EXHIBIT 4.(a).13
Dated 18 April 2002
MATBIT TELECOMMUNICATION SYSTEMS LIMITED
and
MATAV INVESTMENTS LIMITED
and
XXXXX.XXX LIMITED
and
ADVENT INVESTMENTS PTE LIMITED
and
XXXXXXXXX TELECOMMUNICATIONS (AMSTERDAM) BV
and
MATAV-CABLE SYSTEMS MEDIA LIMITED
SUPPLEMENTAL AGREEMENT
relating to
Partner Communications Company Limited
This Agreement is made on 18 April 2002
Between:
(1) Matbit Telecommunication Systems Limited whose principal office is at c/o
Avital, Dromi & Co Law Offices, at 0 Xxxx Xxxxxx, Xxxxx Xxx 00000, Israel
("Matbit");
(2) Matav Investments Limited whose principal office is at 00 Xxxxxx Xxxxxx,
Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxx 00000, Xxxxxx ("Matav");
(3) Xxxxx.XXX Limited whose principal office is at Hutsot Shefayim, XX Xxx 000
Xxxxxxxx, 00000, Xxxxxx ("Elbit");
(4) Advent Investments Pte Limited whose principal office is at 10 Hoe Chiang
Road, Number 00-00, Xxxxxx Xxxxxx, Xxxxxxxxx ("Advent");
(5) Xxxxxxxxx Telecommunications (Amsterdam) BV whose registered office is at
Xxxxxxxxxx 00, 0000 Xxxxxxxxx, Xxxxxxxxxxx ("Xxxxxxxxx"); and
(6) Matav-Cable Systems Media Limited whose principal office is at 00 Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxx 00000, Xxxxxx ("Matav-Cable").
(and together referred to hereinafter as the "Parties" or Individually as
a "Party").
Whereas:
(A) Matbit and Matav are existing shareholders in the Company.
(B) Pursuant to a share purchase agreement dated 10 April 2002 and made
between (1) Matav, (2) Matbit, (3) Xxxxxxxxx and (4) Matav-Cable Systems
Media Limited, (the "SPA") Xxxxxxxxx will also become a shareholder in the
Company.
(C) The Parties wish to record certain agreements between them in relation to
the Company in accordance with the terms of this Agreement.
It is agreed as follows:
1 Interpretation
Terms used in this Agreement which are defined in a relationship agreement
dated 10 October 1999 and made between (1) Advent, (2) Matbit, (3) Matav,
(4) Elbit and (5) Tapuz Cellular Systems Limited Partnership (as amended)
(the "Relationship Agreement"), shall have the same meaning as in the
Relationship Agreement unless the context requires otherwise;
"MOC" means the Minister of Communications of Israel and the Ministry of
Communications of Israel; and
"MOC Letters" means the letters from the Company to the MOC dated March
26, 2002, April 1, 2002 and April 4, 2002 and the response from the MOC
dated 14 April 2002, all in the agreed terms.
1.1 Clauses etc.
References to this Agreement include any Recitals to it and references to
Clauses are to Clauses of this Agreement.
1.2 Headings
Headings shall be ignored in construing this Agreement.
Continuing obligations of Matbit and Matav
Covenants by Matav
2.1.1 In accordance with clause 5.1.6(a) of the Relationship Agreement, Matav
hereby irrevocably assigns to Xxxxxxxxx the right of Matav to nominate a
representative to serve as a Director.
2.1.2 Matav hereby further agrees, from the date of this Agreement, to
irrevocably waive its rights pursuant to clause 6.1.2 of the
Relationship Agreement to appoint three Directors and, subject as set
out in Clause 2.1.3, for as long as it holds not less than 4.99 per cent
of the Relevant Shares, agrees that it shall be entitled to appoint not
more than two Directors.
2.1.3 Clause 2.1.2 shall not prevent a Nominating Party from transferring
Shares to Matav, and assigning any rights such Nominating Party has to
nominate one or more representatives to serve as Directors to Matav in
accordance with clauses 6.1.4(c) or 6.1.5 of the Relationship Agreement.
