Exhibit 99.1
STOCK PURCHASE AND INDEMNIFICATION AGREEMENT
THIS STOCK PURCHASE AND INDEMNIFICATION AGREEMENT (this "Agreement"), dated
as of August 30, 2005 ("Contract Date"), by and among Motorola Israel Ltd., a
company organized under the laws of the State of Israel ("Motorola"), Ampal
Communications Limited Partnership, a limited partnership organized under the
laws of the State of Israel ("Ampal"), and MIRS Communications Ltd., a company
organized under the laws of the State of Israel ("Company"). Ampal Development
(Israel) Ltd., a company formed under the laws of the State of Israel ("Ampal
Development"), and Ampal-American Israel Corporation, a New York corporation
("Ampal US"), are parties to this Agreement solely for the purpose of the
Irrevocable Guarantee.
WHEREAS, Motorola Communications Israel Ltd, an Israeli corporation
("Motorola Communications") and Ampal Communications Inc., a Delaware
corporation ("Ampal Communications") have entered into a Purchase and Sale
Agreement, dated January 5, 1998 (the "Purchase and Sale Agreement"), pursuant
to which the Company was formed;
WHEREAS, following the date of the Purchase and Sale Agreement and the
formation of the Company, Motorola Communications merged into Motorola, its
parent company, Motorola, being the surviving entity;
WHEREAS, following the date of the Purchase and Sale Agreement, Ampal
Communications has entered into an assignment agreement, dated March 18, 1998,
with Ampal, under which Ampal Communications assigned its rights and obligations
under the Purchase and Sale Agreement and related agreements to Ampal;
WHEREAS, following the above transactions, Motorola owns twenty-two million
(22,000,000) Ordinary Shares of the Company, constituting sixty-six and 2/3rds
percent (66 2/3%) of all the issued and outstanding shares of capital stock of
the Company;
WHEREAS, following the above transactions, Ampal owns eleven million
(11,000,000) shares of Cumulative Participating Preferred Shares of the Company,
constituting thirty-three and 1/3rd (33 1/3%) of all the issued and outstanding
shares of capital stock of the Company (such shares being referred to herein as
the "Shares");
WHEREAS, the parties wish to settle and end their differences and disputes
with respect to the amount of Twenty-Two Million U.S. Dollars (US$22,000,000)
owed to Ampal as unpaid guaranteed dividend payments (including interest), on
the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the parties wish to settle and end any and all of their
differences and disputes, including any exiting claims and causes of claim, on
the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Motorola desires to purchase and Ampal desires to sell, all of the
Shares to Motorola or such other Person as Motorola shall otherwise in writing
direct (the "Motorola Designee") on the terms and subject to the conditions set
forth in this Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
SALE OF SHARES, INDEMNIFICATION, CONDITIONAL CLOSING AND CLOSING
1.01 Purchase and Sale. Ampal hereby agrees to sell to Motorola (or, if
applicable, to Motorola Designee), and Motorola hereby agrees to purchase from
Ampal, the Shares on the terms and subject to the conditions set forth in this
Agreement. Following consummation of the transactions contemplated hereby,
Motorola and/or its Affiliates will own one hundred percent (100%) of the
capital stock of Company.
1.02 Purchase Price. The aggregate purchase price for the Shares is
Sixty-Seven Million U.S. Dollars (US$67,000,000) (the "Purchase Price"), payable
to the Escrow Agent in cash at the conditional closing of the transactions
described herein (the "Conditional Closing").
1.03 Indemnification of Unpaid Guaranteed Dividend Payments. Motorola
hereby agrees to pay the Escrow Agent, in cash, at the Conditional Closing, the
amount of Twenty-Two Million U.S. Dollars (US$22,000,000) (the "Indemnification
Payment"), owed to Ampal by Motorola as indemnification obligations with respect
to unpaid guaranteed dividend payments (including interest), and Ampal hereby
agrees and acknowledges that such amount represents the total amount owed to it
as unpaid guaranteed dividend payments (including interest).
1.04 Conditional Closing. The Conditional Closing will take place at the
offices of Erdinast, Xxx Xxxxxx & Co., Advocates, 00 Xxxxxxxx Xxxxxx, Xxx Xxxx,
Xxxxxx, or at such other place as the parties to the Agreement shall mutually
agree in writing, at 10:00 A.M. local time on the date which is three (3)
Business Days after the date in which the condition to the Conditional Closing
pursuant to Section 1.08 herein (the "Conditional Closing Condition") is met,
provided that, in any event, such date shall not be later than thirty (30)
Business Days after the Contract Date (the "Conditional Closing Date"). To the
extent that the Conditional Closing Condition is not met by the Conditional
Closing Date, the Conditional Closing Date may be extended to a subsequent date
upon the mutual written consent of the parties.
1.05 Deliveries at the Conditional Closing by Ampal. At the Conditional
Closing, Ampal shall deliver or cause to be delivered to the Escrow Agent the
following items,
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including all instruments, duly executed, which are required by the terms hereof
to be delivered at the Conditional Closing:
(a) A share transfer deed for the Shares duly executed by Ampal in favor of
Motorola, or the Motorola Designee, accompanied by the share certificate/s of
the Shares in the name of Ampal.
(b) Release executed by Bank Leumi L'Israel Ltd. ("Bank Leumi"), a copy of
which is attached hereto as part of Exhibit B, pursuant to which Bank Leumi or
its appropriate Affiliates releases all liens, security interests, pledges,
claims and any other interests (including any interests obtained by it by way of
assignment) it may hold in and to the Shares, and in any of Ampal's rights
towards Motorola or the Company, including, but not limited to, with respect to
the loan in the principal amount of $36,400,000 more fully described in Exhibit
B hereto ("Bank Leumi Loan"), which release is conditional only upon receipt of
the payment described in Section 1.12(a) herein.
(c) Release executed by Bank Hapoalim B.M. ("Bank Hapoalim"), a copy of
which is attached hereto as part of Exhibit B, pursuant to which Bank Hapoalim
or its appropriate Affiliates releases all liens, security interests, pledges,
claims and any other interests (including any interests obtained by it by way of
assignment) it may hold in and to the Shares, and in any of Ampal's rights
towards Motorola or the Company, including, but not limited to, with respect to
the loan in the principal amount of $36,400,000 more fully described in Exhibit
B hereto ("Bank Hapoalim Loan"), which release is conditional only upon receipt
of the payment described in Section 1.12(b) herein.
(d) Resignation letters, as directors of the Company, signed by each of
Xxxx Xxxxx and Xxxx Xxxx, effective as of the Closing Date (as defined below).
