Free translation from Hebrew] Market Making Agreement Entered into and signed in Petach Tikva on December 24, 2008 Between: Harel Finance Trade & Securities Ltd. of 7 Jabotinski St., Ramat Gan (hereinafter: the “Market Maker”)
Exhibit
10.130
[Free
translation from Hebrew]
Entered
into and signed in Petach Tikva on December 24, 2008
Between:
Harel
Finance Trade & Securities Ltd.
P.C.
513992115
of 7
Jabotinski St., Ramat Gan
(hereinafter:
the “Market
Maker”)
of the first
part;
And
between:
Xfone,
Inc.
Co. No.:
C23688-2000
whose
address for the purpose of this Agreement will be
X.X. Xxx
0000, Xxxxx Xxxxx 00000
(hereinafter:
the “Company”)
of the second
part;
Whereas
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the
Market Maker is a member of the Tel Aviv Stock Exchange Ltd. (hereinafter:
“TASE”);
and
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Whereas
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the
Company listed its shares on TASE in the framework of a “dual listing”
pursuant to the provisions of Chapter E3 of the Securities Law, 5728-1968
(hereinafter: the “Securities Law”);
and
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Whereas
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the
Company wishes to increase the level of negotiability and improve the
liquidity of the Securities Contemplated in the Agreement, according to
the definition of this term below, inter alia, through
engagement with the Market Maker as specified in this Agreement;
and
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Whereas
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the
Market Maker represents that it has received TASE’s approval to act as a
“market maker” and that it has the knowhow and ability to act as a market
maker and that it is able to provide the Company with its services as
specified in this Agreement; and
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Whereas
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the
Company approached the Market Maker and requested that the Market Maker
provide market making services thereto for the Securities Contemplated in
the Agreement, according to the definition of this term below, as
specified in this Agreement, and the Market Maker agreed to provide the
Company with market making services for the said securities;
and
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Whereas
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the
Market Maker undertook to act to receive TASE’s approval for activity as a
“market maker” pursuant to the provisions of this Agreement;
and
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[Free translation from
Hebrew]
Whereas
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the
Parties wish to regulate their engagement as specified in this
Agreement;
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Therefore
it has been represented, agreed and stipulated between the Parties as
follows:
1.
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Preamble,
Interpretation and Annexes
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1.1
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The
preamble to this Agreement and the annexes hereto constitute an integral
part hereof.
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1.2
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The
headings of the sections in this Agreement are provided for the purpose of
convenience and shall not be used for interpretation
purposes.
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1.3
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All
of the terms included in this Agreement shall bear the meaning imparted
thereto in the Securities Law and/or in the TASE bylaws and/or in its
directives and/or in resolutions of the board of directors of TASE
(hereinafter: “TASE’s
Bylaws and Directives”).
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1.4
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It
is hereby agreed that in any event of a discrepancy between the provisions
of this Agreement and the provisions of the Securities Law and/or the
provisions of TASE’s Bylaws and Directives, the provisions of the
Securities Law and/or the provisions of TASE’s Bylaws and Directives will
prevail over the provisions of this
Agreement.
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2.
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Conditions
Precedent
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All of
the provisions of this Agreement are subject to fulfillment of all of the
conditions precedent specified below within 15 days from the date
of execution of this Agreement. The conditions precedent are as
follows:
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2.1
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Receipt
of the approval of TASE for the appointment of the Market Maker as market
maker for the Securities Contemplated in the Agreement, according to the
definition of this term below.
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3.
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The
Market Maker’s
Representations
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The
Market Maker hereby represents that:
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3.1
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It
is a member of TASE.
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3.2
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It
has received the approval of TASE to act as market
maker.
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3.3
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It
has the knowhow and ability to act as market maker and is able to provide
the Company with the market making services as specified in this
Agreement.
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3.4
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All
of the approvals required according to the incorporation documents and the
provisions of any law for its engagement according to the terms and
conditions of this Agreement have been received and there is no legal or
other impediment to its engagement according to the terms and conditions
of this Agreement.
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[Free translation from
Hebrew]
4.
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The
Company’s Representations
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4.1
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The
Company hereby represents that it is a company which was incorporated in
the State of Nevada in the U.S.A. whose ordinary shares are listed on the
NYSE Alternext US stock exchange and
TASE.
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4.2
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The
Company hereby represents that there is no legal or other impediment to
its engagement according to the terms and conditions of this
Agreement.
