Agreement of Principles
Exhibit
10.122
[Free
Translation from
Hebrew]
Entered
into and signed on March 17, 2008
By
and between
Tiv
Taam Holdings 1 Ltd.
(Public Company 52-004118-7)
Industrial
Zone, ▇▇▇▇ ▇▇▇▇▇, P.O. Box 1140 Hadera 38811
(hereinafter
- the "Seller")
of
the first part;
And:
Xfone
018 Ltd. (P.C.
51-353343-0)
▇
▇▇▇▇
▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(hereinafter–
the "Buyer")
of
the second part;
|
Whereas
|
The
Seller holds 14,497,847 shares of Robomatix Technologies Ltd. (Public
Company 52-004037-9) (hereinafter - the "Company"), which
constitute 88.8% of the Company's issued share capital (approximately
68.54% of the Company's share capital in full dilution, assuming
conversion of all the convertible securities, including options,
into the
Company's shares); and
|
|
Whereas
|
The
Company is registered with the Registrar of Companies in Israel and
was
traded in the past in a stock exchange in the United States; and
|
|
Whereas
|
At
the date of execution of this Agreement of Principles, the Company
does
not have independent business activity, to the exclusion of its holdings
as described below; and
|
|
Whereas
|
The
Company holds 90% of the issued share capital of Tadiran Telecom
-
Communication Services In Israel Ltd. (P.C. 51-358880-6) (hereinafter
-
"Tadiran
Telecom"), in full dilution, including options; and
|
-1-
|
Whereas
|
Tadiran
Telecom is the general partner in Tadiran Telecom - Communication
Services
In Israel – Limited Partnership (No. 55-021770-7) (hereinafter - the
"Partnership");
and
|
|
Whereas
|
The
Company is a limited partner in the Partnership and its share in
the
Company's capital is at 90% of the Partnership's capital; and
|
|
Whereas
|
The
Partnership is in the business of distribution, sale, maintenance
and
service of business communications switchboards and auxiliary equipment
for switchboards in Israel; and
|
|
Whereas
|
The
Seller presented to the Buyer copies of A. the Company's articles
of
association and Tadiran Telecom's articles of association, B. The
shareholders agreement dated April 21, 2005 between the Company and
Man
Capital Investments Ltd., C. an agreement between the Partnership
and ▇▇▇▇
& A.R. Telecom Systems – Registered Partnership, and correspondence
with respect to the aforementioned agreement between the Company
and ▇▇▇▇
▇▇▇▇▇▇▇▇'▇ counsel, D. the draft of the Partnership's financial statements
for December 31, 2007. The Buyer represents that he is aware of the
contents and provisions the aforementioned documents A-D; and
|
|
Whereas
|
The
Seller wishes to sell to the Buyer all the Company's shares that
he owns,
and the Buyer wishes to acquire from the Seller all the Company shares
owned by the Seller, free and clear of any debt, pledge, lien or
any third
party right, and through these shares to acquire control of the Company,
of Tadiran Telecom and of the Partnership, as the term "Control"
is
defined in the Securities Law, 5728-1968; and
|
|
Whereas
|
The
Seller represents as follows:
|
|
|
A.
|
He
is not a party to any voting agreement in the Company and/or in Tadiran
Telecom and/or in the Partnership (to the exclusion of documents
a-c
above, if and insofar that they constitute a voting agreement);
|
|
|
B.
|
He
holds more than one half of the voting rights at the general meeting
of
the Company, and through it at the general meeting of Tadiran Telecom
and
at the parallel body of the Partnership;
|
|
|
C.
|
He
holds more than one half of the rights for the appointment of directors
at
the Company, and through it at Tadiran Telecom and at the parallel
body of
the Partnership; and
|
|
Whereas
|
The
Buyer intends to acquire all of Man Capital Investments Ltd.'s holdings
in
Tadiran Telecom, and its full rights in the Partnership;
|
-2-
Now,
Therefore, the Parties have Agreed, Stipulated and Represented as
Follows:
|
1.
|
Acquisition
of the Seller's Shares in the Company
|
|
|
1.1.
|
The
Seller will sell to the Buyer 14,497,847 of the Company's ordinary
shares,
which constitute 100% (one hundred percent) of the Seller's shares
in the
Company (hereinafter – the "Acquired Shares"). In
consideration for the Acquired Shares and for fulfillment of the
Seller's
undertakings in accordance with Section 2.1 below, the Buyer will
pay the
Seller a sum of NIS 44 (forty four) million, subject to adjustments
as
stated in Section 3.2 below (hereinafter – the "Acquisition Amount").
|
|
|
1.2.