(e) Resolutions of Ampal's general partner, of Ampal Development and of
Ampal US, approving the Agreement and all related Exhibits and agreements and
the execution and delivery of this Agreement and all related Exhibits and
agreements by Ampal.
(f) The opinion of legal counsel to Ampal, dated as of the Conditional
Closing Date, in the form attached hereto as Exhibit C.
(g) A Settlement Agreement and Release in the form attached hereto as
Exhibit A (the "Release"), executed by Ampal, Ampal Development, and by Ampal
US, releasing Motorola, its Affiliates (including the Company) and certain other
beneficiaries listed in the Release, subject to the occurrence of the Closing,
from all past, present and future claims, arising from Ampal's interest in the
Company, dismissing all lawsuits and settling all claims against Motorola, its
Affiliates, the Company and certain other beneficiaries listed in the Release.
(h) A written approval by Ampal and the directors appointed by Ampal to the
Company's board of directors, a copy of which is attached hereto as part of
Exhibit D, that the directors appointed by Motorola to the Company's board of
directors are authorized, solely and without the affirmative vote of the
directors appointed by Ampal to the Company's board of directors, to approve the
Company's audited annual financial statements for the years 2002, 2003
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and 2004, such financial statements are attached hereto as part of Exhibit D.
The above written approval will state that neither Ampal nor the directors
appointed by Ampal to the Company's board of directors will have any claim or
demand with respect to or in connection with such financial statements or the
approval thereof, including, but not limited to, any claim or demand relating to
Ampal's rights under Section 5.5(i) of the Partnership Agreement (as defined
below), Section 5.5(i) of the Shareholders' Agreement (as defined below) and
Section 70(i) of the Company's articles of association.
(i) An irrevocable power of attorney, in the form attached hereto as
Exhibit E, executed by Ampal, authorizing Motorola to take any action and to
execute any document, on behalf of Ampal, in order to dissolve and liquidate
Mirs Communications Partnership (1998), an Israeli general partnership,
partnership number 00-000000-0, formed in January 1998 by Motorola
Communications and Ampal Communications (the "Partnership").
(j) A motion to the District Court of Tel Aviv-Jaffa (In the matter of
Ampal Communications Limited Partnership versus Motorola Israel Ltd. Et al., -
Civil File 1643/04 (the "Claim") executed by Ampal or its representatives, to
dismiss the Claim with prejudice as to all defendants and without costs and to
vacate and revoke the court decision with respect to Xx. Xxxxx Xxxxxx, in the
form attached hereto as Exhibit F (the "Motion").
(k) A motion to the District Court of Tel Aviv-Jaffa (in the matter of the
Claim), in the form attached hereto as Exhibit H (the "Revoking Motion"),
executed by Ampal or its representatives, to revoke its decision which was given
with respect to the Motion and to revive and continue the Claim and the various
proceedings relating to the Claim, except that in no event will the default
order rendered against Xx. Xxxxx Xxxxxx (the "Default Order") be revived or
continued and the Default Order shall at all times thereafter remain revoked and
vacated.
(l) The Escrow Agreement (as defined in Section 4.03 below), executed by
Bank Leumi and Bank Hapoalim.
(m) A valid exemption certificate of Ampal from withholding tax,
satisfactory to Motorola and the Escrow Agent.
1.06 Deliveries at the Conditional Closing by the Company. At the
Conditional Closing, the Company shall deliver or cause to be delivered to the
Escrow Agent the following items, including all instruments, duly executed,
which are required by the terms hereof to be delivered at the Conditional
Closing:
(a) Resolution, by the Company's board of directors, approving the
Agreement and all related Exhibits and agreements and the execution and delivery
of this Agreement and all related Exhibits and agreements by the Company and the
transfer of the Shares from Ampal to Motorola (or, if applicable, to the
Motorola Designee) on, and subject to, the Closing Date.
(b) An executed notification to the Companies Registrar regarding the
transfer of the Shares from Ampal to Motorola (or, if applicable, to the
Motorola Designee).
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(c) Duly signed share certificates of the Shares in the name of Motorola
(or, if applicable, Motorola Designee).
(d) A Company's shareholders' resolution approving the resignation of the
directors appointed by Ampal to the Company's board of directors, as of the
Closing Date.
(e) An executed notification to the Companies Registrar of the changes in
the Company's board of directors.
(f) The Release, executed by the Company.
(g) The Motion, executed by the Company or its representatives.
(h) The Revoking Motion, executed by the Company or its representatives.
1.07 Deliveries at the Conditional Closing by Motorola. At the Conditional
Closing, Motorola shall deliver or cause to be delivered to the Escrow Agent the
following items, including all instruments, duly executed, which are required by
the terms hereof to be delivered at the Conditional Closing:
(a) The Purchase Price, in cash or by wire transfer of immediately
available funds.
(b) The amount of Twenty-Two Million U.S. Dollars (US$22,000,000), in cash
or by wire transfer of immediately available funds, which amount represents
payment in full of the Indemnification Payment, including any interest accrued
thereon, by Motorola, pursuant to the provisions of Sections 11.A.3 and 11.A.4
of the Purchase and Sale Agreement, the Partnership Agreement between Motorola
Communications and Ampal Communications dated 1998 (as amended) (the
"Partnership Agreement"), the Shareholders' Agreement between Motorola
Communications and Ampal dated March 29, 1998 (as amended) (the "Shareholders'
Agreement"), Section 8.1 to the Articles of Association of the Company and the
dividend policy of the Company.
(c) The Release, executed by Motorola, Inc., a corporation organized under
the laws of the State of Delaware ("Motorola, Inc."), by Motorola, and by Mssrs
Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, and Xxxxxx Xxx.
(d) The Motion, executed by Motorola or its representatives, and by Mssrs
Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, and Xxxxxx Xxx, or their
representatives.
(e) The Revoking Motion, executed by Motorola or its representatives, and
by Mssrs Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, and Xxxxxx Xxx,
or their representatives.
(f) Resolution of Motorola, approving the Agreement and all related
Exhibits and agreements and the execution and delivery of this Agreement and all
related Exhibits and agreements by Motorola, and a certificate by Motorola,
Inc.'s assistant secretary, to the effect that
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the persons executing on behalf of Motorola, Inc. any Exhibits and agreements
relating to this Agreement were authorized by Motorola, Inc. to do so.
1.08 Consent. Ampal and Motorola shall cooperate to obtain the consent of
the Israel Ministry of Communications to the Agreement, such consent being a
condition to the Conditional Closing.
1.09 Filing of the Motion. Promptly after the Conditional Closing, the
parties shall cause the Escrow Agent to file the Motion with the District Court
of Tel Aviv-Jaffa. Ampal's Israeli counsel shall have the right to join the
Escrow Agent in filing the Motion with the District Court of Tel Aviv-Jaffa.
