Common use of Notwithstanding Section 1 Clause in Contracts

Notwithstanding Section 1. 16(a) or anything else to the contrary in this Agreement, if neither the Israeli Tax Rulings nor a Valid Tax Certificate is provided to the Payor providing for a full exemption from Israeli withholding Tax, at least three (3) Business Days prior to the Closing Date, Pubco will be entitled to appoint a third party Israeli withholding tax agent (the “Exchange Agent”), and deliver all payments (including payment in-kind) under this Agreement (including any amounts payable after the Closing Date) to the Exchange Agent, who will be entitled to deduct and withhold therefrom any applicable Taxes applicable to Israeli Payees, as determined by the Exchange Agent according to applicable Law, and remit any such amounts deducted or withheld to the ITA. The Exchange Agent shall provide Pubco, prior to the Closing Date, with an undertaking as required under Section 6.2.4.3 of Income Tax Circular 19/2018 (Transaction for Sale of Rights in a Corporation that includes Consideration that will be transferred to the Seller at Future Dates). Any such amount required to be withheld shall be funded first through payment by the applicable Israeli Payee of the Tax amount required as determined by the Exchange Agent according to applicable Law, or as determined in a Valid Tax Certificate that provides for withholding of a certain amount on account of Taxes, which amount to be transferred to the Exchange Agent within seven (7) days of such request. To the extent that an Israeli Payee does not comply with the provisions of the preceding sentence, the Exchange Agent shall at any time following the Company Merger Effective Time be entitled to satisfy any such withholding obligation, through the forfeiture or sale of the portion of the Pubco Ordinary Shares otherwise transferrable to such Israeli Payee that is required to enable the Exchange Agent to comply with applicable deduction or withholding requirements. Each Israeli Payee will, pursuant to the Letter of Transmittal, waive, release and absolutely and forever discharge Pubco or anyone acting on its behalf and the Exchange Agent from and against any and all claims for any losses in connection with the forfeiture or sale of any portion of the Pubco Ordinary Shares otherwise transferrable to such Israeli Payee in compliance with the withholding requirements under this Section 1.16(b). To the extent that the Exchange Agent is unable, for whatever reason, to effect a forfeiture or to sell the applicable portion of Pubco Ordinary Shares required to finance the applicable deduction or withholding requirements, then the Exchange Agent shall be entitled to hold all of Pubco Ordinary Shares, otherwise transferrable to the applicable Israeli Payee until the earlier of: (i) the receipt of a Valid Tax Certificate from such Israeli Payee fully exempting the Exchange Agent from tax withholding; or (ii) such time when the Exchange Agent is practically able to sell the portion of such Pubco Ordinary Shares otherwise transferrable to such Israeli Payee that is required to enable the Payor to comply with such applicable deduction or withholding requirements. Any costs or expenses incurred by the Exchange Agent in connection with such sale shall be borne by, and deducted from the payment to, the applicable Israeli Payee.