|
On
the date of the transaction's closing (as this term is defined below),
the
Buyer will pay the Seller, on account of the Acquisition Amount,
the sum
of NIS 15.5 (fifteen and a half) million, through a cashier’s check to the
order of the Seller (hereinafter – the "First Installment").
|
|
|
1.3.
|
An
additional sum of NIS 15.5 (fifteen and a half) million linked to
the
Consumer Price Index as stated in Section 1.6 below (hereinafter
– the
"Second
Installment"), will be paid by the Buyer to the Seller until
November 20, 2008. The sum of the Second Installment is subject to
adjustments as stated in Section 3.2 below.
|
|
|
1.4.
|
The
balance of the Acquisition Amount, an amount of NIS 13 (thirteen)
million,
linked to the Consumer Price Index as stated in Section 1.6 below
(hereinafter – the "Third
Installment"), will be paid by the Buyer to the Seller until
November 1, 2009. At the date of the transaction's closing, the Buyer
will
deliver to the Seller a postdated check made to the order of the
Seller
due to the Third Installment, payable on November 1, 2009.
|
|
|
1.5.
|
To
ensure the performance of the Second Installment, the Buyer will
deposit
in the hands of the parties' counsel, Adv. ▇▇▇ ▇▇▇▇ and Adv. Ofer
Yuval,
who shall serve as the parties' trustees, in joint trust (jointly,
hereinafter – the "Trustee"), a postdated
check made to the order of the Seller in the sum of NIS 15.5 million,
payable on November 20, 2008, according to a letter of instructions
to the
Trustee which will be signed by the parties on the date of closing
of the
transaction.
|
|
|
1.6.
|
The
sums of the Second and Third Installments will be linked to the Consumer
Price Index. A change to the Consumer Price Index will be calculated
according to the last known index on the date of the transaction's
closing
in comparison to the last known index on the day of actual payment.
In the
event the sums of the Second and Third Installments, or any of them,
increase as a result of linkage differentials as aforesaid, the Buyer
will
pay the linkage differentials to the Seller on the dates of the Second
and/or Third Installment, respectively. In the event that the sums
of the
Second and Third Installments, or any of them, decrease as a result
of
linkage as aforesaid, the mechanism described in Section 1.10 below
will
apply to the decreased sum, mutatis mutandis.
|
|
|
1.7.
|
In
exchange for delivering the cashier’s check and the checks as
aforementioned in Sections 1.2-1.5 above to the Seller and the Trustee,
as
the case may be, and at the time of delivery thereof, the Seller
will
deliver to the Buyer signed share transfer deeds which address the
transfer of all the Acquired Shares (14,497,847 shares) as well as
the
rest of the documents required for the performance of the share transfer
as aforesaid in accordance with the law and/or the Company's articles
of
association. In addition, the Seller will deliver to the Buyer resignation
letters of all the Company's directors, as well as resignation letters
of
the directors who were appointed on behalf of the Company or according
to
its recommendation in Tadiran Telecom.
|
|
|
1.8.
|
For
the avoidance of any doubt, failure to pay the Second Installment
and the
Third Installment by the Buyer in full and on time, will constitute
a
material breach of this Agreement of Principles. Without derogating
from
the aforesaid and from any remedy and/or right of the Seller according
to
law and by virtue of an agreement, for every day of delay in payment
of
the Second and/or Third Installment, the Buyer will pay the Seller
a
linked interest at a rate of 1% per month, for the sum in arrears,
which
shall be added to the sum in arrears on a monthly basis.
|
-3-
|
|
1.9.
|
To
ensure the performance of each of the Second and/or Third Installments,
the Buyer will deliver to the Seller on the date of the transaction's
closing a letter of guarantee from the Buyer's parent company, Xfone
Inc.,
in the language agreed upon between the parties until the date of
the
transaction's closing. In the event that the parties do not reach
an
agreement with respect to the language of the letter of guarantee
to the
satisfaction of the Seller until the date of the transaction's closing,
the Seller will be entitled to inform the Buyer that he is withdrawing
from fulfillment of the transaction. For the avoidance of doubt,
it is
clarified that the Seller gave his agreement to the language of the
guarantee attached as Annex B to this
Agreement of
Principles.
|
|
|
1.10.
|
|
|
1.10.1.
|
Upon
presentation of the approval of the Buyer's bank for the performance
of an
irrevocable transfer of the Second Installment in full (including
linkage
differentials thereon) until November 20, 2008, to the Seller's bank
account, the Trustee will return the check aforementioned in Section
1.5
to the hands of the Buyer.
|
|
|
1.10.2.
|
In
the event that the Acquisition Amount is decreased as aforementioned
in
Sections 3.2 and 3.3, the Buyer will pay to the Seller the sum of
the
Second Installment less the consideration reduction amount, and upon
presentation of the approval of the Buyer's bank for the performance
of an
irrevocable transfer of the Installment as aforesaid, the Trustee
will
return to the Buyer the check aforementioned in Section 1.5.
