EXHIBI 21
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of 28 October, 2009 (this
"Agreement"), by and between Partner Communications Company Ltd., a company
organized under the laws of Israel (the "Company"), and Scailex Corporation
Ltd., a company organized under the laws of Israel (the "Shareholder").
WHEREAS, the Shareholder entered into that certain Share Purchase
Agreement, dated as of August 12, 2009, by and between the Shareholder and
Advent Investments Pte Ltd (the "SHARE PURCHASE AGREEMENT"), under which the
Shareholder will acquire 78,940,104 ordinary shares, par value NIS 0.01 per
share, of the Company (the Company's ordinary shares, the "Ordinary Shares");(1)
WHEREAS, in connection with the transactions contemplated by the Share
Purchase Agreement the Shareholder desires that this Agreement shall be executed
and delivered; and
WHEREAS, the audit committee and the board of directors of the Company have
determined that it is in the best interests of the Company to enter into this
Agreement with the Shareholder in connection with the Share Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. As used in this Agreement, the following terms shall have the
following respective meanings:
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other United States federal agency at the time administering
the Securities Act or the Exchange Act, as applicable, whichever is the relevant
statute.
"EXCHANGE ACT" shall mean the United States Securities Exchange Act of
1934, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be amended from time to time.
"HOLDER" shall mean the Shareholder or any transferee or assignee
thereof to whom the rights under this Agreement are assigned in accordance with
the provisions of Section 4.07 hereof
"PERSON" shall mean a corporation, association, partnership,
organization, group (as such term is used in Rule 13d-5 under the Exchange Act),
business, individual, government or political subdivision thereof, governmental
agency or other entity.
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(1) This draft assumes that the registration rights agreement will be
entered into prior to closing of the Share Purchase Agreement subject to
obtaining the shareholders approval and the closing of the transactions
contemplated by the Share Purchase Agreement.
"REGISTRABLE SHARES" shall mean any Ordinary Shares held by the
Shareholder from time to time. For purposes of this Agreement, any Registrable
Shares shall cease to be Registrable Shares when (x) a registration statement
covering such Registrable Shares has been declared effective and such
Registrable Shares have been disposed of pursuant to such effective registration
statement or (y) such Registrable Shares are sold feely in the public market by
a person in a transaction in which the rights under the provisions of this
Agreement are not assigned.
"SECURITIES ACT" shall mean the United States Securities Act of 1933,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be amended from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder hereby represents and warrants to the Company that it has all
requisite power and authority, and has received all requisite approvals to
complete the transactions contemplated hereby; this Agreement has been duly
authorized, executed and delivered by the Shareholder and constitutes a valid
and binding agreement enforceable against it in accordance with its terms.
SECTION 2.02. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Shareholder that it has been duly incorporated as
a limited liability company under the laws of Israel and that (i) it has all
requisite corporate power and authority, and has received all requisite
approvals (including any necessary approval of its audit committee and board of
directors) to complete the transactions contemplated hereby and (ii) this
Agreement has been duly authorized, executed and delivered by it and constitutes
it valid and binding agreement enforceable by the Shareholder against it in
accordance with its terms.
ARTICLE III
AGREEMENTS IN RESPECT OF THE REGISTRABLE SHARES
SECTION 3.01. DEMAND REGISTRATIONS. (a) Each Holder shall have the right
(the "Demand Right") during the term of this Agreement to require the Company to
file a registration statement under the Securities Act in respect of all or some
of the Registrable Shares held by such Holder (but not less than a number of
Registrable Shares that represents at least 2.65% of the then outstanding
Ordinary Shares of the Company). Subject to the provisions of subsection (b)
below, as promptly as practicable, but in no event later than 45 days after the
Company receives a written request from such Holder demanding that the Company
so register the number of Registrable Shares specified in such request, the
Company shall file with the Commission and thereafter use its best efforts to
cause to be declare effective promptly a registration statement (a "Demand
Registration") providing for the registrations of all Registrable Shares as such
Holder shall have demanded be registered. The Company may satisfy its obligation
to file a Demand Registration through an automatic shelf registration statement
on form F-3 within the meaning of Rule 405 under the Securities Act. All
requests made pursuant to this Section 3.01 (a) shall specify the amount of the
Registrable Shares to be registered. The Demand Registration shall be for a firm
commitment underwritten public offering.
