This is especially true where the temporary relief requested coincides with the main relief requested in the lawsuit. This is in light of the starting point that there is no reason to decide the main proceeding in the framework of a preliminary proceeding, on the basis of prima facie evidentiary basis and before the parties' rights on their merits have been proven (see, Mine Many: The Case Mizrahi Tefahot Bank, in paragraph 13; Civil Appeal Authority 1378/23 Malayev v. Cycle Circular Economy for Beverage Containers Ltd., paragraph 10 [Nevo](2.4.2023); Civil Appeal Authority 9213/12 Noga Network Ltd. vs. Israel 10 - New Channel Broadcasting Ltd., paragraph 32[Nevo] (20.1.2013)).
- In our case, the company argued, as will be recalled, that the temporary relief granted by the trial court is identical to the main relief requested in a statement of claim – since it allows the respondents to convene a special meeting without the defense plan being applied against them. It also argues that this is a temporary injunction – and not an injunction, because it interferes with the existing protection plan and changes the manner in which it is operated. The trial court rejected these arguments, ruling that the temporary relief is different from the main remedy because it is limited in time; and that we are not dealing with an injunction, but rather a temporary injunction. I also accept these conclusions.
- First, with regard to the difference between the main remedy and the temporary relief. As stated, the temporary relief granted in this case prevents the company from operating the defense plan – and thereby diluting the respondents' holdings during the period of time until the decision of the main claim only. The remedy relates to the possibility that during this period the respondents will join forces with additional shareholders so that their joint holdings will exceed 10% of the company's shares – for the purpose of requiring a special meeting. Thus, if at the end of the proceeding in the trial court it is determined that the defense plan does not apply in relation to such agreements, no damage will be caused and the respondents will not be diluted. On the other hand, if the Applicant's position is accepted and it is decided that there was room to activate the protection plan based on an agreement to convene a special meeting, the company will be able to claim that it has the right to dilute the respondents immediately and retroactively.
Moreover. The relief sought is not a temporary injunction – but rather a temporary injunction. This is because this is not a remedy that interferes with the content of the protection plan or excludes certain agreements from it; Nor does it change the existing situation – that is, the state of holdings in the company. All that is done in the framework of this is to suspend the execution of the dilution in the event of an alliance for the purpose of convening a special meeting. In any event, in my opinion, even if it were a temporary injunction, it would not have changed the conclusion of the present decision, in light of all the reasons above.