Registration RightsAgreement, dated March 22, 2007, by and among ECI Telecom Ltd. and and Clal Electronic Industries Ltd.
Exhibit
4.(b)4
Registration
RightsAgreement,
dated
March 22, 2007,
by
and
among
ECI
Telecom Ltd.
and
M.A.G.M.
Chemistry Holdings Ltd.
and
Clal
Electronic Industries Ltd.
THIS
REGISTRATION RIGHTS AGREEMENT (this "Agreement") made this of March 2007, by
and
among ECI Telecom Ltd., an Israeli company listed on the NASDAQ Stock Market
(the "Company"), and the shareholders set forth in Schedule I hereto
(collectively, the Shareholders”).
WITNESSETH:
WHEREAS,
the Shareholders are “controlling shareholders” of the Company as defined in
Section 268 of the Israeli Companies Law, 5759-1999 (the “Companies
Law”);
WHEREAS,
each of the Shareholders currently holds registration rights with respect to
a
portion of the Ordinary Shares held by it pursuant separate registration rights
agreements;
WHEREAS,
under the Companies Law, the registration by the Company of Ordinary Shares
held
by any Shareholder, except as contemplated by its existing registration rights,
requires the approval of the Company’s shareholders by special majority;
and
WHEREAS,
in order to enable both the Company and the Shareholders to respond rapidly
to
opportunities that may arise, the Company desires to grant at this time to
the
Shareholders, and the Shareholders desire to obtain, the rights set forth below,
subject to the approval of the Company’s shareholders.
NOW,
THEREFORE, in consideration of the mutual promises and covenants hereinafter
set
forth, the parties hereby agree as follows:
1. Definitions.
As used
herein, the following terms have the following meanings:
“Effective
Date”
means
the date on which this Agreement shall be approved by the Company’s shareholders
in accordance with Section 275 of the Companies Law.
“Demanding
Holder”
means
a
holder of Ordinary Shares (other than a Holder) whose exercise of a demand
registration right is the cause of the relevant registration.
"Holder"
means
any holder of outstanding Registrable Shares.
"Initiating
Holders"
means
Holders holding at least twenty-five (25%) of the Registrable Shares then
outstanding.
“Ordinary
Shares”
means
Ordinary Shares, nominal value NIS 0.12 per share, of the Company.
"Register",
"registered"
and
"registration"
refer
to a registration effected by filing a registration statement in compliance
with
the Securities Act, or the equivalent actions under the laws of another
jurisdiction.
"Registrable
Shares"
means
(i) all Ordinary Shares held by any Shareholder on the date hereof and set
forth on Schedule I
hereto
and (ii) any Ordinary Shares issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement
of,
the Ordinary Shares described in clause (i) above; excluding in all cases,
however, any Registrable Shares (A) transferred to a third party and as to
which registration rights under this Agreement are not assigned in accordance
with this Agreement or (B) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities
transaction.
“SEC”
means
the U.S. Securities and Exchange Commission.
“Securities
Act”
means
the U.S. Securities Act of 1933, as amended.
2. Incidental
Registration.
2.1 If
(but
without any obligation to do so) the Company at any time proposes to register
any of its securities (other than (i) in a demand registration under
Section 3 of this Agreement, (ii) a registration relating solely to
the sale of securities to participants in a Company benefit plan, (iii) a
registration relating to a corporate reorganization or other transaction
described under Rule 145 of the Act, or (iv) a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Shares), it shall give notice to the Holders of such intention.
Upon
the written request of any Holder given within fourteen (14) days after receipt
of any such notice, the Company shall include in such registration all of the
Registrable Shares indicated in such request, so as to permit the disposition
of
the shares so registered.
2.2 In
connection with any offering involving an underwriting of shares of the
Company’s share capital, the Company shall not be required under this
Section 2 to include any of the Holders’ securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it (or by other persons entitled to
select the underwriters) and enter into an underwriting agreement in customary
form with an underwriter or underwriters selected by the Company and such other
agreements as the underwriter(s) may reasonably request. Notwithstanding any
other provision of this Section 2, if the managing underwriter advises the
Company in writing that marketing factors require a limitation of the number
of
shares to be underwritten, then there shall be excluded from such registration
and underwriting to the extent necessary to satisfy such limitation,
first,
shares
held by shareholders other than (i) the Demanding Holders, if any, and (ii)
shareholders with incidental registration rights (on a pro rata basis to their
respective holdings); second,
to the
extent necessary, shares held by shareholders with incidental registration
rights (including the Holders) (on a pro rata basis to their respective
holdings); third,
shares
offered by the Company; and lastly,
shares
registered by the Demanding Holders, if any (on a pro rata basis).
