Exhibit 4.5
Duly made and entered into as of the 5th day of November 2007
by and between
I.I.S. Intelligent
Information Systems Ltd.
(“IIS”)
and
Witech Communications
Ltd.
(“Witech”)
and
All the shareholders
of Witech listed on the signature page hereto
(the
“Shareholders”)
and
▇▇▇▇▇▇▇ ▇▇▇▇ as
Shareholder Representative
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1.1 |
IIS,
Witech and the Shareholders have signed a Share Exchange Agreement dated November 5, 2007
(the “Exchange Agreement”) with regard to the exchange of the Witech
Shares for the Exchange Shares (the “Exchange”); and |
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1.2 |
Witech
and the Shareholders have made representations and given certain warranties contained in
the Exchange Agreement regarding Witech and/or CDRide Inc, its wholly owned subsidiary,
and undertake to provide certain indemnities in relation to such representations and
warranties as set out in this Agreement. |
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1.3 |
Save
to the extent expressly defined otherwise in this Agreement, the capitalized terms used
in this Agreement and not otherwise defined terms shall have the meanings set forth in
the Exchange Agreement with all such definitions incorporated into this Agreement by
reference. |
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2.1 |
Subject
to the terms of this Agreement, the Shareholders, severally and jointly, will indemnify,
defend and hold IIS and its shareholders, officers, directors, representatives, agents,
successors and assigns (the “IIS Indemnified Parties”) harmless from,
against and in respect of any and all losses, diminution in value, damages, claims, costs
and expenses, interest, awards, judgments and penalties (including, without limitation,
reasonable attorneys’ fees and expenses) arising from or related to any of the
following liabilities and obligations in relation to the Excluded Liabilities and/or that
are not assumed by IIS (each an “IIS Claim”): |
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2.1.1 |
Any
misrepresentation or breach of warranty made by the Witech and/or the Shareholders in the
Exchange Agreement or in any document, certificate or other instrument required to be
delivered by Witech and/or the Shareholders under the Exchange Agreement; |
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2.1.2 |
Any
breach or non fulfillment of any covenant or agreement made or to be performed by Witech
and/or the Shareholders in the Exchange Agreement or in any agreement or instrument
entered into in connection with the Exchange Agreement; |
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2.1.3 |
Any
fraud or intentional misrepresentation or breach of the Exchange Agreement by Witech
and/or the Shareholders; |
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2.1.4 |
(i)
Any Action or claim related to any Liability other than as specifically permitted
pursuant to Section 1.7 of the Exchange Agreement, or (ii) any Action or claim related to
the products of Witech and/or CDRide Inc, including product warranty and service claims
under customer contracts, or the Assumed Liability, but only to the extent that such
Action or claim is based upon or is related to facts or circumstances that occurred or
arose prior to the Closing; and |
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2.1.5 |
Any
Actions or claims arising out of or related to the transactions contemplated under this
Agreement, including actions brought by IIS to enforce this Agreement. |
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2.2 |
Notwithstanding
Section 2.1 above, the obligations of a Shareholder with respect to the Witech Shares
held by such Shareholders shall be several and not joint with the other Shareholders. |
| 3. |
Survival
of Representations and Warranties |
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The
representations and warranties of Witech and the Shareholders contained in the Exchange
Agreement shall survive the Closing for two (2) years following the Closing Date, except
with respect to capitalization and ownership of shares in which case such representations
and warranties will survive until the expiration of the applicable statute of limitations
with respect to the matters in question. Neither the period of survival nor the liability
of the Shareholders with respect to the representations and warranties of Witech and the
Shareholders shall be reduced by any investigation made at any time by or on behalf of
IIS. If written notice of an IIS Claim describing the basis for such claim in reasonable
detail has been given prior to the expiration of the applicable representations and
warranties by the IIS to the Shareholders’ Representative, then the indemnification
obligation with respect to such item as to which an IIS Claim has been given shall
survive, until such claim has been finally resolved. |
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The
