EXHIBIT 17
TRANSLATION FROM THE ORIGINAL HEBREW
AGREEMENT
DRAWN UP AND SIGNED IN TEL-AVIV ON AUGUST 21, 2009
BETWEEN
BANK LEUMI LE-ISRAEL LTD.
either itself or through a company under its control
of 00 Xxxxxx Xxxxxx Xxxxxx
Xxx-Xxxx, Xxxxxx
(hereinafter - "THE BUYER")
OF THE FIRST PART;
AND
SCAILEX CORPORATION LTD.
Public company number 00-000000-0
of 00 Xxx Xxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxx
(hereinafter - "THE SELLER")
OF THE SECOND PART;
WHEREAS on August 12, 2009, the Xxxxxxxxx Agreement was signed (as this
term is defined hereunder) under which the Seller acquired
78,940,104 ordinary shares of NIS 0.01 par value each
(hereinafter: "ORDINARY SHARES") of Partner Communications Ltd.
(hereinafter: "THE COMPANY"), which constitute, on the signing
date of the Xxxxxxxxx Agreement, 51.31% of the Company's issued
and paid-up share capital (not fully diluted and after
neutralizing dormant shares held by the Company) and 49.41% of
the Company's issued and paid-up share capital (on a fully
diluted basis, including the assumption of a full exercise of all
options to receive securities of the Company, as they exist
correct on the signing date of the Xxxxxxxxx Agreement, and after
neutralizing dormant shares held by the Company) (hereinafter:
"THE SELLER'S SHARES OF PARTNER"), all pursuant to and in
accordance with the provisions of the Xxxxxxxxx Agreement;
AND WHEREAS subject to the Closing of the Transaction pursuant to the
Xxxxxxxxx Agreement (hereinafter: "THE XXXXXXXXX TRANSACTION"),
the Seller desires to sell and to transfer to the Buyer and the
Buyer desires to acquire and receive by way of transfer from the
Seller the Shares Being Sold (as this term is defined hereunder),
out of the Seller's Shares of Partner, being Free and Clear, all
pursuant to and in accordance with the provisions of this
Agreement;
AND WHEREAS the Parties desire to prescribe and anchor within the framework
of this Agreement all of the commercial and legal relations
between them in relation to all matters pertaining to the sale
transaction of the Shares Being Sold, as well as their relations
as shareholders of the Company;
WHEREFORE, THE PARTIES HEREBY DECLARE, AGREE AND STIPULATE AS FOLLOWS:
1. RECITALS AND INTERPRETATION
1.1 The recitals to this Agreement and the appendices thereto constitute
an integral part thereof. In any instance of a contradiction between
this Agreement and any of the appendices thereto, the provisions of
this Agreement shall prevail.
1.2 This Agreement has been divided into clauses and subclauses, and
headings have been added, solely for the sake of convenience, and no
use may be made thereof in the interpretation of this Agreement.
1.3 In this Agreement, that stated in the singular also encompasses the
plural and vice versa, as the case may be, unless otherwise explicitly
stated.
2. DEFINITIONS
In this Agreement, the following expressions shall have the meaning defined
alongside them unless otherwise explicitly stated.
"THE COMPANY" - Partner Communications Ltd., public company
number 00-000000-0, a public company duly
incorporated and registered under the laws of
the State of Israel, whose securities are
registered for trading on the Tel-Aviv Stock
Exchange Ltd. and on the NASDAQ Global Market
("NASDAQ").
"THE SHARES BEING SOLD" - 7,677,037 ordinary shares, constituting 4.99%
of the issued and paid-up share capital of
the Company, not fully diluted and after
neutralizing dormant shares held by the
Company, and 4.805% (on a fully diluted
basis, including the assumption of a full
exercise of all options to receive securities
of the Company, as they exist correct on the
signing date of the Xxxxxxxxx Agreement, and
after neutralizing dormant shares held by the
Company).
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"THE XXXXXXXXX AGREEMENT" - Agreement dated 12.8.2009 between the Seller
and Advent Investments Pte Ltd. (hereinafter:
"ADVENT"), a Singapore corporation controlled
by Xxxxxxxxx Telecommunications International
Limited, for the acquisition of the Seller's
Shares of Partner from Advent, which is
attached as APPENDIX 2 to this Agreement, and
as shall be amended from time to time.
"THIS AGREEMENT" - This Agreement, inclusive of appendices
thereto.
"THE TRANSACTION" - As this term is defined in clause 3.1 of this
Agreement.