2.3
The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 2 prior to the effectiveness of such registration
whether or not any Holder has elected to include securities in such
registration. The expenses of such withdrawn registration shall be borne by
the
Company in accordance with Section 5 hereof.
2
3.
Demand
Registration.
3.1 At
any
time following the Effective Date, the Initiating Holders may request in writing
that all or part of the Registrable Shares shall be registered under the
Securities Act. Any such demand must request the registration of shares with
an
anticipated aggregate offering price of at least twenty million United States
dollars ($20,000,000). Within ten (10) days after receipt of any such request,
the Company shall give written notice of such request to any other Holders,
if
any, and shall include in such registration all Registrable Shares held by
all
such Holders who wish to participate in such demand registration and provide
the
Company with written requests for inclusion therein within fourteen (14) days
after the receipt of the Company's notice. As promptly as practicable
thereafter, subject to section 7.1 hereof, the Company shall effect the
registration of all Registrable Shares as to which it has received requests
for
registration under the Securities Act in the request for registration;
provided,
however, that the Company shall not be required to effect any registration
under
this Section 3 within a period of ninety (90) days following the effective
date of a previous registration.
3.2 If
the
Initiating Holders intend to distribute the Registrable Shares covered by their
request by means of an underwriting, they shall so advise the Company as part
of
their request made pursuant to Section 3.1 above and the Company shall
include such information in the written notice referred to in Section 3.1.
In such event the right of any Holder to include its Registrable Shares in
such
registration shall be conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable Shares in the
underwriting (unless otherwise mutually agreed by a majority in interest of
the
Initiating Holders and such Holder) and such other agreements as such
underwriter(s) shall reasonably request. All Holders proposing to distribute
their securities through such underwriting shall enter into an underwriting
agreement in customary form with the underwriter. Notwithstanding any other
provision of this Section 3, if the managing underwriter advises the Company
that marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable Shares
that would otherwise be underwritten pursuant hereto, and there shall be
excluded from such registration and underwriting, to the extent necessary to
satisfy such limitation, first
shares
held by shareholders other than the Holders (on a pro rata basis to their
respective holdings), then,
to the
extent necessary, shares which the Company may wish to register for its own
account, and
thereafter,
to the
extent necessary, Registrable Shares held by the Holders (pro rata to the
respective number of Registrable Shares held by the Holders participating in
the
registration). Any Registrable Shares excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
3.3 The
Company shall not be required to effect a registration pursuant to this
Section 3:
(a) in
any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration, unless
the
Company is already subject to service in such jurisdiction; or
(b) during
the period starting with the date sixty (60) days prior to the Company’s good
faith estimate of the date of the filing of a Company-initiated registration
statement subject to Section 2 above and ending on the date ninety (90)
days after the effective date of such registration statement, provided that
the
Company is actively employing in good faith all reasonable efforts to cause
such
registration statement to become effective; or
3
(c) if
the
Company shall furnish to Holders requesting a registration statement pursuant
to
this Section 3, a certificate signed by the Company’s Chief Executive
Officer or Chairman of the Board stating that in the good faith judgment of
the
Board of Directors of the Company, it would be detrimental to the Company and
its shareholders for such registration statement to be effected at such time,
in
which event the Company shall have the right to defer such filing for a period
of not more than ninety (90) days after receipt of the request of the Initiating
Holders; provided, however, that the Company may only defer the filing of a
registration statement pursuant to this Section 3.3(c) only once during any
twelve-month period.
3.4 Notwithstanding
anything to the contrary herein, the Company shall not be required to effect
more than four (4) registrations pursuant to this Section 3, including a request
that is subsequently withdrawn at the request of the Initiating Holders unless
such withdrawal is based upon a material adverse change in the condition of
the
Company which was not known to the Initiating Holders at the time of their
request or based on a material deterioration in prevailing stock market
conditions; provided, however, that a registration shall not count as one of
the
four (4) permitted registrations pursuant to this Section 3 (i) if the
Initiating Holders requesting such registration are not able to register and
sell at least 50% of the Registrable Shares requested by such Initiating Holders
to be included in such registration or (ii) in the case of a registration that
would be the last permitted registration requested pursuant to this
Section 3, if the Initiating Holders requesting such registration is not
able to register all of the Registrable Shares requested to be included by
such
Initiating Holders in such registration.
