Series A Bond Listing Underwriting Agreement (Pricing Underwriters) Entered into and signed in Tel Aviv on November 2, 2008 Between: Xfone, Inc. (hereinafter: the “Company”) And between:
[Free Translation From
Hebrew]
Series A Bond Listing
Underwriting Agreement (Pricing Underwriters)
Entered
into and signed in Tel Aviv on November 2, 2008
Between:
Xfone,
Inc.
(hereinafter:
the “Company”)
And
between:
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Excellence Nessuah Underwriting
(1993) Ltd. (“Excellence
Underwriting”)
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The First International
& Co. - Underwriting and
Investments Ltd. (“FIBI
Underwriting”)
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(hereinafter
jointly and severally: the “Pricing Underwriters” or the
“Pricing
Underwriter”)
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Whereas
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the
Company is about to publish a listing prospectus, according to which NIS
100,382,100 par value Series A Bonds (the “Bonds”), which were
issued in the framework of a private placement to institutional investors
of December 13, 2007 pursuant to the terms and conditions of the Indenture
(as defined below), will be listed on TASE (as defined below);
and
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Whereas
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the
Bonds will be listed on the date and under the conditions specified in the
prospectus that is about to be published in connection therewith;
and
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Whereas
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the
Company represents and undertakes that the Company has the full and
exclusive right to list the Bonds on TASE (as defined below) and that all
of the permits and approvals that are required therefor have been
received, with the exception of the Securities Authority’s permit to
publish the prospectus and the approval of TASE (as defined below) to list
the Bonds; and
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Whereas
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according
to the position of the Securities Authority, the prospectus which includes
the listing of the Bonds needs to be signed by the Pricing Underwriters
which managed the private placement, in the framework of which the Bonds
were offered and issued, and the Pricing Underwriters have agreed to sign
the Prospectus (as defined below).
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Therefore it has been
Agreed, Represented and Stipulated between the Parties as
follows:
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1.
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Preamble
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The
preamble to this Agreement and the annexes hereto constitute an integral part
hereof. Anything stated in this Agreement in the plural shall also import the
singular and vice
versa.
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[Free
Translation From Hebrew]
The
headings of the sections of this Agreement are for convenience purposes only,
they are not part of the provisions of this Agreement and they should be
imparted no meaning with respect to the interpretation of this Agreement and/or
any of the provisions hereof.
In this
Agreement, the following terms shall bear the meaning set forth alongside them.
Terms which are not defined in this Agreement and appear in the Prospectus shall
bear the meaning ascribed thereto in the Prospectus.
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“Prospectus”
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The
prospectus which the Company shall publish in Israel in connection with
the listing of the Bonds on TASE (as defined below) and the lifting of the
restrictions imposed on a resale of the Bonds pursuant to the Securities
Law (as defined below), including an amendment to the prospectus which
shall be agreed upon between the Company and the Pricing
Underwriter.
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“TASE” -
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The
Tel Aviv Stock Exchange Ltd.
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“Underwriting
Regulations” -
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The
Securities Regulations (Underwriting), 5767-2007.
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“Trustee”
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Xxx
Xxxx Trusts Company Ltd.
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“Indenture”
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The
indenture which was executed between the Company and the Trustee on
December 13, 2007, and which was amended on October 27,
2008.
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“Securities Law”
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The
Securities Law, 5728-1968 and the regulations promulgated
thereunder.
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2.
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General
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This
Agreement is based on the draft prospectus dated November 2, 2008 which was
submitted to the Securities Authority and to TASE and on the basis of which the
Company will publish the Prospectus, subject to modifications to be agreed upon
between the Company and the Pricing Underwriter. This Agreement reflects the
mutual undertakings between the Pricing Underwriters, except where explicitly
stated otherwise, and with such modifications as shall be agreed upon between
the Pricing Underwriters.
The
Company hereby undertakes to provide Excellence Underwriting, immediately after
the publication of the Prospectus, with 10 copies of the Prospectus (or less, as
shall be informed in writing by Excellence Underwriting, at its
discretion).
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3.
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The
Pricing Underwriter’s
Undertaking
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Each one
of the Pricing Underwriters will sign the Prospectus and fulfill the reporting
duties which apply thereto pursuant to the law.
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[Free
Translation From Hebrew]
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4.
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Eligibility of the
Pricing Underwriter
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4.1
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Each
one of the Pricing Underwriters hereby represents separately, with respect
to itself only, vis-à-vis the Company, that on the date of execution of
this Agreement, it is registered in the Underwriters’ Register as an
active underwriter, and that on the date of execution of this Agreement,
it meets all of the other required eligibility conditions (either
permanent or temporary) pursuant to the Underwriting Regulations, and
represents and undertakes that it will immediately notify the Company of
any change in the veracity of its representation regarding its eligibility
to serve as underwriter.