1.10 Interest on Funds Deposited with the Escrow Agent. The parties hereto
agree and acknowledge that any interest on any amount deposited with the Escrow
Agent pursuant to the terms of this Agreement, accumulated until the Closing
Date (as defined below) or until a District Court Termination Event (as defined
in Section 8.01 below), as applicable (the "Accumulated Interest") shall be
paid, at the Closing (as defined below), or promptly after a District Court
Termination Event, as applicable, by the Escrow Agent to Motorola.
1.11 Closing. The parties hereto agree and acknowledge that the only
condition to closing of the transactions described herein (the "Closing") shall
be the receipt by Motorola of the District Court's decision approving the Motion
exactly as requested (i.e., without adding any terms, qualifications or
conditions, asking for additional actions by any of the parties, or diverting in
any way from the Motion), dismissing the Claim with prejudice as to all
defendants and without costs and vacating and revoking the District Court's
decision with respect to Xx. Xxxxx Xxxxxx. A District Court's decision to impose
costs on any of the parties hereto shall not be considered as a diversion from
the Motion, and in such an event, Ampal shall pay all and any such costs,
promptly following the issuance of such court decision, without regard as to
which party was ordered by the District Court to pay such costs. Upon such
receipt by Motorola, the Escrow Agent shall, within two (2) Business Days of
such receipt (or at such other time as the parties to the Agreement shall
mutually agree in writing) (the "Closing Date") take the actions described in
Section 1.12 below to consummate the Closing, in accordance with the terms of
the Escrow Agreement (as defined below).
1.12 Actions at Closing. At the Closing, the Escrow Agent shall take the
following actions:
(a) The Escrow Agent shall pay the amount as determined under the Escrow
Agreement to Bank Leumi to the account and in the manner designated by Bank
Leumi in full satisfaction of the Bank Leumi Loan, and all other indebtedness
outstanding, due or owing by Ampal to Bank Leumi in connection with its holdings
in the Company or, otherwise, as secured by the Shares or involve the Shares in
any way, as more fully described in the form of release attached hereto as part
of Exhibit B.
(b) The Escrow Agent shall pay the amount as determined under the Escrow
Agreement to Bank Hapoalim to the account and in the manner designated by Bank
Hapoalim in full satisfaction of the Bank Hapoalim Loan and all other
indebtedness outstanding, due or owing
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by Ampal to Bank Hapoalim in connection with its holdings in the Company or,
otherwise, as secured by the Shares or involve the Shares in any way, as more
fully described in the form of release attached hereto as part of Exhibit B.
(c) The Escrow Agent shall pay the amount as determined under the Escrow
Agreement to Ampal, to the account and in the manner designated by Ampal.
(d) The Escrow Agent shall deliver to Ampal the items provided for in
Sections 1.06(f) and 1.07(c).
(e) The Escrow Agent shall deliver to Motorola the items provided for in
Sections 1.05(a)-(i) and 1.06(a), (c), (d) and (f) and shall pay to Motorola the
Accumulated Interest.
(f) The Escrow Agent shall submit to the Companies Registrar the items
provided for in Sections 1.06(b) and (e).
(g) The Escrow Agent shall destroy and discard the Revoking Motion.
1.13 Withholding. Motorola or the Escrow Agent, as the case may be, may
withhold and deduct from any payments made under Sections 1.07(a) and (b) or
1.12(a), (b) and (c), as applicable, withholding tax at the applicable rate
under the applicable Law unless Motorola or the Escrow Agent, as the case may
be, is provided by Ampal with a valid exemption certificate from withholding
tax, satisfactory to Motorola or the Escrow Agent , as the case may be, at their
sole discretion, in respect of such payments. Any amount so withheld (including
amounts deducted from the payments to Ampal that relate to any withholding tax
required with respect to the payments to Bank Leumi and Bank Hapoalim) will be
treated as paid by Motorola to Ampal and the banks as part of either the
Purchase Price or the Indemnification Payment, as applicable.
1.14 Deduction of Transfer Taxes. The Escrow Agent shall deduct from any
payments made to Ampal under Section 1.12(c), any applicable transfer taxes and
50% of any stamp taxes (i.e., all of Ampal's portion of such taxes) imposed in
connection with the transactions contemplated hereby at the applicable rate
under the applicable Law, unless the Escrow Agent is provided by Ampal with an
opinion of counsel, or has been furnished with a valid ruling issued by the
Israeli tax authorities, satisfactory to the Escrow Agent at its sole
discretion, providing for a full exemption from such taxes or indicating another
tax rate. Any amount so deducted will be treated as paid by Motorola to Ampal
pursuant to this Agreement.
1.15 Further Assurances; Post Contract Date and Post-Closing Cooperation.
At any time or from time to time after the Contract Date and after the Closing,
the parties shall execute and deliver to each other such other documents and
instruments, provide such materials and information and take such other actions
(including actions needed in order to prepare the deliveries at the Conditional
Closing specified in Section 1.07) as may be required in order more effectively
to vest title to the Shares in Motorola, to dissolve and liquidate the
Partnership, to dismiss the Claim with prejudice as to all defendants and
without costs, to vacate and revoke the
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District Court's decision with respect to Xx. Xxxxxx, to perform the
transactions contemplated in this Agreement, and to give effect to the intention
of the parties hereunder.
On and after the Closing, Ampal shall cooperate with, and assist, Motorola
and the Company and shall take any reasonable actions and furnish any required
information it has, to the extent necessary or useful for Motorola and/or the
Company in connection with any audit, investigation, dispute, litigation,
preparation of financial statements or any other reasonable business purpose
relating to the Company with respect to any events occurring prior to the
Closing, and to the transactions contemplated under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF AMPAL
Ampal hereby represents and warrants to Motorola as follows, all such
representations and warranties shall be true and correct as of the Closing Date:
2.01 Organization of Ampal. Ampal is a limited partnership duly organized,
validly existing and in good standing under the Laws of the State of Israel.
Ampal has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby, including without limitation to own, hold,
sell and transfer the Shares to Motorola (or, if applicable, to Motorola
Designee).
2.02 Authority. The execution and delivery by Ampal of this Agreement, and
the performance by Ampal of its obligations hereunder, have been duly and
validly authorized and no other corporate action on the part of Ampal is
necessary for purposes of the execution and delivery of this Agreement by Ampal.
This Agreement has been duly and validly executed and delivered by Ampal and
constitutes a legal, valid and binding obligation of Ampal enforceable against
Ampal in accordance with its terms.