4. Designation
of Underwriter.
If any
of the Registrable Shares covered by a registration requested pursuant to
Section 3 is to be sold in an underwritten offering, the Initiating Holders
shall have the right to select the managing underwriter(s) to administer the
offering subject to the approval of the Company, which will not be unreasonably
withheld. In the case of any registration of the Company’s shares pursuant to
Section 2, the Company shall have the right to designate the managing
underwriter(s) in any underwritten offering.
5. Expenses.
All
expenses incurred in connection with any registration under Section 2 shall
be
borne by the Company, excluding
underwriter’s discounts or commissions attributable to the sale of Registrable
Shares and excluding expenses of the selling Holders. All expenses incurred
in
connection with any registration under Section 3 in which the Company does
not
register any primary shares shall be borne by the selling Holders (pro rata
based on the number of Registrable Shares being registered). With respect to
registrations under Section 3 in which the Company registers any primary shares:
(i) with respect to the first two demand registrations thereunder, all expenses
incurred shall be borne by the Company, excluding
underwriter’s discounts or commissions attributable to the sale of Registrable
Shares and excluding expenses of the selling Holders; and (ii) with respect
to
the third and fourth demand registrations thereunder, all expenses incurred
by
the Company shall be shared by the Company and the selling Holders (pro rata
based on the number of shares being registered) and all expenses of the selling
Holders shall be borne by the selling Holders (pro rata based on the number
of
Registrable Shares being registered). Notwithstanding the foregoing, the Company
shall be reimbursed by the selling Holders (pro rata based on the number of
Registrable Shares being registered) for any fees and expenses incurred by
the
Company in connection with a registration process that commenced pursuant to
Section 3 if the request to effect the registration is subsequently withdrawn
at
the request of the Holders that requested the registration.
4
6. Indemnities.
In the
event of any registered offering of Registrable Shares pursuant to this
Agreement:
6.1 The
Company will indemnify and hold harmless, to the fullest extent permitted by
law, any Holder, its officers and directors, and any underwriter for such
Holder, and each person, if any, who controls the Holder or such underwriter,
from and against any and all losses, damages, claims, liabilities, joint or
several, and reasonable costs and expenses (including any amounts paid in any
settlement effected with the Company's consent and including, for the avoidance
of doubt, any amounts relating to Ordinary Shares sold that are not Registrable
Shares) to which the Holder, its officers or directors, or any such controlling
person and/or any such underwriter may become subject under applicable law
or
otherwise, insofar as such losses, damages, claims, liabilities (or actions
or
proceedings in respect thereof), costs or expenses arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the registration statement or included in the prospectus, as
amended or supplemented, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances in which they are made,
not misleading; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished in writing by a Holder, such
underwriter or such controlling persons in writing specifically for inclusion
therein; provided,
further,
that
this indemnity shall not be deemed to relieve any underwriter of any of its
due
diligence obligations; provided,
further,
that
the indemnity agreement contained in this subsection 6.1 shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Company.
6.2 Each
Holder participating in a registration hereunder will indemnify and hold
harmless the Company, its officers and directors, any underwriter for the
Company, and each person, if any, who controls the Company or such underwriter,
from and against any and all losses, damages, claims, liabilities, and
reasonable costs or expenses (including any amounts paid in any settlement
effected with the Holder's consent) to which the Company, its officers or
directors, or any such controlling person and/or any such underwriter may become
subject under applicable law or otherwise, insofar as such losses, damages,
claims, liabilities (or actions or proceedings in respect thereof), costs or
expenses arise out of or are based on (i) any untrue or alleged untrue
statement of any material fact contained in the registration statement or
included in the prospectus, as amended or supplemented, or (ii) the
omission or the alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein, in the light of
the
circumstances in which they were made, 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 based on information furnished
in
writing by such Holder specifically for inclusion therein. The foregoing
indemnity agreement is subject to the condition that, insofar as it relates
to
any such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in
the
amended prospectus at the time the registration statement becomes effective
or
in the final prospectus, such indemnity agreement shall not inure to the benefit
of (i) the Company and (ii) any underwriter, if a copy of the final
prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required
by the Securities Act; provided,
further,
that
this indemnity shall not be deemed to relieve any underwriter of any of its
due
diligence obligations; provided,
further,
that
the indemnity agreement contained in this subsection 6.2 shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of a majority in interest
of
the Holders, as the case may be, which consent shall not be unreasonably
withheld. In no event shall the liability of a Holder exceed the net proceeds
from the offering received by such Holder.