"THE ADJUDICATOR" - Accountant Xxxxxxx Xxxxx or, if he is unable
to fill this role for any reason whatsoever,
Xx. Xxxxxx Xxxxxx, or, if he is unable to
fill this role for any reason whatsoever, any
other adjudicator to be appointed by the
mutual consent of the Parties.
"THE COMPANIES ACT" - The Companies Act, 5759 - 1999.
"DISTRIBUTION" - As the term "distribution" is defined in the
Xxxxxxxxx Agreement.
"THE BUYER'S PROPORTIONATE
SHARE" - 9.725%.
"BUSINESS DAY" - Sundays through Thursday every week,
excluding national holidays, religious
holidays, holiday eves, Sabbath days or any
day on which banks in Israel are not
conducting business as usual for any reason
whatsoever.
"THE CLOSING DATE" - The closing date shall be at the time the
Xxxxxxxxx Transaction is closed and
immediately thereafter.
"THE CLOSING DATE The date prescribed in the Xxxxxxxxx
OF THE XXXXXXXXX Agreement for the closing of the Xxxxxxxxx
TRANSACTION" - Transaction.
"AUTHORIZED TRANSFEREE" - Of a Party to the Agreement: any corporation
holding no less than 85% of the issued and
paid-up share capital of a Party to the
Agreement, or a corporation that a Party to
the Agreement holds no less than 85% of its
issued and paid-up share capital.
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"FREE AND CLEAR" - Free and clear of any encumbrance, pledge,
attachment, debt, lien or any third-party
right.
"THE TOTAL CONSIDERATION" - As this term is defined in clause 3.2 of this
Agreement.
"INTERESTED PARTY,"
"EXCEPTIONAL TRANSACTION" - As this term is defined in the Companies Act.
"INTERESTED-PARTY Transaction with an interested party,
TRANSACTION" - including a transaction that is not
an exceptional transaction, but excluding a
negligible transaction.
"PARTIES" - The Seller on the one hand and the Buyer on
the other hand.
"THE BUYER" - Bank Leumi Le-Israel Ltd. or any company
under its control.
"CONTROL," "FAMILY MEMBER," As these terms are defined in the Securities
"HOLDING," "NEGLIGIBLE Act, 5728 - 1968 or in the regulations
TRANSACTION" - pursuant thereto.
"THE SUSPENDING The conditions prescribed in clause 5 of this
CONDITIONS" - Agreement.
3. THE TRANSACTION
3.1 Subject to the fulfillment of the Suspending Conditions, the Seller
shall sell and shall transfer to the Buyer, and the Buyer shall
acquire and receive by way of transfer from the Seller the Shares
Being Sold on the Closing Date, being Free and Clear, in consideration
for the payment of the Total Consideration by the Buyer to the Seller
as specified in clause 3.2 hereunder (hereinafter: "THE TRANSACTION").
3.2 Subject to the acquisition of the Shares Being Sold, being Free and
Clear, and the transfer thereof to the ownership of the Buyer and
under its name, the Buyer shall pay the sum of NIS 67.025 per Share
Being Sold to the Seller, for a total consideration of NIS 514,553,405
for all of the Shares Being Sold (hereinafter: "THE BASE
CONSIDERATION"). The Base Consideration shall bear LIBOR interest (as
this term is defined in clause 1.1 of the Xxxxxxxxx Agreement) as of
the signing date of the Xxxxxxxxx Agreement and until the Closing Date
of the Xxxxxxxxx Transaction (the Base Consideration plus the interest
as stated, hereinafter: "THE TOTAL CONSIDERATION").
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3.3 In addition to the Shares Being Sold, the Buyer shall be entitled to
the sum equivalent to the product of the sum of the Distribution to
which the Seller shall be entitled by virtue of clause 2.1 of the
Xxxxxxxxx Agreement multiplied by the Buyer's Proportionate Share
(hereinafter: "THE SUM OF THE DISTRIBUTION TO THE BUYER"). If the
Seller shall receive the Sum of the Distribution to which the Seller
is entitled by virtue of clause 2.1 of the Xxxxxxxxx Agreement by the
Closing Date of the Xxxxxxxxx Transaction, the Sum of the Distribution
to the Buyer shall be deducted from the Total Consideration. In any
other instance, the Sum of the Distribution to the Buyer shall be paid
within 24 hours of the date it is received by the Seller.
3.4 To dispel any doubt, the above clause 3.3 shall also apply to a
distribution of bonus shares, and the Buyer shall be entitled to
receive bonus shares distributed in respect of the Shares Being Sold.