2.03 Ownership of the Shares. Ampal owns the Shares, beneficially and of
record, free and clear of all Liens, except those liens securing the Bank Leumi
Loan and the Bank Hapoalim Loan, which interests shall be released concurrently
with the Closing. The execution and transfer to Motorola (or, if applicable, to
Motorola Designee) of the share transfer deed providing for the transfer of the
Shares to Motorola (or, if applicable, to Motorola Designee), as set forth in
Section 1.05(a) above, at the Closing, will transfer to Motorola (or, if
applicable, to Motorola Designee) full beneficial ownership of the Shares, free
and clear of all Liens.
2.04 No Conflicts. The execution and delivery by Ampal of this Agreement
does not, and the performance by Ampal of its obligations under this Agreement
and the consummation of the transactions contemplated hereby will not:
(a) Conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the limited partnership agreement (or any other
organizational documents) of Ampal;
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(b) To the best of Ampal's knowledge, conflict with or result in a
violation or breach of any term or provision of any Law or Order applicable to
Ampal or any of its assets and properties; or
(c) To the best of Ampal's knowledge, (i) conflict with or result in a
violation or breach of, (ii) constitute (with or without notice or lapse of time
or both) a default under, (iii) require Ampal to obtain any consent, approval or
action of, make any filing with or give any notice to any Person as a result or
under the terms of, except as set forth in Sections 1.08 above and 2.05 below,
(iv) result in or give to any Person any right of termination, cancellation,
acceleration or modification in or with respect to, (v) result in or give to any
Person any additional rights or entitlement to increased, additional,
accelerated or guaranteed payments under, or (vi) result in the creation or
imposition of any Lien, upon Ampal or the Company or any of their respective
Assets and Properties under, any Contract to which Ampal or the Company is a
party or by which any of their respective Assets and Properties are bound.
2.05 Government Approvals and Filings. To the best of Ampal's knowledge, no
consent, approval or action of, filing with or notice to any Governmental or
Regulatory Authority on the part of Ampal is required in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby other than (a) those received prior to the
Conditional Closing as described in Section 1.08, and (b) the following
mandatory reports and filings to be filed with the US Securities and Exchange
Commission on behalf of Ampal US: (i) a Form 8-K to be filed not later than 4
business days after the Contract Date (the "Initial 8K"), (ii) a form 8-K to be
filed no later than 4 business days after Closing (the " Closing 8K "), which
may include in the initial filing or in an amendment to the filing pro forma
financial statements of Ampal US, and (iii) this Agreement (without exhibits or
attachments) to be filed with the next quarterly report on Form 10-Q filed on
behalf of Ampal US. The form and content of the Initial 8K has been agreed upon
between Motorola and Ampal prior to the Contract Date. The form and content of
the Closing 8K shall be subject to the reasonable approval of Motorola prior to
the Closing Date. Concurrently with the filing of the Agreement, Ampal shall
request confidential treatment with respect to sections and information therein
reasonably identified by Motorola as of the Closing and shall file an
appropriately redacted version of the Agreement in accordance with the rules and
regulations of the US Securities and Exchange Commission regarding confidential
treatment requests. The content of the request for confidential treatment shall
be subject to the reasonable approval of Motorola.
2.06 Litigation. There is no action, suit, litigation, arbitration
proceeding, hearing, inquiry, audit, examination or investigation commenced,
brought, conducted or heard by or before, or otherwise involve any court or
other governmental entity or any arbitrator or arbitration panel ("Legal
Proceeding") which questions or challenges the validity of this Agreement or the
ability of Ampal to consummate any of the transactions contemplated herein.
2.07. Brokers' Fees. Ampal has no liability to pay any fees or commissions
to any broker, finder or agent with respect to the transactions described
herein.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MOTOROLA
Motorola hereby represents and warrants to Ampal as follows, all such
representations and warranties shall be true and correct as of the Closing Date:
3.01 Organization. Motorola is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Israel. Motorola
and Company have full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby including, without limitation, to purchase the
Shares from Ampal.
3.02 Authority. The execution and delivery by Motorola of this Agreement,
and the performance by Motorola of its obligations hereunder, have been duly and
validly authorized by Motorola, and no other corporate action on the part of
Motorola is necessary for purposes of the execution and delivery of this
Agreement by Motorola. This Agreement has been duly and validly executed and
delivered by Motorola and constitutes a legal, valid and binding obligation of
Motorola enforceable against Motorola in accordance with its terms.
3.03 No Conflicts. The execution and delivery by Motorola of this Agreement
does not, and the performance by Motorola of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) Conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the articles of association or by-laws (or other
comparable corporate charter documents) of Motorola;
(b) To Motorola's knowledge, conflict with or result in a violation or
breach of any term or provision of any Law or Order applicable to Motorola or
any of its Assets and Properties; or
3.04 Governmental Approvals and Filings. To Motorola's knowledge, no
consent, approval or action of, filing with or notice to any Governmental or
Regulatory Authority on the part of Motorola or Company is required in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby other than those received
prior to the Conditional Closing as described in Section 1.08.
3.05 Litigation. There is no Legal Proceeding which questions or challenges
the validity of this Agreement or the ability of Motorola to consummate any of
the transactions contemplated herein.
3.06. Brokers' Fees. Motorola has no liability to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
described herein.
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ARTICLE IV
OTHER AGREEMENTS
4.01 Approval of Company Financial Statements. Subject to the Closing of
the transactions contemplated in this Agreement, Ampal hereby acknowledges to
each of the Company, Motorola and Motorola, Inc., and agrees that, following
their approval by the directors appointed by Motorola to the Company's board of
directors, solely and without the affirmative vote of the directors appointed by
Ampal to the Company's board of directors, the audited financial statements of
the Company for the fiscal years 2002, 2003, and 2004 shall be considered by
Ampal and by the directors appointed by Ampal to the Company's board of
directors, duly approved by the Company, and represents that neither Ampal nor
the directors appointed by Ampal to the Company's board of directors will have
any claim or demand with respect to or in connection with such financial
statements or the approval thereof, including, but without derogating the
generality of the above said, any claim or demand relating to Ampal's rights
under Section 5.5(i) of the Partnership Agreement, Section 5.5(i) of the
Shareholders' Agreement, and Section 70(i) of the Company's articles of
association. Ampal hereby acknowledges to each of the Company, Motorola and
Motorola, Inc., and confirms, that there is no need or requirement, whether
legal or contractual, for Ampal's or any of the board members appointed by Ampal
to the Company's board of directors, to approve the financial statements of the
Company for the fiscal year 2005, or a portion thereof, and that it will have no
claim or demand with respect to or in connection with such financial statements.
These provisions shall survive the execution, delivery and/or termination of
this Agreement and the Closing.