5
6.3 Promptly
after receipt by an indemnified party pursuant to the provisions of Sections
6.1
or 6.2 of notice of the commencement of any action involving the subject matter
of the foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the provisions
of said Section 6.1 or 6.2, promptly notify the indemnifying party of the
commencement thereof. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 6. In case such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided,
however,
that if
the defendants in any action include both the indemnified party and the
indemnifying party and there is a conflict of interests which would prevent
counsel for the indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select one separate
counsel to participate in the defense of such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to
the
provisions of said Sections 6.1 or 6.2 for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed counsel in
accordance with the proviso of the preceding sentence or (ii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the
expense of the indemnifying party. No indemnifying party will consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim
or
litigation.
6.4 If
recovery is not available under the foregoing indemnification provisions, for
any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution to
liabilities and expenses as more fully set forth in an underwriting agreement
to
be executed in connection with such registration. In determining the amount
of
contribution to which the respective parties are entitled, there shall be
considered the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances.
6.5 Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.
6
7. Obligations
of the Company.
Whenever required under this Agreement to effect the registration of any
Registrable Shares, the Company shall, as promptly as reasonably possible:
7.1 prepare
and file with the SEC a registration statement with respect to such Registrable
Shares and use its reasonable best efforts to cause such registration statement
to become effective as soon as practicable thereafter; and before filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
furnish to the Holders of Registrable Shares covered by such Registration
Statement and the underwriter or underwriters, if any, copies of all such
documents proposed to be filed, including documents incorporated by reference
in
the Prospectus and, if requested by such Holders, the exhibits incorporated
by
reference, and such Holders shall have the opportunity to object to any
information pertaining to such Holders that is contained therein and the Company
will make the corrections reasonably requested by such Holders with respect
to
such information prior to filing any Registration Statement or amendment thereto
or any Prospectus or any supplement thereto;
7.2 prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to keep such registration statement effective for a period
of not less than 180 days or such shorter period as is necessary to complete
the
distribution of the securities covered by such Registration Statement and comply
with the provisions of the Securities Act with respect to the disposition of
all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set
forth in such registration statement;
7.3 furnish
to the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Shares owned by them;
7.4 use
its
reasonable best efforts to register or qualify such Registrable Shares under
such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Shares owned by such seller
(provided, that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required
to
qualify but for this Section 7.4, (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any
such jurisdiction);
7.5 in
the
event of any underwritten public offering, enter into an underwriting agreement
with the managing underwriter(s) of such offering, in usual and customary form,
provided that each Holder participating in such underwriting shall also enter
into such an agreement, and take all such other actions as the Holders of a
majority of number of shares of the Registrable Shares being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate
the
disposition of such Registrable Shares (including, without limitation, making
members of senior management of the Company available to participate in, and
cause them to cooperate with the underwriters in connection with, "road-show"
and other customary marketing activities (including one-on-one meetings with
prospective purchasers of the Registrable Shares) and cause to be delivered
to
the underwriters and the sellers, if any, opinions of counsel to the Company
in
customary form, covering such matters as are customarily covered by opinions
for
an underwritten public offering as the underwriters may request and addressed
to
the underwriters and the sellers;
7
7.6 notify
each holder of Registrable Shares covered by such registration statement at
any
time when a prospectus relating thereto is required to be delivered under the
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 a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing, upon which notice and until the prospectus
is amended or supplemented, the Holder shall not be entitled to offer or sell
any shares pursuant to such prospectus;
7.7 make
available, for inspection by any seller of Registrable Shares, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent corporate documents
and
other information of the Company reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
7.8 cause
all
such Registrable Shares to be listed on each securities exchange on which
similar securities issued by the Company are then listed;
7.9 provide
a
transfer agent and registrar for all such Registrable Shares and a CUSIP number
for all such Registrable Shares, in each case not later than the effective
date
of such registration;
7.10 if
requested, cause to be delivered, immediately prior to the effectiveness of
the
registration statement (and, in the case of an underwritten offering, at the
time of delivery of any Registrable Shares sold pursuant thereto), letters
from
the Company's independent certified public accountants addressed to each selling
Holder (unless such selling Holder does not provide to such accountants the
appropriate representation letter required by rules governing the accounting
profession) and each underwriter, if any, stating that such accountants are
independent public accountants within the meaning of the Securities Act and
the
applicable rules and regulations adopted by the SEC thereunder, and otherwise
in
customary form and covering such financial and accounting matters as are
customarily covered by letters of the independent certified public accountants
delivered in connection with primary or secondary underwritten public offerings,
as the case may be; and
7.11 promptly
notify each seller of Registrable Shares and the underwriter or underwriters,
if
any:
(a) when
the
registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement or post-effective amendment to the registration statement
has been filed and, with respect to the registration statement or any
post-effective amendment, when the same has become effective;
8
(b) of
any
comments of the SEC or of any written request by the SEC for amendments or
supplements to the registration statement or prospectus;
(c) of
the
notification to the Company by the SEC of its initiation of any proceeding
with
respect to the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement; and
(d) of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification of any Registrable Shares for sale under the applicable securities
or blue sky laws of any jurisdiction.
8. Information
from Holder.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Agreement with respect to the Registrable Shares of
any
selling Holder that such Holder shall furnish to the Company such information
regarding itself, the Registrable Shares held by it, and the intended method
of
disposition of such securities as shall be required to effect the registration
of such Holder’s Registrable Shares.
9. Assignment
of Registration Rights.
Any
Holder may assign its rights to cause the Company to register Registrable Shares
pursuant to this Agreement only to (a) a transferee (or group of affiliated
transferees) that, after such assignment or transfer, holds at least 3,000,000
Registrable Shares (subject to appropriate adjustment for stock splits, stock
dividends, combinations and other recapitalizations), or (b) any party who
acquires ownership or control of such Holder through a merger, consolidation,
sale of all or substantial assets or similar business combination; provided
that (i)
no such rights may be assigned until the Company is given written notice by
the
transferor at the time of such assignment stating the name and address of such
transferee, and the securities with respect to which such registration rights
are being assigned, and that any such transferee shall receive such assigned
rights subject to all the terms and conditions of this Agreement, including
without limitation, the provisions of this Section 9 and (ii) the transferee
shall, as promptly as practicable and within 14 days after such transfer,
furnish the Company with the transferee's written agreement to be bound by
this
Agreement.
10. Existing
Registration Rights.
Any and
all registration rights currently held by any Shareholder with respect to any
Ordinary Shares are hereby canceled.
11. Lock-Up.
11.1 In
the
event of an underwritten public offering by the Company of any securities of
the
Company, and upon the request of the managing underwriter of such offering
from
security holders of the Company who hold securities of the Company in the amount
that is equal or exceed the threshold set by such managing underwriter, and
who
include a Holder (or group of affiliated Holders), such Holder hereby agrees
that it will not sell any of the Registrable Shares for a period commencing
on
the date requested by such managing underwriter and ending 90 days after the
effective date of the offering and undertakes to (and cause any transferee
to)
execute a “lock-up” agreement in the form provided by such
underwriter.
11.2 In
order
to enforce the foregoing covenant, the Company may impose stopȭtransfer
instructions with respect to the Registrable Shares of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of the applicable period. For the avoidance of doubt, the
underwriters, if any, in connection with a registration hereunder, are intended
third party beneficiaries of this Section 11 and shall have the right, power
and
authority to enforce the provisions hereof as though they were a party
hereto.
9
12. Public
Information.
The
Company undertakes to comply with the current public information requirements
of
Rule 144 and shall furnish thereafter to any Holder, upon request, a
written statement executed by the Company as to the steps it has taken to so
comply.
13. Effectiveness
and Termination of Registration Rights.
This
Agreement shall become effective on the Effective Date. Notwithstanding anything
to the contrary in this Agreement, no Holder shall be entitled to exercise
any
right provided for in this Agreement (i) before the Effective Date, (ii)
after ten (10) years following the date hereof, or (iii) as to any Holder,
at
any time at which all Registrable Shares held by such Holder (and any person
with whom such Holder must aggregate its sales under Rule 144) can be sold
in any three (3)-month period without registration in compliance with
Rule 144 of the Act.
14. Miscellaneous
14.1 Further
Assurances.
Each of
the parties hereto shall perform such further acts and execute such further
documents as may reasonably be necessary to carry out and give full effect
to
the provisions of this Agreement and the intentions of the parties as reflected
thereby.
14.2 Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed according to the laws of the State
of Israel, without regard to the conflict of laws provisions thereof. Any
dispute arising under or in relation to this Agreement shall be resolved in
the
competent court for Tel Aviv-Jaffa district, and each of the parties hereby
submits irrevocably to the jurisdiction of such court.