Avoidance and Consequences of an Occurrence of a Bank or Israel Event
2.2.1 Bank of Israel Event
(i)
(a) Matbit agrees and undertakes that it will not; and
(b) Matav agrees and undertakes that it will not, that it will
use its best efforts to procure that none of its Affiliates
will and that it will not through the exercise of its rights
as a shareholder in Matbit or through any representation on
the Board of Matbit cause Matbit to,
take any action, or allow any event to occur (being an event it
or, in the case of Matav, Matav's Affiliates is/are reasonably
capable of influencing) ("Relevant Action") which would cause the
Company to become obliged, under applicable rules of the Bank of
Israel (as in effect from time to time) which restrict loans to
related parties, to repay amounts to, or alter the terms of any
existing or subsequent credit facility with, any bank on terms
substantially different from those applicable to other banks
participating in such facility or on terms which would not apply
were it not for the application of such rules (a "Bank of Israel
Event").
(ii) If a Bank of Israel Event occurs in circumstances where there is
no Relevant Action then Clauses 2.2.2, 2.2.3 and 2.2.4 shall not
apply and the Parties shall all discuss in good faith with each
other and co-operate in good faith with a view to reaching an
agreement to ensure that such repayment or alteration is avoided
and each Party shall indemnify the other Parties in respect of any
failure by it to so co-operate.
(iii) For the avoidance of doubt, in the event that the applicable rules
of the Bank of Israel are changed and as a result of such change
the percentage interest of any given shareholder causes the
Company to be a related entity ("Ish Kashur") of the relevant
banks and, as a result, the Company becomes obliged, under
applicable rules of the Bank of Israel which restrict loans to
related parties, to repay amounts to, or alter the terms of any
existing or
subsequent credit facility with, any bank on terms substantially
different from those applicable to other banks participating in
such facility or on terms which would not apply were it not for
the application of such rules, then, absent a Relevant Action, in
such circumstances, a Bank of Israel Event shall not occur nor
shall there be a Breach (as defined in Clause 2.2.2 below), but
the provisions of subsection (ii) above shall apply.
2.2.2 Notice of Breach
If a breach of Clause 2.2.1(i) occurs (a "Breach"), the Party in Breach
(the "Defaulting Party") shall notify the other Parties as soon as
reasonably practicable.
2.2.3 Procedure on Breach
Following a Breach, the Board, at a meeting in which the Directors
nominated by the Defaulting Party will not be entitled to participate,
may give written notice to the Defaulting Party within 60 Business Days
of receiving notification of the Breach from the Defaulting Party or of
becoming aware of the Breach, whichever is the earlier, requiring the
Defaulting Party:
(i) to sell the Sale Shares (as defined below) at a price per Share
equal to 82.5 per cent of the Market Price of the Sale Shares but
in all other respects in accordance with the provisions of clause
9.1 of the Relationship Agreement, in which case the provisions of
clauses 9.2, 9.4, 9.5 and 10 of the Relationship Agreement shall
apply, mutatis mutandis and as the case may be; and
(ii) in addition to, or as an alternative to, requiring the sale of the
Sale Shares as set out in (i) above to take such other actions
which the Board (the composition of which shall exclude the
Directors nominated by the Defaulting Party) and the Defaulting
Party may together agree will remedy the Breach, whereupon the
Defaulting Party shall be obliged to take such actions within the
time agreed between the Defaulting Party and the Board;
and in each such case the Defaulting Party shall indemnify the Company
in respect of all costs and expenses incurred in connection with
implementing the provisions of this Clause 2.2.3 For the purpose of this
Clause 2.2.3 the "Sale Shares" means such number of the Shares held
directly or indirectly (which shall include Shares which are held by
Matbit for the benefit of Matav) by the Defaulting Party which the
Board, at the meeting referred to above, determines need to be sold in
order that the relevant Bank of Israel Event is no longer applicable.