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(b) Anything in this Agreement to the contrary notwithstanding, the Company
shall be entitled to postpone and delay the filing of any Demand Registration
until the earliest practicable time at which such Demand Registration can be
reasonably effected if (i) the Company is conducting or about to conduct an
underwritten public offering of securities in which the Holder is entitled to
join pursuant to Section 3.02 hereof, (ii) the Company is subject to an existing
contractual obligation not to engage in a public offering, (iii) the financial
statements of the Company for the fiscal period most recently ended prior to
such written request are not yet available, or (iv) the Company shall determine
that any such filing or the offering of any Registrable Shares would (x) in the
good faith judgment of the Board of Directors of the Company, impede, delay or
otherwise interfere with any pending or contemplated financing, acquisition,
corporate reorganization or other similar transaction involving the Company, (y)
based upon advice from the Company's investment banker or financial advisor,
adversely affect any pending or contemplated offering or sale of any class of
securities by the Company, or (z) require disclosure of material nonpublic
information which, if disclosed at such time, would be materially harmful to the
interests of the Company and its shareholders. After the expiration of any such
postponement or delay and without any further request from a Holder, the Company
shall effect the filing of the relevant Demand Registration and shall use its
best efforts to cause any such Demand Registration to be declared effective as
promptly as practicable unless such Holder shall have, prior to the effective
date of such Demand Registration, withdrawn in writing its initial request, in
which case such withdrawn request shall not constitute a Demand Registration.
(c) Notwithstanding anything contained in this Section 3.01:
(i) the Company shall not be required to file a registration statement
within 180 days of the effective date of a prior registration statement
filed as a result of a request for a Demand Registration by a Holder or
within 180 days of the effective date of a prior registration statement
registering Ordinary Shares;
(ii) a Holder shall not be entitled to request a Demand Registration
until after twelve months from the Effective Date,
(iii) no request for a Demand Registration may be made by a Holder
during the pendency of any lock-up period imposed in connection with a
public offering of securities of the Company, except with the consent of
the underwriters controlling the applicable lock-up agreement
(iv) the Company shall not be required to file a registration
statement if the filing of such a registration statement, or the
transactions contemplated by such filing, would in the good faith judgment
of the Board of Directors of the Company be contrary to applicable rules or
law;
(v) the Company shall not be required to file a registration statement
if the filing of such registration statement, or the transactions
contemplated by such fling, would in the good faith judgment of the Board
of Directors of the Company result in a breach of the Company's license;
and
(vi) the Company shall not be required to file a registration
statement if the filing of such registration statement, or the transactions
contemplated by such filing, would in the good faith judgment of the Board
of Directors of the Company result in a breach of the Company's financing
or other debt documents (including, any ancillary documents related
thereto).
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(d) Notwithstanding anything contained in this Section 3.01, if the lead
underwriter of an offering involving a Demand Registration advises the Holders
that have requested such registration that the total number of Registrable
Shames that the Holders intend to include is such as (i) would materially and
adversely affect the price of the Ordinary Shares to be offered or (ii) result
in a greater number of Ordinary Shares being offered than the market could
reasonably absorb, then the number of Registrable Shares to be registered in the
Demand Registration shall be reduced to such number which, in the opinion of
such underwriters, can be sold without (i) materially and adversely affecting
the price of the Ordinary Shares to be offered or (ii) resulting in a greater
number of Ordinary Shares being registered than the market could absorb. Such
Registrable Shares to be included in such registration shall be allocated pro
rata among all requesting Holders on the basis of the relative number of
securities originally requested to be registered by each of them.