3.5 The Total Consideration shall be paid to the Seller in New Shekels.
3.6 If, during the period between the signing of this Agreement and the
Closing Date, the Company shall make technical changes in its issued
share capital, such as a consolidation or division of its capital,
when the determinant date for the execution thereof falls during the
said period, the shares allotted to the Seller against the Shares
Being Sold shall replace the Shares Being Sold on the date of the said
change, without any change in the Total Consideration.
4. THE PARTIES' WARRANTS AND COVENANTS
4.1 The Seller hereby warrants and covenants to the Buyer as follows:
4.1.1 Subject to the fulfillment of the Suspending Conditions, there
is no prohibition, pursuant to any agreement and/or any law,
including pursuant to the Seller's incorporation documents, of
the Seller's engagement in this Agreement and fulfillment of all
of its covenants pursuant thereto. The Seller's engagement in
this Agreement and the execution thereof by it do not constitute
a breach of a covenant of the Seller towards any third party.
4.1.2 Subject to the fulfillment of the Suspending Conditions, the
Seller has received all of the consents, authorizations and
approvals required pursuant to its incorporation documents, as
well as all permits and approvals required by law in relation to
its engagement in this Agreement and to the fulfillment of its
covenants pursuant thereto, and there is no need for the receipt
of any additional consents and/or approvals.
4.1.3 Subject to the fulfillment of the Suspending Conditions, all of
the Seller's covenants pursuant to this Agreement are legal,
valid, binding and enforceable against the Seller pursuant to the
conditions thereof, and these covenants, per se, contain nothing
that might cause a violation of law or a breach of provisions of
any other agreement or covenant.
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4.1.4 On the Closing Date, and subject to the Closing of the Xxxxxxxxx
Transaction, the Seller shall be the sole owner and holder of the
Shares Being Sold.
4.1.5 The Shares Being Sold shall be transferred to the Buyer on the
Closing Date being Free and Clear.
4.1.6 All of the Shares Being Sold were lawfully allotted, and the
Company has no right of lien in relation thereto.
4.1.7 On the Closing Date, the Shares Being Sold shall be fully
paid-up; the Seller does not and shall not have any obligation to
transfer the Shares Being Sold, or any portion thereof, to any
third party, or to refrain from transferring them, and no option
or any other right has been granted or issued to any third party
for the acquisition of the Shares Being Sold, in whole or in
part. On the Closing Date, the Seller shall not be a party to a
voting agreement, cooperation, shareholders' agreement or any
other agreement with any third party and/or with the Company in
relation to the Shares Being Sold, in whole or in part, and/or in
relation to the Company or to a corporation held by it, with the
exception of the relationship agreement dated 20.4.05, inclusive
of amendments thereto.
4.1.8 The Xxxxxxxxx Agreement was duly signed by the Seller, is valid
for all intents and purposes and is binding upon the Seller
pursuant to the conditions thereof. The Seller has not breached
the Xxxxxxxxx Agreement, and has no knowledge of a breach of the
Xxxxxxxxx Agreement by Advent.
4.1.9 Apart from the Xxxxxxxxx Agreement, there are no additional
agreements or understandings between the Seller and Advent that
directly or indirectly concern matters regulated in the Xxxxxxxxx
Agreement, including the acquisition of the Seller's Shares of
Partner by the Seller.
4.1.10 The Seller covenants not to terminate and/or amend and/or alter
and/or to agree to terminate and/or amend and/or materially
alter, whether for a consideration or for no consideration,
provisions of the Xxxxxxxxx Agreement, including a waiver of its
rights pursuant to the Xxxxxxxxx Agreement, and covenants not to
agree to waive or forgive a breach of provisions of the Xxxxxxxxx
Agreement by Advent, and not to waive or reach a compromise in
respect of a sum that is or shall become due to the Seller in
accordance or in connection with its rights pursuant to the
Xxxxxxxxx Agreement, all unless it has received the Buyer's prior
written consent.
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4.2 The Buyer hereby warrants and covenants to the Seller, subject to the
fulfillment of the Suspending Conditions, as follows:
4.2.1 There is no prohibition, pursuant to any agreement and/or any
law, including pursuant to the Buyer's incorporation documents,
of the Buyer's engagement in this Agreement and fulfillment of
all of its covenants pursuant thereto. The Buyer's engagement in
this Agreement and the execution thereof by it do not constitute
a breach of a covenant of the Buyer towards any third party.
