UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Partner Communications Company Ltd.
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(Name of Issuer)
Ordinary Shares (par value New Israeli Shekel 0.01 per share)
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(Title of Class of Securities)
70211M109
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(CUSIP Number)
----------------------------------- --------------------------------------------
Amikam Shorer, Adv. Ori Gur Arieh, Adv. Adam M. Klein, Adv.
2 Dov Friedman St. 42 Pinkas Street Goldfarb, Levy, Eran & Co.
Ramat-Gan 52141 Israel Netanya 42134 Israel 2 Weizmann Street
Tel: +972-3-753-0900 Tel: +972-9-860-2261 Tel Aviv 64239 Israel
Tel: +972-3-608-9999
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 7, 2005
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g),
check the following box [ ].
CUSIP No. 70211M109
1 NAMES OF REPORTING PERSONS
Matav Investments Ltd.
(No U.S. I.D. Number)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) [ ]
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3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)[ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 9,668,370**
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
9,668,370**
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,668,370
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* |X|
------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
------------ -------------------------------------------------------------------
**This excludes additional shares of the Company that the Reporting Persons may
be deemed to beneficially hold as a result of agreements entered into with
other shareholders of the Company regarding, inter alia, the disposition of
the Reporting Persons' shares of the Company as described in Items 4-6 below.
CUSIP No. 70211M109
1 NAMES OF REPORTING PERSONS
Matav Cable Systems Media Ltd.
(No U.S. I.D. Number)
------------ -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
------------ -------------------------------------------------------------------
3 SEC USE ONLY
------------ -------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)|X|
------------ -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
------------ -------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 9,668,370**
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
10 SHARED DISPOSITIVE POWER
9,668,370**
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,668,370
------------ -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* [X]
------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
------------ ------------------------------------------------------------------
**This excludes additional shares of the Company that the Reporting Persons may
be deemed to beneficially hold as a result of agreements entered into with
other shareholders of the Company regarding, inter alia, the disposition of
the Reporting Persons' shares of the Company as described in Items 4-6 below.
CUSIP No. 70211M109
------------ -------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
Eurocom Communications Limited
(No U.S. I.D. Number)
------------ ------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
------------ -------------------------------------------------------------------
3 SEC USE ONLY
------------ -------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)|_|
------------ -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
--------------------------------------------- ---------- -----------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 11,626,616**
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
10 SHARED DISPOSITIVE POWER
11,626,616**
------------ -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,626,616
------------ -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* |X|
------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
------------ -------------------------------------------------------------------
**This excludes additional shares of the Company that the Reporting Persons may
be deemed to beneficially hold as a result of agreements entered into with
other shareholders of the Company regarding, inter alia, the disposition of
the Reporting Persons' shares of the Company as described in Items 4-6 below.
CUSIP No. 70211M109
------------ -------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
Eurocom Holdings (1979) Ltd.
(No U.S. I.D. Number)
------------ -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
------------ -------------------------------------------------------------------
3 SEC USE ONLY
------------ -------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)|_|
------------ -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
--------------------------------------------- ---------- -----------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 11,626,616**
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
10 SHARED DISPOSITIVE POWER
11,626,616**
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,626,616
------------ -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* |X|
------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
------------ -------------------------------------------------------------------
------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
------------ -------------------------------------------------------------------
**This excludes additional shares of the Company that the Reporting Persons may
be deemed to beneficially hold as a result of agreements entered into with
other shareholders of the Company regarding, inter alia, the disposition of
the Reporting Persons' shares of the Company as described in Items 4-6 below.
CUSIP No. 70211M109
------------ -------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
Shaul Elovitch
(No U.S. I.D. Number)
------------ -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) |_|
------------ -------------------------------------------------------------------
3 SEC USE ONLY
------------ -------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)|_|
------------ -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Israel
--------------------------------------------- ---------- -----------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 11,626,616**
REPORTING
PERSON
WITH 9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
11,626,616**
------------ -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,626,616
------------ -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* |X|
------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
------------ -------------------------------------------------------------------
**This excludes additional shares of the Company that the Reporting Persons may
be deemed to beneficially hold as a result of agreements entered into with
other shareholders of the Company regarding, inter alia, the disposition of
the Reporting Persons' shares of the Company as described in Items 4-6 below.
Item 1. Security and Issuer.
This Schedule 13D relates to the Ordinary Shares, par value
NIS 0.01 per share (the "Ordinary Shares"), of Partner Communications Company
Ltd., an Israeli corporation (the "Company"). The Company's principal executive
offices are located at 8 Amal Street, Afeq Industrial Park, Rosh Ha'ayin 48103,
Israel.
Item 2. Identity and Background.
This Schedule 13D is filed Jointly by: Matav Cable Systems
Media Ltd. ("Matav") and Matav Investments Ltd. ("Matav Investments" and,
together with Matav, the "Matav Persons"); Eurocom Communications Ltd.
("Eurocom"), Eurocom Holdings (1979) Ltd. ("Eurocom Holdings") and Mr. Shaul
Elovitch ("Elovitch" and, together with Eurocom and Eurocom Holdings, the
"Eurocom Persons") (each, a "Reporting Person", and collectively, the
"Reporting Persons").
Information regarding the executive officers and directors of
each of the Reporting Persons, the controlling persons of each of the Reporting
Persons, if any, and the executive officers and directors of such controlling
persons is set forth in Appendix A hereto, which is incorporated herein by
reference.
(1) Matav Investments: Matav Investments Ltd. is an Israeli
holding company, with its principal offices at 42 Pinkas Street, Netanya 42134,
Israel. It is a wholly owned subsidiary of Matav and the direct holder of
9,668,370 Ordinary Shares, constituting 5.3% of the outstanding Ordinary Shares.
(2) Matav: Matav Cable Systems Media Ltd. is an Israeli
company listed on the Tel Aviv Stock Exchange and the NASDAQ National Market,
with its principal offices at 42 Pinkas Street, Netanya 42134, Israel. It is one
of Israel's three cable television providers.
(3) Eurocom: Eurocom Communications Ltd. is a private Israeli
investment company, with its principal offices at 2 Dov Friedman Street, Ramat
Gan 52141, Israel. It is the direct holder of 11,626,616 Ordinary Shares,
constituting 6.3% of the outstanding Ordinary Shares.
(4) Eurocom Holdings: Eurocom Holdings (1979) Ltd. is a
private Israeli holding company, with its principal offices at 2 Dov Friedman
Street, Ramat Gan 52141, Israel. It holds 50.3% of the outstanding share capital
of Eurocom.
(5) Shaul Elovitch: Mr. Shaul Elovitch is the holder of 80% of
the voting shares and 75% of the management shares of Eurocom Holdings. He is
also a direct holder of 0.67% of the shares of Eurocom. His present principal
occupation is Chairman and Chief Executive Officer of Eurocom and his address is
2 Dov Friedman Street, Ramat Gan, Israel.
Item 3. Source and Amount of Funds or Other Consideration.
Not applicable.
Item 4. Purpose of the Transaction.
On February 7, 2005, Elbit Limited ("Elbit"), Polar
Communications Ltd. ("Polar") and Eurocom offered to sell all of their Ordinary
Shares to the Company (the "Buyback") and granted Matav an option to participate
in the Buyback. On the same date, such shareholders entered in an agreement with
Hutchison Telecommunications (Netherlands) B.V. ("Hutchison BV") that, among
other things, sets forth terms and conditions for the sale of Ordinary Shares by
such shareholders in the event that the Buyback does not occur under certain
circumstances (the "Fallback Arrangement"). The Buyback and the Fallback
Arrangement are summarized in Item 6 below.
The purpose of such transactions is to enable these shareholders to
realize their respective investments in the Company, which were made upon the
founding of the Company in 1997. The sale of shares by such shareholders is
restricted by the terms of Company's license (the "License") issued by the
Israeli Ministry of Communications, which has recently expressed its willingness
to relax such restrictions.
Except as set forth in Item 6 below, none of the Reporting Persons,
nor, to the best of their knowledge, any of their respective directors or
executive officers, has any present plans or proposals which relate to or would
result in any of the actions described in subsections (a) through (j) of Item 4
of the Schedule 13D rules.
Item 5. Interest in Securities of the Issuer.
(a)- (b) As a result of the Buyback offer and the Fallback Arrangement,
the Reporting Persons, together with Elbit and Polar, are deemed to have formed
a group for the purpose of disposing Ordinary Shares (the "Group"). Accordingly,
each member of the Group may be deemed to beneficially own, by virtue of sharing
the power to dispose, the Ordinary Shares of the other members of the Group. The
total number of Ordinary Shares owned by the Group is 41,386,575, constituting
approximately 22.5% of the outstanding Ordinary Shares. In addition, by virtue
of the voting provision described under Item 6 below, the Reporting Persons may
be deemed to constitute a group with Hutchison BV (and affiliates thereof) and
to beneficially own, by virtue of sharing the power to vote, the Ordinary Shares
of the other members of such group. The total number of Ordinary Shares owned by
such group is 120,326,679, constituting approximately 65.4% of the outstanding
Ordinary Shares. Each Reporting Person disclaims beneficial ownership of the
Ordinary Shares held by any other person. As of January 19, 2005, there were
184,086,340 Ordinary Shares outstanding, based on information provided by the
Company.
Number of Ordinary Percentage of Outstanding
Name Shares Held Ordinary Shares
---------------------------------------- --------------------------------------
Elbit 15,856,551 8.6%
---------------------------------------- --------------------------------------
Eurocom Persons 11,626,616 6.3%
---------------------------------------- --------------------------------------
Polar 4,235,038 2.3%
---------------------------------------- --------------------------------------
Matav Persons 9,668,370 5.3%
---------------------------------------- --------------------------------------
Total 41,386,575 22.5%
---------------------------------------- --------------------------------------
(c) No transactions were entered into in the past 60 days, except as described
under Item 6 below and a sale of 470 Ordinary Shares on January 16, 2005, by a
partnership in which Mr. Shimon Cheifetz, a director of Matav and Matav
Investments, holds 50%. The sale was effected on the Tel Aviv Stock Exchange.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements or Relationships With Respect to
Securities of the Issuer.
Buyback
On February 7, 2005, Elbit, Polar, and Eurocom offered to sell to the
Company, severally and not jointly, an aggregate of 31,718,205 Ordinary Shares,
representing all of their Ordinary Shares, for aggregate consideration of
between NIS 984.6 million ($225.2 million) and NIS 1.02 billion ($233.6 million)
(the "Buyback Offer"). Matav has the option to participate in the Buyback. In
the event that Matav exercises this option, the Buyback would increase to an
aggregate of 33,317,932 Ordinary Shares (and the aggregate purchase price would
increase accordingly), which would be allocated among the selling shareholders
pursuant to their respective ownership of Ordinary Shares. If Matav does not
exercise its option to participate in the Buyback, then for a period of 90 days
following the closing of the Buyback, Matav will have an option to sell an
aggregate of 5,755,974 Ordinary Shares to Elbit, Eurocom and Polar, severally
and not jointly, at the price paid by the Company in the Buyback, plus interest,
in the respective proportions that would have resulted had Matav participated in
the Buyback. Matav has the right to transfer to its lending banks (namely, Bank
Hapoalim, Bank Leumi, Bank Discount and First International Bank of Israel) the
foregoing options, along with the underlying Ordinary Shares.
The Buyback is subject to various conditions, including:
the consent of the Company's lending banks in respect of their pledge
on the Ordinary Shares of the selling shareholders;
the receipt of financing by the Company;
the approval of the Company's audit committee, board of directors and
shareholders;
the consent of the Israeli Ministry of Communications; and
the approval of the Israeli Antitrust Authorities of the increase of
the holding in the Company by Hutchison Telecommunications
International Ltd. and its affiliates to more than 50% as a result of
the Buyback.