|
|
|
1.10.3.
|
In
the event that the Trustee was not presented with the approval from
the
Buyer's bank for the performance of an irrevocable transfer of the
Second
Installment or for the performance of the reduced Second Installment
(in
the event that the Acquisition Amount was reduced) until November
23,
2008, the Trustee will transfer the check aforementioned in Section
1.5 to
the Seller who will be entitled to clear it (in whole or in part,
as the
case may be), without derogating from any remedy and/or right of
the
Seller according to law and/or by virtue of an agreement.
|
|
|
1.10.4.
|
It
is agreed that apart for the adjustment of the sum of the Second
Installment in accordance with Section 3.2 below, the Buyer will
not be
entitled to deduct and/or offset any sum from the Second Installment
and
from the Third Installment and/or avoid and/or postpone the payment
date
of the Second Installment and the Third Installment, for any reason
whatsoever, including due to a claim that the Seller breached any
of the
provisions of this Agreement of Principles.
|
|
|
1.11.
|
For
the avoidance of doubt, it is clarified that upon performance
of the First
Installment, the Buyer will be entitled to all the rights accompanying
all
the Acquired Shares, including appointment of directors, voting
rights
etc. in accordance with the provisions of the law and the Company's
articles of association.
|
-4-
|
2.
|
Liability
for the Company's Debts and Undertakings
|
|
|
2.1.
|
The
Seller will bear all the Company's debts to the tax authorities with
respect to the period until the date of the transaction's closing,
if and
insofar that such debts exist and/or shall exist, and he will indemnify
the Company due to any debt paid by it as aforesaid. In his contacts
with
the tax authorities with respect to the Company's debts and even
before
the issuance of final assessments for the Company, the Seller will
be
entitled to use the Company's accumulated losses which are related
to the
period until the date of the transaction's closing, provided that
such use
will be subject to and in accordance with any law and with the purpose
of
reducing the Company's debts to the tax authorities. For the aforesaid
purpose, and as a condition for the Seller's liability according
to this
Section 2, the Seller, or whoever he determines for this purpose,
will
represent the Company in the contacts with the tax authorities and
in any
legal proceeding (including an appeal and/or a motion for leave to
appeal
the results of the proceeding until a conclusive judgment) with respect
to
the tax assessment for the period until the date of the transaction's
closing and will be the Company's power of attorney for this matter,
and
the Buyer undertakes to act in his capacity as a shareholder in the
Company so that the Company will sign any document required for that
purpose and to provide the Seller with the required assistance for
the
representation of the Company as aforesaid. It is clarified that
the
Seller will bear all the costs involved in the contacts with the
tax
authorities and in any legal proceeding as aforesaid, if any. If
for any
reason whatsoever, to the exclusion of the breach of the Buyer's
undertakings determined in this Sub-section above, the Seller will
not use
the Company's accumulated losses as aforesaid, the Seller will not
be
entitled to any compensation from the Buyer, the Company, Tadiran
Telecom
or the Partnership. Without derogating from the aforesaid, the Company
will not settle with the tax authorities and will not consent to
the
referral of the legal proceeding, if any, to arbitration and/or mediation
in accordance with Section 79A of the Courts Law [Consolidated Version]
without the prior written consent of the Seller.
|
|
|
2.2.
|
It
is agreed that the Seller, on behalf of the Company, will conduct
and bear
the costs of an arbitration proceeding/a legal proceeding that is
held/will be held opposite Hachsharat Hayishuv with respect to sums
which
are allegedly due to the Company from Hachsharat Hayishuv in the
event
that any intakes are received from the aforesaid proceedings, they
will be
paid to the Seller. The Seller will also bear any sum decided against
the
Company in the context of an arbitration proceeding/legal proceeding
as
aforesaid according to a judgment which is not subject to a stay
of
execution, and will indemnify the Company due to any adjudicated
sum paid
by the Company in the context of the aforesaid proceedings, all subject
to
the Company signing any document required for its representation
by the
Seller and/or anyone on his behalf (including in appeal proceedings
and/or
an MLA on the results of the proceeding until a conclusive judgment)
and
subject to the Company and/or the Buyer not settling and not consenting
to
the transfer of the legal proceeding to arbitration and/or settlement
in
accordance with Section 79a of the Courts Law [Consolidated Version]
without the prior written consent of the Seller.
|
|
|
2.3.