sole source of the indemnification according to this Agreement shall be twenty five
percent (25%) of the Exchange Shares held in escrow according to the Escrow Agreement (the
“Escrow Shares”), except in the case of fraud or willful
misrepresentation and breaches of the capitalization and ownership of shares for which the
remedy may exceed the aggregate monetary value of the Exchange Shares at the Closing Date
and for which claims could be made until the expiration of the applicable statute of
limitations. The aggregate monetary value of the Exchange Shares at the Closing Date will
be equal to the Closing Price multiplied by the amount of Exchange Shares. It is hereby
agreed and clarified that in the event of fraud or willful misrepresentation and breaches
of the capitalization and ownership of shares, the liability of the Shareholders shall be
several and not collective. The parties hereby expressly agree that Mizrahi Tefahout Bank
Ltd. (the “Bank”) shall not be liable for any fraud or willful
misrepresentation of any third party under any circumstances and in any event shall not be
required to indemnify IIS, the Shareholders or the Company under any circumstances in
connection with the Exchange Agreement, in excess of the Exchange Shares received by the
Bank or the equivalent of the aggregate monetary value of the Exchange Shares at the
Closing Date as calculated according to Section 4.1 above. |
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5.1 |
In
the event any Action is instituted against an IIS Indemnified Party by any party (“Third
Party Claims”) which involves or appears reasonably likely to involve an IIS
Claim for which indemnification may be sought or if IIS intends to initiate an IIS claim,
IIS will, promptly after receipt of notice of any such Action, notify the Shareholders of
the commencement thereof. The failure to so notify the Shareholders of the commencement
of any such Action will relieve the Shareholders from liability in connection therewith
only to the extent that such failure materially and adversely affects the ability of the
Shareholders to defend their interests in such Action. |
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5.2 |
If
the Shareholders’ Representative, as defined in Section 8, acknowledge in writing
the obligation of the Shareholders to indemnify the IIS Indemnified Party hereunder
against any IIS Claim that may result from such Third Party Claim, then the Shareholders
shall be entitled to assume and control the defense of such Third Party Claim at their
expense and through counsel of their choice if they give notice of their intention to do
so to the IIS Indemnified Party within ten business days of the receipt of such notice
from the IIS Indemnified Party; provided that such counsel is not reasonably
objected to by the IIS Indemnified Party; and provided, further, that if there is
reasonably likely to exist a conflict of interest that would make it inappropriate in the
judgment of the IIS Indemnified Party in its reasonable discretion for the same counsel
to represent both the IIS Indemnified Party and the Shareholders, then the IIS
Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for
which the IIS Indemnified Party reasonably determines counsel is required, at the expense
of the Shareholders. |
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5.3 |
In
the event that the Shareholders exercise the right to undertake any such defense against
any such Third Party Claim as provided above, the IIS Indemnified Party shall agree to
any judgment, settlement, compromise or discharge of such Third Party Claim that the
Shareholders may recommend that by its terms obligates the IIS Indemnifying Party to pay
the full amount of the liability in connection with such Third Party Claim (or the full
amount will be paid from the Escrow Shares), which releases the IIS Indemnified Party
completely in connection with such Third Party Claim and that would not otherwise
materially adversely affect the IIS Indemnified Party, provided that without
derogating from Section 4 above, if such judgment, settlement, compromise or discharge
shall be in an amount which is higher than the equivalent of the aggregate monetary value
of the Exchange Shares at the Closing Date as calculated according to Section 4.1 above,
it shall require the consent of the IIS Indemnified Party. |
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5.4 |
In
the event that the Shareholders exercise the right to undertake any such defense against
any such Third Party Claim as provided above, the IIS Indemnified Party shall, at the
expense of the Shareholders, cooperate with the Shareholders in such defense and make
available to the Shareholders, at the Shareholders’ expense, all witnesses,
pertinent records, materials and information in the IIS Indemnified Party’s
possession or under the IIS Indemnified Party’s control relating thereto as is