4.02 No Claims as of the Contract Date. Ampal hereby acknowledges to each
of the Company, Motorola and Motorola, Inc. and undertakes, that as of the
Contract Date it shall not take any legal action or file any claim or initiate
any legal proceeding against, or effectuate any judiciary decision affecting,
any of the Company, Motorola and Motorola, Inc. and any of their respective
affiliates, or current or past officers, directors, shareholders, partners,
agents, and employees and any other Releasees (as such term is defined in the
Release) other than with respect to any breach by Motorola of this Agreement.
4.03 Escrow Agreement. Concurrently with the execution of this Agreement,
Ampal, Motorola and the Company are hereby submitting to the Escrow Agent (and
each other) an executed Escrow Agreement (the "Escrow Agreement"), executed by
all parties to the Release, a copy of which is attached hereto as Exhibit G.
4.04 Appeals. Ampal hereby undertakes to each of the Company and Motorola
that, subject to the Motion being granted such that the Default Order asserted
against Xx. Xxxxx Xxxxxx shall be revoked and vacated and subject to Closing, it
shall support, agree to, and shall notify the Court of Appeals that it agrees to
the acceptance of, any motion filed by the Company and/or Motorola with the
Court of Appeals to dismiss without prejudice and without costs the appeals
filed by them with respect to the Default Order asserted against Xx. Xxxxx
Xxxxxx (such dismissal without prejudice being the outcome of such appeals
becoming irrelevant).
11
ARTICLE V
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.01 Survival of Representations and Warranties. The representations and
warranties of Ampal contained in this Agreement will survive for an unlimited
period after the Closing Date. The representations and warranties of Motorola
contained in this Agreement will survive for a period of 12 months after the
Closing Date.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.01 Termination of Agreements. Effective upon the Closing, without further
act of the parties, the Partnership Agreement, the Shareholders' Agreement, the
Purchase and Sale Agreement, and any and all other agreements and documents
among the parties relating to any of the above agreements or to Ampal's
ownership of the Shares shall be terminated and Ampal, Motorola, or any of their
Affiliates, shall have no further obligations thereunder, except that the
obligations contained in Section 13.4 of each of the Partnership Agreement and
the Shareholders' Agreement, relating to "Confidentiality" shall survive.
ARTICLE VII
INDEMNIFICATION AND LIMITATION OF LIABILITY
7.01 Indemnification.
(a) Motorola shall indemnify the Ampal Indemnified Parties in respect of,
and hold each of them harmless from and against, any and all Losses suffered,
incurred or sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to (i) any breach of any
representation or warranty of Motorola contained in this Agreement, and (ii)
non-fulfillment of or failure to perform any covenant or agreement on the part
of Motorola contained in this Agreement.
(b) Ampal shall indemnify the Motorola Indemnified Parties in respect of,
and hold each of them harmless from and against, any and all Losses suffered,
incurred or sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to (i) any breach of any
representation or warranty or (ii) nonfulfillment of or failure to perform any
covenant or agreement on the part of Ampal contained in this Agreement.
(c) In the event any claim or demand in respect of which an Indemnified
Party might seek indemnity under this Section 7.01 is asserted against or sought
to be collected from such Indemnified Party by a Person other than a party
hereto or any of its Affiliates (a "Third Party Claim"), then such Indemnified
Party shall give written notice (accompanied by a copy of
12
all papers served, if any) to the Indemnifying Party of such Third Party Claim
promptly, but no latter than within one third of the period granted for the
settlement of the obligation or the presentation of a defense, provided that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 7.01,
except to the extent that the Indemnifying Party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
Indemnified Party, the Indemnifying Party shall be entitled to participate in
and to assume and control the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party; provided that in order to assume and
control the defense of such action the Indemnifying Party must first deliver to
the Indemnified Party a notice of its election so to assume and control the
defense thereof and expressly agree in such notice that as between the
Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be
solely obligated to satisfy and discharge any Loss resulting from such Third
Party Claim. After such notice is received by the Indemnified Party, the
Indemnifying Party shall not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the later in connection with the
defense of such Third Party Claim; provided that the Indemnified Party may
participate in such defense at the Indemnified Party's expense. If the
Indemnifying Party is not entitled to, or elects not to, assume the defense of a
Third Party Claim, it will not be obligated to pay the fees and expenses of more
than one counsel for the Indemnified Parties with respect to such claim, unless
the Indemnified Parties shall have been advised by counsel that representation
of any such Indemnified Parties by the same counsel would be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, in which case such Indemnified Parties shall
have the right to select separate counsel, the reasonable fees and expenses of
which shall be paid by the Indemnifying Party. The Indemnifying Party will not
consent to the entry of any judgment or enter into any settlement which does not
include a provision whereby the plaintiff or claimant in the matter releases the
Indemnified Party from all liability with respect thereto, without the written
consent of the Indemnified Party, which consent will not be unreasonably
withheld or delayed. No Indemnifying Party shall be subject to any liability for
any settlement made without its consent, which consent shall not be unreasonably
withheld or delayed.
(d) In the event of any claim or demand, including Third Party Claims, in
respect of which an Indemnified Party might seek indemnity under this Section
7.01, the Indemnified Party shall deliver an Indemnity Notice with reasonable
promptness to the Indemnifying Party. The failure by any Indemnified Party to
give the Indemnity Notice shall not impair such party's rights hereunder except
to the extent that an Indemnifying Party demonstrates that it has been actually
prejudiced thereby. The Indemnifying Party will notify the Indemnified Party
within the thirty (30) day period following its receipt of such Indemnity Notice
(the "Dispute Period") as to whether the Indemnifying Party disputes its
liability to the Indemnified Party hereunder. If the Indemnifying Party notifies
the Indemnified Party that it does not dispute the claim described in such
Indemnity Notice, or fails to notify the Indemnified Party within the Dispute
Period whether the Indemnifying Party disputes the claim described in such
Indemnity Notice, the Loss specified in the Indemnity Notice will be
conclusively deemed a liability of the Indemnifying Party under this Section
7.01 and the Indemnifying Party shall pay the amount of such Loss, when it has
been finally determined by the Indemnified Party, to the Indemnified Party on
demand. If the Indemnifying Party has timely disputed its liability with respect
to such claim, the Indemnifying Party and the Indemnified Party will proceed in
good
13
faith to negotiate a resolution of such dispute, and, subject to Section 7.01(c)
with respect to Third Party Claims, if not resolved through negotiations within
sixty (60) days following the Indemnified Party's receipt of a written notice
from the Indemnifying Party disputing such claim, such dispute may be finally
settled in accordance with the provisions of Section 10.10 and Article XI.
7.02 Limitation of Liability. In no event shall any party be liable to
another for any incidental, consequential or punitive damages, loss or expenses.