|
It
is also agreed that the Seller will not be responsible for the debts
of
the Company and/or of Tadiran Telecom and/or of the Partnership,
as the
case may be, to the employees of any of the aforesaid corporations
(hereinafter: the "Employees"), whether
created before the date of execution of this Agreement of Principles
and
whether created after. The Buyer represents and undertakes that he
will
not have any claim against the Seller due to undertakings vis-à-vis the
Employees, including, but not only, undertakings following the transfer
of
control in the Company and/or in Tadiran Telecom and/or in the
Partnership. The Buyer undertakes to indemnify the Seller if he is
charged
by a judgment (which is not subject to a stay of execution) given
in a
suit filed, if any, against the Seller due to payments and/or rights
that
are due to any of the Employees due to their status as employees
(including, but not only, rights which are granted to any of them
following the transfer of control in the Company and/or in Tadiran
Telecom
and/or in the Partnership). A condition for an indemnification as
aforesaid is that the Seller will enable the Buyer and/or the Company
and/or Tadiran Telecom and/or the Partnership to defend against the
suit
in his name (including in appeal proceedings and/or an MLA on the
results
of the proceeding until a conclusive judgment) and will sign any
document
required for that purpose, and subject to the Seller not settling
or
consenting to the transfer of the legal proceeding to arbitration
and/or
settlement in accordance with Section 79a of the Courts Law [Consolidated
Version] without the prior written consent of the Buyer. The aforesaid
does not derogate from the Buyer's rights according to Section 3
below.
|
-5-
|
|
2.4.
|
It
is agreed that from the date of execution of this Agreement of Principles
and until the earliest of: (a) the date of the transaction's closing
or
(b) the cancellation and/or termination of this Agreement of Principles,
the Seller will act in his capacity as a holder of control in the
Company
so that there will be no material action in the Company, in Tadiran
Telecom or in the Partnership, that deviates from the ordinary course
of
business without consulting with the Buyer and receiving his prior
written
consent, a consent which shall not be denied, unless for reasonable
reasons which will be described in a notice delivered to the Seller
in
writing within three business days. For this matter, "a material
action
which deviates from the ordinary course of business" means – a
distribution of dividend, grant of options for the acquisition of
securities in the Company and/or in Tadiran Telecom and/or in the
Partnership, an increase in the undertakings beyond the undertakings
which
derive from the corporation's current activity, a share allotment,
a
change in the rights accompanying the shares and the sale of material
assets other than in the ordinary course of business.
|
|
|
2.5.
|
The
Seller undertakes that starting the date of execution of this Agreement
of
Principles he will not make an offer and/or conduct negotiations
and/or
conduct contacts with respect to the sale of the Acquired Shares,
until
the earliest of: (a) the date of the transaction's closing or (b)
the
cancellation and/or termination of this Agreement of Principles.
|
|
|
2.6.
|
It
is agreed that the Seller will indemnify the Company and/or Tadiran
Telecom and/or the Partnership, as the case may be, due to any sum
decided
by a competent court (in a judgment which is not subject to a stay
of
execution) against any of them with respect to a demand and/or claim
which
the Seller knew of and which was not disclosed by him to the Buyer
until
the date of the completion of the Due Diligence Examination, as it
is
defined below. A condition for an indemnification as aforesaid is
that the
Company and/or Tadiran Telecom and/or the Partnership will enable
the
Seller to defend against the suit in their name (including in appeal
proceedings and/or an MLA on the results of the proceeding until
a
conclusive judgment) and will sign any document required for that
purpose,
subject to the Company and/or the Buyer not settling and not consenting
to
the transfer of the legal proceeding to arbitration and/or settlement
in
accordance with Section 79a of the Courts Law [Consolidated Version]
without the prior written consent of the Seller.
|
|
3.
|
A
Due Diligence Examination and the Closing of the Transaction
|
|
|
3.1.
|
No
later than 60 days from the date of execution of this Agreement of
Principles, the Buyer will complete a legal and accounting due diligence
examination of the Company, Tadiran Telecom and the Partnership (above
and
hereinafter – the "Due
Diligence Examination"). For the purpose of conducting the Due
Diligence Examination the Seller will deliver to the Buyer immediately
after the execution of this Agreement of Principles, the material
reports
and documents related to the aforementioned corporations and which
had not
been delivered to him previously. The Seller will also deliver to
the
Buyer, at his request, additional documents and authorities with
respect
to the aforementioned corporations and/or will cause them to be forwarded
to the Buyer. It is agreed that the delivery of all the information
to the
Buyer for the purpose of the Due Diligence Examination is subject
to an
undertaking to maintain confidentiality which has been signed by
the Buyer
and is attached as Annex
A to this Agreement of Principles.
|
-6-
|
|
3.2.
