The counter-plaintiff considers this to be conclusive evidence that it was clear to the company that this was a transaction contrary to the transaction to which it was obligated. However, this is not necessary at all. Mr. Nehemia explained this by saying that at this stage the negotiations with Mr. Kneffler had not been exhausted, nor was there a horizon for the new deal he had proposed, and therefore he estimated that the agreement with him would be canceled.
- Outline of the transaction with Mr. Knafler (as stated in paragraph 162 above).
A quick look at the alternatives shows that the deal with the Dayan Group is significantly preferable. It solves the company's loan problem, and on the face of it, guarantees a significant flow of funds. This initial impression was confirmed by the analysis of the company's CFO, who noted with respect to the sale of the assets in France that the transactions with the other parties "will not be completed before the end of the year" and on the other hand, "according to Amir Dayan's proposal, to the extent that the transaction is completed in cash, it seems that we will be able to meet the short timetables" for the repayment of the debts (Appendix 47 to the Affidavit of Directors).
- At this stage, Mr. Nehemia held a parallel dialogue with Mr. Knepler and the Dayan Group. Knefler was not aware of the existence of the competing contacts, and I did not find a legal obligation to oblige Mr. Nehemia to inform him of them. Nor will the duty of good faith be saved, since disclosure might have allowed Mr. Knepfler and Mr. Lorenzi to try to thwart the emerging alternative.
Mr. Nehemia chose to focus his efforts on the Dayan Group and closed the transaction with it, subject to the approval of the Board of Directors.
In the meantime, contacts with Mr. Knepler have also progressed, and an updated draft of the outline was sent on his behalf on October 30, 2016. According to the improved position, Mr. Knepfler was supposed to purchase the remaining shares of the French company in the amount of €3.6 million (in addition to the amount paid so far), of which €2.1 million was immediately, and the balance depended on the future value of the sale of the assets in France (paragraph 80.3 of Knepfler's affidavit). This proposal was detailed in an e-mail message sent by Adv. Saar to Mr. Knepfler, which Mr. Knepfler forwarded to Mr. Lorenzi for review (Appendix 35 to Knepler's affidavit; and the details of the proposal appear there in Appendix 36).