It is a fact that Mr. Knepfler, as well as Mr. Nehemiah, entered into real negotiations at the same time regarding an alternative transaction that would be presented immediately, in which Mr. Knepfler sought to acquire rights in the balance of the shares of the French company, in order to obtain full control of the property companies in France. These contacts must, of course, rely on sufficient commercial data in relation to those assets.
Against this background, the claim that Mr. Knafler was prevented from performing the calculation is inappropriate for the evidence and the logic of the matter, and I reject it. In addition, there is no documentation before me that Mr. Knepfler made any real request to receive such data in real time, or that he insisted on receiving it in the face of one refusal or another.
- Against this background, it can be determined as a finding that at that time, Mr. Knepfler and Mr. Nehemiah focused their gaze not on the past but on the future, on a new transaction that Mr. Knepler sought to promote. The two sides did not take into account the past. The question of completing the consideration in this matter remains open.
- Hence the new deal that Mr. Knafler sought to promote. In order to promote it, Mr. Lorenzi was also involved in the photo, who assisted the counter-plaintiff in financing the previous engagement. Now, in light of the new transaction, there was the possibility that he would serve as a financier and a possible co-investor (paragraph 14 of his affidavit). He testified that on September 22, 2016, Ness sent a draft agreement according to which the counter-plaintiff would purchase the remaining shares in the French company in exchange for €2.2 million. When Mr. Nehemia demanded a higher consideration, a meeting was held on October 9, 2016, at the offices of Adv. Ness, in which an updated outline was discussed (paragraphs 79 onwards of Knefler's affidavit).
- The new transaction was presented to the company's board of directors at its meeting on October 10, 2016 (Appendix 34 to the directors' affidavits). At this meeting, Adv. Lederman presented Mr. Knefler's proposal, that he would receive "all the rights in France and the remaining 76% (Nantes, Lille 1 and Lille 2) for €2.2 million, including the balance of the debt in the amount of €0.5 million" (p. 4).
- At this point, it was clear to both Mr. Knepfler and Mr. Lorenzi that the company could approach and look for other investors in relation to the sale of the remaining holdings of its holdings in the assets in France. Lorenzi was asked in this regard (p. 255, Q.1):
- Was it discussed during those negotiations that if my proposal is not good for you, A.D.N., if N.D.A doesn't like your offer, she is welcome to accept other offers. Did it cost?
- I can tell you what cost more than that. It turned out that for some time now they have been looking for offers and looking and trying to sell the properties.
- Is there a problem with that?
- No, not at all. And they came to us in a very, very serious and specific way that they said - listen, we want and the time has come, we want to sell the properties, we want a serious offer here.
...
- But I'm just asking, at some point, did anyone promise you that there wouldn't be a competing offer against [s]him's offer?
- Have we been promised exclusivity? The understanding was, things were managed in such a way that the deal was going to be executed.
- If the offer is good enough, like you don't have to buy, they don't have to sell, right?
- Listen, that's right, but they agreed to the offer.
Mr. Lorenzi's position was that he and Mr. Knepler had been deceived. He noted that they were presented with a representation that they had exhausted their attempts to sell the rest of the assets to other parties (p. 257, s.2), and yet this allegation of fraud was not substantiated. There was no legal or economic reason for the company to focus its efforts solely on negotiations with Mr. Knefler. No binding document has been signed prohibiting parallel negotiations, and there is nothing wrong with the fact that this is indeed a procedure.