reasonably required by the Shareholders. Similarly, in the event that the Shareholders
are, directly or indirectly, conducting the defense against any such Third Party Claim,
the Shareholders shall cooperate with the IIS Indemnified Party in such defense and make
available to the IIS Indemnified Party, at the Shareholders’ expense, all such
witnesses, records, materials and information in the Shareholders’ possession or
under the Shareholders’ control relating thereto as is reasonably required by the
IIS Indemnified Party. No such Third Party Claim may be settled by the IIS Indemnified
Party without the prior written consent of the Shareholders (not to be unreasonably
withheld). |
| 6. |
Distributions
from Escrow Fund |
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6.1 |
the
Shareholders’ Representative shall not have objected to the amount claimed by IIS
for indemnification with respect to any IIS Claim in accordance with the procedures set
forth in the Escrow Agreement and in this Agreement; or |
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6.2 |
the
Shareholders’ Representative shall have delivered notice of their disagreement as to
the amount of any indemnification requested by IIS and either (i) the Shareholders’ Representative
and the IIS Indemnified Party shall have, subsequent to the giving of such notice,
mutually agree in writing that the Shareholders are obligated to indemnify the IIS
Indemnified Party for a specified amount and shall have so jointly notified the Escrow
Agent or (ii) a final nonappealable judgment shall have been rendered by the court having
jurisdiction over the matters relating to such claim by the IIS Indemnified Party for
indemnification from the Shareholders and the Escrow Agent shall have received, in the
case of clause (i) above, written instructions from the Shareholders’ Representative
and the IIS Indemnified Party, or, in the case of clause (ii) above, a copy of the final
nonappealable judgment of the court; |
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The
Escrow Agent shall, at the request of IIS, either (i) sell the necessary amount of the
Exchange Shares and deliver the proceeds of the sale to the IIS Indemnified Party, in
accordance with the Escrow Agreement, or (ii) transfer the Escrow Shares to IIS or any
subsidiary or other entity or person designated in writing by IIS.. |
| 7. |
Treatment
of Indemnification Payments |
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The
Shareholders and IIS agree to treat any payments received pursuant to this Agreement as
adjustments to the Purchase Price for all tax purposes, to the maximum extent permitted by
Legal Requirements. In the event that such a payment cannot be treated as an adjustment to
the Purchase Price, then the Shareholders shall further indemnify the IIS Indemnified
Party for any tax cost incurred by the IIS Indemnified Party arising from the receipt of
such indemnification payment (and the receipt of additional amounts pursuant to this
sentence). |
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| 8. |
Shareholders’Representative |
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8.1 |
The
Shareholders hereby appoint, authorize and empower ▇▇▇▇▇▇▇ ▇▇▇▇ (such person and any
successor or successors to such person in such capacity being the “Shareholders’ Representative”),
to act as the representative and as the exclusive agent and attorneys in fact of each
Shareholder, and the Shareholders’Representative is hereby authorized and empowered
to act on behalf of the Shareholders, to execute the Escrow Agreement on behalf of the
Shareholders and to take any and all actions required or permitted to be taken by the
Shareholders’ Representative under this Agreement or the Escrow Agreement, with
respect to any claims made by IIS or the Shareholders for indemnification pursuant to
this Agreement and with respect to any actions to be taken by the Shareholders’ Representative
pursuant to the terms of the Escrow Agreement, including, without limitation, to: |
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8.1.1 |
Execute
the Escrow Agreement on behalf of the Shareholders; |
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8.1.2 |
Execute
any agreement or instrument required to be executed and delivered by the Shareholders’ Representative
under this Agreement or the Escrow Agreement; |
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8.1.3 |
Authorize
delivery to any IIS Indemnified Party of the proceeds from the sale of any of the Escrow
Shares, or any portion thereof, in satisfaction of indemnification claims under this
Agreement; |
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8.1.4 |
Agree
to, negotiate, enter into settlements and compromises of and comply with orders of courts
and awards of arbitrators with respect to such indemnification claims; |
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8.1.5 |
Resolve
any indemnification claims under this Agreement; and |