(e) The Company shall be entitled to include newly issued Ordinary Shares
in any Demand Registration; provided, however, that if the lead underwriter of
an offering involving a Demand Registration advises the Holders that have
requested such registration that the number of Ordinary Shares that the Company
intends to include in addition to the total number of Registrable Shares that
the Holders intend to include is such as (1) would materially and adversely
affect the price of the Ordinary Shares to be offered or (ii) result in a
greater number of Ordinary Shares being offered than the market could reasonably
absorb, then the Holders will promptly, so advise the Company and may require,
by written notice to the Company accompanying such advice, that, to the extent
necessary to meet such limitation, newly issued Ordinary Shares shall be
excluded from such Demand Registration.
SECTION 3.02. PIGGYBACK REGISTRATION. (a) If the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
its Ordinary Shares (i) for its own account (other than a registration statement
on Form X-0, X-0 or S-8 (or any substitute form that may be adopted by the
Commission)) or (ii) for the account of any holders of its Ordinary Shares
(including any pursuant to a Demand Registration), on a form and in a manner
that would permit registration of Registrable Shares for sale to the public
under the Securities Act, the Company shall give written notice of such proposed
filing to each Holder as soon as practicable (but in any event not less than 30
days before the anticipated filing date), and such notice shall offer each
Holder the opportunity to register such number of Registrable Shares as the
Holder shall request. Upon the written direction of any Holder, given within 20
days following the receipt by such Holder of any such written notice (which
direction shall specify the number of Registrable Shares intended to be disposed
of by such Holder), the Company shall include in such registration statement (a
"Piggyback Registration" and, collectively with a Demand Registration, a
"Registration"') such number of Registrable Shares as shall be set forth in such
notice.
(b) Notwithstanding anything contained in this Section 3.02, if the lead
underwriter of an offering involving a Piggyback Registration advises the
Company that the inclusion of such Registrable Shares (i) would materially and
adversely affect the price of the Ordinary Shares to be offered or (ii) result
in a greater amount of Ordinary Shares being offered than the market could
reasonably absorb, then the number of Registrable Shares to be registered by
each party requesting Piggyback Registration shall be reduced such that the
total number of Registrable Shares being registered is not larger than such
number which, in the opinion of such underwriters, can be sold without (i)
materially and adversely affecting the price of the Ordinary Shares to be
offered or (ii) resulting in a greater number of Ordinary Shares being
registered than the market could absorb. Such Registrable Shares to be included
in such Registration shall be allocated pro rata among all requesting Holders on
the basis of the relative number of securities originally requested to be
registered by each of them. Nothing contained herein shall require the Company
to reduce the number of Ordinary Shares proposed to be issued by the Company.
(c) Subject to Section 3.01 (e) (ii) hereof, no Piggyback Registration
effected under this Section 3.02 shall be deemed to have been effected pursuant
to Section 3.01 hereof or shall release the Company of its obligations to effect
any Demand Registration upon request as provided under Section 3.01 hereof
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(d) The Company shall not be obligated to effect any registration of
Registrable Shares under this Section 3.02 that is incidental to the
registration of any of its securities in connection with any merger,
acquisition, exchange offer, dividend reinvestment plan or stock option or other
employee benefit plan.
(e) Notwithstanding anything contained in this Section 3.02, if at any time
after giving notice of its intention to register any of its securities and prior
to the effective date of the registration statement fled in connection with such
registration, the Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to the Holders participating in such registration and thereupon
the Company shall be relieved of its obligation to register any Registrable
Shares in connection with such registration (but not from its obligation to pay
expenses incurred in connection with such registration to the extent provided in
Section 3.05).