Further, in no event will Motorola's liability under this Agreement (whether
under this Section 7 or otherwise) exceed the Purchase Price.
ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may not be terminated prior to the
Closing, except:
(a) By mutual written agreement of Ampal and Motorola;
(b) At the election of Motorola, if Ampal has materially breached any of
its obligations contained in this Agreement, which breach has not been cured by
Ampal within 5 Business Days after Ampal's receipt of written notice of such
breach from Motorola;
(c) In the event (i) the Conditional Closing Condition is not met by the
Conditional Closing Date; or (ii) the District Court has either rejected the
Motion or did not approve the Motion exactly as requested (i.e., the District
Court has added terms or conditions, asked for additional actions by any of the
parties, or diverted in any way from the Motion) (the "Extraordinary District
Court Event"), Motorola may elect, in its sole discretion, upon prior written
notice to Ampal and the Escrow Agent, to terminate this Agreement. A District
Court's decision to impose costs on any of the parties hereto shall not be
considered as a diversion from the Motion, and in such an event, Ampal shall pay
all and any such costs, promptly following the issuance of such court decision,
without regard as to which party was ordered by the District Court to pay such
costs. Ampal shall provide Motorola with a written conformation of such payment.
It is hereby clarified that the occurrence of any of the events described in (i)
or (ii) above shall not require Motorola to terminate this Agreement, which
decision shall be at Motorola's sole discretion. Without derogating from
Motorola's right to terminate this Agreement in the event of an Extraordinary
District Court Event, Motorola may, in its sole discretion, prior to exercising
its right to terminate the Agreement, take any measures which it deems
appropriate, to rectify and amend such court decision to its satisfaction. The
parties hereto shall fully cooperate with Motorola and, at Motorola's request,
take all necessary steps to rectify and amend the court decision, including, but
not limited to, filing agreed motions and/or appeals. In the event that the
court decision is not amended or rectified to Motorola's satisfaction and
Motorola, in its own discretion, determines it no longer wishes to pursue any
further actions relating to the court decision, Motorola shall notify Ampal and
the Escrow Agent, in writing, of such determination and a "District Court
Termination Event" shall be deemed to have occurred. It is hereby clarified that
Motorola's election, if any, to terminate this Agreement following an
00
Xxxxxxxxxxxxx Xxxxxxxx Xxxxx Event without taking any measures to rectify and
amend such court decision shall also be considered as a "District Court
Termination Event".
8.02 Survival after Termination. If this Agreement is terminated pursuant
to Section 8.01 and the transactions contemplated hereby are not consummated,
then:
(a) This Agreement shall become null and void and have no further force or
effect, except that any such termination shall be without prejudice to the
rights of any non-breaching party against any other party, resulting from an
alleged breach or violation of the obligations of such other party under this
Agreement, the performance of which was due prior to the Conditional Closing or
the Closing, as applicable;
(b) Notwithstanding anything in this Agreement to the contrary, the
provisions of this Section 8.02, Section 10.04, Section 10.05, Section 10.10 and
Article XI shall survive any termination of this Agreement;
(c) Upon a District Court Termination Event that resulted from an altered
Motion (and not a rejection of the Motion), followed by Ampal's written
instruction to the Escrow Agent, the Escrow Agent shall promptly (i) file the
Revoking Motion; and (ii) (also in the event of a rejection of the Motion, in
which case the Escrow Agent shall destroy and discard the Revoking Motion)
return to each of the parties the documents provided, and any amounts paid, by
any such party to the Escrow Agent pursuant to this Agreement (and, in addition,
to Motorola, the Accumulated Interest) in accordance with the terms of the
Escrow Agreement, and all and any such documents shall be considered null and
void and with no further effect. In the event that the District Court shall not
have granted the Revoking Motion or had ruled that for any reason it is not in
its authority to grant the Revoking Motion, and Ampal shall file an appeal with
respect to either the District Court not granting the Revoking Motion, or on the
judgment granted on the basis of the Motion, Motorola shall notify the Court of
Appeals that it agrees to the acceptance of the appeal and that the Revoking
Motion should have been granted or that the judgment based on the Motion should
be vacated as it deviates from the consent between the parties, all on the basis
of the parties' consent thereto. To the extent that the above-mentioned appeals
were filed within 14 days from the date on which Ampal was notified about the
court decision with respect to the Revoking Motion, Motorola shall not raise any
claim with regard to timing (including tardiness) in the filing of any of the
above-mentioned appeals, and shall notify the relevant courts as to its consent
to any request for delay in the filing of any of the above-mentioned appeals.
Motorola hereby represents and undertakes that following a District Court
Termination Event, and only in the event that the District Court shall not have
granted the Revoking Motion, it shall not raise a Res Judicata argument with
respect to legal proceeding in which the claims asserted by Ampal are the same
as those included in the Claim, except that in no circumstances shall the
Default Order be asserted by Ampal against Xx. Xxxxx Xxxxxx, who shall,
following a District Court Termination Event, be in the same procedural position
as the other individual defendants of the Claim; and
(d) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not be submitted as evidence, and shall not support any claim or
demand, by Ampal or any of its and its Affiliates, officers, directors,
employees, agents and representatives,
15
including but not limited to the Claim and any claim with respect to any unpaid
guaranteed dividend or other payments.
ARTICLE IX
DEFINITIONS
9.01 Defined Terms.
(a) As used in this Agreement, the following defined terms have the
meanings indicated below:
"Affiliate" means any Person that directly, or indirectly through one of
more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by Contract or otherwise.
"Ampal Indemnified Parties" means Ampal and its Affiliates and each of
their officers, directors, employees, agents and representatives.
"Assets and Properties" of any Person means all assets and properties of
every kind, nature, character and description (whether real, personal or mixed,
whether tangible or intangible, whether absolute, accrued, contingent, fixed or
otherwise and wherever situated), including the goodwill related thereto,
operated, owned or leased by such Person, including without limitation cash,
cash equivalents, investment assets, accounts and notes receivable, chattel
paper, documents, instruments, general intangibles, real estate, equipment,
inventory, goods and intellectual property.
"Business Day" means any day other than a Friday, a Saturday, a Sunday or
other day on which commercial banks in Israel or in New York are authorized or
required to close.
"Contract" means any agreement, lease, license, evidence of indebtedness,
mortgage, indenture, security agreement or other contract (whether written or
oral).
"Escrow Agent" means Erdinast Xxx Xxxxxx Trusts Ltd.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the State of Israel, any foreign country or any domestic or foreign state,
county, city or other political subdivision.
"Indemnified Party" means any of Ampal Indemnified Parties or Motorola
Indemnified Parties claiming indemnification under any provision of Section
7.01.