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8.1.6 |
Take
all actions necessary in the sole discretion of the Shareholders’ Representative for
the accomplishment of the foregoing and all of the other terms, conditions and
limitations of this Agreement or the Escrow Agreement. |
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8.2 |
The
Shareholders’ Representative shall at all time act in their capacity as Shareholders’ Representatives
in a manner that the Shareholders’ Representative believes in good faith to be in
the best interests of the Shareholders. |
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8.3 |
The
Shareholders’ Representative shall not be liable to any Person for any error of
judgment, or any action taken, suffered or omitted to be taken, under this Agreement or
the Escrow Agreement, except in the case of its fraud, intentional misrepresentation, or
willful misconduct. The Shareholders’ Representative may in his discretion consult
with legal counsel, independent public accountants and other experts selected by him and
shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts or failure to seek
advice. |
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8.4 |
The
Shareholders’ Representatives shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of this
Agreement or the Escrow Agreement. As to any matters not expressly provided for in this
Agreement or the Escrow Agreement, the Shareholders’ Representative shall not be
required to exercise any discretion or take any action. The Shareholders shall, severally
and not jointly, on a pro rata basis based on their Pro Rata Share, indemnify, defend and
hold the Shareholders’ Representative harmless against any liabilities, losses,
damages, claims, costs or expenses that may be incurred as such liabilities, losses,
damages, claims, costs or expenses are incurred by the Shareholders’ Representative
and arising out of or in connection with the acceptance or administration of the
Shareholders’ Representative’s duties hereunder, including, but not limited,
the legal costs and expenses of defending such Shareholders’ Representative against
any claim or liability (and all actions, claims, proceedings and investigations in
respect thereof), in connection with, caused by or arising out of, directly or
indirectly, the performance of the Shareholders’ Representative’s duties
(except for bad faith or willful misconduct). |
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8.5 |
The
Shareholders shall be responsible for and shall reimburse the Shareholders’Representative
on a pro rata basis upon demand for all reasonable expenses, disbursements and advances
incurred or made by the Shareholders’ Representative in accordance with any of the
provisions of this Agreement, the Escrow Agreement or any other documents executed in
connection herewith or therewith, including, without limitation, the costs and expenses
of receiving advice of counsel according to this Agreement and the Escrow Agreement. |
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8.6 |
The
indemnification and reimbursement of costs and expenses obligations of the Shareholders
vis-à-vis the Shareholders’ Representative pursuant to this Section 8 shall
remain in full force and effect following the appointment of a new Shareholders’ Representative
or termination of this Agreement for any reason. Notwithstanding anything to contrary
herein or in the Escrow agreement, (a) the Shareholders’ Representative is not
authorized to, and shall not, accept on behalf of any Shareholder any purchase price
consideration to which such Shareholder is entitled under the Exchange Agreement and (b)
the Shareholders’ Representative shall not in any manner exercise, or seek to
exercise, any voting power whatsoever with respect to shares of IIS now or hereafter
owned of record or beneficially by a Shareholder unless the Shareholders’ Representative
is expressly authorized to do so in a writing signed by such Shareholders. |
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8.7 |
The
shareholders may appoint a new Shareholders’ Representative as set forth in the
Escrow Agreement, such an appointment to be notified in writing to IIS. |
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8.8 |
IIS
shall be entitled to rely exclusively on all statements, representatives and decisions of
the Shareholders’ Representative as statements, representations and decisions of the
Shareholders. |
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9.1 |
Amendments.
Except as otherwise permitted herein, this Agreement may be modified only by a written
amendment signed by IIS, Witech and the Shareholders Representative, and no waiver of any
provision hereof shall be effective unless expressed in a writing signed by the IIS or
Witech or the Shareholders Representative, according to the party to be charged. |
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9.2 |
Notices.