2.2.4 Indemnity
If the Defaulting Party fails to comply with the requirements imposed by
Clause 2.2.3, or if it does not agree with the Board what actions it is
to take to remedy the Breach then without prejudice to any contractual
remedy available to Advent, Xxxxxxxxx or the Company in respect of the
relevant Breach or such failure, the Defaulting Party shall indemnify
the Company against all costs and liabilities arising in connection with
such Breach (including, without limitation, if applicable, costs and
liabilities incurred in connection with any early repayment of, or the
alteration of the then existing terms of, any then existing credit
facility or the costs of any required refinancing or fund raising (it
being understood that such indemnity shall not oblige the Defaulting
Party to assume the Company's then existing obligations under any then
existing credit facility
(save to the extent they are increased (and then only in respect of the
amount of the increase) as a result of the relevant Bank of Israel
Event))).
Guarantee
Matav-Cable hereby guarantees the performance of all obligations of Matav set
forth in, or arising in connection with, this Agreement.
Matav-Cable hereby further covenants that it will not, and will procure that
none of its Affiliates will, take any action or allow any event to occur (being
an event it or its Affiliates is/are reasonably capable of influencing) which
would cause a Bank of Israel Event to occur.
Obligations in respect of MOC Letters
Elbit, Matav and Matbit acknowledge the terms of the MOC Letters and each
confirms that, in accordance with Clause 11.1 of the Relationship Agreement, it
shall make best efforts to comply with any provisions of the MOC Letters which
apply to it and that breach of such provision shall be an Event of Default for
the purpose of Clause 9.3(a) of the Relationship Agreement, subject to the
provisions of that Clause.
Other Provisions
Announcements
No announcement in connection with the existence or the subject matter of this
Agreement shall be made or issued by or on behalf of the Parties without the
prior written approval of all the Parties. This shall not affect any
announcement required by law or any regulatory body or the rules of any
recognised stock exchange but the Party with an obligation to make an
announcement shall consult with the other Parties insofar as is reasonably
practicable before complying with such an obligation.
Costs
Each Party shall bear all costs incurred by it in connection with the
preparation, negotiation and entry into of this Agreement.
Notices
Any notice or other communication in connection with this Agreement or with any
legal proceedings under this Agreement shall be in writing in English (a
"Notice") and shall be sufficiently given or served if delivered or sent.
In the case of Matbit to:
Matbit Telecommunication Systems Limited
c/o Cable Systems Media Limited
42, Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxx 00000 Xxxxxx
Tel: x000 0 0000000
Fax: x000 0 0000000
In the case of Matav to:
Matav Investments Limited
c/o Cable Systems Media Limited
42, Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxx 00000 Xxxxxx
Tel: x000 0 0000000
Fax: x000 0 0000000
With a copy to Matav-Cable
In the case of Elbit, to:
Xxxxx.XXX Limited
c/o Elbit Limited
Hutsot Shefayim
XX Xxx 000 Xxxxxxxx 00000, Xxxxxx
Tel: x000 0 0000000
Fax: x000 0 0000000
In the case of Advent or Xxxxxxxxx, to:
Xxxxxxxxx Telecommunications (Amsterdam) BV
Xxxxxxxxxx 00,
0000 Xxxxxxxxx
Xxxxxxxxxxx
With a copy to:
The Deputy Group Managing Director
Xxxxxxxxx Telecommunications Limited
8/F Two Harbourfront
0 XxXxxx Xxxxxx
Xxxxxxx
Xxxxxxx
Xxxx Xxxx
Tel: x000 0000 0000
Fax: x000 0000 0000
In the case of Matav-Cable to:
Matav-Cable Systems Media Limited
c/o Cable Systems Media Limited
42, Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxx 00000 Xxxxxx
Tel: x000 0 0000000
Fax: x000 0 0000000
In the case of the Company to:
The Company Secretary
Partner Communications Company Limited
0 Xxxx Xxxxxx, Xxxx Xxxxxxxxxx Xxxx
Tel: x000 0 0000000
Fax: x000 0 0000000
Any Notice may be delivered by hand or sent by fax (in the case of a fax,
with a follow up copy sent by courier). Without prejudice to the foregoing,
any Notice shall conclusively be deemed to have been received on the next
working day in the place to which it is sent, if sent by fax, or at the
time of delivery, if delivered by hand.