(f) No Holder may participate in any underwritten registration pursuant to
this Section 3.02 unless such Holder (i) agrees to sell such Holder's
Registrable Shares on the basis provided in any underwritten arrangements
approved by the Company and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
SECTION 3.03. REGISTRATION PROCEDURES. (a) In connection with each
Registration, and in accordance with the intended method or methods of
distribution of the Ordinary Shares as described in such Registration, the
Company shall, as soon as reasonably practicable (and, in any event, subject to
the terms of this Agreement, at or before the time required by applicable laws
and regulations):
(a) prepare and file with the Commission a registration statement on
an appropriate form with respect to such Registrable Shares and use its
best efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
determined as provided hereafter;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Shares covered by such registration statement;
(c) furnish to each Holder participating in such registration such
numbers of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus and any amendments or
supplements thereto), in conformity with the requirements of the Securities
Act, any documents incorporating by reference in such registration
statement or prospectus and such other documents and information as it may
reasonably request in order to facilitate the age or disposition of such
Registrable Shares;
(d) use its reasonable best efforts to register or qualify the
Registrable Shares covered by such registration statement under such other
securities or blue sky laws of such jurisdiction within the United States
as shall be reasonably appropriate for the distribution of the Registrable
Shares covered by the registration statement; provided, however, that the
Company shall not be required in connection therewith or as a condition
thereto to qualify to do business in or to file a general consent to
service of process in any jurisdiction wherein it would not but for the
requirements of this paragraph (d) be obligated to do so; and provided,
further, that the Company shall not be required to qualify such Registrable
Shares in any jurisdiction in which the securities regulatory authority
requires that a Holder participating in such registration submit any of its
Registrable Shares to the terms, provisions and restrictions of any escrow,
lockup or similar agreement(s) for consent to sell Registrable Shares in
etch jurisdiction unless such Holder agrees to do so;
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(e) promptly notify each Holder participating in such registration,
(i) when a prospectus or any prospectus supplement or amendment has been
filed, and, with respect to a registration statement or any post-effective
amendment to a registration statement, when the same has become effective,
(ii) of any request by the Commission for amendments or supplements to a
registration statement or related prospectus or for additional information
or any receipt of Commission comments, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a registration
statement or the initiation of any proceedings for any such purpose, (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Shares for sale
in any jurisdiction or the initiation or threat of any proceedings for such
purpose, and (v) at any time when a prospectus relating to the Registrable
Shares is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made, and at the request of any
such Holder promptly prepare, and furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made and shall otherwise comply
in all material respects with applicable law;
(f) use its reasonable best efforts to furnish, at the request of any
Holder requesting registration of Registrable Shares pursuant to Sections
3.01 or 3.02 hereof, if the method of distribution is by means of an
underwriting, on the date that the Registrable Shares are, delivered to the
underwriters for sale pursuant to such registration, or if such Registrable
Shares are not being sold through underwriters, on the date that the
registration statement with respect to such Registrable Shares becomes
effective, (1) a signed opinion, dated such date, of the independent legal
counsel representing the Company for the purpose of such registration,
addressed to the underwriters, if any, and if such Registrable Shares are
not being sold through underwriters, then to the Holders making such
request, as to such matters as such underwriters or the Holders may
reasonably request and as would be customary in such a transaction; and (2)
letters dated such date and the date the offering is priced from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and if such Registrable Shares are not being sold
through underwriters, then to the Holders malting such request and, if such
accountants refuse to deliver such letters to such Holders, then to the
Company (i) stating that they are independent certified public accountants
within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements and other financial data of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereto, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and (ii)
covering such other financial matters with respect to the registration in
respect of which such letter is being given as such underwriters or the
Holders, as the case may be, may reasonably request and as would be
customary in such a transaction;
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(g) enter into customary agreements (including if the method of
distribution is by means of an underwritten public offering, an
underwriting agreement in customary form) and take such other actions as
are reasonably required in order to expedite or facilitate the disposition
of the Registrable Shares to be so included in the registration statement;
(h) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than eighteen
(18) months after the effective date of the registration statement, an
earnings statement covering the period of at least twelve (12) months
beginning with the first full month after the effective date of such
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(i) use its best efforts to list such securities on each securities
exchange on which Ordinary Shares or American Depositary Shares thereof are
then listed, if such Registrable Shares are not already listed and if such
listing is then permitted under the rules of such exchange.
(b) Each Holder requesting registration shall furnish to the Company in
writing such information regarding such Holder and its intended method of
distribution of the Registrable Shares as the Company may from time to time
reasonably request in writing and as shall be required by law or by the
Commission in connection therewith Such Holder shall notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event, in
either case as a result of which any prospectus relating to the Registrable
Shares contains or would contain an untrue statement of a material fact
regarding such Holder or its intended method of distribution of such Registrable
Shares or omits to state any material fact regarding such Holder or its intended
method of distribution of such Registrable Shares required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and promptly furnish to the Company
any additional information required to correct and update any previously
furnished information, or required so that such prospectus shall not contain,
with respect to such Holder or the intended method of distribution of the
Registrable Shares, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and shall otherwise comply in all material respects with applicable
law.
(c) Each Holder participating in any registration pursuant to Section 3.01
or 3.02 shall enter into customary agreements (including if the method of
distribution is by means of an underwritten public offering an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of the Registrable
Shares to be so included in the registration statement.
(d) Each Holder participating in any registration pursuant to Section 3.01
or 3.02 shall, upon receipt of notice of the occurrence of any of the events
specified in Section 3.03 (c)(ii), (iii), (iv) or (v) hereof forthwith
discontinue disposition of such Registrable Shares pursuant to the registration
statement covering such Registrable Shares until such Holder's receipt of notice
from the Company that the use of the applicable prospectus may be resumed or
until such Holder's receipt of copies of an amended or supplemented prospectus.
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SECTION 3.04. REGISTRATION EXPENSES. (a) In the case of a Registration
proposed by the Company pursuant to which the Company is registering Ordinary
Shares for its own account, all expenses, excluding underwriters' discounts and
commissions and any stamp or transfer tax or duty, but including without
limitation all registration, fling and qualification fees, word processing,
duplicating, printers and accounting fees (including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance), fees of the Financial Industry Regulatory Authority or listing
fees, messenger and delivery expenses, all fees and expenses of complying with
state securities or blue sky laws, and fees and disbursements of counsel for the
Company incurred in connection with each Registration shall be paid by the
Company. In the case of such a Registration, each Holder participating in such
Registration shall bear and pay the underwriting commissions and discounts and
any stamp or transfer tax or duty and the fees and disbursements of counsel for
such Holder applicable to securities offered for its account in connection with
such Registration.
(b) In the case of a Demand Registration, each Holder shall bear and pay
the underwriting commissions and discounts and any stamp or transfer tax or duty
and the fees and disbursements of counsel for such Holder applicable to
securities offered for its account in connection with such Registration. All
other expenses, including without limitation all registration, filing and
qualification fees, word processing, duplicating, printers' and accounting fees
(including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance), fees of the Financial
Industry Regulatory Authority or listing fees, messenger and delivery expenses,
all fees and expenses of complying with state securities or blue sky laws and
fees and disbursements of counsel for the Company incurred in connection with
each registration shall be paid by the Company and each Holder participating in
such registration in proportion to the number of securities registered for the
account of the Company and each Holder.
SECTION 3.05. INDEMNIFICATION: CONTRIBUTION. (a) INDEMNIFICATION BY THE
COMPANY. The Company shall, and it hereby agrees to, indemnify and hold
harmless, in the case of any registration statement fled pursuant to Section
3.01 or 3.02 registering Registrable Shares of a Holder, such Holder, such
Holder's directors and officers, and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of the Registrable
Shares, from and against any losses, claims, damages or liabilities to which
such Holder or such director or officer or such agent or underwriter may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any registration statement, or any preliminary or
final prospectus contained therein, or any amendment or supplement thereto, or
any document incorporated by it reference therein, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
and the Company shall, and it hereby agrees to, reimburse each such Holder or
any such director or officer or agent or underwriter for any legal or other
expenses reasonably incurred by than in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary or final
prospectus, or amendment or supplement thereto, or document incorporated by
reference therein, in reliance upon and in conformity with written information
furnished to the Company by such Holder or such director or officer or any
agent, underwriter or representative of such Holder expressly for use therein,
or by such Holder's failure to furnish the Company, upon request; with the
information with respect to such Holder, such Holder's directors and officers,
or any agent, underwriter or representative of such Holder, or such Holder's
intended method of distribution, that is the subject of the untrue statement or
omission or if the Company shall sustain the burden of proving that such Holder,
such Holder's directors and officers, or such agent or underwriter sold
securities to the person alleging such loss, claim, damage or liability without
sanding or giving, at or prior to the written confirmation of such We, a copy of
the applicable prospectus (excluding any documents incorporated by reference
therein) or of the applicable prospectus, as then amended or supplemented
(excluding any documents incorporated by reference therein) if the Company had
previously furnished copies thereof to the such Holder or such agent or
underwriter, and such prospectus corrected such untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration.
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(b) INDEMNIFICATION BY THE HOLDER AND ANY AGENT OR UNDERWRITERS. Each
Holder requesting or joining in a Registration severally and not jointly shall
indemnify and hold harmless the Company, each of its directors and officers,
each person, if any, who controls the Company within the meaning of the
Securities Act, and each agent and any underwriter for the Company (within the
meaning of the Securities Act) against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director,
officer, controlling person, agent or underwriter may became subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon an untrue statement or alleged Untrue statement of any material fact
contained in such registration statement, or any preliminary or final prospectus
contained therein, or any amendment or supplement thereto, or any document
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
registration statement, preliminary or final prospectus, or amendments or
supplements thereto, or documents incorporated by reference therein, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Holder expressly for use therein; and each such Holder shall
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, agent or underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party pursuant to the indemnification provisions of, or
as contemplated by, this Section 3.05, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than pursuant to such provisions. In case any such
action or proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof the indemnifying party
shall be entitled to participate therein and to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party
(which shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof the
indemnifying party shall not be liable to such indemnified party for any legal
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation If the indemnifying party is not entitled to,
or elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel (in addition to local counsel)
for each indemnified party with respect to such claim. The indemnifying party
will not be subject to any liability for any settlement made without its
consent, which consent shall not be unreasonably withheld or delayed. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of or consent to the entry of any judgment
with respect to, any pending or treated action or claim in respect of which
indemnification or contribution may be sought unless such settlement, compromise
or judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault; culpability or a failure to act, by or
behalf of any indemnified party.
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(d) CONTRIBUTION. Each Holder requesting or joining in a Registration and
the Company agree that it, for any reason, the indemnification provisions
contemplated by Section 3.05 (a) or Section 3.05(b) hereof are unavailable to or
are insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of, and benefits
derived by, the indemnifying party and the indemnified party, as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section
3.05(d) were determined by pro rata allocation (even if the Holder or any agents
for, or underwriters of the Registrable Shares, or all of them, were treated as
one entity for such purposes); or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section
3.05(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above shall be doomed to include (subject to the
limitations set forth in Section 3.05(c) hereof) any legal, or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the foregoing, an indemnifying
party shall not be required to contribute under this Section 3.05(d) except
under such circumstances as such indemnifying party would have been liable
pursuant to Section 3.05(a) or (b) had such indemnification been enforceable
under applicable law.
(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of the Company under
this Section 3.05 shall be in addition to any liability that it may otherwise
have and shall extend, upon the same terms end conditions, to each officer,
director and partner of each Holder requesting or joining in a Registration and
each agent and underwriter of the Registrable Shares and each person, if any,
who controls such Holder or any such agent or underwriter within the meaning of
the Securities Act; and the obligations of such Holder and any agents or
underwriters contemplated by this Section 3.05 shall be in addition to any
liability that such Holder or its respective agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his consent, is named in
any registration statement as about to become a director of the Company) and to
each person, if any, who controls the Company within the meaning of the
Securities Act.