The sale price formula of the Buyback reflects a 10% discount from the
20-trading day volume weighted average market price of the Ordinary Shares on
the Tel Aviv Stock Exchange prior to the meeting of the Company's shareholders
in which the Buyback is approved, up to a maximum price of NIS 32.22 per share
($7.37 based on the applicable exchange rate of NIS 4.372 per $1.00) but not
below NIS 31.04 per share ($7.10 based on such exchange rate). The closing price
of the Ordinary Shares on the Tel Aviv Stock Exchange on February 28, 2005, was
NIS 39.25 per share.
The offer letter provides that the Buyback offer will terminate on the
date that any of the following occur: (i) on or before 21 days from the date of
the Buyback offer, the Company shall have failed to (A) accept the Buyback offer
following the approval of its Audit Committee and Board of Directors or (B)
publish a notice convening a shareholder meeting to approve the Buyback
scheduled for a date within 51 days from the date of the Buyback offer,
provided, that if the Company shall not yet have received the required approvals
of the Israeli Ministry of Communications and its lending banks for the
financing of the Buyback, then the Company shall be entitled to defer the
publication of such shareholder meeting notice to a date no later than 41 days
from the date of the Buyback offer and to defer the scheduled date of such
meeting to no later than 71 days from the date of the Buyback offer; (ii) the
Company shall have announced the cancellation of such shareholder meeting or its
postponement to a date later than 51 days from the date of the Buyback offer (or
71 days, if applicable); (iii) the shareholders of the Company shall have failed
to duly approve the Buyback at the shareholder meeting convened for such
purpose; or (iv) at the election of the selling shareholders, the Buyback shall
not have closed within 80 days from the date of the Buyback offer, provided they
are not in material breach of the provisions of the Buyback offer.
On February 28, 2005, the Company accepted the Buyback offer. The
Buyback is still subject to the receipt of regulatory consents and approval of
the Company's shareholders.
Fallback Arrangement
On February 7, 2005, Elbit, Eurocom, Polar and Matav (the "Israeli
Shareholders") also entered into an agreement with Hutchison BV relating to the
sale of Ordinary Shares if the Buyback fails to be consummated in certain
circumstances, including: (i) any directors of the Company nominated by
Hutchison or an affiliate thereof vote against the Buyback at the applicable
meeting of the Board of Directors; (ii) the failure of the Company to obtain a
commitment for financing of the Buyback within 41 days; (iii) the failure of the
Company to publish a notice within 41 days calling for a shareholders meeting
for the purpose of approving the Buyback, subject to certain exceptions; (iv)
Hutchison BV or an affiliate thereof fails to vote in favor of the Buyback in
the shareholders meeting to be convened for the purpose of approving the
Buyback; (v) the cancellation or postponement of such shareholders meeting; or
(vi) or the failure of the shareholders to approve the Buyback at such
shareholders meeting. The date of occurrence of any of the foregoing is referred
to as the "Effective Date"; provided, however, that despite the occurrence of
any of the foregoing, the Israeli Shareholders are entitled to deem the
Effective Date not to have occurred.
The Fallback Arrangement contemplates three types of sale transactions,
subject to applicable conditions similar to those of the Buyback Offer, other
than the receipt of financing and corporate approvals of the Company:
(A) From the Effective Date, the Israeli Shareholders will be entitled
to sell as a group, pro rata based upon their respective ownership percentages
of Ordinary Shares, in one or more transactions, up to an aggregate of
approximately 9.71% of the Ordinary Shares outstanding on the applicable sale
dates, to any third parties at a price per share not lower than 90% of the
market price of the Ordinary Shares at that time, but not otherwise. The number
of Ordinary Shares permitted to be sold by each Israeli Shareholder would vary
depending on whether or not Matav exercises its option to participate in such
sale.
(B) From the Effective Date, for a period of ten business days, the
Israeli Shareholders, pro rata based upon their respective ownership percentages
of Ordinary Shares, would grant to Hutchison BV a call option to purchase from
them, severally and not jointly, an aggregate of 2% of the outstanding Ordinary
Shares. Each Israeli Shareholder's percentage of the Ordinary Shares that is
subject to the call option would vary depending on whether or not Matav
exercises its option to participate in such transaction. The exercise price of
the 2% call option equals a 12% discount from the market price of the Ordinary
Shares at the time, subject to adjustment in Hutchison BV's favor based on the
price of sales of the Ordinary Shares made pursuant to Clause (C) below. For so
long as no Ordinary Shares are sold by any Israeli Shareholders pursuant to
Clause (C) below, then, within six months from the closing of the call option
transaction, Hutchison BV would have the right to sell back the Ordinary Shares
purchased pursuant to the call option to the respective Israeli Shareholders, at
the price equal to the purchase price paid by Hutchison BV, plus interest.
(C) Following the sale of all the Ordinary Shares permitted to be sold
pursuant to Clause (A) above, if any of the Israeli Shareholders seek to sell,
in one or more transactions, any additional Ordinary Shares up to 5.48% of the
outstanding Ordinary Shares (or 7.48%, if Hutchison BV did not exercise its 2%
call option), Hutchison BV will have a right of first refusal to purchase such
Ordinary Shares at a 12% discount from the market price of the Ordinary Shares
at that time. If Hutchison BV does not exercise such right in full, the Israeli
Shareholders will be entitled, during the next 90 days, to sell the unexercised
portion of such Ordinary Shares to any third parties in one or more
transactions, provided that the price per share for each sale is not be less
than the price offered to Hutchison BV. Each Israeli Shareholder's percentage of
the Ordinary Shares that is subject to the right of first refusal would vary
depending on whether or not Matav exercises its option to participate in such
sale.
The Israeli Shareholder undertook to ensure that if Hutchison would
exercise all its options to purchase Ordinary Shares pursuant to Clauses (B) and
(C) above, it would hold more than 50% of the outstanding Ordinary Shares.
Matav has the option to participate in the sales described in Clauses
(A), (B) and (C) above, in whole but not in part. In addition, Elbit, Eurocom
and Polar granted Matav a 90-day option entitling Matav to sell such number of
Ordinary Shares to Elbit, Eurocom and Polar, severally and not jointly, pro rata
based upon their respective ownership percentages of Ordinary Shares, that would
cause all the Israeli Shareholders to be in the same position had Matav elected
initially to participate in the sales of Ordinary Shares under the Fallback
Arrangement. If Matav exercises such option, it would become subject to the
options granted to Hutchison BV described above. In the event that Matav does
not exercise such option, then Matav will be solely responsible for maintaining
the minimum percentage of Ordinary Shares required under the terms of the
License to be held by Israeli shareholders. Matav has the right to transfer to
its lending banks (namely, Bank Hapoalim, Bank Leumi, Bank Discount and First
International Bank of Israel) the foregoing options, along with the underlying
Ordinary Shares.
In addition, the parties to the Fallback Arrangement agreed to amend
the Relationship Agreement (as defined below) upon the earlier to occur of (a)
the closing of the Buyback and (b) the closing in full of Hutchison BV's option
described in Clause (B) above or the expiration thereof unexercised. Such
amendment would result in, among other things, the termination of the voting
provisions of the Relationship Agreement. In addition, the parties agreed to
amend the Relationship Agreement from time to time to reflect changes in the
restrictions on the Company's founding shareholders under the License.
Upon the closing of the Buyback or of the sales of all the Ordinary
Shares pursuant to Clause (A) above, the nominees of the Israeli Shareholders
will resign from the Company's Board of Directors, subject to any applicable
requirements under applicable law or the License. Finally, each party to the
Fallback Arrangement undertook to vote all their Ordinary Shares in favor of the
Buyback at the Company's shareholders meeting to be called for such purpose.
Relationship Agreement
The Israeli Shareholders, Hutchison BV and Advent Investments Pte Ltd.
("Advent"), which is an affiliate of Hutchison BV, are parties to a Relationship
Agreement that was initially entered into on October 10, 1999 among the
Company's founding shareholders prior to the Company's initial public offering
(as amended through February 7, 2005, the "Relationship Agreement").
The Relationship Agreement relates to the holdings of Ordinary Shares
and the rights and obligations associated with such holdings and contains
detailed provisions whereby the number of directors of the Company that each of
the parties is entitled to nominate may be reduced or where the right to
nominate a director may be transferred or assigned. The parties, other than
Matav and Eurocom, are required by the Relationship Agreement to vote for the
nominees of the other parties. Currently, the Company's Board of Directors
consists of 17 directors of whom seven are nominated by Advent, one by Hutchison
BV, two by each of Matav, Elbit and Eurocom, and three are independent
directors.
As described above under "Fallback Arrangement," the voting provisions
of the Relationship Agreement will terminate upon the earlier to occur of (a)
the closing of the Buyback and (b) the closing in full of Hutchison BV's option
described in Clause (B) under "Fallback Arrangement" or the expiration thereof
unexercised.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 Relationship Agreement, dated October 10, 1999, among
Matav-Cable Systems Media Ltd., Hutchison Whampoa Limited and
Matbit, incorporated by reference to the Company's
registration statement filed on Form F-1 (No. 333-10992) on
October 26, 1999.
Exhibit 2 Amendment No. 1 to Relationship Agreement, dated April 23,
2002, among Matav-Cable Systems Media Ltd., Hutchison Whampoa
Limited and Matbit, incorporated by reference to the Company's
annual report on Form 20-F for the fiscal year ended December
31, 2001.
Exhibit 3 Buyback Offer, dated February 7, 2005.
Exhibit 4 Fallback Agreement, dated February 7, 2005.
Exhibit 5 Joint Filing Agreement pursuant to Rule 13-1(k)(1), dated
March 1, 2005.
SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, each of the signatories with respect to itself certify that the
information set forth in this statement is true, complete and correct.
MATAV INVESTMENTS LTD.
By: /s/ Assaf Bartfeld
------------------
Name: Assaf Bartfeld
Title: Director
By: /s/ Meir Srebernik
------------------
Name: Meir Srebernik
Title: Director
MATAV CABLE SYSTEMS MEDIA LTD.
By: /s/ Assaf Bartfeld
--------------------
Name: Assaf Bartfeld
Title: Director
By: /s/ Meir Srebernik
---------------------
Name: Meir Srebernik
Title: Director
EUROCOM COMMUNICATIONS LTD.
By: /s/ SHAUL ELOVITCH
-------------------
Name: Shaul Elovitch
Title: Chairman
EUROCOM HOLDINGS (1979) LTD.
By: /s/ SHAUL ELOVITCH
-------------------
Name: Shaul Elovitch
Title: Chairman
/s/ SHAUL ELOVITCH
------------------
SHAUL ELOVITCH
Date: March 3, 2005
APPENDIX A
The name, business or residence address, principal occupation and name, address
and business of employer of each controlling shareholder, executive officer and
director of the Reporting Persons. are set forth below.
Directors and Executive Officers of
Matav Investments Ltd.
Citizenship is the same as country of address, unless otherwise noted [FN 1].
---------------------------------------- --------------------------------------
Name & Address Position Current Principal Occupation
---------------------------------------- --------------------------------------
Meir Srebernik Director Chairman, Matav Cable Systems Media Ltd.
-------------------------------------- --------------------------------------
Assaf Bartfeld Director Chief Executive Officer, Delek Group Ltd.
--------------------------------------------------------------------------------
Moshe Amit Director Chairman, Delek - The Israeli Gas Company
Ltd.
---------------------------------------- --------------------------------------
Menashe Raz Director Journalist
---------------------------------------- --------------------------------------
Gavriel Last Director Chairman of several companies
---------------------------------------- --------------------------------------
Hananya Gibstein Director Businessman
---------------------------------------- --------------------------------------
Shimon Cheifetz [FN 2] Director Businessman
---------------------------------------- --------------------------------------
Yehoshua Gibstein Alternate Businessman
Director
---------------------------------------- --------------------------------------
Directors and Executive Officers of
Matav Cable Systems Media Ltd.
Citizenship is the same as country of address, unless otherwise noted [FN 3].