5.4 Third Party Beneficiary
Each Party hereby acknowledges and confirms its intention that the Company
be a third party beneficiary under this Agreement. Within 24 hours of
execution of this Agreement, the Parties shall deliver a copy of this
Agreement to the Company which delivery shall constitute notice to the
Company of its rights under the Agreement.
5.5 Invalidity
If any term in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or part shall to that extent be deemed not to form part of this
Agreement but the legality, validity or enforceability of the remainder of
this Agreement shall not be affected.
5.6 Counterparts
This Agreement may be entered into in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by executing any such counterpart.
5.7 Governing Law and Submission to Jurisdiction
5.7.1 This Agreement and the documents to be entered into pursuant to it,
shall be governed by and construed in accordance with the laws of
the State of Israel.
5.7.2 All the Parties irrevocably agree that the courts of Tel Aviv/Jaffo
are to have exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and the documents
to be entered into pursuant to it. All the Parties irrevocably
submit to the jurisdiction of such courts and waive any objection to
proceedings in any such court on the ground of venue or on the
ground that proceedings have been brought in an inconvenient forum.
In witness whereof this Agreement has been duly executed.
SIGNED by
on behalf of Matbit Telecommunication }
Systems Limited in the presence of:
SIGNED by
on behalf of Matav Investments Limited }
in the presence of:
SIGNED by
on behalf of Xxxxx.XXX Limited }
in the presence of:
SIGNED by
on behalf of Advent Investments Pte }
Limited
in the presence of:
SIGNED by
on behalf of Xxxxxxxxx
Telecommunications (Amsterdam) BV }
in the presence of:
SIGNED by
on behalf of Matav-Cable }
Systems Media Limited
in the presence of:
Tel: x000 0 0000000
Fax: x000 0 0000000
Any Notice may be delivered by hand or sent by fax (in the case of a fax,
with a follow up copy sent by courier). Without prejudice to the
foregoing, any Notice shall conclusively be deemed to have been received
on the next working day in the place to which it is sent, if sent by fax,
or at the time of delivery, if delivered by hand.
5.4 Third Party Beneficiary
Each Party hereby acknowledges and confirms its intention that the Company
be a third party beneficiary under this Agreement. Within 24 hours of
execution of this Agreement, the Parties shall deliver a copy of this
Agreement to the Company which delivery shall constitute notice to the
Company of its rights under the Agreement.
5.5 Invalidity
If any term in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or part shall to that extent be deemed not to form part of this
Agreement but the legality, validity or enforceability of the remainder
of this Agreement shall not be affected.
5.6 Counterparts
This Agreement may be entered into in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by executing any such counterpart.
5.7 Governing Law and Submission to Jurisdiction
5.7.1 This Agreement and the documents to be entered into pursuant to
it, shall be governed by and construed in accordance with the laws
of the State of Israel.
5.7.2 All the Parties irrevocably agree that the courts of Tel
Aviv/Jaffo are to have exclusive jurisdiction to settle any
dispute which may arise out of or in connection with this
Agreement and the documents to be entered into pursuant to it. All
the Parties irrevocably submit to the jurisdiction of such courts
and waive any objection to proceedings in any such court on the
ground of venue or on the ground that proceedings have been
brought in an inconvenient forum.
In witness whereof this Agreement has been duly executed.
SIGNED by
on behalf of Matbit Telecommunication }
Systems Limited in the presence of:
SIGNED by
on behalf of Matav Investments Limited }
in the presence of:
SIGNED by
on behalf of Xxxxx.XXX Limited }
in the presence of:
SIGNED by
on behalf of Advent Investments Pte }
Limited
in the presence of:
SIGNED by
on behalf of Xxxxxxxxx }
Telecommunications (Amsterdam) BV
in the presence of:
SIGNED by
on behalf of Matav-Cable }
Systems Media Limited
in the presence of:
SIGNED by
on behalf of Xxxxx.XXX Limited }
in the presence of:
SIGNED by
on behalf of Advent Investments Pte }
Limited
in the presence of:
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
SIGNED by
on behalf of Xxxxxxxxx }
Telecommunications (Amsterdam) BV
in the presence of:
SIGNED by
on behalf of Matav-Cable }
Systems Media Limited
in the presence of:
