EXHIBIT 18
TRANSLATION FROM THE ORIGINAL HEBREW
SHARE SALE CONTRACT
DRAWN UP AND SIGNED IN TEL-AVIV ON OCTOBER 24, 2009
BETWEEN: SUNY ELECTRONICS LTD.
of 48 Xxx Xxxxxx Xxxxx Street
Segula Industrial Zone, Petach Tikva, Israel
Public company no. 00-000000-0
("SUNY")
OF THE FIRST PART;
AND: EUROCOM COMMUNICATIONS LTD.
of 0 Xxx Xxxxxxxx Xxxxxx
Xxxxx-Xxx, Xxxxxx
Private company no. 00-000000-0
("EUROCOM")
OF THE SECOND PART;
WHEREAS Suny holds the Scailex Shares Being Sold (as this term is defined
hereunder);
AND WHEREAS Suny desires to sell and transfer the Scailex Shares Being Sold
to Eurocom, and to receive the Partner Shares Being Sold (as this
term is defined hereunder) from Eurocom in consideration thereof,
and Eurocom desires to acquire and receive the Scailex Shares
Being Sold from Suny and to sell and transfer the Partner Shares
Being Sold to Suny in consideration thereof, all in the manner
and under the conditions as specified in this contract;
WHEREFORE, THE PARTIES HEREBY AGREE, STIPULATE AND DECLARE AS FOLLOWS:
1. RECITALS, WARRANTS, APPENDICES AND HEADINGS
1.1 The recitals to this Contract and the warrants of the parties thereto
constitute an integral part thereof.
1.2 The clause headings in this Contract, and the division thereof into
clauses were intended solely for the sake of the reader's convenience
and orientation, and no use may be made thereof for the purpose of
interpreting this Contract.
2. DEFINITIONS
In this Contract, the following expressions shall have the meaning defined
alongside them, unless the context dictates otherwise.
2.1 "THE TASE" - The Tel-Aviv Stock Exchange Ltd.
2.2 "LAW" - As this term is defined in the Interpretation
Act, 5741 - 1981.
2.3 "SCAILEX" - Scailex Corporation Ltd., public company no.
00-000000-0, a public company whose shares
are traded on the TASE.
2.4 "THE EXECUTION DATE" - The date scheduled for the transfer of the
Scailex Shares Being Sold to Eurocom and for
the transfer of the Partner Shares Being Sold
to Suny, pursuant to the provisions of clause
8 of this Contract. The parties hereby agree
to schedule the Execution Date on the seventh
day after the fulfillment of the last of the
suspending conditions prescribed hereunder in
clause 7.
2.5 "THE SCAILEX SHARES 1,241,561 ordinary shares of NIS 0.12 par
BEING SOLD" - value each, of Scailex, constituting about
4.45% of Scailex's issued and paid-up share
capital (not including dormant shares), which
are being sold to Eurocom pursuant to the
Contract.
2.6 "THE PARTNER SHARES 1,136,700 ordinary shares of NIS 0.01 par
BEING SOLD" - value each, of Partner Communications Ltd.,
a public company incorporated in Israel
("PARTNER"), which constitute about 0.73% of
Partner's issued and paid-up share capital
(not including dormant shares), which are
represented in a share certificate, a copy
of which is attached hereto, and which are
being sold to Suny pursuant to the provisions
of this Contract.
2.7 "FREE AND CLEAR" - Free and clear of any debt, attachment, lien
and/or other right of any kind or type of any
third party or any other entity, including in
a manner that might restrict the sale of the
Scailex Shares Being Sold or the Partner
Shares Being Sold, as the case may be,
pursuant to this agreement, or restrict a
sale of these shares to others subsequent to
the consummation of the acquisition thereof
pursuant to this agreement (all apart from
restrictions by virtue of the Partner
shareholder agreements [including agreements
between the founding shareholders of Partner]
or restrictions in Partner's Articles of
Association or in Partner's licenses, and
apart from restrictions on a transfer as
appearing in the share certificate of the
Partner Shares Being Sold).
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3. [voided]
4. SUNY'S WARRANTS AND COVENANTS
Suny hereby warrants and covenants to Eurocom as follows:
4.1 Suny is a public company limited in shares, duly incorporated in
Israel, and the sole owner and holder of all of the Scailex Shares
Being Sold, which constitute about 4.46% of Scailex's issued and
paid-up share capital (not including dormant shares).
4.2 All of the Scailex Shares Being Sold, which shall be transferred to
Eurocom, are fully paid-up and Free and Clear, except for a lien in
favor of Mizrahi Tefahot Bank Ltd. ("XXXXXXX XXXX"), which Suny
covenants to remove by the Execution Date, in such manner that all of
the Scailex Shares Being Sold shall be Free and Clear on the Execution
Date.
4.3 Suny has the full authority to engage in this Contract and to perform
all of its covenants pursuant thereto; and, for this purpose, all of
the approvals required on its part by its competent organs have been
obtained; and, subject to the provisions of clause 7 hereunder, there
is no legal, contractual or other prohibition that could prevent it
from engaging in this Contract and performing all of its covenants
pursuant thereto; and this Contract, upon being signed by Suny,
constitutes its binding and valid covenant, subject to the fulfillment
of the suspending conditions.
4.4 Suny is aware that the Partner Shares Being Sold are not registered
for trading on the TASE, and understands and is aware of all of the
conditions, restrictions and requirements pursuant to the Partner
shareholder agreements pertaining to the transfer of the Partner
Shares Being Sold, and shall act in conformity with these provisions.
4.5 Suny is aware of the Ministry of Communication's restrictions relating
to a sale and holding of Partner shares, which require the approval of
the Ministry of Communications for the sale of the Partner Shares
Being Sold, including a restriction on the sale of the Partner Shares
Being Sold to an entity other than an "Israeli entity," as this term
is defined in the General License Issued to Partner for the Provision
of Mobile Radio Telephone (MRT) Services.
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4.6 The representations, warrants and covenants made and given by Suny in
the above clauses 4.1 through 4.5 are correct and complete on the
signing date of this Contract, and they shall remain as such on the
Execution Date as well, as if made and given by it on the Execution
Date and in relation to that date.
5. EUROCOM'S WARRANTS
Eurocom hereby warrants and covenants to Suny as follows:
5.1 Eurocom is a private company limited in shares, duly incorporated in
Israel, and the sole owner and holder of all of the Partner Shares
Being Sold, which constitute about 0.74% of Partner's issued and
paid-up share capital (not including treasury/dormant shares).
5.2 All of the Partner Shares Being Sold shall be transferred to Suny
being Free and Clear.
5.3 Eurocom has the full authority to engage in this Contract and to
perform all of its covenants pursuant thereto; and, for this purpose,
all of the approvals required on its part by its competent organs have
been obtained; and, subject to the provisions of clause 7 hereunder,
there is no legal or other prohibition that could prevent it from
engaging in this Contract and performing all of its covenants pursuant
thereto.
5.4 The representations, warrants and covenants made and given by Eurocom
in the above clauses 5.1 through 5.3 are correct and complete on the
signing date of this Contract, and they shall remain as such on the
Execution Date as well, as if made and given by it on the Execution
Date and in relation to that date.
6. COVENANT FOR THE SALE AND ACQUISITION OF THE SCAILEX SHARES BEING SOLD AND
THE SALE AND ACQUISITION OF THE PARTNER SHARES BEING SOLD
6.1 Suny covenants that it shall sell and transfer all of the Scailex
Shares Being Sold to Eurocom on the Execution Date, in an off-floor
transaction, at the price of NIS 67.75 per 1 par value share, out of
the Scailex Shares Being Sold, and for the consideration of the
inclusive sum of NIS 84,115,800, with the Scailex Shares Being Sold
being "Free and Clear," and Eurocom covenants that it shall sell and
transfer all of the Partner Shares Being Sold to Suny on the Execution
Date, in an off-floor transaction, at the price of NIS 74 per 1 par
value share, out of the Partner Shares Being Sold, and for the
consideration of the inclusive sum of NIS 84,115,800, with the Partner
Shares Being Sold being "Free and Clear."
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6.2 Subject to the Closing of the Transaction (as this term is defined
hereunder), Eurocom shall be entitled to the rights attached to the
Scailex Shares Being Sold - in effect as of the Execution Date of this
agreement, and Suny shall be entitled to the rights attached to the
Partner Shares Being Sold - in effect as of the Execution Date of this
agreement.