4.2.2 The Buyer has received all of the consents, authorizations and
approvals required pursuant to its incorporation documents, as
well as all permits and approvals required by law (apart from
those included in the Suspending Conditions) in relation to its
engagement in this Agreement and to the fulfillment of its
covenants pursuant thereto, and there is no need for the receipt
of any additional consents and/or approvals.
4.2.3 All of the Buyer's covenants pursuant to this Agreement are
legal, valid, binding and enforceable against the Buyer pursuant
to the conditions thereof, and these covenants, per se, contain
nothing that might cause a violation of law or a breach of
provisions of any other agreement or covenant.
4.2.4 The Shares Being Sold are being acquired by the Buyer "as is,"
without any representation and/or declaration whatsoever, save
the Seller's warrants and covenants pursuant to this Agreement.
4.2.5 The Buyer is capable of fulfilling all of its covenants pursuant
to this Agreement, including the monetary and financial
capabilities to purchase the Shares Being Sold.
5. SUSPENDING CONDITIONS
5.1 The Closing of the Transaction pursuant to this Agreement is
contingent upon the fulfillment of the following suspending conditions
(hereinabove and hereinafter: "THE SUSPENDING CONDITIONS"):
5.1.1 The Closing of the Xxxxxxxxx Transaction, subsequent to the
fulfillment of the suspending conditions prescribed in the
Xxxxxxxxx Agreement.
5.1.2 The Buyer shall issue a confirmation to the Seller certifying
that it is not a "U.S. Person," as this term is defined in
Regulation S of the U.S. Securities Act.
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5.1.3 The Antitrust Authority or the Ministry of Communication shall
not refuse to issue approval for the Closing of the Xxxxxxxxx
Transaction due to the engagement in this Agreement
5.2 Immediately after signing this Agreement, the Parties shall take all
measures necessary for the fulfillment of the Suspending Conditions as
stated above, and each Party shall exert its best efforts to fulfill
these conditions.
5.3 If, notwithstanding the Parties' efforts, all of the above Suspending
Conditions are not fulfilled by February 16, 2010, or by any other
postponed date to be determined in the Xxxxxxxxx Transaction with the
Parties' consent, the validity of this Agreement shall expire and the
Transaction pursuant thereto shall be cancelled, and no Party shall
have any demand and/or allegation and/or claim against the other Party
in this regard. Notwithstanding that stated above, the nonfulfillment
of a Suspending Condition that derives from an act or omission of MALA
FIDES by a Party to this Agreement shall be deemed a breach by that
Party of its covenants pursuant to this Agreement, and shall trigger
for the other Party all remedies available to it by law.
6. The Buyer shall notify the Seller of the identity of the body acquiring the
Shares Being Sold by seven days before the Closing Date.
7. CLOSING OF THE TRANSACTION
Subject to the fulfillment of all of the Suspending Conditions, the Parties
to this Agreement shall meet on the Closing Date at the location where the
Closing of the Xxxxxxxxx Transaction shall be executed, for the purpose of
Closing the Transaction and the simultaneous execution of all (and not only
a portion) of the following operations:
7.1 The Seller and the Buyer shall exchange confirmations of the accuracy
of the warrants given by them pursuant to this Agreement, correct to
the Closing Date, in the version attached as APPENDIX 7.1 to this
Agreement.
7.2 The Seller shall deliver a confirmation to the Buyer of the Closing of
the Xxxxxxxxx Transaction, in the version attached as APPENDIX 7.2 to
this Agreement.
7.3 The Seller shall deliver a share transfer deed to the Buyer in respect
of all of the Shares Being Sold, being duly signed by the Seller and
duly affirmed by witnesses of the transfer, in the version attached
hereto as APPENDIX 7.3 to this Agreement, and the Buyer shall sign the
share transfer deed as the recipient of the transfer.
7.4 A share certificate shall be delivered to the Buyer in respect of the
Shares Being Sold, under the Buyer's name, and duly signed by the
Company.
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7.5 The Buyer shall pay the Seller the Total Consideration by bank
transfer to the Seller's bank account at Bank Leumi Le-Israel Ltd.,
the particulars of which shall be delivered by the Seller to the
Buyer.
7.6 The Parties shall report to the Company about the transfer of the
Shares Being Sold to the Buyer and shall deliver the share transfer
deed to the Company; the secretary of the Company shall, at that time,
register the Buyer in the Company's Register of Shareholders as the
owner of the Shares Being Sold and shall deliver a written
confirmation by the Company to the Buyer that the Buyer has been
registered in the Company's Register of Shareholders as the owner of
the Shares Being Sold.