---------------------------------------- --------------------------------------
Name & Address Position Current Principal Occupation
---------------------------------------- --------------------------------------
Shimon Cheifetz[FN 4] Director Businessman
--------------------------------------------------------------------------------
Hananya Gibstein Director Businessman
---------------------------------------- --------------------------------------
Yair Keusch Director Business
---------------------------------------- --------------------------------------
Yeshayahu Drori Director Businessman
---------------------------------------- --------------------------------------
Assaf Bartfeld Director Chief Executive Officer, the
Delek Group Ltd.
---------------------------------------- --------------------------------------
Meir Srebernik Director Chairman of the Board, Matav
Cable Systems Media Ltd.
---------------------------------------- --------------------------------------
Moshe Amit Director Chairman, Delek - The Israeli
Gas Company Ltd.
-------------------------------------------------------------------------------
Menashe Raz Director Journalist
---------------------------------------- --------------------------------------
Gavriel Last Director Chairman of several companies
--------------------------------------------------------------------------------
Yehoshua Gibstein Alternate Director Businessman
---------------------------------------- --------------------------------------
Amit Levin Chief Executive Officer Chief Executive Officer
---------------------------------------- --------------------------------------
Ori Gur Arieh General Counsel and General Counsel and Company
Company Secretary Secretary
---------------------------------------- --------------------------------------
Shalom Bronstein Chief Financial Officer Chief Financial Officer
---------------------------------------- --------------------------------------
On March 30, 2003, the State of Israel (through the representatives of the
Attorney General of the Ministry of Industry, Trade and Labor) filed an
indictment in the Netanya Magistrate Court against Matav, Mr. Amit Levin, the
Chief Executive Officer of Matav, and against Mr. Doron Admati, the marketing
and programming manager of Matav at the time relevant to the indictment, for the
offense of `Prohibition to Mislead Consumers Regarding a Material Issue in a
Transaction' according to the Consumer's Protection Law, 1981. In accordance
with the indictment, the defendants are alleged to have misled consumers within
the framework of a certain publication published in connection with a certain
sales promotion campaign. Subsequently, Messrs. Levin and Admati were dropped
from the indictment. On November 25, 2003, the court approved a plea bargain
with the Attorney General, pursuant to which Matav admitted the facts in the
amended indictment, paid a fine of NIS 60,000 and its CEO, Amit Levin, signed an
undertaking on behalf of Matav to pay an additional fine of NIS 60,000 if the
offense is repeated within two years.
Directors and Executive Officers of
Eurocom Communications Ltd.
Citizenship is the same as country of address, unless otherwise noted [FN 5].
Name & Address Position Current Principal Occupation
---------------------------------------- --------------------------------------
Yudi Levy Director Managing Partner, Goldfarb, Levy,
Goldfarb, Levy, Eran & Co. Eran & Co., Law Offices
2 Weizmann Street
Tel Aviv 64239, Israel
---------------------------------------- --------------------------------------
Irit Izacson Director Director in companies
15 Matityahu Cohen Street
Tel Aviv, Israel
---------------------------------------- --------------------------------------
Shaul Elovitch [FN 6] Director Chairman & Chief Executive Officer
---------------------------------------- --------------------------------------
Yossi Elovitch [FN 7] Director Executive Vice President, Eurocom
Marketing (1986) Ltd.
---------------------------------------- --------------------------------------
Shlomo Nechama [FN 8] Director Chief Executive Officer, Arison
23 Shaul Ha'Melech Blvd. Investments Ltd; Chairman, Bank
Tel Aviv, Israel Hapoalim Ltd.
---------------------------------------- --------------------------------------
Iris Elovitch Director Assistant to Chief Executive
Officer
---------------------------------------- --------------------------------------
Eurocom Holdings (1979) Ltd. Director N/A
---------------------------------------- --------------------------------------
Amikam Shorer Vice President General Counsel
Business Affairs
& General Counsel
---------------------------------------- --------------------------------------
Or Elovitch Vice President Vice President, Corporate
Corporate Development & Investments
Development
& Investments
---------------------------------------- --------------------------------------
Felix Cohen Chief Financial Chief Financial Officer
Officer
---------------------------------------- --------------------------------------
Directors and Executive Officers of
Eurocom Holdings (1979) Ltd.
Citizenship is the same as country of address, unless otherwise noted [FN 9].
---------------------------------------- --------------------------------------
Name & Address Position Current Principal Occupation
---------------------------------------- --------------------------------------
Shaul Elovitch [FN 10] Director Chairman & Chief Executive Officer
- Eurocom Communications Ltd.
---------------------------------------- --------------------------------------
Yossi Elovitch [FN 11] Director Executive Vice President, Eurocom
Marketing (1986) Ltd.
---------------------------------------- --------------------------------------
Directors and Officers of
Delek Investments and Properties Ltd. [FN 12]
---------------------------------------- --------------------------------------
Name and Address Position Current Principal Occupation
---------------------------------------- --------------------------------------
Gavriel Last Chairman of the Board Chairman of several
companies
---------------------------------------- --------------------------------------
Assaf Bartfeld President and Chief Chief Executive Officer Delek
Executive Group Ltd.
Officer
---------------------------------------- --------------------------------------
Ron Elroy Vice President Businessman
and Director
---------------------------------------- --------------------------------------
Yaakov Friedgoot Director, Chief Director, Chief Legal Advisor
Legal Advisor and Company Secretary
and Company
Secretary
---------------------------------------- --------------------------------------
Ronel Ben-Dov Vice President Vice President and Chief
and Chief Financial Officer
Financial
Officer
---------------------------------------- --------------------------------------
Directors and Officers of
Delek Group Ltd. [FN 13]
---------------------------------------- --------------------------------------
Name and Address Position Current Principal Occupation
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
Gavriel Last Chairman of the Board Chairman of several companies
---------------------------------------- --------------------------------------
Assaf Bartfeld President and Chief President and Chief Executive
Executive Officer Officer
---------------------------------------- --------------------------------------
Mazal Bronstein Director Marketing of real estate
---------------------------------------- --------------------------------------
Moshe Amit Director Chairman of Delek Group
---------------------------------------- --------------------------------------
Ronel Ben-Dov Vice President and Vice President and Chief
Chief Financial Financial Officer
Officer
---------------------------------------- --------------------------------------
Benjamin Davidai Director Director of several companies
---------------------------------------- --------------------------------------
Shimon Veig External Director Businessman
---------------------------------------- --------------------------------------
--------
1 Unless otherwise noted, the address for all persons listed is 42 Pinkas
Street, Netanya, Israel.
2 Mr. Cheifetz is a holder of 20% in interest of a partnership which holds 323
Shares of the Company.
3 Unless otherwise noted, the address for all persons listed is 42 Pinkas
Street, Netanya, Israel.
4 Mr. Cheifetz is a holder of 20% in interest of a partnership which holds 323
Ordinary Shares.
5 Unless otherwise noted, the address for all persons listed is 2 Dov Friedman
Street, Ramat Gan, Israel.
6 Indirectly holds shares in the Company through holdings of 0.67% in Eurocom
Communications Ltd and of 75% the management shares and 80% of the ordinary
shares in Eurocom Holdings (1979) Ltd.
7 Indirectly holds shares in the Company through holdings in Eurocom
Communications Ltd.
8 Mr. Nechama holds 14.88% of the outstanding share capital of Arison Holdings
(1988) Ltd., which holds 100% of the outstanding share capital of Arison
Investments Ltd. Arison Investments Ltd. holds 49% of the outstanding share
capital of Eurocom Communications Lts.
9 Unless otherwise noted, the address for all persons listed is 2 Dov Friedman
Street, Ramat Gan, Israel.
10 Indirectly holds shares in the Company through holdings of 0.67% in Eurocom
Communications Ltd and of 75% the management shares and 80% of the ordinary
shares in Eurocom Holdings (1979) Ltd.
11 Indirectly holds shares in the Company through holdings in Eurocom
Communications Ltd.
12 Delek Investments and Properties is a private company incorporated under the
laws of the State of Israel and is a wholly owned subsidiary of Delek Group Ltd.
Its principal business is investments in the fields of automobiles import and
distribution, communications, infrastructure, chemistry and oil and gas
exploration. It holds 40% of the outstanding share capital of Matav Cable
Systems Media Ltd. and is its largest shareholder. The principal address for all
parties is c/o Delek Group, 7 Giborei Israel Street, Industrial Zone (South),
Netanya 42504, Israel.
13 Delek Group Ltd. is a company incorporated under the laws of the State of
Israel, whose shares are listed on the Tel Aviv Stock Exchange. Approximately,
78.6% of Delek Group Ltd.'s outstanding shares are owned by Mr. Itshak (Tshuva)
Sharon, through two private companies wholly owned by him, and the remainder is
held by the public. The principal business of Delek Group Ltd. is holding
investments in companies, predominantly companies located in Israel, operating
mainly in the fields of manufacturing and distribution of petroleum derivatives,
automobiles import and distribution, communications, energy, infrastructure,
real estate and oil and gas exploration. Mr. Tshuva is an Israeli citizen and a
businessman. The principal address for all parties is c/o Delek Group, 7
Giborei Israel Street, Industrial Zone (South), Netanya 42504, Israel.
Exhibit 3
February 7, 2005
Via Facsimile: (054-781-4193)
Partner Communications Company Ltd.
8 Amal Street
Afeq Industrial Park
Rosh-Ha'ayin 48103
Israel
Attn.: Amikam Cohen and Alan Gelman
Re: Share Buy Back
Dear Sirs:
The shareholders of Partner Communications Company Ltd., an Israeli
company ("Partner"), set forth on Schedule A hereto (the "Israeli
Shareholders"), severally and not jointly, desire to sell Ordinary Shares, par
value NIS 0.01 per share, of Partner ("Shares"), to Partner, pursuant to the
terms and conditions set forth below (the "Buy Back"):
1. Offer to Partner. The Israeli Shareholders, severally and not
jointly, hereby irrevocably offer to sell to Partner the number of Shares set
forth opposite their respective names on Schedule A hereto, subject to the
terms and conditions set forth herein. As detailed on said Schedule A, the
total number of Shares offered to Partner hereby, and the number of Shares
offered by each Israeli Shareholder, shall vary depending on whether or not
Matav Investments Limited ("Matav") elects to participate in the Buy Back
pursuant to paragraph 3(a) below.
2. Buy Back Price. The sale price per Share in the Buy Back (the "Buy
Back Price") shall equal 90% of the Volume Weighted Average Price/VWAP of the
Company on the Tel Aviv Stock Exchange (as determined by Bloomberg) over the
20 trading days immediately preceding the day before the date of the Partner
shareholder meeting that approves the Buy Back; provided, however, that in no
event shall the Buy Back Price be lower than NIS 31.0412 or higher than NIS
32.2216.
3. Matav Participation Option and Put Option.
(a) Matav shall have the option to participate in the Buy Back
by offering and selling to Partner in the Buy Back the number of Shares set
forth opposite Matav's name on Schedule A hereto (the "Matav Participation
Option"). The Matav Participation Option shall be exercisable, in whole but
not in part, until the end of the second business day immediately preceding
the scheduled closing of the Buy Back by delivering written notice to each of
the other Israeli Shareholders and to Partner. The other Israeli Shareholders
shall notify Matav of such scheduled closing at least four business days
prior thereto.
(b) In the event that Matav shall not have exercised the Matav
Participation Option, then, for a period of 90 days following the closing of
the Buy Back, Matav shall have the option to sell to the other Israeli
Shareholders, severally and not jointly, the number of Shares set forth
opposite the respective names of the other Israeli Shareholders on Schedule B
hereto (the "Matav Put Option"). The price per share of the Matav Put Option
shall equal the Buy Back Price, plus the interest accrued on the escrowed
amount described below. In the event that Matav shall not have exercised the
Matav Participation Option, then, promptly following the closing of the
Buy Back, the other Israeli Shareholders, severally and not jointly, shall
deposit with G.L.E. Trust Services Ltd., as escrow agent, an amount equal
to the product of the Buy Back Price times the number of Shares set forth
opposite their respective names on Schedule B hereto. As soon as practicable
after the date hereof, the Israeli Shareholders shall negotiate in good faith
to enter into an Escrow Agreement with such escrow agent. In the event that
Matav shall have exercised neither the Matav Participation Option nor the
Matav Put Option, then Matav shall be solely responsible for maintaining the
minimum required holding of Israelis (the "Required Israeli Percentage")
under the license (the "License") granted to Partner by the Israeli Ministry
of Communications (the "MOC").