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4.2
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Each
one of the Pricing Underwriters hereby represents separately, with respect
to itself only, that it is entitled to serve as a pricing underwriter in
the public offering pursuant to the Prospectus in consideration of Section
10 of the Underwriting Regulations, and that it will immediately notify
the Company of any change in the veracity of its representation or in its
ability to fulfill its undertakings as
aforesaid.
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4.3
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Each
one of the Pricing Underwriters hereby represents separately, with respect
to itself only, that until the date of its signing of this Agreement and
the Prospectus, it has and will comply with all of the reporting duties
which are imposed thereon by virtue of the Underwriting
Regulations.
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5.
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Listing
and Arrangements
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The
Company shall use its best efforts and take any and all actions that are
reasonably required, subject to the provisions of any law and to the TASE Rules,
to list the Bonds on TASE, such that restrictions shall not apply to a resale
pursuant to Section 15C of the Securities Law, all as specified in the
Indenture.
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6.
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Reimbursement
of Expenses in respect of Due Diligence
Investigations
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The
Pricing Underwriters, via Excellence Underwriting, are entitled to reimbursement
of expenses in respect of legal and accounting due diligence investigations in
the total sum of NIS 134,000 + V.A.T as required by law. In addition, it is
hereby clarified that the Company shall bear any and all additional costs of an
opinion in connection with the foreign law which applies to the Company, insofar
as shall be required in the framework of the due diligence
investigations.
It should
be clarified that the reimbursement of the expenses as aforesaid shall be paid
to the Pricing Underwriters even if the Bonds will not ultimately be listed
pursuant to the Prospectus.
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[Free
Translation From Hebrew]
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7.
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Representations
of the Company
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The
Company hereby represents and undertakes vis-à-vis the Pricing Underwriter
that:
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7.1
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Any
and all inquiries for verifying and ascertaining the information included
in the Prospectus have been carried out thereby and on behalf thereof;
that the Prospectus and any amendment, if and insofar as shall have been
made thereto, as stated below, include and correctly and faithfully
describe all of the material information which may be important to a
reasonable investor who is considering purchasing the Bonds that shall be
listed pursuant thereto and any detail which is required pursuant to the
Securities Law (“Important Detail”); that
no Important Detail is omitted from the Prospectus and that the Prospectus
does not include a misleading detail, as defined in the Securities Law
(“Misleading
Detail”).
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7.2
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The
Prospectus was prepared based on the requirements of the U.S. Securities
Act of 1933 (the “Securities Act”) and the
rules of the S.E.C. for the Form S-1. Accordingly, the Prospectus meets
the requirements of the Form S-1 which are relevant to the company with
respect to the listing in the U.S. of securities of the type listed
pursuant to the Prospectus, with the exception of the parts in the
Prospectus which are in Hebrew, as specified below: The cover of the
Prospectus and Chapters 1, 3, 4 and 5 of the Prospectus, which were
prepared pursuant to the provisions of the Securities
Law.
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In
addition, the following sections which are required in the Form S-1 are not
included in the Prospectus:
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Part I
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Item
1 - Forepart of Registration Statement and Outside Front Cover Page of
Prospectus;
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Item
2 - Inside Front and Outside Back Cover Pages of
Prospectus;
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Item
5 - Determination of Offering Price;
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Item
6 - Dilution;
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Item
7 - Selling Security Holders;
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Item
8 - Plan of Distribution;
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Item
12 - Description of Securities to be Registered;
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Item
12A - Disclosure of Commission Position on Indemnification for Securities
Act Liabilities;
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Part II -
Information Not Required in the
Prospectus.
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-4-
[Free
Translation From Hebrew]
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7.3
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The
Company will indemnify the Pricing Underwriters or any one thereof due to
a liability that shall be imposed thereon, if any, in favor of another
body or person according to a judgment, execution of which shall not have
been stayed, including a judgment issued in a settlement or an arbitration
award sanctioned by a court, due to the presence of a Misleading Detail in
the Prospectus and in respect of reasonable litigation expenses, including
attorney’s fees incurred by any of the Pricing Underwriters or charged
thereto by a court in such proceedings or in connection with a criminal
indictment from which any of the Pricing Underwriters shall be acquitted
or in which it shall be convicted of an offense requiring no general
intent or due to an investigation or proceeding that was conducted against
it by an authority which is authorized to conduct an investigation or
proceeding, and which has ended without the filing of an indictment
against it and without a monetary liability being imposed thereon as a
substitute for a criminal proceeding (as defined in the Companies Law,
5759-1999), or which has ended without the filing of an indictment against
it but with the imposition of a monetary liability as a substitute for a
criminal proceeding in an offense which requires no proof of general
intent, all due to the presence of a Misleading Detail in the
Prospectus.