7.7 The Seller shall deliver to the Buyer a valid certificate of exemption
from withholding tax, and, in the absence of such certificate, duly
required withholding tax shall be deducted from any sum that shall be
paid by the Buyer to the Seller by virtue of and in accordance with
this Agreement.
The Parties hereby agree that the execution of all of the aforesaid
operations fulfills the cross conditions in this Agreement, and they shall
be deemed as being carried out simultaneously at that time. No single
operation shall be deemed as having been completed and no single document
shall be deemed as having been delivered until all of the operations have
been completed and all documents delivered at that time.
8. OPTION FOR THE PURCHASE OF BONDS
The Seller shall notify the Buyer of its intention to publish a public
offering of bonds convertible into shares of the Seller, under conditions
as shall be prescribed in the prospectus of the public offering, which
received the approval of the Securities Authority on August 20, 2009
(hereinafter: "THE SHELF PROSPECTUS").
The Seller is granting an option to the Buyer (hereinafter: "THE OPTION"),
which shall come into effect upon the Closing of the Transaction, for the
purchase of convertible bonds in the initial offering pursuant to the Shelf
Prospectus (hereinafter: "THE RELEVANT OFFERING"), under conditions as
shall be issued by the Seller (inter alia, by an expansion of the series),
and as follows:
8.1 The inclusive consideration in respect of the bonds to which the Buyer
is entitled to purchase shall not exceed one fifth of the Total
Consideration.
8.2 The Buyer shall be entitled to exercise the option in the Relevant
Offering, both prior to the execution of the Relevant Offering and
during the period of 30 days after the execution of the Relevant
Offering (hereinafter: "THE EXERCISE PERIOD").
8.3 All of the conditions under which the Buyer shall purchase the bonds
(including the bond price, the interest rate and the payment date)
shall be identical to the conditions under which the bonds shall be
offered in the Relevant Offering.
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8.4 The offering to the Buyer pursuant to this clause is subject to the
relevant provisions applicable to an offering of this type, pursuant
to the statutory provisions. The Seller shall exert its best effort so
that the conditions of the offering to the Buyer shall be identical to
the conditions of the Relevant Offering.
9. TAG-ALONG RIGHT TO THE BUYER IN A SALE OF CONTROL
If the Seller shall engage in a transaction for the sale of all or a
portion of the Seller's Holdings of the Company to any third party other
than an Authorized Transferee of the Seller (hereinafter: "THE BUYER OF THE
CONTROL"), including by way of the granting of an option, or securities
convertible into shares of the Company, whether in a single transaction or
in a number of transactions or stages, as a result of which, the Seller
shall lose its control over the Company (hereinafter: "AGREEMENT FOR THE
SALE OF CONTROL"), that stated hereunder shall apply:
9.1 The Seller shall deliver written notice to the Buyer of its engagement
in an Agreement for the Sale of the Control by no later than seven (7)
Business Days after the date it signed the Agreement for the Sale of
the Control, and shall attach thereto a signed copy of the Agreement
for the Sale of the Control (hereinafter: "NOTICE OF THE SALE OF
CONTROL").
9.2 By no later than fourteen (14) Business Days after it shall be
delivered Notice of the Sale of Control, the Buyer shall be entitled
to notify the Seller in writing that it has decided to sell all of the
Company shares held by it at that time (hereinafter: "THE TAG-ALONG
SHARES") to the Buyer of the Control (hereinafter: "THE TAG-ALONG
NOTICE").
9.3 If a Tag-Along Notice has been given, the Seller shall cause the Buyer
to engage in an agreement with the Buyer of the Control, pursuant
whereto, on the closing date of the transaction that is the subject of
the Agreement for the Sale of the Control, the Buyer shall sell the
Tag-along Shares to the Buyer of the Control, being Free and Clear, at
the price per share and under the conditions prescribed in the
Agreement for the Sale of the Control.
The sale of the Tag-Along Shares by the Buyer within the scope of its
exercise of its Tag-Along Right shall be "as is," relative to the
business position of the Company, without any warrants and
representations on the part of the Buyer in relation to the business
position of the Company.
9.4 If the Buyer of the Control shall be interested in acquiring shares of
the Company at a number that is less than the cumulative quantity of:
(1) the shares that are the subject of the Agreement for the Sale of
the Control; and (2) the Tag-Along Shares, then the Buyer shall sell a
quantity of shares to the Buyer of the Control that is equal to the
product of the number of shares that the Buyer of the Control is
interested in acquiring in the ratio between (a) the Buyer's holding
ratio of the Company's share capital and (b) the Seller's holding
ratio of the Company's share capital.