4. Reserved
5. Conditions to Closing. The closing of the Buy Back shall be
subject to the satisfaction of the following conditions (the "Conditions"),
all to be upon reasonable terms and conditions. Partner shall have the right
to waive any of the Conditions, provided that any such waiver does not involve
a violation of law, regulation (including the License) or rule:
(a) receipt of financing by Partner of approximately $250
million from its lending banks to finance the Buy Back (the "Financing")
and amendment of the Senior Credit Facility, dated August 13, 1998, among
Partner and its lending banks, as amended (the "Credit Facility") to the
extent required to effect the Buy Back;
(b) approval of the Buy Back and the Financing by the
shareholders of Partner pursuant to Section 275 of the Israeli Companies
Law, including the amendment of Partner's Articles of Association, to the
extent required to effect the Buy Back;
(c) receipt of the consent from Partner's lending banks to release
the secured guarantees of the Credit Facility granted by shareholders of Partner
(and related Share pledges), Provided that if the banks so require, Partner may
agree that the Shares may be purchased subject to the related Share pledges, and
in which case this condition shall be deemed to have been satisfied;
(d) approval of the MOC pursuant to the License of the
transfer of 10% or more of Partner's means of control in the Buy Back;
(e) amendment to the License lowering the Required Israeli
Percentage from 20% to no greater than 5%, provided, however, that if the
Required Israeli Percentage shall be lowered to a percentage between 9% and
5.1%, then this condition shall be deemed to have been satisfied and the
number of Shares to be sold to Partner in the Buy Back shall be reduced by
a percentage of outstanding Shares equal to the difference between the new
Required Israeli Percentage and 5%, which reduction shall be allocated among
the respective Israeli Shareholders pro rata based on the respective numbers
of Shares set forth in Schedule A hereto;
(f) approval of the Israeli Controller of Restrictive Trade
Practices to Hutchison Telecommunications International Ltd. ("Hutchison") and
its affiliates controlling more than 50% of Partner; and
(g) no Israeli Shareholder shall have defaulted on its offer to
sell Shares in the Buy Back.
6. Representations and Warranties. Each Israeli Shareholder, with
respect to itself only, severally and not jointly, hereby represents and
warrants to Partner as follows:
(a) Such Israeli Shareholder is the record and beneficial owner
of the number of Shares set forth opposite such Israeli Shareholder's name on
Schedule A under the caption "with Matav".
(b) This letter agreement has been executed and delivered by
such Israeli Shareholder, and, assuming due authorization, execution and
delivery by all other parties hereto, this letter agreement constitutes a
legal, valid and binding obligation of such Israeli Shareholder, enforceable
against it in accordance with its terms, except (A) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally and (B) as
limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
(c) None of the Shares offered in the Buy Back by such Israeli
Shareholder are subject to any lien, encumbrance, security interest, charge or
pledge, except for the pledge granted to Partner's lending banks in connection
with the Credit Facility.
7. Closing.
(a) The closing of the Buy Back shall take place four business
days following the date on which all the conditions set forth in Section 5
above have been either satisfied or waived by the relevant parties, at the
offices of Goldfarb, Levy, Eran & Co., 2 Weizmann Street 64239, Tel Aviv,
Israel.
(b) At the closing, the Israeli Shareholders shall deliver to
Partner duly executed shares transfer deeds and share certificates
representing the Shares offered to Partner pursuant hereto, and Partner shall
transfer the applicable Buy Back Price for the offered Shares, by means of
wire transfer of immediately available New Israeli Shekels, to the bank
account of the respective Israeli Shareholders, the details of which shall
be delivered to Partner in writing prior to the closing.
(c) If the share certificates delivered by any Israeli
Shareholder to Partner shall represent a number of Shares in excess the
number of Shares sold to Partner hereunder, then Partner shall promptly
arrange for the issuance and delivery to such Israeli Shareholder of a new
share certificate representing the balance of such Shares.
(d) Subject to the extent required by law (including the License
or Articles of Association of Partner) that the Israeli Shareholders who
retain Shares appoint and retain, from time to time, at least 10% of the
directors of Partner (via a right to be included in an amendment to
Partner's Articles of Association), who shall be Israeli, and comply with
the relevant provision of the License, the Israeli Shareholders shall deliver
to the Partner's secretary written resignation of their respective directors
of Partner to take effect on the date of the closing of the Buy Back with an
acknowledgement signed by each director, in a form satisfactory to Partner to
the effect that each director has no claim against Partner for compensation
for loss of office.
8. Termination. This letter agreement and the Buy Back shall
automatically terminate on the date that any of the following shall occur:
(i) on or before 21 days from the date after the signing hereof, Partner
shall have failed to (A) deliver to each Israeli Shareholder a signed copy
of this letter agreement indicating its acceptance thereof following the
approval of its Audit Committee and Board of Directors or (B) publish
a notice convening a shareholder meeting to approve the Buy Back scheduled
for a date within 51 days from the date after the signing hereof, provided,
however, that if Partner shall not yet have received the required approvals
of the MOC and its lending banks for the Financing, then, upon written
notice to the Israeli Shareholders, Partner shall be entitled to defer
the publication of such shareholder meeting notice to a date no later than
41 days from the date after the signing hereof and to defer the scheduled
date of such meeting to no later than 71 days from the date after
the signing hereof; (ii) Partner shall have announced the cancellation of such
shareholder meeting or its postponement to a date later than 51 days from the
date hereof (or 71 days, if the deferral referenced in clause 7(i)(B) shall
have been effected); (iii) the shareholders of Partner shall have failed to
duly approve the Buy Back at the shareholder meeting convened for such
purpose; or (iv) at the election of the Israeli Shareholders, the Buy Back
shall not have closed for any reason within 80 days from the date hereof,
provided that the Israeli Shareholders are not in material breach of the
provisions hereof.
9. Miscellaneous.
(a) This letter agreement shall be governed in all respects by
the internal laws of the State of Israel without regard to conflict of
laws rules.
(b) Except as otherwise provided herein, the provisions of this
letter agreement shall inure to the benefit of, and be binding upon, the
respective successors and permitted assigns of the parties hereto. No party,
without the prior written consent of the other parties, may assign all or
any of its rights or obligations under this letter agreement, provided,
however, that Matav shall be entitled to transfer to its lending banks
(namely, Bank Hapoalim, Bank Leumi, Bank Discount and First International
Bank of Israel) (i) the number of Shares set forth opposite its name on
Schedule A hereto together with an assignment of the Matav Participation
Option and/or (ii) the total number of Shares set forth on Schedule B
hereto together with the Matav Put Option.
(c) This letter agreement, including the schedules attached
hereto, constitute the full and entire understanding and agreement among the
parties with regard to the subject matter hereof and thereof, and no party
shall be liable or bound to any other party in any manner except as
specifically set forth herein.
(d) Except as expressly provided herein, neither this letter
agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the all parties hereto. In
addition, any party may waive in writing any right or Condition of which such
party is the beneficiary.
(e) All notices and other communications required or permitted
under this letter agreement shall be in writing and shall be delivered by hand
or sent by facsimile directed to (i) if to an Israeli Shareholder, at such
Israeli Shareholder's address or facsimile number set forth on Schedule A,
with a copy (which shall not constitute notice) to Goldfarb, Levy,
Eran & Co., 2 Weizmann Street, Tel Aviv 64239, Israel, facsimile number:
+972-3-608-9909, Attention: Oded Eran, Adv. and Adam M. Klein, Adv.;
or (ii) if to Partner, to the address or facsimile number first above written.
Any notice sent in accordance with this paragraph 7(e) shall be effective
(A) if delivered by hand, upon delivery or (B) if sent via facsimile, upon
transmission and electronic confirmation of receipt.
(f) The parties shall take all reasonable actions in good faith
to cause the Conditions to be fulfilled as soon as practicable. In addition,
the parties shall, and shall use their reasonable efforts to procure that any
necessary third party shall, execute such documents and do such acts and
things as may reasonably be required for the purpose of giving full effect to
all the provisions of this letter agreement. The Israeli Shareholders shall be
entitled to be actively involved in the negotiations with the MOC and other
regulatory authorities.
(g) The courts of Tel Aviv-Jaffo shall have exclusive jurisdiction
to settle any dispute which may arise out of or in connection with this letter
agreement. All the parties hereto irrevocably submit to the jurisdiction of such
courts and waive any objection to proceedings in any such court on the ground of
venue or on the ground that proceedings have been brought in an inconvenient
forum.
(h) If the Buy Back Price shall equal or exceed NIS 32.1342,
then any stamp duty arising from this letter agreement shall be borne by the
Israeli Shareholders, severally and not jointly, pro rata based on the
respective number of Shares sold in the Buy Back (subject to adjustment
if the Matav Put Option is exercised). If the Buy Back Price shall be less
than NIS 32.1342, then half of such stamp duty shall be borne by Partner
and the other half shall be borne by the Israeli Shareholders severally
and not jointly, pro rata based on their respective number of Shares
sold in the Buy Back (subject to adjustment if the Matav Put
Option is exercised).
(i) All share numbers and share prices herein shall be
adjusted to reflect dividends, stock splits, rights offerings, etc.
(j) This letter agreement may be entered into in any number of
counterparts, all of which taken together shall constitute one and the same
instrument. If the foregoing is acceptable to Partner, please indicate
Partner's acceptance of our offer to effect the Buy Back by signing in
the space provided below and send a copy of this signed letter agreement
to the Israeli Shareholders.
Very truly yours,
-------------------------------- --------------------------------
ELBIT LTD. EUROCOM COMMUNICATIONS LTD.
By:_____________________________ By:_____________________________
Name: Name:
Title: Title:
-------------------------------- --------------------------------
POLAR COMMUNICATIONS LTD. MATAV INVESTMENTS LTD.
By:_____________________________ By:_____________________________
Name: Name:
Title: Title:
--------------------------------- --------------------------------
MATAV CABLE SYSTEMS MEDIA LTD.
By:_____________________________
Name:
Title:
---------------------------------- ---------------------------------
The offer set forth in this letter agreement is accepted subject to the terms
and conditions set forth above, after having been approved by the Audit
Committee and the Board of Directors of Partner:
Date: February __, 2005
PARTNER COMMUNICATIONS COMPANY LTD.