6.3 Suny covenants that, during the period up until December 31, 2009, it
shall not acquire from any third party, Partner shares of the same
class as the Partner Shares Being Sold, according to a pricing that is
more favorable to the selling third party than the pricing at which
the Partner Shares Being Sold are being acquired by Suny pursuant to
the provisions of this Contract.
7. SUSPENDING CONDITIONS
7.1 The consummation of the transaction, the sale of the Scailex Shares
Being Sold and the Sale of the Partner Shares Being Sold pursuant to
this Contract ("THE CLOSING OF THE TRANSACTION") are contingent upon
the fulfillment of all of the following suspending conditions by the
Execution Date:
7.1.1 The receipt of the Ministry of Communication's approval for the
transfer of the Partner Shares Being Sold from Eurocom to Suny.
The parties shall cooperate fully, and shall act in concert for
the purpose of obtaining the Ministry of Communication's approval
for the Transaction, and shall sign any document or confirmation
that might be required for this purpose as stated.
7.1.2 The closing of the transaction for the acquisition of the
control over Partner by Scailex.
7.2 If all of the suspending conditions are not fulfilled by November 30,
2009, and the parties did not agree to extend the said deadline by an
additional period, this contract shall be voided, and, upon the
voidance thereof, the parties shall not have any claim or allegation
of any kind or type against each other.
8. THE EXECUTION DATE
8.1 At 11:00 a.m. on the Execution Date ("THE EXECUTION DATE"), the
parties shall convene at the offices of Xxxxx Xxxxxxx & Co., lawyers,
at 3 Xxxxxx Xxxxxx Street, in Tel-Aviv, and, at that time, Suny shall
transfer the Scailex Shares Being Sold to Eurocom's ownership and
Eurocom shall transfer the Partner Shares Being Sold to Suny's
ownership, with the Scailex Shares Being Sold and the Partner Shares
Being Sold being fully paid-up and Free and Clear.
8.2 The following operations shall be carried out by the parties at the
time of the Execution:
8.2.1 Each of the parties, as the case may be, shall deliver the
documents and approvals to the other party that attest to the
fulfillment of the suspending conditions specified above in
clause 7, to the extent that they concern it.
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8.2.2 Suny shall transfer the Scailex Shares Being Sold to Eurocom and
Eurocom shall transfer the Partner Shares Being Sold to Suny, by
way of off-floor transactions, as follows:
(a) Suny shall transfer the Scailex Shares Being Sold to
Eurocom's account with a TASE member, the particulars of
which Eurocom shall furnish in writing to Suny at least two
(2) business days prior to the Execution Date ("EUROCOM'S
ACCOUNT").
(b) Eurocom shall sign a share transfer deed for the purpose of
transferring the Partner Shares Being Sold to Suny.
8.2.3 Suny shall deliver bank confirmations to Eurocom that attest to
the transfer of the Scailex Shares Being Sold to Eurocom's
Account.
8.2.4 Each party shall deliver a certificate to the other party
regarding exemption from the deduction of withholding tax in
relation to the transfer of the Partner Shares Being Sold and the
Scailex Shares Being Sold, as the case may be.
8.2.5 All of the documents required pursuant to the Partner
shareholder agreements and pursuant to Partner's Articles of
Association shall be signed for the purpose of the transfer of
the Partner Shares Being Sold to Suny's ownership.
8.3 All of the aforesaid operations shall be carried out as a single
operation, and any operation performed shall be invalid if all of the
operations are not performed at one and the same time.
9. PUT/CALL OPTION
9.1 PUT OPTION
At the time this Contract is signed, Suny is granting a put option
right to Eurocom ("PUT OPTION") to obligate it to purchase the Scailex
Shares Being Sold from Eurocom at the price of NIS 75.88 (adjusted for
a dividend to be received by Eurocom) per 1 par value share of the
Scailex Shares Being Sold. The Put Option shall be exercised by
written notice ("THE PUT EXERCISE NOTICE") to be delivered by Eurocom
to Suny, during the period commencing June 15, 2010 and ending June
30, 2010 ("THE EXERCISE PERIOD OF THE PUT OPTION").