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4.3
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The
Company’s securities specified below are traded on TASE as of the date of
execution of this Agreement:
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Type
of Securities
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Quantity
Issued
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Common
stock
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18,376,075
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Series
A bonds
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4.4
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The
Company hereby represents that to the best of its knowledge, the
interested parties thereof hold its securities as specified
below:
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Name
of Interested Party
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Type
of Securities
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Quantity
Held
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Xxxxxxx
Xxxxxx
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Common
stock
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3,208,000
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Xxxxxxx
Xxxxxx
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Non-negotiable
options
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1,500,000
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Xxx
Xxxxxxxxx
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Common
stock
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11,500
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Xxx
Xxxxxxxxx
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Non-negotiable
options
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1,500,000
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Xxxxxx
Securities LLC
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Common
stock
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3,206,450
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Campbeltown
Business Ltd.
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Common
stock
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1,203,500
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Xxxxxxx
X. Xxxxx
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Common
stock
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2,643,121
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Xxxxxxx
X. Xxxxx
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Non-negotiable
options
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800,000
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Eyal
Harish
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Non-negotiable
options
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75,000
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Xxxxxx
X. Xxxxxxx
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Common
stock
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2,000
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Xxxxxx
X. Xxxxxxx
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Non-negotiable
options
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75,000
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Aviyahu
Xxx Xxxxx
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Non-negotiable
options
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25,000
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Xxxxxxx
Xxxxx
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Non-negotiable
options
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25,000
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Xxxxxx
Xxxxxx
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Non-negotiable
options
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20,000
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Israel
Singer
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Non-negotiable
options
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20,000
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4.5
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Each
party will provide the other with any report that shall be issued by TASE
regarding activity in connection with this Agreement in accordance with
TASE’s Bylaws and Directives, immediately upon issuance of the report by
TASE and receipt thereof by either of the
Parties.
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[Free translation from
Hebrew]
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4.6
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The
Company undertakes to notify the Market Maker of any matter which is
subject to a reporting duty pursuant to Section 36 of the Securities Law,
without derogating from its other undertakings in this
Agreement.
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5.
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The
Appointment
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The
Company hereby appoints the Market Maker, commencing from the seventh trading
day after the first date on which all of the conditions precedent specified in
Section 2 above shall be fulfilled (hereinafter: the “Effective Date”), to serve,
during the term of the Agreement, as market maker for the securities specified
below:
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5.1
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The
name of the stock:
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Xfone
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5.2
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Number
thereof:
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1098169
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5.3
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Symbol:
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XFN
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(Hereinabove
and hereinbelow: the “Securities Contemplated in the
Agreement”).
6.
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Market
Making Services
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6.1
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The
Market Maker undertakes that throughout the term of the Agreement, it will
act as market maker and will submit for performance on TASE market making
orders as required, and will perform anything that is required of a market
maker pursuant to the provisions of the law in general, and to TASE’s
Bylaws and Directives, as being from time to time, specifically. The
market making will be performed in a special account of the Market Maker,
which shall be designated for the market making activity for the
Securities Contemplated in the
Agreement.
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6.2
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The
Market Maker undertakes to immediately notify the Company of any event in
which TASE shall revoke its approval for the Market Maker to act as market
maker.
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7.
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Fee
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7.1
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The
Market Maker will be entitled to receive from the Company, in respect of
the market making services as stated in this Agreement, throughout the
term of the Agreement, monthly consideration in the sum of NIS 5,000 (five
thousand New Israeli Shekel) (hereinafter: the “Consideration”).
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7.2
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The
Company will pay the Market Maker the Consideration at net 30
terms.
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7.3
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For
the avoidance of doubt, it is hereby clarified that the Company will bear
no payment and/or fee and/or expense in connection with the market making
by the Market Maker as set forth in this
Agreement.
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[Free translation from
Hebrew]
8.
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Term
of the Agreement
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8.1
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This
Agreement is for a period of one year commencing from the Effective Date
(hereinafter: the “Initial
Period”).
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8.2
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Upon
expiration of the Initial Period, the Agreement will be extended
automatically by additional periods of 12 months each (hereinafter: the
“Additional
Periods”).
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8.3
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Subject
to the provisions of TASE’s Bylaws and Directives, the Company will be
entitled to terminate the Agreement at any time during the Additional
Periods, for any reason, by prior written notice, to be given at least 45
days in advance, provided that TASE’s consent shall have been received to
the termination of the market making by the Market Maker for the
Securities Contemplated in the Agreement, and in a manner that will not
prevent the Market Maker from continuing to serve as market maker for
other securities and/or other
companies.