16
"Indemnifying Party" means any of Ampal or Motorola against whom a claim
for indemnification is being asserted under any provision of Section 7.01.
"Indemnity Notice" means written notification pursuant to Section 7.01(d)
of a claim for indemnity under Section 7.01 by an Indemnified Party, specifying
the nature of and basis for such claim, together with the amount or, if not then
reasonably determinable, the estimated amount, determined in good faith, of the
Loss arising from such claim.
"Irrevocable Guarantee" means the irrevocable guarantee attached to this
Agreement and executed by Ampal Development and Ampal US.
"Laws" means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States of America, the
State of Israel, any foreign country or any domestic or foreign state, county,
city or other political subdivision or of any Governmental or Regulatory
Authority.
"Liens" means any mortgage, pledge, assessment, security interest, transfer
restriction, lease, lien, adverse claim, levy, charge or other encumbrance or
interest of any Person of any kind, or any conditional sale Contract, title
retention Contract or other Contract to give any of the foregoing.
"Loss" means any and all damages, fines, fees, penalties, deficiencies,
losses and expenses (including without limitation reasonable fees of attorneys).
"Motorola Indemnified Parties" means Motorola and its Affiliates and each
of their officers, directors, employees, agents and representatives.
"Order" means any writ, judgment, decree, injunction or similar order of
any Governmental or Regulatory Authority (in each such case whether preliminary
or final).
"Person" means any natural person, corporation, limited liability company,
general partnership, limited partnership, proprietorship, other business
organization, trust, union, association or Governmental or Regulatory Authority.
(b) Construction of Certain Terms and Phrases. Unless the context of this
Agreement otherwise requires, (i) words of any gender include each other gender;
(ii) words using the singular or plural number also include the plural or
singular number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; and (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement. Whenever this Agreement refers to a number of days, such number shall
refer to calendar days unless Business Days are specified.
17
ARTICLE X
MISCELLANEOUS
10.01 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally, by overnight courier service or by facsimile transmission to the
parties at the following addresses or facsimile numbers:
If to Ampal, to:
Ampal Communications Limited Partnership
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx
Xxxxxx 00000
Attn: Mr. Yoram Firon
Fax: (000) 0-000-0000
With a copy to:
M. Firon & Co.
Aurec House
16 Abba Hillel Street
Ramat Gan
Israel 52506
Attn: Adv. Eldad Firon and Adv. Nimrod Bashan
Fax: (000) 0-000-0000
If to Motorola, to:
Motorola Israel Ltd.
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxx
Xxxxxx 00000
Attn: Adv. Xxxxxx Xxxxx
Fax: (000) 0-000-0000
With a copy to:
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
XXX
Attn: General Counsel
Fax: (000) 000-0000
18
If to Company, to:
Mirs Communications Ltd.
California Xxxxx
0 Xxxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx
Xxxxxx
Attn: Legal Department
Fax: (000) 0-000-0000
With a copy to:
Motorola, Inc.
Attn: General Counsel
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
XXX
Fax: (000) 000-0000
All such notices, requests and other communications will be deemed given upon
receipt. Any party from time to time may change its address or other information
for the purpose of notices to that party by giving notice specifying such change
to the other parties hereto.
10.02 Entire Agreement. This Agreement supersedes all prior discussions,
agreements and representations between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
10.03 Expenses. Except as otherwise expressly provided in this Agreement,
each party will pay its own costs and expenses incurred in connection with the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby. Notwithstanding the above said, Ampal shall be
solely responsible for the payment of any applicable transfer taxes, and Ampal
and Motorola will bear equally (50% each) any stamp taxes, in connection with
the transactions contemplated hereby
10.04 Public Announcements. Neither Motorola nor Company nor Ampal will
issue or make any public reports, statements or releases regarding the matters
set forth in this Agreement without the consent of the others. If a party is
required by applicable Law to which such party is subject to make a public
announcement or publicity, it may do so provided such party has delivered to the
other parties a copy of the proposed announcement or publicity not less than one
Business Day prior to making such proposed announcement or publicity, and allow
such other parties to offer changes to the text of such proposed announcement.
10.05 Confidentiality.
(a) Neither Ampal nor Motorola will disclose this Agreement, its Exhibits,
and any related agreements, or any of their respective terms to any third
parties without the prior written consent
19
of the other. The obligations set forth in this Section shall not apply only to
the extent that disclosure of the said information is necessary for consummation
of the transactions contemplated hereby, demanded by any Governmental or
Regulatory Authority, required by applicable Law to which a party is subject, or
with the prior consent of all other parties hereto, provided that disclosure of
the said information due to Governmental or Regulatory Authority's or legal
requirements by Ampal or Motorola (other then the following mandatory
disclosures and filings to be filed with the US Securities and Exchange
Commission on behalf of Ampal US: (i) the Initial 8-K, in the form that has been
agreed upon between Motorola and Ampal prior to the Contract Date, (ii) the
Closing 8-K, in a form and content that are subject to the reasonable approval
of Motorola prior to the Closing Date, and which may include in the initial
filing or in an amendment to the filing pro forma financial statements of Ampal
US, and (iii) this Agreement (without Exhibits or attachments) to be filed with
the next quarterly report on form 10-Q filed on behalf of Ampal US, where
concurrently with the filing of the Agreement, Ampal shall request confidential
treatment with respect to sections and information therein reasonably identified
by Motorola as of the Closing and shall file an appropriately redacted version
of the Agreement in accordance with the rules and regulations of the US
Securities and Exchange Commission regarding confidential treatment
requests. The content of the request for confidential treatment shall be subject
to the reasonable approval of Motorola.) will only be made following a prompt
written notice of such requirement by the disclosing party to the other party so
that such other party may seek a protective order or appropriate remedy. If, in
the absence of a protective order, the disclosing party determines, upon the
advice of counsel, that it is required to disclose such information, it may
disclose such information only to the extent compelled to do so; provided,
however, that the disclosing party gives the other party written notice of the
portion of the information to be disclosed as far in advance of the disclosure
as is practicable and uses its best efforts, at the other party's expense, to
obtain assurances that confidential treatment will be accorded to such
information.
(b) Ampal hereby confirms that Ampal, and its Affiliates, officers,
directors, employees, agents and representatives were exposed to information
regarding or relating to the Company or any of its Affiliates (including, but
without derogating from the generality thereof, Motorola and any of its
Affiliates) that was designated, either orally or in writing, or that should be
reasonably treated, as confidential (without derogating from the generality
thereof, such information includes information relating to (without limitation)
the Company's or any of its Affiliates' (including, but without derogating from
the generality thereof, Motorola's and any of its Affiliates') products,
designs, technical data, research, developments, inventions, know-how,
processes, drawings, engineering, services, customers, marketing, business
plans, finances or personnel, and confidential information disclosed by third
parties) (all, the "Confidential Information") and that neither Ampal nor any of
its Affiliates, officers, directors, employees, agents or representatives shall
disclose to any third party, or use in any way, the Confidential Information.
