In addition, the defendant claims that the plaintiff is silenced from claiming deception and concealment of information prior to signing it, in light of her declarations and obligations in the agreement. Among other things, the defendant insists that the plaintiff declared that she "[conducted] all the tests necessary for him for the purpose of entering into this agreement, including in connection with the company and the property and everything related to it, including its physical, planning and legal condition" (clause 3.3.2 of the agreement); that it "does not rely for this purpose on representations, statements and information received from the Seller or the Company, except for those set forth in this Agreement and its appendices" (clause 3.3.2 of the Agreement); and that it "[acquires M.A.] the shares sold in relation to the Company, in its status as it is (AS-IS), and he is aware of the risks involved in this transaction" (clause 3.3.3 of the Agreement). The defendant notes the company's undertaking in the agreement, according to which "the company did not prevent the purchaser from any information in its possession that could influence a reasonable purchaser regarding the decision whether or not to enter into a transaction that is the subject of this agreement" (clause 3.2.6 of the agreement).
- With regard to the claim that he excluded the plaintiff from the company's activities, the defendant claims that it was agreed between the parties from the outset that the plaintiff would not participate in the day-to-day management of the company's affairs, including in the preparation of its financial statements. According to him, the plaintiff, as a minority shareholder, has no legal right to prepare the company's financial statements or to take part in their preparation. This is especially because the plaintiff did not hold a position in the company's executive management or board of directors.
According to him, the plaintiff also received regular updates on the company's situation, which included information about the derivative claim process and the accompanying appeal; about delays in financial statements and accompanying circumstances; and other details that are relevant to the company's management. This is in addition to the delivery of the company's actual financial statements. According to him, the plaintiff knew about the external circumstances that led to the delays in the preparation and sending of the company's financial statements, so the claim that she was excluded from the company's operations should not be accepted.
- With regard to the claim that he demanded that the plaintiff unlawfully bear the company's expenses, the defendant replied that the plaintiff must bear the financing of legal proceedings by virtue of clause 4.4 of the agreement. According to the defendant, the agreement does not exempt the plaintiff from his share in financing such expenses, so her failure constitutes a breach of the agreement in itself. The plaintiff, according to him, knew about the expenses involved in the company's legal proceedings, and her claim constitutes an improper attempt to avoid bearing the expenses as she undertook.
- With regard to the claim that the defendant did not pay a fee to the Registrar of Companies and did not submit annual reports to it, the defendant insists that the actions were actually carried out. According to him, the company paid the registrar's fee in September 2022. Regarding the annual reports, the defendant noted that the annual reports for 2020 had been submitted, and that the delays in sending the 2021 reports were due to external circumstances beyond his control. In addition to the aforesaid, the defendant emphasized that the company is not obligated to hold annual general good times, so that updates were made directly between Maor and him.
- With regard to the claim that an "all-out war" is being waged against the controlling shareholders of defendant 2, the defendant replied that the purpose of the appeal, which the company is entitled to file in law, was to maximize value for the company and to protect its interests. The defendant, according to him, even informed Maor in advance of his intention to file an appeal in the derivative claim proceeding on behalf of the company. According to the defendant's position, the plaintiff is cooperating with the controlling shareholders of defendant 2 behind the scenes not for the benefit of the company.
- With regard to the claim that the plaintiff's attempts to sell its shares to a third party were "thwarted", the defendant claims that he did nothing to thwart the potential buyer's offer. In the reply letter he sent to the plaintiff, the defendant stated that he was not interested in exercising the right of first refusal; that any transfer of shares must be approved by the Board of Directors in accordance with the Articles of Association; that there is a concern that the potential purchaser is connected to the controlling shareholders of defendant 2; and that it is expected that financing will be raised soon by way of a share allotment. In other words, there is no "idle threat" or any other act that is intended to deliberately prevent the sale of shares to a third party.
Moreover, the defendant insists that the plaintiff sought to sell her shares to a third party "hostile" to the company - the controlling shareholders of defendant 2 - against whom legal proceedings are being conducted against the company. According to the defendant, the plaintiff presented the third party's offer anonymously and without detailing the full terms of the transaction as required by the company's articles of association. In addition, the defendant claims that the plaintiff's conduct is in bad faith and is contrary to the company's articles of association and the agreement.
- The defendant argues that there is no reason to grant an extreme relief of liquidation of the company in the circumstances at hand. Without derogating from his arguments regarding the fact that the company is not a "quasi-partnership", the defendant insists that the company is solvent and active, and that there is no reason to justify the liquidation of the company in order to attribute its assets to the shareholders in the present proceeding or to transfer them in any other way. According to him, the plaintiff's request to receive liquidation relief is intended to entitle herself to the shares of defendant 2 at the company's expense.
- Alongside the aforesaid, the defendant argues that there is no reason to order the enforcement of the terms of the option in clause 4.3 of the agreement. This, according to him, was because no notice was given of the exercise of the option as required by the agreement. According to him, clause 5.7 of the agreement obligates the plaintiff to send a notice regarding the exercise of a right in it directly to the defendant. Since the plaintiff's notice, according to him, was sent only to his attorney, who "does not represent him for the purposes of the agreement and the exercise of the option" [paragraph 64 of the amended statement of defense], this is not a matter of the actual exercise of the terms of the option in the agreement. When the date for sending a notice regarding its exercise has passed, the defendant claims that the option has expired and with it the right to enforce it.
Moreover, the defendant argues, without derogating from the aforesaid, that the option clause should not be enforced in light of the plaintiff's breach of the agreement. According to his position, the plaintiff is not entitled to compensation for the clause in light of the damages allegedly caused to him by the plaintiff's conduct. To the extent that it is determined that the exercise of the option in the agreement should be enforced, the defendant seeks to deduct from the value of the consideration the damages caused to him by the plaintiff in the sum of ILS 1.785 million.