By:___________________________________
Name:
Title:
Schedule A
Israeli Shareholders and Offered Shares
----------------------------------------------------------------- --------------------------------------------
No. of Shares Offered
----------------------------------------------------------------- ---------------------- ---------------------
Name and Address of Israeli Shareholders w/o Matav with Matav
----------------------------------------------------------------- ---------------------- ---------------------
Elbit Ltd. 15,856,551 12,765,190
3 Azrieli Center
Triangle Building, 42nd Floor
Tel Aviv 67023 Israel
Tel: +972-3-607-5555
Fax: +972-3-607-5556
Attention: Mr. Tal Raz (Director)
----------------------------------------------------------------- ---------------------- ---------------------
----------------------------------------------------------------- ---------------------- ---------------------
Eurocom Communications Ltd. 11,626,616 9,359,915
2 Dov Friedman Street
Ramat-Gan 52141 Israel
Tel: +972-3-753-0900
Fax: +972-3-752-9699
Attention: Amikam Shorer, Adv. (VP & Legal Counsel)
----------------------------------------------------------------- ---------------------- ---------------------
----------------------------------------------------------------- ---------------------- ---------------------
Polar Communications Ltd. 4,235,038 3,409, 384
21 Ha'arba'ah Street
Tel Aviv 64739 Israel
Tel: +972-3-684-5795
Fax: +972-3-684-5713
Attention: Ken Lalo (Executive Vice President)
----------------------------------------------------------------- ---------------------- ---------------------
----------------------------------------------------------------- ---------------------- ---------------------
Matav Investments Ltd. 0 7,783,444
42 Pinkas Street, Netanya
Tel: +972-9-860-2161
Fax: +972-9-860-2288
Attention: Ori Gur Arieh, Adv. (General Counsel)
----------------------------------------------------------------- ---------------------- ---------------------
Total 31,718,205 33,317,932
========== ==========
----------------------------------------------------------------- ---------------------- ---------------------
Schedule B
Shares subject to the Matav Put Option
-------------------------------------------------------- -----------------------------------------------------
Israeli Shareholder Number of Shares
-------------------------------------------------------- -----------------------------------------------------
Elbit Ltd. 2,877,524
-------------------------------------------------------- -----------------------------------------------------
Eurocom Communications Ltd. 2,109,908
-------------------------------------------------------- -----------------------------------------------------
Polar Communications Ltd. 768,542
----------
--------------------------------------------------------------------------------------------------------------
Total 5,755,974
=========
EXHIBIT 4
Dated February 7, 2005
MATAV CABLE SYSTEMS MEDIA LTD.
and
MATAV INVESTMENTS LTD.
and
ELBIT LTD.
and
EUROCOM COMMUNICATIONS LTD.
and
POLAR COMMUNICATIONS LTD.
and
HUTCHISON TELECOMMUNICATIONS (NETHERLANDS) B.V.
AGREEMENT
relating, inter alia, to options to purchase shares in
Partner Communications Company Limited
And amendment of Relationship Agreement
4
- -
This Agreement is made on February 7, 2005
Between:
(1) Matav Cable Systems Media Ltd. and Matav Investments Ltd., both
of whose principal office is at 42 Pinkas Street, North Industrial
Area, Netanya 42134, Israel (together, "Matav");
(2) Elbit Ltd. (successor in ownership to Elbit.COM Ltd.) whose
principal office is 3 Azrieli Center, Triangle Building, 42nd
Floor, Tel Aviv 67023, Israel ("Elbit");
(3) Eurocom Communications Ltd. whose principal office is at 2 Dov
Friedman Street, Ramat Gan, Israel ("Eurocom");
(4) Polar Communications Ltd. (formerly known as Hapoalim Electronic
Communication Limited), whose principal office is at 21
Ha'arba'ah St., Tel Aviv 64739, Israel ("Polar"); and
(5) Hutchison Telecommunications (Netherlands) B.V. whose registered
office is Leidsekade 98, 1017 Amsterdam, Netherlands ("Hutchison")
(and together referred to hereinafter as the "Parties" and
individually a "Party").
It is agreed as follows:
1 Interpretation
In this Agreement, including the Schedules, unless the context
otherwise requires, the provisions in this Clause 1 apply:
1.1 Definitions
"Business Day" means a day on which banks are open for business in both
Hong Kong and Tel Aviv (excluding Saturdays, Sundays and public
holidays);
"Buy Back" means the proposed purchase by the Company of 33,317,932
Shares from the Israeli Shareholders, or in the event that Matav does
not participate, 31,718,205 Shares;
"Call Option means the Call Option granted to Hutchison as set out in
Clause 3.2 below;
"Company" means Partner Communications Company Ltd.;
"Credit Facility" means the senior credit facility between the Company
and the participating lending banks, dated August 13, 1998, as amended;
"Encumbrance" means any claim, charge, mortgage, security, lien,
option, equity, power of sale, hypothecation or other third party
rights, retention of title, right of pre-emption, right of first
refusal or security interest of any kind;
"Effective Date" means any one of the following occurrences or dates,
but not otherwise: (A) in the event that (i) any directors nominated by
Hutchison (or Advent Investments Pte Ltd. ("Advent") vote against the
Buy Back at the meeting of Company's Board of Directors (without
prejudice to their fiduciary duties) to be held within 21 days from the
date hereof or (ii) no commitment to the financing of the Buy Back is
obtained by the Company within 41 days from the date hereof or (iii)
the Company does not publish a notice convening an EGM to approve the
Buy Back within 41 days from the date hereof unless the failure to
publish such notice is a consequence of either (I) the price per share,
based on the three (3) trading day VWAP prior to the last Business Day
preceding said 41st day being below NIS 32.59326 or (II) any of the
conditions set forth in Clauses 6.1.2, 6.1.3 or 6.1.4 not being
satisfied prior to said 41st day or (iv) Hutchison (or Advent) shall
have breached Clause 8.3(a) hereof; or (B) the date on which the
Company announces the cancellation of the EGM to approve the Buy Back
after notice of the EGM has been published or the postponement of such
EGM to a date later than 71 days of the date hereof; or (C) the date on
which the Company's shareholders do not approve the Buy Back at the EGM
to be held within 71 days from the date hereof; whichever is the
earliest, Provided however that in the event that any one of the above
occurrences or dates shall have occurred, the Israeli Shareholders, in
their sole discretion, may notify Hutchison by notice in writing within
three (3) Business Days thereof that they do not wish the Effective
Date to occur, whereupon the Effective Date shall be deemed
retroactively not to have occurred;
"Governmental Body" means any governmental ministry, regulatory body,
or quasi-governmental authority of any nature (including any
governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or entity and any court or other
tribunal);
"Israeli Shareholders" means Matav, Elbit, Eurocom and Polar;
"Legal Requirement" shall mean any law, statute, resolution, ordinance,
code, edict, decree, rule, regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into effect
by or under the authority of any Governmental Body;
"Licence" means a licence dated 7 April 1998 granted by the Minister of
Communications to the Company, as such licence has been amended from
time to time, including the Permit, as that term is defined in the
Relationship Agreement;
"NIS" means New Israeli Shekels, the lawful currency of the State
of Israel;
"Relationship Agreement" means an agreement dated 10 October 1999 and
made between (1) Advent (2) Matbit (3) Matav (4) Elbit and (5) Tapuz
Cellular Systems Limited Partnership (as amended);
"Required Israeli Percentage" means the minimum holding of Shares by
Israeli persons or entities under the Licence as may be in effect from
time to time;
"Required Founders Percentage" means the minimum holding by the
Company's founders' group under the Licence as may be in effect from
time to time;
"Right of First Refusal" means the right of first refusal granted to
Hutchison as set out in Clause 3.3 below;
"Shares" means the issued Ordinary Shares of NIS 0.01 each in the
share capital of the Company;
"Share Pledge" means any pledge of the Shares granted by the Israeli
Shareholders to the participating lending banks in connection with the
Credit Facility; and
"VWAP" means Volume Weighted Average Price/VWAP of the Company on the
Tel Aviv Stock Exchange (as determined by Bloomberg) immediately
preceding the last trading date.
1.2 Clauses, Schedules etc.
References to this Agreement include any Recitals and Schedules to it
and references to Clauses and Schedules are to Clauses of and Schedules
to this Agreement.
1.3 Information
Any reference to information means information in any form including
paper, electronically stored data, magnetic media, film and microfilm.
1.4 Headings
Headings shall be ignored in construing this Agreement.
1.5 Adjustments
All share numbers and prices herein shall be adjusted to reflect
dividends, stock splits, rights offerings, etc. occurring after the
date hereof.
1.6 Share Computations
All references in this Agreement to percentages of the outstanding
Shares of the Company shall be computed on a fully diluted basis.
2 Commencement of Agreement
2.1 This Agreement shall only come into force and effect on the Effective
Date, save for Clauses 3.5, 8.1, 8.2, 8.3 and 10, which come into
effect (except to the extent specified therein) on the date hereof,
regardless of whether the Effective Date shall have occurred. If the
Effective Date does not occur, the provisions of this Agreement (save
for those specified in the preceding sentence) shall be deemed null and
void.
3. Sales of Shares; Options
Subject to Clause 2 above and Clauses 5 and 6 below:
3.1 From the Effective Date, the Israeli Shareholders shall be entitled to
sell as a group, pro rata based upon their respective ownership
percentages of the outstanding Shares, as set forth opposite their
respective names on Schedule A hereto, in one or more transactions, up
to an aggregate of approximately 9.71% of the Shares outstanding on the
applicable sale dates, to any third parties at a price per share not
lower than 90% of the 30-trading day VWAP immediately preceding the
last trading date prior to the applicable sale, but not otherwise. As
detailed on said Schedule A, the percentage of each Israeli
Shareholder, permitted to be sold pursuant to this Clause 3.1 shall
vary depending on whether or not Matav exercises its option pursuant to
Clause 4 below.
3.2 From the Effective Date, the Israeli Shareholders, severally but not
jointly, and pro rata based upon their respective ownership percentage
of outstanding Shares, grant Hutchison a Call Option to purchase from
them an aggregate of 2% of the Shares, as of the date of the exercise
of the Call Option, as detailed on Schedule B hereto. As detailed on
said Schedule B, each Israeli Shareholder's percentage of outstanding
Shares subject to the Call Option shall vary depending on whether or
not Matav exercises its option pursuant to Clause 4 below to sell any
Shares pursuant to Clause 3. If any Israeli Shareholder shall default
on its obligations under this Clause 3.2, then, within five (5)
Business Days of such default, any or all of the non-defaulting Israeli
Shareholders shall be entitled to remedy such default by selling to
Hutchison additional Shares to ensure compliance with this Clause 3.2.
Such action shall be without prejudice to the rights and remedies of
the non-defaulting Israeli Shareholders against the defaulting Israeli
Shareholder(s).
The price per share of such Call Option shall be the weighted average
sale price per share achieved for the final 5.48% of the Shares sold in
accordance with Clause 3.3 (including the 12% discount referenced
below).
Hutchison shall be entitled to exercise the Call Option within 10 (Ten)
Business Days from the Effective Date, and the closing of this Call
Option transaction shall be five (5) Business Days subsequent to the
condition precedent set out in Clause 6.2 below being fulfilled. In the
event that the final 5.48% of said Shares are not all sold by the date
for closing of the Call Option, the payment for said 2% of the Shares
shall be as follows:
The payment at said closing will be the price per share calculated in
accordance with the formula set out in Clause 3.3.1 below with the
closing date being the closing date of the Call Option transaction,
subject to an adjustment in Hutchison's favour only should the weighted
average price per share for the first sale of Shares pursuant to Clause
3.3.1 below (whether to Hutchison or a third party) be lower than the
price per share calculated at the closing of the Call Option
transaction. If this occurs, each selling Israeli Shareholder,
severally and not jointly, shall make a payment to Hutchison for an
amount equal to the difference between said prices per share multiplied
by the Shares sold by it at the closing of the Call Option transaction.
Such payments shall be paid by wire transfer to Hutchison, to a bank
account notified to the Israeli Shareholders, within five (5) Business
Days from date of said first sale of said Shares.
For so long as no Shares shall have been sold by any Israeli
Shareholders pursuant to Clause 3.3, then, within six months from the
closing of the Call Option transaction, Hutchison will have the right,
exercisable by written notice to the Israeli Shareholders, to sell back
the Shares purchased pursuant to the Call Option to the respective
Israeli Shareholder sellers, severally and not jointly, at the price
equal to the purchase price paid by Hutchison, plus interest at the
rate of 90-day LIBOR per annum. Any Shares so sold back by Hutchison
shall be free from any Encumbrances and shall thereafter be
unrestricted and free and clear from any transfer restrictions or
limitations. Closing of this put option transaction shall be ten (10)
Business Days from the date of exercise thereof.
3.3 Subsequent to the sale of all the Shares permitted to be sold by the
Israeli Shareholders under Clause 3.1 above, if any or all such Israeli
Shareholders seek to sell, in one or more transactions, any additional
number of Shares up to 7.48% (or up to 5.48% in the event of exercise
of the Call Option set out in Clause 3.2 above) of the outstanding
share capital of the Company, allocated pro-rata to their respective
ownership percentage of the outstanding Shares, as detailed on Schedule
C hereto, they shall only be entitled to sell such Shares according to
the procedure set forth below in this Clause 3.3. As detailed on said
Schedule C, the percentage of each Israeli Shareholder, permitted to be
sold pursuant to this Clause 3.3 shall vary depending on whether or not
Matav exercises its option pursuant to Clause 4 below to participate in
the sales of Shares pursuant to Clauses 3.1 and 3.3.
Hutchison shall first be given seven (7) days' prior written notice of
such intention, which intention shall have no legal effect, and in the
event that such notice of intention is followed by delivery to
Hutchison of a formal notice signed by the relevant Israeli
Shareholder(s) of such decision:
3.3.1. Hutchison will then have the right, exercisable by written
notice to the relevant Israeli Shareholders within three (3) Business
Days to purchase all or a portion of such Shares from such Israeli
Shareholders at a price equal to a discount of 12% of the price per
share which is the average of the price per share of:
a) the one-day VWAP on the trading day immediately prior to the
closing date, and
b) the three-day VWAP immediately prior to the closing date and
ending on the closing date;
Provided, however, that if required for the exercise of the Right of
First Refusal and such exercise shall result in consolidation of the
Company's accounts in the accounts of Hutchison Telecommunications
International Limited (hereinafter, "HTIL") and HTIL is not able to
obtain a waiver from the need to convene a meeting of shareholders of
HTIL, then Hutchison, by notice to the Israeli Shareholders, shall be
entitled to postpone the closing of the Right of First Refusal by
forty-five (45) additional days. If approval of HTIL's shareholders
at such meeting of shareholders shall not be obtained by such date,
then the Israeli Shareholders shall be free to sell such Shares
pursuant to Clause 3.3.2 below.
3.3.2 If Hutchison does not exercise such right in full within such
period, the Israeli Shareholders shall be entitled, during the next 90
(Ninety) days, to sell the unexercised portion of such shares to any
third parties in one or more transactions provided that the price per
share for each sale shall not be less than the price determined
pursuant to Clause 3.3.1 above (including said 12% discount).
3.3.3 In the event that the Israeli Shareholders are not able to sell
such Shares for a price per share not less than the price set out in
Clause 3.3.2 above, the provisions of this Clause 3 shall apply for
any future proposed sale(s) of such Shares until either Hutchison
purchases the Shares pursuant to this Section 3.3 or they are sold
by such Israeli Shareholders in accordance with Clause 3.3.2.
3.4 Notwithstanding anything to the contrary, the Israeli Shareholders,
save for Matav unless it exercises its option pursuant to Clause 4
below to participate in any sale of Shares pursuant to Clause 3,
severally but not jointly, based on their respective ownership
percentage of the outstanding Shares, as detailed on Schedule D hereto,
agree to ensure that the number of Shares contained in the Call Option
and the Right of First Refusal shall enable Hutchison to hold more than
50% of the Shares, upon full exercise of its rights hereunder and
assuming no sales of Shares by Hutchison and no dilution as a result of
public or private equity offerings by the Company.
3.5 In the event that Matav does not exercise its option under Clause 4 to
sell Shares pursuant to Clause 3, Matav shall be solely responsible for
maintaining the Required Israeli Percentage. In the event that Matav
exercises its option under Clause 4 to sell Shares pursuant to Clause
3, each of the Israeli Shareholders hereby undertakes and agrees,
severally and not jointly, at all times, to hold pro rata a sufficient
number of Shares to comply with the Required Israeli Percentage, as
detailed on Schedule D hereto. Notwithstanding the foregoing, subject
to fulfillment of Clauses 3.2 to 3.4, any Israeli Shareholder shall be
entitled to sell Shares to an Israeli resident who undertakes to comply
with the Required Israeli Percentage in respect of such Shares and to
enter into the Relationship Agreement.
3.6 Notwithstanding Clause 2.1 above, from the closing of the Buy Back or
the Effective Date, whichever is applicable, Hutchison shall have the
additional pro rata obligations of a member of the founder group under
the Licence as a result of any Shares sold by the Israeli Shareholders
pursuant to the Buy Back or Clause 3.3 of this Agreement, as the case
may be, to the extent necessary to comply with the Required Founders
Percentage less the Required Israeli Percentage.
4. Matav Option
4.1 Matav shall have the same right as the other Israeli Shareholders to
sell Shares pursuant to Clauses 3.1, 3.2 and 3.3, pro rata as set forth
in the Schedules thereto. The other Israeli Shareholders shall notify
Matav of each scheduled sale of Shares pursuant to Clause 3.1, 3.2 or
3.3 at least four (4) Business Days prior thereto. Matav shall be
entitled to exercise such right, in whole but not in part, by the end
of the second Business Day following such notice.
4.2 In the event that Matav shall not have exercised the right set forth in
Clause 4.1, then, for a period of 90 days from the closing of any sale
of Shares pursuant to Clause 3.1, 3.2 or 3.3, Matav shall have the
option to sell to the other Israeli Shareholders, severally and not
jointly, the number of Shares that would cause all the Israeli
Shareholders to have sold the respective percentages of Shares that
they would have sold had Matav originally participated in the
transactions contemplated in Clauses 3.1, 3.2 and 3.3 (the "Matav Put
Option"). The Matav Put Option, if exercised, must be exercised in full
in respect of all past sales of Shares pursuant to Section 3.1, 3.2 and
3.3 and any future sales of Shares thereunder. The price per share of
the Matav Put Option shall equal the actual prices of the applicable
sales made by the Israeli Shareholders, plus the interest accrued on
the escrowed amount described below. In the event that Matav shall not
have exercised the right set forth in Clause 4.1, then, promptly
following the closing of any sales made pursuant to Clauses 3.1, 3.2 or
3.3, the other Israeli Shareholders, severally and not jointly, shall
deposit with G.L.E. Trust Services Ltd., as escrow agent, an amount
equal to the difference between the amount of proceeds received by such
Israeli Shareholder and the amount of proceeds that such Israeli
Shareholder would have received had Matav participated in such sale. As
soon as practicable after the date hereof, the Israeli Shareholders
shall negotiate in good faith to enter into an Escrow Agreement with
said escrow agent.
5. Representations and Warranties
Each of the Israeli Shareholders hereby represents and warrants with
respect to itself, severally and not jointly, to and for the benefit of
Hutchison, the representations and warranties set forth below. All such
representations and warranties shall be true and correct as of the date
hereof and shall remain true and correct as of the closing of each
transaction contained in this Agreement, as if made at such time.
5.1 Authority; Binding Nature of Agreement. Such selling Israeli
Shareholder has the right, power and authority to enter into and to
perform its obligations under this Agreement and the execution,
delivery and performance by such Israeli Shareholder has been duly
authorized by all necessary corporate action on the part of such
Israeli Shareholder. This Agreement constitutes the legal, valid and
binding obligation of such Israeli Shareholder, enforceable against
such Israeli Shareholder in accordance with its terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
5.2 No Encumbrances. Such Israeli Shareholder owns and holds the Shares to
be purchased by Hutchison pursuant to Clause 3.2 and 3.3 free and clear
of any Encumbrances other than the Share Pledge (which shall, prior to
closing, be released with respect to the Shares) and any rights set
forth in the Relationship Agreement or the Company's Articles of
Association.
5.3 Consents and Approvals. No filing or registration with, no notice to
and no permit, authorization, waiver, consent or approval of, any third
party or any Governmental Body is necessary for the consummation by
such Israeli Shareholder of the transaction contemplated by this
Agreement other than (i) the release of the Share Pledge, (ii) as
required by the License and (iii) the approval of the Controller of
Restrictive Trade Practices, to the extent required by law.
5.4 No Violation. Neither (1) the execution, delivery or performance of
this Agreement, nor (2) the consummation of the transactions
contemplated by this Agreement, will contravene, conflict with or
result in a violation of (i) any of the provisions of the Memorandum of
Association or Articles of Association of such Israeli Shareholder,
(ii) any Legal Requirement or any order, writ, injunction, judgment or
decree to which such Israeli Shareholder is subject, except as set
forth in Clause 5.3 above, or (iii) any agreement or arrangement to
which such Israeli Shareholder is party.
5.5 Brokers. No broker, finder or investment banker, is entitled to any
brokerage, finder's or other fee or commission on behalf of such
Israeli Shareholder in connection with the transaction contemplated by
this Agreement and for which Hutchison may be liable.
5A. Representations and Warranties
Hutchison hereby represents and warrants to and for the benefit of the
Israeli Shareholders, the representations and warranties set forth
below. All such representations and warranties shall be true and
correct as of the date hereof and shall remain true and correct as of
the closing of each transaction contained in this Agreement, as if made
at such time.
5A.1 Authority; Binding Nature of Agreement. Hutchison has the right, power
and authority to enter into and to perform its obligations under this
Agreement and the execution, delivery and performance by it has been
duly authorized by all necessary corporate action on its part. This
Agreement constitutes the legal, valid and binding obligation of
Hutchison, enforceable against it in accordance with its terms, subject
to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
5A.2 Consents and Approvals. No filing or registration with, no notice to
and no permit, authorization, waiver, consent or approval of, any third
party or any Governmental Body is necessary for the consummation by
Hutchison of the transaction contemplated by this Agreement other than
(i) the release of the Share Pledge, (ii) as required by the Licence,
(iii) the approval of the Controller of Restrictive Trade Practices, to
the extent required by law and (iv) shareholder approval of HTIL (as
described in Clause 3.3.1).
5A.3 No Violation. Neither (1) the execution, delivery or performance of
this Agreement, nor (2) the consummation of the transactions
contemplated by this Agreement, will contravene, conflict with or
result in a violation of (i) any of the provisions of the Memorandum of
Association or Articles of Association of Hutchison, (ii) any Legal
Requirement or any order, writ, injunction, judgment or decree to which
it is subject, except as set forth in Clause 5A.2 above, or (iii) any
agreement or arrangement to which it is party.
5A.4 Brokers. No broker, finder or investment banker, is entitled to any
brokerage, finder's or other fee or commission on behalf of Hutchison
in connection with the transaction contemplated by this Agreement and
for which any Israeli Shareholder may be liable.
6. Conditions to Closing.
6.1 Each and both of the transactions contained in Clause 3.1 and 3.3
above are conditional upon satisfaction of all the following
conditions on or prior to their respective closing:
6.1.1 Receipt of the consent from the Company's lending banks to
release the secured guarantees (and related Share Pledges) of all the
Parties;
6.1.2 Approval of the Israeli Ministry of Communications of the
transfer of 10% or more of the Company's means of control pursuant to
the License, to the extent required;
6.1.3 Amendment to the Licence reducing the Required Founders
Percentage from 30% to no more than 26%, provided, however, that to
the extent that the Required Founders Percentage shall not be reduced
to 26%, then the aggregate percentage transferable pursuant to Clause
3.1 shall be reduced by the product of the Israeli Shareholders' pro
rata share of the Required Founders Percentage multiplied by the
difference between 26% and the approved (new) Required Founders
Percentage as of the closing of each sale of Shares pursuant to
Clause 3.1 (subject to the reduction caused by this Clause 6.1.3 and
Clause 6.1.4 not exceeding 9.71%), in which case this condition shall
be deemed to have been satisfied;
6.1.4 Amendment to the Licence reducing the Required Israeli
Percentage from 20% to no more than 5%, provided, however, that to
the extent that the Required Israeli Percentage shall not be reduced
to 5%, then the aggregate percentage transferable pursuant to Clause
3.1 shall be reduced by the difference between 5% and the approved
(new) Required Israeli Percentage as of the closing of each sale of
Shares pursuant to Clause 3.1 (subject to the reduction caused by
this Clause 6.1.4 and Clause 6.1.3 not exceeding 9.71%), in which
case this condition shall be deemed to have been satisfied;
6.1.5 Approval of the Israeli Controller of Restrictive Trade
Practices to HTIL and its affiliates controlling more than 50% of
the Company as a result of the exercise of the Call Option and the
Right of First Refusal; and
6.1.6 If the Call Option shall have been exercised, the Israeli
Shareholders, collectively, shall have enabled Hutchison to close the
Call Option transaction in full.