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9.5 If a Tag-along Notice is not given pursuant to the above clause 9.2,
or if the Buyer notified the Seller, in writing, that it has no
intention of exercising the right vested it pursuant to this clause 9,
the Seller shall be allowed to close the transaction that is the
subject of the Agreement for the Sale of the Control, according to the
conditions of the Agreement for the Sale of the Control, provided
that, if the transaction for the sale of the control is not closed
within one hundred and twenty (120) days after the deadline for giving
a Tag-along Notice, the closing shall involve the issuance of an
additional Notice of the Sale of Control by the Seller to the Buyer,
and the process prescribed in clause 9 of this Agreement shall reapply
from the beginning.
10. PROTECTION OF RIGHTS
In any instance whereby the Seller shall engage in an Agreement for the
Sale of Control, the Buyer of the Control shall assume all of the Seller's
covenants vis-a-vis the Buyer pursuant to this Agreement.
11. MANAGEMENT
11.1 THE BOARD OF DIRECTORS
11.1.1 As long as the Buyer is holding at least 4,230,832 shares out
of the Shares Being Sold, the Buyer shall be entitled to
recommend to the Seller the appointment of one director to the
Company's board of directors, and shall be entitled to recommend
his removal from office and the appointment of another person in
his stead. The identity of the director to be recommended by the
Buyer shall be determined after consulting with the Seller.
11.1.2 The Seller covenants to make use of its means of control over
the Company so that the candidate recommended by the Buyer to the
board of directors shall be chosen as a director of the Company,
or, at the Buyer's recommendation, shall be removed from office
and another candidate shall be appointed in his stead, who shall
be recommended by the Buyer.
11.2 VETO RIGHTS
As long as the Buyer is holding at least 4,230,832 shares out of the
Shares Being Sold, the Seller covenants to make use of its means of
control over the Company so that resolutions regarding the issues
specified hereunder shall not be submitted for discussion by the board
of directors or during a general assembly of the Company, without
receiving the Buyer's prior written consent:
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11.2.1 Liquidation, splitting or reorganization of the Company,
including any material transaction that is similar thereto.
11.2.2 Merger to be carried out other than at market conditions (from
a willing seller to a willing buyer). In the event of a
disagreement between the Parties about whether the merger is at
market conditions, the merger shall not be carried out, unless
this matter shall be submitted for resolution by the Adjudicator,
and the latter shall determine that the merger is at market
conditions.
11.2.3 Material change in the Company's businesses, including the
discontinuance of an existing material business activity of the
Company.
11.2.4 Operations that are liable to cause the Company's shares to be
delisted from the Tel-Aviv Stock Exchange or from the NASDAQ.
11.2.5 Private allotment or issue of shares and/or options and/or
convertible securities of the Company at a rate exceeding one
percent of the Company's issued and paid-up share capital, except
for an allotment of options to employees, and provided that it
shall be done after consulting with the Buyer. The Buyer
covenants not to exercise its veto right in this clause 11.2.5
other than for reasonable reasons.
11.2.6 Appointment of an accountant for the Company that is not one of
the five major accounting firms.
11.3 INTERESTED-PARTY TRANSACTIONS
11.3.1 The Seller covenants to make use of its means of control over
the Company so that every Interested-Party Transaction shall be
submitted for the approval of the Company's board of directors.
11.3.2 The Seller covenants to make use of its means of control over
the Company in such manner that resolutions concerning an
Interested-Party Transaction shall be passed only if the majority
of the members of the board who voted in favor thereof are not
board members appointed at the recommendation of the Seller.
11.3.3 The Seller covenants to make use of its means of control over
the Company so that Interested-Party Transactions, which are not
transactions at market conditions between a willing seller and a
willing buyer, shall not be executed.
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11.3.4 It is hereby clarified that if an Interested-Party Transaction
shall be submitted for the approval of the general assembly, each
of the Parties shall vote at its sole discretion.
12. REGISTRATION RIGHTS
12.1 Subject to the Seller's obligations by law as a controlling
shareholder of the Company, the Seller covenants to exercise its means
of control over the Company to cause the convening of an audit
committee meeting, a board meeting and a general assembly of
shareholders of the Company, during which a resolution shall be
discussed to vest the Buyer with registration rights, under conditions
that are identical to the conditions prescribed in the rights
registration agreement dated October 26, 1999 between the Company and
Advent and additional shareholders ("THE REGISTRATION AGREEMENT"),
this, for a period of five years after the Closing Date, as well as to
make use of its means of control over the Company so that the
aforesaid resolution shall be passed by the Company's assembly of
shareholders. If a legal prohibition exists (to be supported by a
legal opinion by a renowned expert on the subject, who shall be
appointed by mutual consent of the Parties) of the provision of
identical conditions as stated above, the Buyer shall be given
commercial conditions that are essentially similar to the material
commercial conditions prescribed in the Registration Agreement.