All notices, requests, claims, demands and other communications hereunder shall be in
writing and shall be given or made (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by an internationally recognized overnight courier
service, by telecopy or registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this Section 9.2): |
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if to IIS: |
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Twin Towers, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Israel |
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Attention: Chairman and CEO |
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Facsimile: (▇▇▇) ▇ ▇▇▇ ▇▇▇▇ |
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with a copy (which shall not constitute notice) to: |
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Amit, Pollak, Matalon & Co. |
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▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ |
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Facsimile: 972-3-568-9001 |
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Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Adv |
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if to Witech: |
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Witech Communications Ltd. |
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▇▇ ▇▇'▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ |
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Fax Number: ▇▇▇-▇-▇▇▇-▇▇▇▇ |
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇ |
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with a copy (which shall not constitute notice) to: |
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Fischer, Behar, Chen, Well, Orion and Co. |
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▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ |
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Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇ |
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Attn: ▇▇▇ ▇▇▇▇▇▇▇, Adv. |
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If to a Shareholder, or to the Shareholder Representative, to the Shareholder Representative |
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with a copy (which shall not constitute notice) to: |
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Fischer, Behar, Chen, Well, Orion and Co. |
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▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ |
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Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇ |
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Attn: ▇▇▇ ▇▇▇▇▇▇▇, Adv. |
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9.3 |
Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any Law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect for so long as the economic
or legal substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order that the
transactions contemplated by this Agreement are consummated as originally contemplated to
the greatest extent possible. |
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9.4 |
Entire
Agreement. This Agreement, the Exchange Agreement, the Escrow Agreement and any other
agreements contemplated hereby constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, between the IIS, Witech and the Shareholders with
respect to the subject matter hereof and thereof. |
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9.5 |
Assignment.
This Agreement may not be assigned by operation of law or otherwise without the express
written consent of the IIS, Witech and the Shareholders Representative (which consent may
be granted or withheld in the sole discretion of the Parties). |
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9.6 |
Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Israel. All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined exclusively in any court sitting in the city of
Tel-Aviv. The parties hereto hereby (a) submit to the exclusive jurisdiction of any court
sitting in the city of Tel-Aviv for the purpose of any action arising out of or relating
to this Agreement brought by any party hereto, and (b) irrevocably waive, and agree not
to assert by way of notion, defense, or otherwise, in any such action, any claim that it
is not subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the action is brought in
an inconvenient forum, that the venue of the action is improper, or that this Agreement
or the transactions contemplated by this Agreement may not be enforced in or by any of
the above-named courts. |
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9.7 |
Headings.
The descriptive headings contained in this Agreement are included for convenience of
reference only and shall not affect in any way the meaning or interpretation of this
Agreement. |
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9.8 |
Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission) in one
or more counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. |
[signature pages
follow]
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IN WITNESS WHEREOF, the
Parties hereto have executed this Indemnification Agreement on the date first written
above:
——————————————————
I.I.S. Intelligent Information Systems Ltd.
By: __________________________
Name: _______________________
Title: _________________________ |
——————————————————
Witech Communications Ltd.
By: __________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President and CEO |
——————————————————
▇▇▇▇▇▇▇ ▇▇▇▇ (as Shareholder
Representative)
[Signature Pages of the
Witech Shareholders Follow]
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SIGNATURE PAGE OF
WITECH SHAREHOLDERS
INDEMNIFICATIONAGREEMENT, dated as November 5, 2007,
by and among I.I.S Intelligent Information Systems Ltd., Witech Communications Ltd.,
("Witech") and the shareholders of Witech
Name of Shareholder:
_____________________________
Signature of Shareholder:
__________________________
Name of
Signatory:______________________________
The undersigned Notary/Attorney, hereby confirms that ______________ appeared before me and signed above in my
presence on this ____ day of November. 2007.
Name of Notary or
Attorney:____________________________
Signature of Notary or
Attorney: __________________________
License Number:
_____________________________________
Address:
____________________________________________
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