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If the Put Exercise Notice was delivered pursuant to the provisions of
this clause by no later than the expiration of the Exercise Period of
the Put Option, Suny covenants to purchase all of the Scailex Shares
Being Sold from Eurocom on the execution date of the exercise of the
Put Option, which shall occur 30 days after the delivery of the Put
Exercise Notice ("THE EXECUTION DATE OF THE EXERCISE OF THE PUT
OPTION"). On the Execution Date of the Put Option, Eurocom shall sell
to Suny and Suny shall acquire from Eurocom the Scailex Shares Being
Sold and the provisions of clause 8 of this Contract shall also apply,
MUTATIS MUTANDIS, to the sale of the Scailex Shares Being Sold to Suny
by virtue of the Put Option.
The Put Option is exercisable once during the entire Exercise Period,
and in relation to all of the Scailex Shares Being Sold and not to a
portion thereof.
9.2 CALL OPTION
At the time this Contract is signed, Eurocom is granting a call option
right to Suny ("CALL OPTION") to obligate it to purchase the Scailex
Shares Being Sold from Eurocom at the price of NIS 75.88 (adjusted for
a dividend to be received by Eurocom) per 1 par value share of the
Scailex Shares Being Sold. The Call Option shall be exercised by
written notice ("THE CALL EXERCISE NOTICE") to be delivered by Suny to
Eurocom, during the period commencing January 1 and ending June 30,
2010 ("THE EXERCISE PERIOD OF THE CALL OPTION").
If the Call Exercise Notice was delivered pursuant to the provisions
of this clause by no later than the expiration of the Exercise Period
of the Call Option, Eurocom covenants to sell all of the Scailex
Shares Being Sold to Suny on the execution date of the exercise of the
Call Option, which shall occur 30 days after the delivery of the Call
Exercise Notice ("THE EXECUTION DATE OF THE EXERCISE OF THE CALL
OPTION"). On the Execution Date of the Call Option, Eurocom shall sell
to Suny and Suny shall acquire from Eurocom the Scailex Shares Being
Sold and the provisions of clause 8 of this Contract shall also apply,
MUTATIS MUTANDIS, to the sale of the Scailex Shares Being Sold to Suny
by virtue of the Call Option.
The Call Option is exercisable once during the entire Exercise Period,
and in relation to all of the Scailex Shares Being Sold and not to a
portion thereof.
10. TAXES AND PAYMENTS
10.1 Each party shall solely bear its own expenses relating to this
Contract and all that deriving from it, including, without derogating
from the general purport of that stated, the payment of the expenses
of lawyers' and consultants' fee.
10.2 Value added tax, which shall apply, to the extent that it shall apply,
to each payment prescribed in this agreement and/or deriving from it
and/or involving it, shall apply to the party paying it and shall be
paid on the compulsory date for the payment thereof to the V.A.T.
Authorities, against a duly prepared tax invoice to be issued by the
recipient of the payment.
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10.3 Income tax and/or capital gains tax that shall apply, if any, to the
sale of the Scailex Shares Being Sold to Eurocom pursuant to this
Contract, shall apply to Suny and shall be paid by it.
10.4 Income tax and/or capital gains tax that shall apply, if any, to the
sale of the Partner Shares Being Sold to Suny pursuant to this
Contract, shall apply to Eurocom and shall be paid by it.
11. GENERAL PROVISIONS
11.1 NOTICES TO THE PUBLIC
A party obligated by law (according to the advice of the legal
advisors) to issue a publication or notice or disclosure to the public
regarding the provisions of this Contract or the transactions that are
the subject of this Contract shall inform the other party and shall
deliver the wording of the publication or the notice to the other
party and enable it a way to comment on such publication and in a
reasonable length of time under the circumstances.
11.2 ASSIGNMENT
This Contract and the parties' rights and obligations pursuant thereto
are not assignable by any party without receiving the prior written
consent of the other party. Without derogating from that stated, it is
hereby agreed that Eurocom shall have the right to sell the Scailex
Shares Being Sold and the rights and obligations pertaining to the
Put/Call Option, as stated above in clause 9, to a third party,
provided that the transferee shall assume all of Eurocom's covenants
towards Suny pursuant to the provisions of the above clause 9.
11.3 NOTICES
Any notice and/or warning due to any matter driving from this
Contract, which shall be sent from one party to the other by
registered mail according to the addresses specified in the recitals
to this Contract (or to any other address advised by written notice to
the other parties pursuant to the provisions of this clause 11.3)
shall be deemed as having been received by the addressee three (3)
business days after its dispatch at the post office for mailing by
registered mail, and on the first business day after the time of its
transmission by facsimile (according to the specified facsimile
numbers), and if personally delivered - at the time of the delivery
thereof.
SUNY:
Suny Electronics Ltd.
Attn: Mr. Ilan Ben Dov, Chairman
Fax: + 000-0-0000000
with a copy to Adv. Xxxxx Xxxxxxx,
of the law firm of Xxxxx Xxxxxxx & Co.
0 Xxxxxx Xxxxxx Xxxxxx, Xxx-Xxxx Xxxxxx
Fax: + 000-0-0000000
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EUROCOM:
Attn: Xxxxx Xxxxxxxx, Chairman
Fax: + 972-3- _________
11.4 UNENFORCEABLE/INVALID PROVISIONS
Should it be determined that one of the provisions of the Contract is
unenforceable and/or invalid for any reason whatsoever, this shall not
suffice to adversely impact the rest of the provisions of the
Contract, and the parties shall take action in order to implement the
Contract literally and as intended, including the replacement of the
unenforceable and/or invalid provision as stated with an alternate
provision, the result and action of which are essentially the same,
and the economic results of which are the same in terms of the parties
to this Contract.
11.5 AMENDMENT; WAIVER
Any amendment of the conditions of this Contract shall be valid only
if drawn up in writing and signed by all of the parties.
Any waiver or extension given by one party to this Contract to the
other in a particular instance shall not constitute a precedent and/or
infer by analogy in a similar and/or different and/or other instance.
If one of the parties did not enforce, or enforced after a delay, any
of the rights vested it pursuant to this Contract and/or by virtue of
the law in a particular instance or in a series of instances, this
shall not be deemed a waiver of the said right or of any other rights.
11.6 LAW AND JURISDICTION
The laws of the State of Israel shall apply solely, exclusively and
absolutely to this Contract and to any matter pertaining to the
Contract and deriving from it, including, without prejudice to the
general purport of that stated above, the interpretation thereof
and/or the execution thereof and/or a breach thereof and/or the
validity thereof and/or the legality thereof and/or the termination
thereof, etc.
The competent courts in Tel-Aviv - Jaffa and solely the competent
courts in Tel-Aviv - Jaffa shall have exclusive residual jurisdiction
in relation to any matter deriving from and relating to this Contract.
11.7 COPIES; SIGNATURES BY FAX
This Contract can be signed in a number of copies, including signing
via fax, with each of them being deemed an original copy, but all of
them together shall be deemed a single copy of that same document.
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11.8 INTERPRETATION
The parties to this Contract participated jointly in negotiations and
in the drafting of this Contract. In the event of ambiguity or a
question in relation to the intention or interpretation of any clause,
this contract shall be interpreted as having been drafted by all of
the parties, and no conclusion shall be drawn and no duty of proof
shall be imposed in favor or against any party due to any provision in
the Contract being drafted by that party.
11.9 ADDITIONAL ACTIONS
The Parties shall take all of the additional steps (including the
rendering of payments, the bearing of expenses, the signing of
additional documents and the issuance of any approval/confirmation)
that shall be required for the purpose of implementing and executing
this Agreement literally and as intended.
AND IT WITNESS HERETO THE PARTIES HAVE SIGNED:
/s/ Or Elovitch /s/ Ilan Xxx-xxx
----------------------------- -----------------------------
EUROCOM COMMUNICATIONS LTD. SUNY ELECTRONICS LTD.
I, the undersigned, Xxxxxx Xxxxxx, I, the undersigned, Xxxxx Xxxxxxx,
Adv., do hereby certify the signatures Adv., do hereby certify the signatures
of Messrs. Or Elovitch and _____ on of Messrs. Ilan Ben Dov and _____ on
behalf of Eurocom, and that all behalf of Suny, and that all approvals
approvals required by all of Eurocom's required by all of Suny's competent
competent organs have been received organs have been received for Suny's
for Eurocom's engagement in this engagement in this Contract and for
Contract and for the execution of its the execution of its covenants pursuant
covenants pursuant thereto, and that thereto, and that the above signature
the above signature is a lawful is a lawful signature of Suny, which
signature of Eurocom, which is binding is binding upon Suny for all intents
upon Eurocom for all intents and and purposes relating to this Contract.
purposes relating to this Contract.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Adv. Xxxxx Xxxxxxx, Adv.
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