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The
Company’s indemnification undertaking, as described above, is up to the sum of
NIS 100,382,100, which is equal to the issue proceeds received in the framework
of the private placement of the Bonds (gross), linked to the consumer price
index commencing from the index known on December 13, 2007 until the index known
on the date of actual payment of the indemnification.
The
aforesaid notwithstanding, no amount exceeding a sum equal to 25% of the
Company’s equity, according to the Company’s last audited or reviewed
consolidated financial statements, at the time of the demand for indemnification
(hereinafter: the “Interim
Amount”) shall be paid in respect of the said indemnification if there is
a reasonable fear that payment above the Interim Amount will deny the Company
the ability to meet its existing and expected undertakings (with the exception
of the Company’s undertakings to its controlling shareholders), when they become
due upon the first indemnification demand in accordance with this Agreement by
the Pricing Underwriters (hereinafter in this Subsection 7.3: the “Condition”). It is clarified
that payment of indemnification up to the Interim Amount is not subject to the
Condition, that the Condition does not derogate from the Pricing Underwriters’
rights to remedies vis-à-vis the Company pursuant and subject to any law, and
that the Condition shall not apply in the event that a dissolution order shall
have been issued for the Company or it shall have been appointed a temporary
liquidator in a proceeding initiated other than by any of the Pricing
Underwriters on grounds according to this Agreement.
-5-
[Free
Translation From Hebrew]
Each one
of the Pricing Underwriters will be entitled to demand that the Company conduct,
on its behalf, any negotiations or defense against a claim, proceeding and/or
demand as aforesaid, and to this end, it will provide it with all of the
assistance required. If the Company shall fail to comply with the Pricing
Underwriter’s demand within 10 days from the date of receipt of its written
demand, such Pricing Underwriter will be able, without the need for the
Company’s consent, to settle with the plaintiff for any amount that it shall
deem fit and the Company shall be obligated to indemnify it for the settlement
amount and any reasonable amount that shall have been incurred thereby in the
course of the handling of the claim as aforesaid, provided that the Company
shall have been given written notice of 7 days in advance of the intention to
settle as aforesaid and the Company shall not have assumed the conduct of the
proceedings as specified above, all subject to the amount restriction described
in this Subsection 7.3 above.
The
foregoing indemnification duty will not apply vis-à-vis any of the Pricing
Underwriters in respect of any amount with which it shall be charged due to the
existence of a Misleading Detail in the Prospectus which was based, or due to a
claim whose cause of action was based only on information which was provided to
the Company in writing by such Pricing Underwriter, for usage of such
information for the purpose of preparation of the Prospectus.
A Pricing
Underwriter will not be indemnified in respect of a Misleading Detail if it
shall not have been proven that the Pricing Underwriter believed in good faith
that there was no Misleading Detail in the Prospectus, and indemnification shall
not be given due to an action taken by the Pricing Underwriter either
deliberately or recklessly.
Upon the
delivery of any claim and/or demand for payment, as aforesaid, to any Pricing
Underwriter, such Pricing Underwriter is obligated to immediately give written
notice thereof to the Company and the other Pricing Underwriter.
The
Company hereby represents that the Company’s Board of Directors has approved, by
law and according to the Company’s incorporation documents, its engagement in
this Agreement and has determined that the indemnification amount specified in
this Section 7.3 is reasonable under the circumstances of the matter and in
respect of the Pricing Underwriters’ undertakings according to this
Agreement.
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7.4
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Without
derogating from the generality of the Company’s representations and
undertakings, as specified in this Section 7, the Company shall provide
the Pricing Underwriter, prior to the publication of the Prospectus, with
the following documents:
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-6-
[Free
Translation From Hebrew]
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7.4.1
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An
opinion from the Company’s legal counsel overseas, as well as from the
legal counsel for the Prospectus in Israel, in such language as the
Pricing Underwriter shall request and shall be agreed upon between the
parties.
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7.4.2
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Certification
from the Company’s auditors in Israel and overseas in such language as the
Pricing Underwriter shall request and shall be agreed upon between the
parties.