12.2 To dispel any doubt, it is hereby clarified that if registration
rights for the Shares Being Sold shall be vested prior to the Closing
Date, the Shares Being Sold shall be transferred to the Buyer together
with registration rights as stated.
13. THE SELLER'S RIGHTS BY VIRTUE OF THE XXXXXXXXX AGREEMENT
In any instance whereby the Seller shall receive compensation or
indemnification or any benefit from Advent in respect of or in connection
with the Xxxxxxxxx Agreement, including in respect of a breach of any
representation or covenant given by Advent in the Xxxxxxxxx Agreement, the
Buyer shall be entitled to receive from the Seller the Buyer's
Proportionate Share out of the said sum, this within three Business Days of
the date of receipt of the sum by the Seller.
14. PROHIBITION OF THE EXECUTION OF A TRANSACTION AT MORE FAVORABLE CONDITIONS
(MFN)
The Seller covenants that, during the period commencing on the signing date
of this Agreement and ending six months after the Closing Date, the Seller
shall not sell and/or transfer and/or undertake to sell or transfer any
shares of the Company to any third party out of the Seller's Shares of
Partner, under conditions more favorable than those prescribed in this
Agreement, including a sale or transfer or undertaking to execute one of
these for a consideration that is lower than the consideration in respect
of the Shares Being Sold, unless with the Buyer's prior written consent.
This covenant shall not apply in the instance of a sale of shares by the
Seller within the scope of a cross-sale offer in a public offering of
shares of the Company.
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15. TRANSFER OF RIGHTS
The Buyer shall be entitled to transfer all of its rights and obligations
in respect of the Shares Being Sold, as prescribed in this Agreement, to an
Authorized Transferee of the Buyer, subject to the Authorized Transferee
assuming all of the Buyer's rights and obligations relating to its holding
of the Shares Being Sold.
16. TAXES AND EXPENSES
Each of the Parties to this Agreement shall bear the taxes and expenses
imposed on it by law in relation to this Agreement.
17. GENERAL PROVISIONS
17.1 This Agreement encompasses and exhausts all that agreed upon between
the Parties, and any representation, consent, draft or previous
undertaking, whether direct or in favor of a third party, between the
Parties, and any negotiations, summary of agreements, understanding or
agreement between the Parties, which precedes the signing of this
Agreement, are hereby nullified and shall be deemed as if never made,
done or given.
17.2 The Seller shall make use of its means of control over the Company so
that every Immediate Report of the Company shall be forwarded directly
by the Company to the Buyer upon being reported to the public
17.3 Any alteration, amendment or addendum to this Agreement shall not be
valid unless drawn up in writing and signed by the Parties to this
Agreement. No claim of an oral amendment of the Agreement shall be
entertained.
17.4 Each Party shall safeguard in confidentiality any information that it
received from the other Party in relation to this Agreement and the
execution thereof, and no use shall be made thereof other than for the
purpose of the execution of this Agreement. That stated above shall
not apply to: (a) information that was or came into the public domain
other than due to a breach of this Agreement; (b) information that was
furnished to any of the Parties by a third party, which was not while
breaching the duty of confidentiality towards the other Party to the
Agreement; (c) information that must be disclosed pursuant to any law
or competent authority.
17.5 Any waiver of a right by a Party to this Agreement, which was granted
to it in this Agreement, shall be valid only if drawn up in writing.
If the waiver shall be valid, it shall be valid solely at that time
and in that instance, and shall not give rise to any estoppels or
preventions in the future.
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17.6 This Agreement does not constitute a contract in favor of a third
party, and it in no way confers rights to any person, save the direct
Parties thereto, and apart from that expressly stated therein.
17.7 The Parties covenant to act with BONA FIDES, diligently and
continuously for the purpose of executing this Agreement quickly and
efficiently, and to exert maximum cooperative efforts to remove any
prohibition, obstacle or restriction that might prevent the convening
of the Closing Date as soon as possible.
17.8 The Parties shall take the additional steps necessary for the purpose
of implementing this Agreement literally and as intended, and shall
sign any document needing their signatures for this purpose.