|
The
parties agree that the aggregate sum of the equity balance of the
Company,
Tadiran Telecom and the Partnership, as of December 31, 2007, as
shall
appear in the audited financial statements for December 31, 2007
of the
Company, Tadiran Telecom and the Partnership (hereinafter – the "Equity Balance") serves
as a basis for the Acquisition Amount. In the event that following
the Due
Diligence Examination it is discovered that there are adverse changes
to
the Equity Balance in a sum that exceeds NIS 500,000, the Buyer will
be
entitled to reduce the Acquisition Amount accordingly. The parties
agree
that adverse changes to the Equity Balance of the Company and/or
Tadiran
Telecom will not include the impact of the changes to the equity
balance
of held companies as it is reflected/will be reflected in the financial
statements of the Company and/or Tadiran Telecom by way of equity
profits
or partnership profits.
In the event that following the
Due
Diligence Examination, adverse changes to the Equity Balance in a
sum
which exceeds NIS 4 million will be discovered, the Buyer will be
entitled
to inform the Seller that he is withdrawing from the performance
of the
transaction, and the Seller will be entitled to inform the Buyer
that he
is withdrawing from the performance of the transaction. In the event
the
Seller or the Buyer delivered a notice as aforesaid, this Agreement
of
Principles will no longer have any binding effect (without derogating
from
the provisions of the confidentiality undertaking in Annex A above),
and
it will be considered null and void and no party will have any claim
in
this respect against the other party.
|
|
|
3.3.
|
Until
the passage of 5 business days after the completion of the Due Diligence
Examination the Buyer will inform the Seller (with a copy to the
Trustee)
about his position with respect to the price adjustment and/or the
right
of cancellation as aforesaid in Section 3.2. Within 5 business days
after
receipt of the Buyer's notice, the Seller will disclose to the Buyer
(with
a copy to the Trustee) his position with respect to the Buyer's position.
In the event that there is a disagreement between the Seller and
the Buyer
with respect to the reduction of the Acquisition Amount and/or the
right
of cancellation, the parties will act as follows:
|
|
|
3.3.1.
|
The
financial managers on behalf of both parties will meet and try to
reach an
agreement with respect to the reduction of the Acquisition Amount
and its
amount. In the event that the parties reach an agreement, its details
shall be disclosed to the Trustee.
|
|
|
3.3.2.
|
In
the event that the parties' financial managers do not reach an agreement
within 7 days, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇ on behalf of the Buyer will meet
Mr. Kobi
Traibitsh on behalf of the Seller and they will try to reach an agreement
with respect to the reduction of the Acquisition Amount and its amount.
In
the event that the parties reach an agreement, its details will be
disclosed to the Trustee.
|
|
|
3.3.3.
|
In
the event that the parties do not reach an agreement as aforesaid
within
14 additional days, the parties will turn to an accountant whose
identity
will be agreed upon between the parties until the date of the
transaction's closing, and at the absence of an agreement – to an
accountant who shall be appointed by the President of the Institute
of
Certified Public Accountants in Israel (hereinafter: the "Deciding Adjudicator")
who will decide with respect to the reduction of the Acquisition
Amount
and its amount, after hearing the parties' arguments on the matter.
The
Deciding Adjudicator's judgment will be given within 14 days of the
date
on which he was addressed and will be final and binding, and a copy
of it
will be given to the Trustee.
|
-7-
|
|
3.3.4.
|
It
is agreed that insofar that the disagreements between the parties
as
aforesaid in Section 3.3 will impact the right of the Buyer or the
Seller
to cancel the Agreement in accordance with the provisions of Section
3.2
above, the date of the transaction's closing will be postponed until
the
end of 5 business days after resolving the disagreement as aforementioned.
|
|
|
3.4.
|
It
is agreed that until the passage of 5 business days after the completion
of the Due Diligence Examination the Buyer will be entitled to withdraw
from the fulfillment of the transaction at the occurrence of one
of the
cases described below (without derogating from his confidentiality
undertakings as aforementioned in Annex A of this Agreement of
Principles). In the event that the Buyers informs that he is withdrawing
from the fulfillment of the transaction, this Agreement of Principles
will
be null and void and none of the parties shall have any demands and/or
rights and/or claims with respect to this Agreement of Principles
and/or
its cancellation:
|
|
|
3.4.1.
|
The
Buyer's right to cancel the transaction was activated in accordance
with
his right according to any provision of the provisions of this Agreement
of Principles above and hereinafter.
|
|
|
3.4.2.
|
The
Buyer discovered a material finding with respect to the Acquired
Shares
and/or with respect to the rights accompanying the Acquired Shares
and/or
with respect to the Company and/or with respect to Tadiran Telecom
and/or
with respect to the Partnership and/or with respect to the assets
of any
one of them and/or with respect to the rights of any one of them
and/or
with respect to the undertakings of any one of them and/or any other
material finding related to any one of them, and which significantly
prejudices the profitability of the transaction for the Buyer (for
this
matter it is clarified that any finding which means an adverse change
to
the Equity Balance will not entitle the Buyer to a right of cancellation
as aforesaid unless the adverse change to the Equity Balance accumulates
to a sum which exceeds NIS 4 million in which case the cancellation
will
be in accordance with Section 3.2 and 3.3 above).
|
|
|
3.4.3.
|
In
the context of the Due Diligence Examination, the Buyer did not receive
material documents requested by him.
|
|
|
3.4.4.
|
The
Buyer discovered that a representation of the Seller's representations
in
this Agreement of Principles is untrue.
|
|
|
3.5.
|
Immediately
after the execution of this Agreement of Principles the parties will
file
with the General Director of the Antitrust Authority (hereinafter
– the
"General
Director") suitable requests for receiving the approval of the
General Director for the transaction which is the subject matter
of this
Agreement of Principles. The parties will also file, immediately
after the
execution of this Agreement of Principles, any request to any governmental
authority (such as the Ministry of Communication) the approval of
which is
required by any law for the purpose of performance of the transaction
(hereinafter – the "Authority"), if and
insofar that it is required.
|
-8-
|
|
3.6.
|
The
transaction which is the subject matter of this Agreement of Principles
will be completed within 75 days of the date of execution of this
Agreement of Principles or within 15 days of the date on which the
approval of the General Director or the approval of the Authority
is
received (if and insofar that such an approval is required), at the
latest
of all these (above and hereinafter – the "Date of the Transaction's
Closing").
In the event that the approvals
of the
General Director or of the Authority were not received (insofar that
it
was required) within 120 days of the date of execution of this Agreement
of Principles, or a reserved approval was received or an approval
under
conditions which make it burdensome on the Buyer or significantly
prejudice the profitability of the transaction for the Buyer, this
Agreement of Principles will be null and void as if it was never
executed
(without derogating from the Buyer's undertakings for confidentiality
as
aforesaid in Annex A of this Agreement of Principles) and no party
will
have any claim in this respect against the other party, unless an
act
and/or omission of a party to this Agreement of Principles was the
cause
of not giving the approval as aforesaid.
|
|
4.
|
Miscellaneous:
|
|
|
4.1.
|
Each
party, by signing this Agreement of Principles, represents and confirms
that his entering into this Agreement of Principles was approved
by the
organs authorized to approve it in that party and that there is no
lawful
or contractual impediment to his entering into this Agreement of
Principles and to the fulfillment of all of his undertakings in accordance
with this Agreement of Principles. The Seller represents and undertakes
that his signature on this Agreement of Principles and/or the sale
of his
holdings in the Company is not contradictory to any agreement between
the
Seller and/or the Company and/or Tadiran Telecom and/or the Partnership
and any third party.
|
|
|
4.2.
|
Subject
to the right to cancel this Agreement of Principles which is established
in the provisions of this Agreement of Principles above, and apart
from
the explicit representations given by the Seller in this Agreement
of
Principles and the representations which will be given in the context
of
the Due Diligence Examination, the Buyer is buying the Acquired Shares
according to the status of the Company and of Tadiran Telecom and
of the
Partnership As Is and the Buyer does not have and will not have any
demand
and/or claim against the Seller to the exclusion of with respect
to the
incorrectness and/or incompleteness of the explicit representations
given
by the Seller as aforesaid in this Section and/or the breach of this
Agreement of Principles by the Seller.
|
|
|
4.3.
|
The
laws of the State of Israel will apply to this Agreement of Principles
(including, for the avoidance of doubt, to the guarantee mentioned
in
Section 1.9 above). The courts of the city of Tel Aviv shall have
sole and
exclusive jurisdiction to discuss and decide on any disagreement
arising
between the parties with respect to all matters related to this Agreement
of Principles, its interpretation and fulfillment.
|
|
|
4.4.
|
No
change and/or amendment to this Agreement of Principles shall be
in effect
unless made in writing and signed by all parties to this Agreement
of
Principles.
|
|
|
4.5.
|
For
the avoidance of doubt it is clarified that in any case in which
this
Agreement of Principles is cancelled and/or considered to be cancelled,
for any reason whatsoever, the Buyer's undertaking to maintain
confidentiality as aforesaid in Annex A of this Agreement of Principles
shall continue to apply.
|
-9-
In
witness whereof, the Parties have hereto set their hands on:
|
/s/
Tiv Taam Holdings 1 Ltd.
|
/s/
Xfone 018 Ltd.
|
|||
|
Tiv
Taam Holdings 1 Ltd.
|
Xfone
018 Ltd.
|
|||
|
The
Seller
|
The
Buyer
|
|||
| Represented by: |
Represented
by: ▇▇▇▇ ▇▇▇▇▇▇ - CEO
|
-10-
Annex
A
Confidentiality
Undertaking
To
Tiv
Taam
Holdings 1 Ltd.
▇▇▇▇
Hefer Industrial Zone, P.O.B 1140 Hadera 38811
Since
you
intend to provide us with Confidential Information with respect to the Company
and its activity (including with respect to any corporation controlled by
the
Company and its activity) for the purpose of performing a due diligence
examination (the “Due Diligence
Examination”), we therefore irrevocably undertake as follows:
|
1.
|
In
this undertaking, the “Confidential
Information” means: any information of any kind whatsoever that
shall be disclosed to us, to our employees and/or anyone on our
behalf by
you in the context of the Due Diligence Examination, including
and without
derogating from the generality of the aforesaid, any information
regarding
any of the Company’s shareholders, the Company’s officers, the Company’s
customers (including potential customers), to the business of any
of the
Company’s shareholders, to the Company’s future plans regarding the manner
of conduct of its business, including any information directly
or
indirectly related to the Company’s business, the Company’s internal
procedures, commercial contacts and affairs, economic and financial
planning, volume of activity, pricelists, market prices, key personnel
therein, employee training and qualification methods that the Company
uses
and/or will use during employee training, marketing methods, information
regarding the products manufactured and/or to be manufactured by
the
Company or the development, manufacture or marketing thereof, to
the
Company’s work methods, the Company’s calculations, information regarding
the Company’s data, suppliers, sales, investors, employees, information
regarding the relations between the Company and its customers and
suppliers, its customers’ demands, its assets and liabilities, know-how
regarding past, existing or future projects, including all information
pertaining to the Company’s intellectual property rights including
know-how, perceptions, tests, registrations, formulas, compositions,
designs, inventions and ideas, existing and future developments,
patents,
copyrights and the technology used or developed by the Company
in
connection with its products, and the documents, sketches, accounts,
specifications, printouts, floppy discs, magnetic tapes, software,
computer programs, CDs, work papers and any document or database
that
includes the Confidential Information, in whole or in part, whether
prepared by the Company or therefore, and any document of any kind
whatsoever that will serve us, our employees and/or anyone on our
behalf
in connection with the Due Diligence Examination.
|
In
this Section, the term “Company”
includes the Company and anycorporation
controlled by the Company.
|
2.
|
By
signing this letter of undertaking , we undertake to you on our
behalf and
on behalf of our employees and/or anyone on our behalf as follows:
|
Annex
A -1
-
|
|
2.1
|
To
maintain in strict confidence and not to disclose or transfer to
another,
either directly or indirectly, the Confidential Information or
any part
thereof.
|
|
|
2.2
|
Not
to make any use, exploitation or application of the Confidential
Information or any part thereof except for the use necessary for
the
application of the purpose for which the Confidential Information
was
delivered to us by the Company (namely for performing the Due Diligence
Examination).
|
|
|
2.3
|
Not
to publish the Confidential Information or any part thereof in
any way.
|
|
|
2.4
|
To
take the maximum precautions that are reasonable in these circumstances
in
order to prevent the presence and/or reaching of the Confidential
Information to any third party.
|
|
|
2.5
|
We
undertake to ensure, through every reasonable means, that all of
our
employees and/or anyone on our behalf, having access to the Confidential
Information, shall be bound by a confidentiality undertaking according
to
the provisions of this undertaking, and we shall be fully responsible
to
you and to the Company for our employees and/or anyone on our behalf
maintaining confidentiality.
|
|
|
2.6
|
Not
to copy and/or photocopy and/or duplicate and/or otherwise create
copies
of the Confidential Information or any part thereof, including
through
computer copying, other than as required solely for the application
of the
purpose for which the Confidential Information shall have been
delivered
to us (namely for performing the Due Diligence Examination).
|
|
|
2.7
|
To
return to the Company the Confidential Information, including any
copy
made thereof, upon your first demand, without our retaining any
copies of
the Confidential Information, including computer-made copies.
|
|
3.
|
We
further declare, on our behalf and on behalf of our employees and/or
anyone on our behalf, as follows:
|
|
|
3.1
|
The
Company reserves all rights to every invention, patent, trademarks,
service signs, drawings, moral right, copyright, and any other
intellectual property right invented or planned by the Company
and/or
anyone on its behalf in connection with the Confidential Information.
|
|
|
3.2
|
The
disclosure of the Confidential Information to us, to our employees
and/or
anyone on our behalf and the use thereof do not grant us, our employees
and/or anyone on our behalf, under any circumstances, any right
or license
in respect of the Confidential Information, beyond the right to
use the
Confidential Information for the purpose of application of the
purpose for
which the Confidential Information was delivered to us (namely
for
performing the Due Diligence Examination).