6.2 The transaction contained in Clause 3.2 is conditional upon receipt of
the consent from the Company's lending banks to release the Secured
Pledge over the relevant Shares on or prior to closing.
7. Closing
7.1 Place
7.1.1 Closing of the transactions set out in Clauses 3.2 and 3.3.1
shall take place at the offices of Yigal Arnon & Co at 1 Azrieli
Center, Tel Aviv.
7.1.2 Closing of the transactions set out in Clause 4.2 shall take
place at the offices of Goldfarb, Levy, Eran & Co., 2 Weizmann
Street, Tel Aviv.
7.2 Obligations on Completion
7.2.1 On closing of the transactions set out in Clauses 3.2 and
3.3.1, the Parties shall procure that their respective obligations
specified in Schedule 1 are fulfilled.
7.2.2 On closing of the transaction set out in Clause 3.1 in respect
of the total number of Shares transferable pursuant thereto, and
subject to Clause 8.1(d), the Israeli Shareholders shall deliver to
the Company's secretary written resignation of their respective
directors of the Company to take effect on the date of the closing
of the said transaction with an acknowledgement signed by each
director, in a form satisfactory to Hutchison, to the effect that
each director has no claim against the Company for compensation for
loss of office. Thereafter, subject to the obligation of Israeli
Shareholders under Clause 8.1(d), Hutchison shall use its best
efforts, for so long as it owns more than 50% of the Shares, to
maintain the number of Israeli members of the Company's Board of
Directors that may be required under the License from time to time.
7.3 Payment of Price
At closing of each of the transactions set out in Clauses 3.2 and
3.3.1, Hutchison shall pay the purchase price as calculated pursuant
to the provisions hereof for the relevant Shares, by means of wire
transfer of immediately available New Israeli Shekels, to the bank
account of the respective Israeli Shareholders, the details of which
shall be delivered to Hutchison in writing prior to the applicable
closing.
8. Mutual Obligations
8.1 The Parties shall use diligent efforts to agree to the form of the
amendment to the Relationship Agreement reflecting the following
matters within 30 days of the date hereof:
(a) Cancellation of the voting arrangements for the nomination of
directors set out in Sections 6.1.2, 6.1.4, 6.1.16, 6.5.2, and
6.5.3therein;
(b) Cancellation of the Parties' respective guarantee obligations and
undertakings set out in Section 14 therein;
(c) Modifications to reflect any amendments that shall be made to the
Licence from time to time, including Sections 8.1.3 and 11.2 of the
Relationship Agreement - such amendments to take effect upon the
applicable amendment to the Licence, whether or not the events below in
(A) or (B) in the paragraph following Sub-Clause (d) immediately below
shall occur; and
(d) To the extent required by law (including the Licence or Articles of
Association of the Company), a requirement that the Israeli
Shareholders who retain Shares (or their respective transferees in
accordance with Clause 3.5) (i) appoint and retain, from time to time,
at least 10% of the directors of Partner via a right to be included in
an amendment to Partner's Articles of Association who shall be Israeli
and comply with the relevant provision of the Licence and (ii) retain
responsibility for complying with the Required Israeli Percentage, as
set forth in Clause 3.5 above - such obligations shall be binding on
the Israeli Shareholders from the date of the applicable amendment to
the Licence whether or not the events below in (A) or (B) immediately
below shall occur.
The Parties shall use diligent efforts to amend the Relationship
Agreement as aforesaid, effective as of the earlier to occur of (A) the
closing of Hutchison's Call Option in which the Israeli Shareholders
collectively sell to Hutchison 2% of the Shares or the expiration of
the Call Option unexercised, but subject to satisfaction of the
conditions set forth in Clauses 6.1.3 and 6.1.4, or (B) the closing of
the Buy Back. If the event described in either (A) or (B) shall have
occurred and the Relationship Agreement shall not yet have been amended
as aforesaid, then the Relationship Agreement automatically shall be
deemed to be amended immediately in accordance with this Clause 8.1.
If and when the Relationship Agreement shall terminate in relation to
Eurocom pursuant to Section 16.3 thereof Tapuz Cellular Systems Ltd.,
an affiliate of Eurocom that owns one Share, shall also be released
from all its obligations and restrictions thereunder.
8.2 From the date hereof, the Parties agree to assist the Company to
procure (a) the reduction of the Required Founders Percentage in the
Licence from 30% to no more than 26%, (b) the reduction of the Required
Israeli Percentage in the Licence from 20% to no more than 5% and (c)
the release of the secured guarantees (and related Share Pledges) of
all the Parties in favour of the Company's lending banks, all the above
to be upon reasonable terms and conditions.
8.3 (a) Each Party shall vote all its Shares in favour of the
Buy Back (and any related resolutions) in the applicable
shareholders meeting of the Company.
(b) On the date hereof, the Parties shall enter into the form of
agreement attached as Schedule 2 hereto to assist Matav and its
shareholders in being released from the "borrowers group" limitations,
as defined under the rules issued by the Bank of Israel in November
2003 regarding "Limitations on the liability of a borrower and/or group
of borrowers".
9. [RESERVED]
10. Other Provisions
10.1 Announcements
No announcement or circular in connection with the existence or the
subject matter of this Agreement shall be made or issued by or on
behalf of the Parties without the prior written approval of all the
Parties. This shall not affect any announcement or circular by or on
behalf of any Party required by law or any regulatory body or the rules
of any recognised stock exchange, but the Party with an obligation to
make an announcement or issue a circular shall consult with the other
Parties insofar as is reasonably practicable before complying with such
an obligation.
10.2 Confidentiality
10.2.1 Subject to Clause 10.2.2 below, each of the Parties shall treat
as confidential and not disclose or use any information received or
obtained as a result of entering into this Agreement (or any agreement
entered into pursuant to this Agreement) which relates to:
(i) the provisions of this Agreement and any agreement
entered into pursuant to this Agreement; or
(ii) the negotiations relating to this Agreement (and such
other agreements).
10.2.2 Clause 10 shall not prohibit disclosure of any information
if and to the extent:
(i) the disclosure or use is required by law, any
regulatory body or the rules and regulations of any
recognised stock exchange;
(ii) the disclosure or use is required to vest the full
benefit of this Agreement in the Parties;
(iii) the disclosure or use is required for the purpose of
any judicial proceedings arising out of this
Agreement or any other agreement entered into under
or pursuant to this Agreement or the disclosure is
reasonably required to be made to a taxation
authority in connection with the taxation affairs
of the disclosing Party;
(iv) the disclosure is made to professional advisers of
the Parties, provided that such professional
advisers are informed of the provisions of Clause
10 in respect of such information, in which case the
Party retaining such adviser shall be held
responsible for any breaches by such adviser of
the restrictions set forth in Clause 10;
(v) the information becomes publicly available
(other than by breach of this Agreement); or
(vi) the other Parties have given prior written approval
to the disclosure or use;
provided that prior to disclosure or use of any information
pursuant to paragraphs (ii) or (iii) (except in the case of
disclosure to a taxation authority), the Party concerned
shall promptly notify the other Parties of such requirement
with a view to providing the other Parties with the
opportunity to contest such disclosure or use or otherwise
to agree the timing and content of such disclosure or use.
10.3 Successors and Assigns
10.3.1 No Party may, without the prior written consent of the other
Parties, assign the benefit of all or any of its obligations
under this Agreement, provided, however, that Matav shall be
entitled to transfer to its lending banks (namely, Bank
Hapoalim, Bank Leumi, Bank Discount and First International
Bank of Israel) the number of Shares that it is entitled to
sell pursuant to this Agreement together with an assignment of
its rights under Clause 4.
10.3.2 Notwithstanding anything to the contrary, Hutchison, by serving
notice on the other Parties, shall have the right to nominate
an affiliate (that is, a directly or indirectly wholly owned
entity of Hutchison or a directly or indirectly wholly owned
entity of the ultimate owner of Hutchison) to assume any or all
of the rights and obligations of Hutchison under this
Agreement, without relieving Hutchison of its obligations under
this Agreement, and Hutchison shall procure that such affiliate
complies with all obligations of Hutchison under this Agreement
as if such affiliate were a party to this Agreement.
10.4 Further Assurances
At any time after the date of this Agreement, the parties shall take
all reasonable actions in good faith to cause the conditions set forth
in Clause 6 to be fulfilled as soon as practicable. In addition, the
Parties shall and shall use their best endeavours to procure that any
necessary third party shall execute such documents and do such acts and
things as any Party may reasonably require for the purpose of giving to
such Party the full benefit of all the provisions of this Agreement.
10.5 Costs
The selling Israeli Shareholders, on the one hand, and Hutchison, on
the other hand, shall each bear one-half of all stamp duty and transfer
taxes payable in connection with the transactions contained in this
Agreement, to the extent applicable.
10.6 Notices
10.6.1 Any notice or other communication in connection with this
Agreement or with any legal proceedings under this Agreement shall be
in writing in English (a "Notice") and shall be sufficiently given or
served if delivered or sent:
in the case of an Israeli Shareholder, at such Israeli
Shareholder's address or facsimile number set forth on
Schedule A hereto, with a copy (which shall not constitute notice)
to Goldfarb, Levy, Eran & Co., 2 Weizmann Street,
Tel Aviv 64239, Israel, facsimile number: +972-3-608-9909,
Attention: Oded Eran, Adv. and Adam M. Klein, Adv.; and
in the case of Hutchison to:
Leidsekade 98, 1017 Amsterdam,
Netherlands
Attention: Legal Department
With a copy to HTIL at 18/F Two Harbourfront 22 Tak Fung
Street, Hunghom, Kowloon, Hong Kong, fax: +852 2827 1371,
attention: Legal Department.
10.6.2 Notice may be delivered by hand or sent by fax. Without
prejudice to the foregoing, any Notice shall conclusively be deemed
to have been received upon the first Business Day following
transmission and electronic confirmation of receipt), if sent by fax,
or at the time of delivery, if delivered by hand.
10.7 Invalidity
If any term in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or part shall to that extent be deemed not to form part of
this Agreement but the legality, validity or enforceability of the
remainder of this Agreement shall not be affected.
10.8 Counterparts
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
Any Party may enter into this Agreement by executing any such
counterpart.
10.9 Governing Law and Submission to Jurisdiction
10.9.1 This Agreement and the documents to be entered into pursuant to
it, shall be governed by and construed in accordance with the laws of
the State of Israel.
10.9.2 All the Parties irrevocably agree that the courts of Tel
Aviv/Jaffo are to have exclusive jurisdiction to settle any dispute
which may arise out of or in connection with this Agreement and the
documents to be entered into pursuant to it. All the Parties
irrevocably submit to the jurisdiction of such courts and waive any
objection to proceedings in any such court on the ground of venue or
on the ground that proceedings have been brought in an inconvenient
forum.
10.10 Amendments and Waivers
Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the all Parties. In addition, any
Party may waive any right or condition of which such Party is the
beneficiary.
10.11 Entirety of Agreement
This Agreement, including the schedules attached hereto, constitute the
full and entire understanding and agreement among the parties with
regard to the subject matter hereof and thereof, and no Party shall be
liable or bound to any other party in any manner except as specifically
set forth herein.
In witness whereof this Agreement has been duly executed.
SIGNED by [ ]
on behalf of Matav Investments Ltd. in the
presence of:
SIGNED by [ ]
on behalf of Elbit Ltd in the presence of:
SIGNED by [ ]
on behalf of Eurocom Communications Ltd.
in the presence of:
SIGNED by [ ]
on behalf of Polar Communications Ltd.
in the presence of:
SIGNED by [ ]
on behalf of Hutchison Telecommunications
(Netherlands) B.V.
in the presence of:
We, Advent Investments Pte Ltd., hereby agree to comply with the provisions
of Clauses 8.1 and 8.3 of this Agreement.