SECTION 3.06. UNDERWRITERS. If any of the Registrable Shares are to be sold
pursuant to an underwritten offering, the investment banker or bankers and the
managing underwriter or underwriters thereof shall be selected by the Company
except in the case of a Demand Registration, in which case the managing
underwriter or underwriters shall be selected by the Holder requesting such
Registration after consultation with the Company and any other Holder who elects
to participate in the registration (if known at the time of such selection) and
taking into account the Company's and such other Holder's reasonable requests,
provided that such managing underwriter or underwriters must be of recognized
international standing.
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SECTION 3.07. LOCKUPS. (a) Each Holder shall, in connection with any
registration of the Company's securities pursuant to Section 3.01 or 3.02, upon
the request of the Company or the underwriters managing any underwritten
offering of the Company's securities, agree in writing not to effect any sale,
disposition or distribution of any Registrable Shares (other than that included
in the registration) without the prior written consent of the Company or the
representatives of such underwriters, as the case may be, for such period of
time not to exceed 180 days from the effective date of such registration as the
Company or the underwriters may specify.
(b) The Company shall, if so required by the managing underwriters in
connection with an underwritten offering of Registrable Shares pursuant to
Section 3.01 or 3.02, agree in writing not to effect any sale, disposition or
distribution of any Ordinary Shares or securities convertible into or
exchangeable or exercisable for Ordinary Shares (other than that included in the
registration) without the prior written consent of the representatives of such
underwriters for such period of time not to exceed 180 days from the effective
date of such registration as the underwriter may specify, except in connection
with a stock option plan, stock purchase plan, savings or similar plan, or an
acquisition, merger or exchange offer.
SECTION 3.08. OVER-ALLOTMENT OPTIONS. It is understood that in any
underwritten offering of Registrable Shares in addition to the shares (the
"INITIAL SHARES") the underwriters have committed to purchase, the underwriting
agreement may grant the underwriters an option to purchase a number of
additional shares (the "OPTION SHARES") equal to up to 15% of the initial shares
(or such other maximum amount as the Financial Industry Regulatory Authority may
then permit), solely to cover over-allotments, if any. In the absence of
agreement to the contrary, the number of initial shares and option shares to be
sold by the Company and the Holders participating in such offering shall be
allocated pro rata among such persons an the basis of the relative number of
Registrable Shares each person has requested to be included in such
registration.
SECTION 3.09. PREPARATION: REASONABLE INVESTIGATION. In connection with the
preparation and fling of each registration statement registering Registrable
Shares under the Securities Act, the Company will give the Holders participating
in such registration and its underwriters, if any, and its counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein are filed with the
Commission, and each amendment thereof or supplement thereto, and will give it
such access to its books and records and such opportunities to discuss the
business of the Company with its of cars and the independent public accountants
who have issued a report on its financial statements as shall be necessary, in
the opinion of such Holders and such underwriters or their respective counsel to
conduct a reasonable investigation within the meaning of the Securities Act.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. TERMS OF AGREEMENT: TERMINATION. The term of this Agreement
shall terminate with respect to a Holder on the earlier of: (i) five (5) years
from the Effective Date; and (ii) when the Registrable Shares held by such
Holder can be sold in the United States public market pursuant to an exemption
from the registration requirements of the Securities Act and without regard to
holding period, volume or manner-of-sale limitations.