17.9 The law applicable to this Agreement and all that deriving from it
shall be solely Israeli law (without the Israeli choice of law rules),
and no other law shall apply.
17.10 The sole jurisdiction in relation to any matter and issue that might
arise in connection with this Agreement and the execution thereof
shall be referred solely to the competent court in Tel-Aviv as the
exclusive venue, and no other court shall have any jurisdiction to
deliberate a matter as stated.
17.11 Any notice by any of the Parties shall be sent to the addressee by
personal delivery or by registered mail to the address specified in
the recitals to this Agreement (or to any other address advised by
written notice to the other Party) and shall be deemed as having
reached the addressee Party on the day of its delivery if delivered by
personal delivery at the above address, or 72 hours after the time of
its dispatch if sent by registered mail to the above address.
AND IT WITNESS HERETO THE PARTIES HAVE SIGNED:
/s/ /s/ Yahel Shachar; /s/ Shachar Rachim
------------------------- -------------------------------------
BANK LEUMI LE-ISRAEL LTD. SCAILEX CORPORATION LTD.
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APPENDIX 7.1
Date: _____________
_________________________________
Private company no. _____________
_________________________________
Re: CONFIRMATION OF THE ACCURACY OF THE WARRANTS GIVEN PURSUANT TO THE
AGREEMENT DATED AUGUST 21, 2009
Pursuant to the agreement dated August 21, 2009 between Bank Leumi Le-Israel
Ltd. and Scailex Corporation Ltd. (hereinafter: "THE AGREEMENT"), we hereby
warrant to you as follows:
1. All warrants given by us pursuant to the Agreement are correct, accurate,
complete and valid, also correct to the date of this letter (hereinafter:
"THE CLOSING DATE").
2. All of our covenants and the conditions that we must fulfill pursuant to
the Agreement, which must be executed or fulfilled by the Closing Date,
have been fulfilled in their entirety.
3. No third party has any right and/or allegation and/or demand to cancel the
Agreement.
Sincerely,
____________________
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APPENDIX 6.2
Date: _____________
BANK LEUMI LE-ISRAEL LTD.
Dear Mr./Ms.,
Re: CONFIRMATION
Pursuant to the agreement signed by us on August 21, 2009 ("THE SALE
AGREEMENT"), we hereby declare to you as follows:
All of the Suspending Conditions have been fulfilled pursuant to the agreement
dated August 12, 2009 between us and Advent Investments Pte Ltd. (hereinafter:
"ADVENT"), a Singapore corporation controlled by Xxxxxxxxx Telecommunications
International Limited, for the acquisition of the Seller's Shares of Partner
from Advent, and the Closing pursuant thereto has been carried out, and all of
the Seller's Shares of Partner have been transferred under our name and to our
ownership, being Free and Clear.
All of the terms in this declaration shall have the meanings ascribed to them in
the Sale Agreement, unless otherwise expressly defined in this document.
Sincerely,
------------------------
SCAILEX CORPORATION LTD.
ATTORNEY'S CERTIFICATION - SCAILEX CORPORATION LTD. (HEREINAFTER: "THE COMPANY")
I, the undersigned, _____________, Adv., do hereby certify that the above
document was signed by Messrs.__________________ and ___________________, who
are authorized to sign on behalf of the Company and to obligate it pursuant to
this document.
------------------ ----------------------
Date Attorney's name
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APPENDIX 7.3
SHARE TRANSFER DEED
I, the undersigned, Scailex Corporation Ltd. (public company no. 52-003180-8)
(hereinafter: "THE TRANSFEROR") do hereby transfer to Bank Leumi Le-Israel Ltd.
(hereinafter: "THE TRANSFEREE") 7,677,037 ordinary shares of NIS 1 par value
each of Partner Communications Ltd. (public company no. 52-004431-4)
(hereinafter: "THE COMPANY," "THE SHARES," respectively), and they shall be held
by the Transferee or its representatives in accordance with the conditions under
which the Transferor held the shares on the signing date of this Deed.
and I, the Transferee, do hereby agree to receive the shares in accordance with
these conditions.
AND IN WITNESS HERETO THE PARTIES HAVE SIGNED
ON THE __ DAY OF THE MONTH OF ___ IN THE YEAR 2009
------------------ ------------------
THE TRANSFEROR THE TRANSFEREE
------------------------------------- -------------------------------------
WITNESS TO THE TRANSFEROR'S SIGNATURE WITNESS TO THE TRANSFEREE'S SIGNATURE
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