Ampal hereby represents and undertakes that it will not release, under any
circumstances, Bank Leumi and Bank Hapoalim from any of their confidentiality
obligations towards Ampal with respect to any Confidential Information. Ampal
hereby acknowledges and confirms that the Company and Motorola would be
irreparably injured by a breach of this provision by Ampal or any of its
Affiliates, officers, directors, employees, agents or representatives and that,
in such event, the Company and/or Motorola shall be entitled, in
20
addition to any and all other remedies (including monetary remedies), to
injunctive relief and specific performance.
10.06 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. Neither the failure nor any delay by
any party in exercising any right, power or privilege under this Agreement will
operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. All remedies, either under this Agreement or by Law
or otherwise afforded, will be cumulative and not alternative.
10.07 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
10.08 No Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other parties hereto and any attempt to do so will
be void, except for assignments and transfers by operation of Law. Subject to
the preceding sentence, this Agreement is binding upon, inures to the benefit of
and is enforceable by the parties hereto and their respective successors and
assigns. Regardless of the foregoing, Motorola may assign any or all of its
interests, rights or obligations in this Agreement to an Affiliate of Motorola.
10.09 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
10.10 Governing Law. Subject to Article XI below, this Agreement shall be
governed and construed by the internal laws of the State of Israel, without
giving effect to the principles thereof relating to conflict of laws.
10.11 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom.
10.12 Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument. A signed Agreement received by a party hereto via
facsimile will be deemed an original, and binding upon the party who signed it.
21
10.13 Language. The language of this Agreement is the English language. In
the event of any conflict, discrepancy or inconsistency between the English
version of this Agreement and any other language to which this Agreement may be
translated, the English version shall be the binding and controlling one.
10.12 Exhibits. The Company's audited annual financial statements for the
years 2002, 2003 and 2004, constituting part of Exhibit D, may be added to the
Agreement between the Contract Date and the Conditional Closing Date without
this having any affect on the validity of the Agreement.
ARTICLE XI
DISPUTE RESOLUTION
11.01 Any dispute, controversy or claim arising out of, relating to, or
having any connection with this Agreement, including any question regarding its
existence, validity, interpretation, performance, breach or termination, and any
other common law or statutory claims arising out of or relating to its
negotiation, execution or performance, will be mediated by a mutually acceptable
mediator to be chosen by the parties within thirty (30) days after written
notice by either party demanding mediation. No party hereto may unreasonably
withhold consent to the selection of a mediator. The mediation shall commence no
later than thirty (30) days after the appointment of the mediator. In the event
that (i) the parties have not agreed on an acceptable mediator within thirty
(30) days after written notice by either party demanding mediation; (ii) the
mediation does not commence within thirty (30) days after the appointment of the
mediator; or (iii) the mediation is not concluded within forty (40) days after
the appointment of the mediator, the mediation shall be deemed concluded without
a resolution of the applicable dispute and either party may commence arbitration
pursuant to Section 11.02 below.
11.02 Any dispute which the parties cannot resolve through mediation, as
described in Section 11.01 above, shall be exclusively and finally settled by
arbitration in accordance with the Rules of Arbitration of the International
Court of Arbitration of the International Chamber of Commerce then in effect
(the "ICC Rules"), except as modified by this Agreement. In addition to the ICC
Rules, the parties agree that the arbitration shall be conducted in accordance
with the IBA Rules on the Taking of Evidence in International Commercial
Arbitration.
11.03 The arbitration shall be conducted before a tribunal (the "Arbitral
Tribunal") comprised of three arbitrators who shall be appointed in accordance
with the ICC Rules. The arbitrators must be fluent in the English language and,
if the subject of the arbitration shall have previously been submitted for
mediation, no arbitrator shall have been a participant in or a party to such
mediation, including, but not limited to, as a mediator.
11.04 The Arbitral Tribunal shall have no power to alter or modify any
terms or provisions of this Agreement, or to render any award which, by its
terms or effects, would alter or modify any term or provision of this Agreement,
or to act as amicable compositeur or ex aequo et xxxx.
22
11.05 The place of the arbitration shall be London, England.
Notwithstanding the above, upon request of one or both of the parties, and
subject to the ICC Rules, the arbitrators may permit that, to the extent
convenient and appropriate, specific hearings or meetings relating to the
arbitration may be held in a different location, such as Israel. The language of
the arbitral proceeding shall be English. All documents submitted to the
Arbitral Tribunal which have been written in a language other than English shall
be accompanied by a certified translation of the document into the English
language, with the cost of the translation to be advanced by the party offering
the document.
11.06 The award shall be final and binding on the parties. The parties
waive any and all rights of judicial review from any arbitral award to the
fullest extent permitted by Law. Judgment on the award may be entered by any
court having jurisdiction over the party or the property of the party against
whom enforcement of the judgment is sought.
11.07 The award may include interest from the date of any breach or
violation as determined by the arbitral award until paid in full, at the
interest rate established in the award. Any monetary award shall be made in
United States Dollars. The Arbitral Tribunal shall also have the power and
discretion to award costs, including reasonable attorneys' fees and expenses, to
the prevailing party.
11.08 Should multiple arbitral proceedings be commenced between any or all
the parties to this Agreement, the parties agree that said arbitral proceedings
shall be consolidated into a single arbitral proceeding, but only if the
Arbitral Tribunal in the first commenced proceeding determines that said
arbitral proceedings involve common questions of fact or law.
[Signatures on following page.]
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IN WITNESS WHEREOF, this Stock Purchase and Indemnification Agreement has
been duly executed and delivered by the duly authorized officer of each party
hereto as of the date first above written.
AMPAL COMMUNICATIONS LIMITED PARTNERSHIP
By: AMPAL COMMUNICATIONS HOLDING COMPANY LTD.
Title: General Partner
By: /s/ Xxxx Xxxx /s/ Xxxx Xxxxx
Name: Xxxx Xxxx Xxxx Xxxxx
Title: CFO CEO
MOTOROLA ISRAEL LTD.
By: /s/ Itzik Zion /s/ Xxxxxx Xxxxx
Name: Itzik Zion Xxxxxx Xxxxx
Title: Director of Finance Region & Country
Management
MIRS COMMUNICATIONS LTD.
By: /s/ Itzik Zion /s/ Xxxxxx Xxxxx
Name: Itzik Zion Xxxxxx Xxxxx
Title: Director Director
24
