, their words not what else is hidden - and by members T.m.m. not indicated explicitly that given the management agreement or a review of Baker's attorney Gross before the end of the deal. But I doubt that the question of knowing about the existence of the agreement affects the right to attack the management agreement after became a shareholder in -t.m.m.. I accepted this matter Judge Kama's position that "even if lawyers get their claim of respondents that the applicant and / or his attorney knew about the agreement it does not make any difference to the question essentially void or cancellation of the agreement. And why? Answer to this question can be cut and different perceptions about the nature of communication in companies.
.18 Some believe contact details as part of a company creates a permanent agreement will Hmgbs the parties time to call (see Prof. A. Procaccia new corporate law in Israel (Institute for Legislative Research and Comparative Law Studies Sacher Tshm"t) 425). "The stock ... quality of contract arrangement Hdisfozitibi measured by the degree of success reflect the true wishes of the parties themselves." And I. Procaccia, "It's a contract? This item? This law! Constructive contribution to economic obscurity achievements - the fundamental law" Law units (Tshm"h ¬ TM) 395). In contrast, others believe that the company creates shareholder communication framework with continuing internal dynamics. Says Dr. A. Habib - Staff:
"... The trend leader in the information society to call commercial significantly different from the trend that guides callers normal contract: When you select contract details, they choose to affirmatively consent static. When they choose to call in the company van, they choose to call
Requiring immediate, though not certain (Nteractions-binding-Speciffic-non). While static end affirmative consent of the decision-making processes relevant to the content of the billing date of creation of charge, then contact the company as part of the van, most of the substantive content of the mutual billing processes later left the decision-making "(nice staff," the essence of the commercial company "theoretical It Law (תשנ"ה) 13, 39).
I must choose between these approaches, since - according to all of them blocked the way of the Baker attack deprive management agreement contract, because the judge's ruling Kama - which does not intervene - that Baker did not know of the existence of the agreement, and because even if attributed had constructive knowledge, not enough to constitute a waiver or motivate him from raising the arguments as stated, realizing - as he claimed - that the agreement is a contract jump.
.19 Purchases shares in the company can be aware of the existence of such agreements or other company with other actors, and - the - the - yes, and the purchase, he will be a contract that constitutes discrimination against minority and attack the assailant. Concession of the shareholder's claim of discrimination must be done explicitly, and indeed the acquisition of shares in the company is to create a waiver, estoppel, or motivate Mltaon deprivation. Realizing the stock to buy - by themselves or by advice he received - that the company related to the contract that creates discrimination minority, this claim deserves load sound even after the person became a shareholder in the company the contract was part of Maman glove. Especially true when the contract was made - by T.m.m. For Ts"t Ts"t holds when - 77% of the shares T.m.m.. There is no rigid rule to determine this matter, and examine each case individually.

Management agreement cancellation
.20 As a result of all the above is that the management agreement is an agreement to deprive, canceled prosecuted - by Judge Kama.
Since when cancellation will apply? Judge Kama ruled that the cancellation would be "from now on"; Baker valid statement prompts cancellation Maikra. I do not think that it is entitled to relief. Such agreement, a contract is not apparent and is off altogether, and the date on which it is being canceled due to coffee contract, I do not find a place to intervene in the judge's ruling Kama, as stated, and the following arguments: Baker did not take proper care required a shareholder purchases shares company to stand on its commitments, and therefore not - knowledge of the existence of a management agreement, although agreement was not provided with his knowledge, does not speak for him, what else he was represented - by Editor - Dean proceedings to acquire shares in -t.m.m.; He did not contact that company or close court
After turning shareholder in the company, but passed a considerable time before turning to such demand, it works against him; For a time he continued to enjoy - as having acquired the shares T.m.m. Management agreement of T.m.m. With I.f.m-arrangement was to -t.m.m. With, Ifm without any claim brought against him in order enjoyed; over the years until the end of litigation in court Kama continued to run things by the management agreement as amended on the practice - by the parties, there is no justification to cancel all those retrospect; not be retroactive to quantify the value of services given to -t.m.m. On - by Ts"t Olamtm with payments transferred - by T.m.m. to - Ts"t not necessarily be shot at regular management agreement.
.21 Judge Kama's statement, that "must be abolished (the agreement - T. S. c.), unless all shareholders will consent in writing an agreement removed from the above formulation, is unacceptable. This statement actually gives the court the right to "veto" by a minority in society as such is not entitled to contract with a third party if it does not expect his opinion of the minority. Company is entitled to proceed in law stipulated regulations provided of course that the minority which Tkfh, but not enough to provide power by a minority can paralyze the operations carried out on the company - most of the decisions. This part of the ruling is repealed.
.22 The result is ruled - Dino Court Kamma is restored as it relates to cancellation of a management agreement since a ruling later.
Ts"t prefer to pay expenses 000, 35 NIS.


5129371 Judge M. Cheshin: I agree.

Judge Charles E. Phone: I agree.






Decided such decision - Dina of Honor Strasberg - Cohen. Given today, Tu Sivan תשנ"ו (2.6.96