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8.4
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Subject
to the provisions of TASE’s Bylaws and Directives, the Market Maker will
be entitled to terminate the Agreement at any time during the Additional
Periods for any reason whatsoever, by prior written notice to be given at
least 45 days in advance, provided that TASE’s consent shall have been
received to the termination of the market making by the Market Maker for
the Securities Contemplated in the Agreement, and in a manner that will
not prevent the Market Maker from continuing to serve as market maker for
other securities and/or other
companies.
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8.5
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The
provisions of this Section 8 notwithstanding, and subject to TASE’s Bylaws
and Directives, the Market Maker may terminate the Agreement, at any time,
in the event that a status change shall occur in the negotiability of the
Company’s stock according to TASE’s decision – by giving written notice.
In such a case as stated in this section, the Market Maker will specify in
its notice whether the termination is with respect to all of the
transaction shares or in respect of part thereof (a reduction in the
quantity of the transaction
shares).
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8.6
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The
aforesaid in this Section 8 notwithstanding, it is hereby agreed that if
any provisions shall be determined in the TASE bylaws and/or the TASE
directives and/or in any other law, which shall prejudice any of the
rights of the Company and/or the Market Maker, then the Company / the
Market Maker will be entitled to terminate this Agreement
immediately.
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9.
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Liability
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9.1
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The
Company hereby waives any claim and/or demand and/or lawsuit against the
Market Maker with respect to the effect of the market making on the price
of the Securities Contemplated in this Agreement and/or in respect of any
damage and/or loss and/or cost that shall be caused to the Company due to
the provision of the services according to this Agreement. The aforesaid
notwithstanding, the Company will not be barred from claiming against the
Market Maker in respect of any damage that shall be caused to the Company
in the event that the Market Maker shall commit a fundamental breach of
the Agreement and/or shall be negligent in the performance of its
undertakings according to this Agreement, all without prejudice to any
remedy that is available to the Company pursuant to any
law.
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[Free translation from
Hebrew]
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9.2
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The
Market Maker represents that it is aware and agrees that the Company is
not liable in any way for the market making actions by the Market Maker,
and that the Market Maker will not be entitled to any compensation or
indemnification from the Company in respect of the market making for the
Securities Contemplated in the Agreement and/or in respect of any loss
and/or damage that shall be caused to the Market Maker as a result of its
engagement in this Agreement and/or as a result of the market making for
the Securities Contemplated in the
Agreement.
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10.
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Miscellaneous
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10.1
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This
Agreement, including the annexes hereto, contains, embodies, incorporates
and expresses all of the agreed terms, promises and agreements, written or
oral, on the matters specified herein. Any undertakings or representations
on the subject matter of this Agreement which were given or made by the
Parties prior to the execution of this Agreement and which were not
explicitly expressed herein shall neither add to the obligations and
rights set forth in this Agreement, nor derogate therefrom nor modify the
same, and the Parties will not be bound thereby commencing from the date
of this Agreement.
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10.2
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No
conduct on the part of either of the Parties shall be deemed as a waiver
of any of its rights according to this Agreement or pursuant to any law,
or as a waiver of or consent on its part to any breach or non-fulfillment
of any condition, unless the waiver, consent, postponement, modification,
cancellation or addition shall have been made explicitly and in
writing.
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10.3
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Any
notice of any of the other parties in connection with this Agreement shall
be delivered in writing and shall be sent to the addressee by personal
delivery or by registered mail to its address as specified at the start of
this Agreement, and shall be deemed as having been delivered to the
addressee on the date of delivery thereof by personal delivery or 4 days
after the date of dispatch thereof by registered mail, as aforesaid, all
as the case may be.
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10.4
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Any
modification, amendment or waiver in connection with this Agreement will
be valid according to a written document only and will be limited to the
matter in respect of which it was made from the outset. No waiver in any
case shall constitute a precedent for any other case. No refrainment from
performance of an action or laches in the
performance thereof shall be deemed as a waiver nor prejudice the rights
or undertakings of either of the Parties in connection with such
action.
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-6-
[Free translation from
Hebrew]
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10.5
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The
law of the State of Israel will govern the provisions of this Agreement.
The courts within the area of jurisdiction of the Tel Aviv-Jaffa District
Court will have sole and exclusive jurisdiction over any matter that is
connected with and/or derives from this
Agreement.
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10.6
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The
Parties will be entitled to disclose the contents of this Agreement,
insofar as they are required to do so pursuant to any law, including
immediate reports to the Securities Authority, TASE etc., after
coordination of the language of the foregoing reports and/or notices
between the Parties.
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In
witness whereof, the parties have hereto set their hands:
The
Market Maker
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The
Company
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