|
Annex
A -2
-
|
|
3.3
|
Our
mere exposure to the Confidential Information does not constitute,
directly or indirectly, the granting of a license and/or the granting
of
any right regarding a trademark, patent, copyright, trade secret
and/or
any other intellectual property right, of any kind whatsoever which
will
be based on the Confidential Information.
|
|
4.
|
Our
undertakings according to this undertaking shall not apply with
respect to
any details included in the Confidential Information, which constitute
information being in the public domain or having come into the
public
domain other than as a result of any breach of our undertakings;
shall not
apply to any Confidential Information received by us from third
parties
other than through any breach of our undertakings; shall not apply
to
Confidential Information required by law to be disclosed (a condition
precedent thereto is that in such a case we will give you an advance
notice in writing 10 (ten) days before such disclosure, to the
extent
possible and feasible).
|
|
5.
|
We
will not be allowed to assign or transfer our rights and/or undertakings
according to this undertaking.
|
|
6.
|
This
undertaking will remain in effect until the Date of the Transaction's
Closing as this term is defined in the Agreement.
|
|
7.
|
For
the avoidance of doubt, it is clarified that in the event that
the
Transaction shall not be closed for any reason, this undertaking
will
remain in effect indefinitely.
|
Sincerely,
/s/
Xfone 018 Ltd.
Xfone
018
Ltd.
Annex
A -3
-
Annex
B
Date
________________
FROM:
Xfone, Inc.
IN
FAVOUR OF:
Tiv Taam
Holdings 1 Ltd. (the "Seller")
Dear
Sirs/Madam,
|
|
1.
|
With
reference to the agreement dated March 16 2008, between the Seller
and
Xfone 018 Ltd. (the "Buyer"), for
the sale of
shares of Robomatix Technologies Ltd. (the "Agreement"), the
undersigned, Xfone, Inc., hereby irrevocably and unconditionally
undertakes to pay to the Seller, upon receipt of the Seller’s first
written demand stating that the amount claimed has become due to
the
Seller and remained unpaid, (i) The Second Payment of the Purchase
Amount
under the Agreement, in an amount of NIS 15,500,000 (fifteen million
five
hundred thousand NIS) subject to any adjustment in accordance with
the
provisions of the Agreement and any arrear interest accrued thereon,
and
(ii) The Third Payment of the Purchase Amount under the Agreement,
in an
amount of NIS 13,000,000 (thirteen million NIS) and any arrear interest
accrued thereon, all in accordance with the provisions of the Agreement.
In addition the undersigned undertakes to reimburse you for any reasonable
legal expenses which shall be incurred by you in connection with
the
enforcement of the Agreement and this guarantee.
|
|
|
2.
|
the
undersigned hereby acknowledges the content of the Agreement, its
provisions and all obligations assumed by the Buyer there under.
|
|
|
3.
|
This
guarantee shall remain valid until the full payment of the Second
Payment
and the Third Payment of the Purchase Amount under the Agreement.
|
|
|
4.
|
The
undersigned will act upon the Seller’s first written demand, regardless if
such demand was or was not addressed to the Buyer prior to the Seller's
demand appointed to the undersigned. Furthermore, the Seller is not
required to give the undersigned any prior-notice and/or extension
period
as a precondition to its undertakings hereunder.
|
|
|
5.
|
Any
notice required or permitted hereunder, including, without limitation,
service of process in connection with this guarantee, shall be delivered
to the undersigned at the offices of Xfone 018 Ltd. at 1st
Ha’▇▇▇▇ St., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Israel and any document
delivered at such address shall be deemed legally binding and received
upon the date of delivery.
|
|
|
6.
|
This
guarantee shall be governed and construed in accordance with the
laws of
the state of Israel, without reference to conflicts of laws principles.
|
|
|
7.
|
Any
and all disputes in relation to this guarantee shall be exclusively
resolved by the competent courts in the city of Tel Aviv, Israel.
|
_________________________
Xfone,
Inc.
Annex
B
-1 -
I
hereby
confirm, that Xfone, Inc. ("Xfone") is the
holder of 69% of the issued share capital of Xfone 018 Ltd., and that
this guarantee was signed on behalf of Xfone by Mr._____________, ID number
__________ whose signature binds Xfone for the all purposes hereof. I further
confirm that Xfone has the capacity and authority to execute this guarantee
and
that this guarantee constitutes valid and legally binding obligations of Xfone,
enforceable in accordance with its terms.
_________________________ _________________________
Date
Signature
Annex
B
-2 -