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7.4.3
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Approval
signed by the chairman of the Company’s Board of Directors or another
director of the Company, the Company’s CEO and its CFO, in such language
as the Pricing Underwriter shall request and shall be agreed upon between
the parties.
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8.
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Additional Disclosure
Duties
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From the
date of execution of this Agreement and until the date of publication of the
Prospectus:
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8.1
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The
Company shall allow the Pricing Underwriters or any of the inspectors on
behalf thereof, at their request, to inspect, on a current basis, any and
all of the documents and the information that shall be requested by them
in connection with the Prospectus and performance of the due diligence
investigations as well as any other information that may be material to a
reasonable investor and which may be required to be described in the
Prospectus. The Company shall immediately notify the Pricing Underwriters,
or any of the inspectors on behalf thereof, of any information which may
be relevant to the Prospectus, including any agreement or material event,
immediately upon the execution or occurrence thereof, including of the
conduct of negotiations with respect to the execution of a material
agreement as aforesaid.
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8.2
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The
Company shall promptly deliver to the Pricing Underwriters or any of the
inspectors on behalf thereof, in writing, any information on which the
Company shall be obligated to report to the Securities Authorities in
Israel and overseas pursuant to the provisions of the law (including
securities laws and the regulations promulgated thereunder in Israel and
overseas which apply to the Company), as well as any and all of the
reports which the Company is obligated to submit to the stock exchange (in
Israel and overseas) in accordance with its requirements, and shall
fulfill its duties to give reports to the Securities Authorities and the
stock exchange as aforesaid.
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The
Company shall promptly notify the Pricing Underwriter of any material change or
development of a trend towards a material adverse change, in the financial
results or in the financial statements of the Company or in the data
presentation method used therein.
-7-
[Free
Translation From Hebrew]
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8.3
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If,
due to disclosure as stated in Section 8.1 and 8.2, the Pricing
Underwriter shall decide to demand amendment of the Prospectus, the
parties will immediately take any and all of the steps required, to the
Pricing Underwriter’s satisfaction, in order to perform the amendment as
quickly as possible, including an application to the Securities Authority
pursuant to Section 25 and/or 25A of the Securities
Law.
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8.4
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Upon
the publication of any financial statement by the Company or any of its
subsidiaries, insofar as the attachment of such a statement is required
pursuant to the law applicable to the Company, the statement shall be
attached to the Prospectus, without delay, by way of amendment of the
prospectus or an amended prospectus, in a manner that shall be acceptable
to the Pricing Underwriter, all subject and pursuant to the provisions of
the law that applies to the
Company.
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8.5
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The
Company shall cause this Agreement to be described in the Prospectus
correctly and pursuant to the legal
requirements.
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8.6
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The
Company and its directors carried out the inquiries and the investigations
as required pursuant to any law independently and without relying on
inquiries carried out by the Pricing Underwriters for themselves in
connection with their execution of the Prospectus. The inquiries that were
carried out by and on behalf of the Pricing Underwriters do not establish
a duty of care or contractual privity vis-à-vis the Company and/or its
directors and/or the controlling shareholders thereof and the Pricing
Underwriters’ duty vis-à-vis the Company is established in connection with
the Pricing Underwriters’ undertaking according to Section 3 above
only.
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For the
avoidance of doubt, it is also clarified that the indemnification duty specified
in Section 7 above is unconditional and in no way relies upon the manner of
inspection of the Company and its activity by the Pricing
Underwriters.
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9.
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The
Taking Effect of the Underwriters’
Undertakings
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The
Pricing Underwriters’ undertakings according to this Agreement shall take effect
immediately upon receipt of the Securities Authority’s permit to publish the
Prospectus pursuant to the provisions of Section 21 of the Securities Law and
subject to that the Company shall have fulfilled its undertakings according to
this Agreement and acted in accordance with the provisions of any law which
applies thereto with respect to the publication of the Prospectus.
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10.
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Additional
Approvals
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The
Company will provide to the Pricing Underwriter, within two business days after
the date of publication of the Prospectus, a true copy of approval of TASE and
the permit of the Securities Authority to publish the Prospectus, as well as
confirmation that the Prospectus which was executed by the Company and its
directors is the prospectus which was distributed via the Magna
system.
-8-
[Free
Translation From Hebrew]
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11.