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SECTION 4.02. EFFECTIVE DATE. This Agreement shall become effective subject
to and only after the fulfillment of each of the following conditions (the date
on which this Agreement shall become effective, the "Effective Date"):
(a) A resolution at a general meeting of the shareholders of the Company to
approve and adopt this Agreement shall have been dully passed; and
(b) The consummation of the transactions contemplated by the Share Purchase
Agreement shall have been occurred
SECTION 4.03. SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of the
parties hereto recognizes and acknowledges that a breach by a party or by any
assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the parties
hereto agrees that in the event of any such breach, the aggrieved party shall be
entitled to the remedy of specific performance of such covenants or commitments
and preliminary and permanent injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity, and the
parties hereto hereby waive any requirement for the securing or posting of any
bond in connection with the obtaining of any such injunctive or other equitable
relief.
SECTION 4.04. NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt requested,
or if sent by telecopier, upon receipt of oral confirmation that such
transmission has been received, to the person at the address set forth below, or
such other address as may be designated in writing hereafter, in the same
manner, by such person:
(a) If to the Company, addressed as follows:
Partner Communications Company Ltd
0 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx Xxxx
Xxxx-Xx'xxxx 00000
Israel
Attention: Roly Xxxxxxx
Telecopier: 054-7814193
with copies to:
Shearman & Sterling
Xxxxxxxxx Xxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Xxxxxxx Xxxxx
Xxxxxx Xxxxxxxxxx
Telecopier: 00-000 000 0000
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(b) If to the Shareholder, addressed as follows:
Scailex Corporation Ltd.
48 Xxx Xxxx Galis St,
Segula Industrial Park,
Petach Tikva, Israel 49277
Attention: CEO
Telecopier: 00-000 0000
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section 4.04. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
SECTION 4.05. SURVIVAL. The several indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any party, any director or officer of such party, or any controlling person of
any of the foregoing, and shall survive the transfer of any Registrable Shares
by the Shareholder, and the indemnification and contribution provisions set
forth in Section 3.05 hereof shall survive termination of this Agreement.
SECTION 4.06. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 4.07. TRANSFER OF REGISTRATION RIGHTS. The registration rights of
the Shareholder in this Agreement with respect to any Registrable Shares may be
transferred to any person acquiring all of the Registrable Shares held by the
Holder or a part of the Registrable Shares held by a Holder comprising at least
4.99% of the outstanding Ordinary Shares and the transferee acquires the right
to nominate a representative to the board of directors of the Company at the
time the transferee acquires such shares; provided, however, that the Company
may deny the transfer of such registration rights in any such case if (i) such
transfer relates to a sale or other transfer of all of the Registrable Shares to
a person who is a competitor of the Company or its subsidiaries in the industry
or (ii) any conditions in the last sentence of this Section 4.07 are not met.
Each such transfer is contingent on the Shareholder or the transferring person
satisfying the following: (i) the Shareholder or transferring person shall have
given the Company written notice at or prior to the time of such transfer
stating the name and address of the transferee and identifying the securities
with respect to which the rights under this Agreement are being transferred;
(ii) such transferee shall have agreed in writing, in form and substance
reasonably satisfactory to the Company, to be bound by the provisions of this
Agreement; and (iii) immediately following such transfer the further disposition
of such securities by each transferee shall be restricted under the Securities
Act.
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SECTION 4.08. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto. Except as expressly provided in this Agreement, nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
SECTION 4.09. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 4.10. ENTIRE AGREEMENT: AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which fore a part
hereof contain the entire understanding of the parties with respect is to its
subject matter. This Agreement supersedes all prior agreements and understanding
among the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a written instrument duly executed by each of the parties, which shall
be binding on all of the parties.
SECTION 4.11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shat constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PARTNER COMMUNICATIONS COMPANY LTD.
By: /s/ Xxxxx Xxxxx /s/ Xxxxxxx Xxxxx
----------------------------------------------------------------
Name: Xxxxx Xxxxx Chief Financial Officer
Title: CEO Parter Communications Company, Ltd
SCAILEX CORPORATION LTD.
By: /s/ SCAILEX CORPORATION LTD.
--------------------------------
Name:
Title:
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