-----------------------------------------------------------------------------
Advent Investments Pte Ltd.
----------------------------
SIGNED by [ ]
on behalf of Matav Cable Systems Media Ltd. in
the presence of:
We, Tapuz Cellular Systems Ltd., hereby agree to comply with the
provisions of Clauses 8.1 and 8.3 of this Agreement.
-----------------------
Tapuz Cellular Systems Ltd,
Schedule A
Israeli Shareholders and their respective Percentages
of Outstanding Shares Transferable Pursuant to Clause 3.1
-------------------------------------------
Percentage
----------------------------------------------------------------- ---------------------- ---------------------
Name and Address of Israeli Shareholder w/o Matav with Matav
----------------------------------------------------------------- ---------------------- ---------------------
4.855204% 3.720974%
Elbit Ltd.
3 Azrieli Center
Triangle Building, 42nd Floor
Tel Aviv 67023 Israel
Tel: +972-3-607-5555
Fax: +972-3-607-5556
Attention: Mr. Tal Raz (Director)
----------------------------------------------------------------- ---------------------- ---------------------
Eurocom Communications Ltd. 3.560017% 2.728357%
2 Dov Friedman Street
Ramat-Gan 52141 Israel
Tel: +972-3-753-0900
Fax: +972-3-752-9699
Attention: Amikam Shorer, Adv. (VP & Legal Counsel)
----------------------------------------------------------------- ---------------------- ---------------------
Polar Communications Ltd. 1.296749% 0.993814%
21 Ha'arba'ah Street,
Tel Aviv 64739 Israel
Tel: +972-3-684-5795
Fax: +972-3-684-5713
Attention: Ken Lalo (Executive Vice President)
----------------------------------------------------------------- ---------------------- ---------------------
----------------------------------------------------------------- ---------------------- ---------------------
Matav Investments Ltd. 0% 2.268826%
42 Pinkas Street, Netanya
Tel: +972-9-860-2160
Fax: +972-9-860-2286
Attention: Ori Gur Arye, General Counsel
----------------------------------------------------------------- ---------------------- ---------------------
Total 9.711971% 9.711971%
========= =========
Schedule B
Respective Percentages subject to
Hutchison's 2% Call Option pursuant to Clause 3.2
Percentage
----------------------------------------------------------------- ---------------------- ---------------------
Israeli Shareholder w/o Matav with Matav
----------------------------------------------------------------- ---------------------- ---------------------
0.999839% 0.766265%
Elbit Ltd.
----------------------------------------------------------------- ---------------------- ---------------------
Eurocom Communications Ltd. 0.733119% 0.561854%
----------------------------------------------------------------- ---------------------- ---------------------
Polar Communications Ltd. 0.267041% 0.204658%
----------------------------------------------------------------- ---------------------- ---------------------
Matav Investments Ltd. 0% 0.467223%
----------------------------------------------------------------- ---------------------- ---------------------
Total 2% 2%
== ==
----------------------------------------------------------------- ---------------------- ---------------------
Schedule C
Respective Percentages subject to
Hutchison's Right of First Refusal pursuant to Clause 3.3
Percentage
----------------------------------------------------------------- ---------------------- ---------------------
Israeli Shareholder w/o Matav with Matav
----------------------------------------------------------------- ---------------------- ---------------------
2.740636% 2.100393%
Elbit Ltd.
----------------------------------------------------------------- ---------------------- ---------------------
Eurocom Communications Ltd. 2.009537% 1.540086%
----------------------------------------------------------------- ---------------------- ---------------------
Polar Communications Ltd. 0.731981% 0.560982%
----------------------------------------------------------------- ---------------------- ---------------------
Matav Investments Ltd. 0% 1.280693%
----------------------------------------------------------------- ---------------------- ---------------------
Total 5.482154% 5.482154%
========= =========
----------------------------------------------------------------- ---------------------- ---------------------
Schedule D
Respective Percentages of
the Required Israeli Percentage
Percentage
----------------------------------------------------------------- ---------------------- ---------------------
Israeli Shareholder w/o Matav with Matav
----------------------------------------------------------------- ---------------------- ---------------------
0% 38.300%
Elbit Ltd.
----------------------------------------------------------------- ---------------------- ---------------------
Eurocom Communications Ltd. 0% 28.113%
----------------------------------------------------------------- ---------------------- ---------------------
Polar Communications Ltd. 0% 10.232%
----------------------------------------------------------------- ---------------------- ---------------------
Matav Investments Ltd. 100% 23.355%
----------------------------------------------------------------- ---------------------- ---------------------
Total 100% 100%
==== ====
----------------------------------------------------------------- ---------------------- ---------------------
Schedule 1
Completion Obligations
1______Israeli Shareholders respective Obligations
On closing each selling Israeli Shareholder shall:
1.1 deliver or make available to Hutchison:
1.1.1 evidence of the due fulfilment of the conditions specified in
Clause 6.1 above; and
1.1.2 transfer deeds in the agreed terms for the transfer of the
Shares duly executed by the registered holders in favour of
Hutchison, or as it may direct, accompanied by the relevant
share certificates issued by the Company. If the share
certificates delivered by any Israeli Shareholder to
Hutchison shall represent a number of Shares in excess the
number of Shares sold to Hutchison hereunder, then the
applicable Parties shall cooperate in arranging for the
issuance and delivery of share certificates representing
the applicable number of Shares.
2 Hutchison's Obligations
At closing, Hutchison shall do as required or necessary for the
execution, delivery and performance of documents required to be
executed by Hutchison for the contemplated transaction.
Schedule 2
The Matav Release Document
This Amendment Agreement No. 2 to the Relationship Agreement is made on February
7, 2005
Between:
1. Advent Investments Pte Limited whose principal office is at 1 King George's
Avenue, #03-00 Rehau Building, Singapore ("Advent");
2. Matav Investments Ltd whose principal office is at 42 Pinkas Street, North
Industrial Area, Netanya 42134, Israel ("Matav");
3. Elbit Ltd whose principal office is at 3 Azrieli Center, Triangle Building,
42nd Floor, Tel Aviv 670231 Israel ("Elbit");
4.Eurocom Communications Ltd whose principal office is at 2 Dov Friedman Street
Ramat Gan, Israel ("Eurocom");
5. Polar Communications Ltd (formerly known as Hapoalim Electronic Communication
Limited) whose principal office is at 21 Ha'arba'ah., Tel-Aviv 64739, Israel
("Polar");
6. Tapuz Cellular Systems Ltd whose principal office is at 2 Dov Friedman
Street, Ramat Gan, Israel ("Tapuz"); and
7. Hutchison Telecommunications (Netherlands) B.V. whose registered office is
at De Boelelaan 7 Officia 1; 1083 HJ Amsterdam, Netherlands ("Hutchison");
(and together referred to hereinafter as the "Parties" or individually as a
"Party").
Whereas: Delek Group Ltd. (and its Affiliates) (collectively - "Delek"), Matav
and Matav Cable Systems Media Ltd. have notified the Parties that Bank Leumi
Le'Israel Ltd. (the "Bank") has notified them that, in light of the rules of the
Bank of Israel pertaining to "Limitations on the liability of a borrower and/or
group of borrowers (11/03) (the "Rules") from one hand and the provisions of the
Relationship Agreement from the other hand, the Company ("Partner"), together
with Matav, Matav Cable Systems Media Ltd. ("Matav Cables") and Delek, are
viewed and treated by the Bank as one "group of borrowers" as defined in the
Rules ("Bank Leumi Event"), and therefore, the Bank is currently not willing
to provide Matav, Matav Cables and Delek with any additional credit; and
Whereas: At the request of Matav, Matav Cables and Delek Group Ltd., the Parties
have ageed to amend the Relationship Agreement, in accordance with and subject
to the provisions hereof, with the sole intent of assisting Delek and Matav to
solve and overcome the Bank Leumi Event.
It is hereby agreed as follows-
1.The Parties hereby agree to amend the Relationship Agreement, effective from
the date hereof, by adding new sub-clause 6.5.3(e) as follows:
"6.5.3(e). Notwithstanding the provisions of clause 6.5.3(d) above and without
derogating from the provisions of clause 6.5.2(a) above, the provisions of
clauses 6.5.2(b) and 6.5.3(a) above shall not apply to Matav as long as such
application might cause a Bank Leumi Event, but not otherwise."
2. Matav hereby agrees to consider in good faith any relevant issues relating to
the Rules which may effect other Parties from time to time, including, without
limitation Hutchison and Advent, whilst at all times using its best efforts to
preserve the existing rights of Hutchison and Advent, including, inter alia,
Matav agreeing to, and signing, an amendment of the Articles of Association of
the Company and/or other amendments to the Relationship Agreement. Matav
agreement to sign any such documents will be subject to the execution of these
documents by all the other Parties and subject also that the execution of any
of the documents will not give rise to a Bank Leumi Event.
3. Notwithstanding the terms of section 2 above, it is agreed and acknowledged
by the Parties that this Amendment No. 2 is made on an ad-hoc basis, designated
solely for the purpose of overcoming the Bank Leumi Event, shall not serve as a
precedent and shall not be interpreted as binding any of the Parties to agree to
any future request by any Shareholder of the Company to make any other
amendments to the Relationship Agreement in that respect. Neither Party shall
have any claim or demand against any of the other Parties in the event that any
of the other Parties shall not agree to make any further amendments to the
Relationship Agreement.
All other terms and conditions of the Relationship Agreement and of the
Amendment Agreement dated April 23, 2002, not specifically amended hereunder
shall remain unchanged. All terms not defined herein shall have the meaning as
in the Relationship Agreement and the Amendment Agreement.
This Amendment Agreement No. 2 is an integral part of the Relationship
Agreement, for any purpose.
In witness whereof this Amendment Agreement No. 2 has been duly executed.
SIGNED by
on behalf of Advent Investments Pte
Limited in the presence of:
SIGNED by
on behalf of Matav Investments Ltd
Limited in the presence of:
SIGNED by
on behalf of Elbit Ltd in the presence of:
SIGNED by
on behalf of Eurocom Communications Ltd
in the presence of:
SIGNED by
on behalf of Polar Communications Ltd
in the presence of:
SIGNED by
on behalf of Tapuz Cellular Systems Ltd
in the presence of:
SIGNED by
on behalf of Hutchison
Telecommunications (Netherlands) B.V.
in the presence of:
Exhibit 5
JOINT FILING AGREEMENT PURSUANT TO RULE 13d-1(k)(1)
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D shall be filed on behalf
of each of the undersigned without the necessity of filing additional joint
filing agreements. The undersigned acknowledge that each shall be responsible
for the timely filing of such amendments, and for the completeness and accuracy
of the information concerning it or him contained therein, but shall not be
responsible for the completeness and accuracy of the information concerning the
others, except to the extent it knows or has reason to believe that such
information is inaccurate. This Joint Filing Agreement may be executed in any
number of counterparts and all of such counterparts taken together shall
constitute one and the same instrument.
Dated: March 1, 2005
MATAV INVESTMENTS LTD.
By: /s/ Assaf Bartfeld
-----------------
Name:Assaf Bartfeld
Title: Director
By: /s/ Meir Srebernik
-----------------
Name:Meir Srebernik
Title: Director
MATAV CABLE SYSTEMS MEDIA LTD.
By: /s/ Assaf Bartfeld
-----------------
Name:Assaf Bartfeld
Title: Director
By: /s/ Meir Srebernik
-----------------
Name:Meir Srebernik
Title: Director
EUROCOM COMMUNICATIONS LTD.
By: /s/ Shaul Elovitch
--------------------
Name: Shaul Elovitch
Title: Chairman
EUROCOM HOLDINGS (1979) LTD.
By: /s/ Shaul Elovitch
------------------
Name: Shaul Elovitch
Title: Chairman
/s/ Shaul Elovitch
-------------------
SHAUL ELOVITCH