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Release
of the Pricing Underwriter from the
Agreement
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Any and
all of the provisions of this Agreement notwithstanding, in the event that it
shall transpire that the Prospectus includes any Misleading Detail or that a
material detail is omitted from the Prospectus or in the event that the
Securities Authority shall give the Company an instruction, pursuant to Section
25(a) and/or Section 25A(b) of the Securities Law, to publish an amendment to
the prospectus or to publish an amended prospectus, or in the event that the
Company shall apply (without having received the prior consent of the Pricing
Underwriter thereto) to make an amendment to the Prospectus pursuant to Section
25A(a) of the said law, the Pricing Underwriter will be entitled, by giving
notice to the Company within two (2) business days from the date on which it
shall have learned of one of the events stated above, as the case may be, but no
later than twelve (12) hours before the time of opening of trade, to be released
from all of its undertakings vis-à-vis the Company according to this Agreement
if such Pricing Underwriter was not aware of the Misleading Detail or the
Important Detail omitted from the Prospectus as aforesaid at the time of
execution of this Agreement, or if the instruction was given or the application
was submitted due to a matter that was not known to such Pricing Underwriter at
the time of execution of this Agreement, and which, had it known thereof, it
would reasonably not have engaged with the Company in this Agreement or not have
engaged in this Agreement under the same conditions.
The
Company shall notify the Pricing Underwriter on the same day of the giving of an
instruction by the Securities Authority to publish an amendment to the
Prospectus as aforesaid or of the Company’s application to publish an amended
prospectus as aforesaid.
In the
event that one or more of the Pricing Underwriters will exercise its right as
aforesaid and be released from its undertakings according to this Agreement as
aforesaid, the Company will apply to the Securities Authority to amend the
Prospectus pursuant to the provisions of Section 25A(a) of the Securities Law.
Such application and the subsequent amendment to the Prospectus will not, in
themselves, constitute grounds for the release of any pricing underwriter from
its undertaking according to this Agreement.
In the
event that any of the Pricing Underwriters shall act according to this section
and be released from its undertakings as aforesaid without another pricing
underwriter having assumed the undertaking of the released entity, this
Agreement will be terminated, also with the other Pricing Underwriter, and the
Company shall apply to the Securities Authority to amend the Prospectus or
cancel the issue, all at its discretion. In the event that the Company shall
have elected not to cancel the listing and to consummate the same without the
signature of the Pricing Underwriters, it shall apply to the Securities
Authority to publish an amended prospectus which will not include this Agreement
and will not include the signatures of the Pricing Underwriters. If, for any
reason, an amended prospectus shall not be published as aforesaid, the listing
shall be cancelled.
-9-
[Free
Translation From Hebrew]
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12.
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Actions
in the event of Cancellation of the
Prospectus
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In the
event of cancellation of the Prospectus as stated in Section 11 above, the
Company shall give notice thereof in an immediate report and shall publish
notice thereof on the same day, insofar as possible, in one newspaper, and on
the following day in two daily newspapers of wide circulation in Israel in the
Hebrew language. The Company shall arrange for the distribution of the immediate
report among all of the TASE members and the Securities Authority according to
this Agreement on the date of cancelation of the listing.
It is
hereby clarified that if the Prospectus shall be cancelled under the
circumstances specified in Section 11 above, the Pricing Underwriter will not be
liable vis-à-vis the Company and the Company will not be liable vis-à-vis the
Pricing Underwriter for any damage that shall be caused as a result of and/or in
connection with such cancellation and/or for any expense incurred during and/or
in connection with the handling of the preparation of the Prospectus drafts and
the Prospectus and/or during the negotiations for the execution of this
Agreement. In addition, subject to the provisions of the law, if the Prospectus
shall be cancelled under the circumstances specified in Section 11 above, the
Pricing Underwriter shall not be responsible to the investors and the Company
shall entertain no lawsuits or claims against the Pricing Underwriter in such
instances.
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13.
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Stamp
Duty
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Payment
of stamp duty in respect of this Agreement, insofar as applicable, shall apply
to the Company.
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14.
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Exhaustive
Agreement
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This
Agreement exhausts all of the agreements between the parties and replaces any
previous agreement, consent, representation or document between the parties in
connection with the contents hereof. In addition, no modification to this
Agreement shall be of any force or effect unless made in writing and signed by
all of the parties or their attorneys.
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15.
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Magna
Authorization
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By their
execution of this Agreement, the Pricing Underwriters authorize the Company’s
electronic authorized signatories to report their engagement in this Agreement
and their execution of the Prospectus, on their behalf, via the Magna
system.
-10-
[Free
Translation From Hebrew]
In
witness whereof the parties have hereto set their hands:
The
Company:
_________
Xfone,
Inc.
The Pricing
Underwriters:
Excellence
Nessuah Underwriting (1993) Ltd._________
The First International & Co. - Underwriting and Investments
Ltd._________
-11-