14.3 Successors
and Assigns; Assignment.
Except
as otherwise expressly limited herein, the provisions hereof shall inure to
the
benefit of, and be binding upon, the successors, assigns, heirs, executors,
and
administrators of the parties hereto. None of the rights, privileges, or
obligations set forth in, arising under, or created by this Agreement may be
assigned or transferred without the prior consent in writing of each party
to
this Agreement, except as set forth in Section 9 hereof.
14.4 Entire
Agreement; Amendment and Waiver.
This
Agreement and the Schedules hereto constitute the full and entire understanding
and agreement between the parties with regard to the subject matters hereof
and
thereof. Any term of this Agreement may be amended and the observance of any
term hereof may be waived (either prospectively or retroactively and either
generally or in a particular instance) only with the written consent of the
Company and the Holders of at least 2/3 of the Registrable Shares.
10
14.5 Notices,
etc.
Any
notice or other communication required or permitted to be delivered to any
party
under this Agreement shall be in writing and shall be deemed properly
delivered,
given and received when delivered (by hand, by registered mail, by courier
or
express delivery service or by facsimile) to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other parties hereto):
|
if
to a Shareholder, to the address set forth under its name on Schedule
I
hereto; and
|
||
|
if
to the Company:
|
ECI
Telecom Ltd.
|
|
|
00
Xxxxxxx Xxxxxx
|
||
|
Xxxxxx
Xxxxx 00000, Xxxxxx
|
||
|
Fax:
000-0-000-0000
|
||
|
Attention:
General Counsel
|
||
or
such
other address with respect to a party as such party shall notify each other
party in writing as above provided. Any notice sent in accordance with this
Section 14.5 shall be effective (i) if mailed, five (5) business days after
mailing, (ii) if sent by messenger, upon delivery, and (iii) if sent via
telecopier, upon transmission and electronic confirmation of receipt or (if
transmitted and received on a non-business day) on the first business day
following transmission and electronic confirmation of receipt.
14.6 Delays
or Omissions.
No
delay or omission to exercise any right, power, or remedy accruing to any party
upon any breach or default under this Agreement, shall be deemed a waiver of
any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent, or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing.
14.7 Severability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
unenforceable under applicable law, then such provision shall be excluded from
this Agreement and the remainder of this Agreement shall be interpreted as
if
such provision were so excluded and shall be enforceable in accordance with
its
terms; provided, however, that in such event this Agreement shall be interpreted
so as to give effect, to the greatest extent consistent with and permitted
by
applicable law, to the meaning and intention of the excluded provision as
determined by such court of competent jurisdiction.
14.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and enforceable against the parties actually executing such
counterpart, and all of which together shall constitute one and the same
instrument.
7
11
IN
WITNESS WHEREOF the parties have signed this Agreement as of the date first
hereinabove set forth.
| ECI TELECOM LTD. | ||
| |
|
|
| By: | /s/ X. Xxxx | |
|
Name:
Rafi Maor
Title:
President & CEO
|
||
| M.A.G.M. CHEMISTRY HOLDINGS LTD. | ||
| |
|
|
| By: | /s/ X. Xxxxxx | |
|
Name: X.
Xxxxxx
Title:
Director
|
||
| By: | /s/ X.Xxxxxx | |
|
Name:
X. Xxxxxx
Title:
Director
|
||
| CLAL ELECTRONICS INDUSTRIES LTD. | ||
| |
|
|
| By: | /s/ X. Xxxxx | |
|
Name: X.
Xxxxx
Title:
VP
|
||
| By: | /s/ G. Bieber | |
|
Name:
G. Biebewr
Title:
VP Finance
|
||
12
Schedule
I
Shareholders
|
Name
and Address
|
Number
of Shares
|
|
M.A.G.M.
Chemistry Holdings Ltd.
(a
wholly owned subsidiary of Koor Industries Ltd.)
3
Azrieli Center, Xxxxxxxxxx Xxxxx, 00xx Xxxxx
00000
Xxx Xxxx, Xxxxxx
Fax:
00 000 0000
Attention:
Xxxxxx Xxxxxx
|
33,049,433
|
|
Clal
Electronics Industries Ltd.
(a
wholly owned subsidiary of Clal Industries & Investments
Ltd.)
3
Azrieli Center, Xxxxxxxxxx Xxxxx, 00xx Xxxxx
00000
Xxx Xxxx, Xxxxxx
Fax:
00 000 0000
Attention:
General Counsel
|
15,218,194
|
13
