SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 32)
AMPAL - AMERICAN ISRAEL CORPORATION
____________________________________________________________
(Name of Issuer)
Class A Stock, par value $1.00 per share
____________________________________________________________
(Title of Class and Securities)
032015 10 9
____________________________________________________________
(CUSIP Number of Class of Securities)
Yoram Weissbrem, Secretary
Bank Hapoalim B.M.
50 Rothschild Boulevard
Tel Aviv 61000, Israel
972-3-5673333
_____________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 12, 1996
____________________________________________________________
(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 Statement because of Rule 13d-1(b)(3) or
(4), check the following: ( )
Check the following box if a fee is being paid with this
Statement: ( )
SCHEDULE 13D
CUSIP No. 032015 10 9
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
BANK HAPOALIM B.M.
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS
_________________________________________________________________
(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 10,500,991*
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 10,500,991*
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,500,991*
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
50.2%*
_________________________________________________________________
(14) TYPE OF REPORTING PERSON
BK
_________________________________________________________________
* Assuming conversion of the shares of 6-1/2% Preferred and 4% Preferred
owned by the Bank.
This statement constitutes Amendment No. 32 to the Statement on
Schedule 13D (the "Schedule 13D") filed with the Securities and Exchange
Commission by Bank Hapoalim B.M. (the "Bank") in connection with its
beneficial ownership of shares of Class A Stock ("Class A Stock") of
Ampal-American Israel Corporation, a New York corporation ("Ampal").
Unless otherwise defined, capitalized terms used herein shall have
the meanings ascribed to them in the Schedule 13D.
Item 7. MATERIALS TO BE FILED AS EXHIBITS
Exhibit 1 -- An English translation of the Stock Purchase Agree-
ment, dated May 12, 1996, by and among Bank Hapoalim B.M., Atad Hevra
Lehashkaot Limited and Rebar Financial Corp. which was described in
Amendment No. 31 to the Schedule 13D. The binding version of the Stock
Purchase Agreement is in Hebrew.
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
BANK HAPOALIM B.M.
By: /s/ Yaacov Elinav
Name: Yaacov Elinav
Title: Senior Deputy Managing Director
By: /s/ Nurit Raviv
Name: Nurit Raviv
Title: Advocate
Dated: May 28, 1996
Exhibit 1
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the English translation of the Stock Purchase
Agreement as set forth below is fair and reasonably accurate.
BANK HAPOALIM B.M.
By: /s/ Yaacov Elinav
Name: Yaacov Elinav
Title: Senior Deputy Managing Director
By: /s/ Nurit Raviv
Name: Nurit Raviv
Title: Advocate
Dated: May 28, 1996
ENGLISH TRANSLATION
AGREEMENT
Made and signed in Tel Aviv on May 12, 1996
Between: 1. BANK HAPOALIM B.M. (herein - the "BANK")
2. ATAD - HEVRA LEHASHKAOT LIMITED (herein - "ATAD")
(The Bank and Atad shall be referred to herein, jointly
and severally, as the "Seller")
OF THE FIRST PART
A n d : 1. REBAR FINANCIAL CORP.
(herein - the "BUYER")
2. DANIEL STEINMETZ
BINYAMIN STEINMETZ
RAZ STEINMETZ
(herein, jointly and severally - the "SHAREHOLDERS")
(The Buyer and the Shareholders shall be referred to herein,
jointly and severally, as the "BUYERS")
OF THE SECOND PART
WHEREAS The Bank is the owner of the issued and paid-up shares of Atad; and
WHEREAS The Seller is the owner of shares in Ampal American Israel
Corporation, a corporation registered in the State of New York,
U.S.A. (herein - "AMPAL"), and, inter alia, the Seller holds
10,116,633 shares called "Class A" (herein - the "CLASS A STOCK")
which are held by Atad; and 3,000,000 shares called "Common"
(herein - the "COMMON STOCK"), which are held by the Bank (herein
jointly - the "SELLER'S SHARES IN AMPAL"); and
WHEREAS By virtue of the Seller's shareholding in Ampal, the Seller
controls Ampal; and
WHEREAS The Bank has, by virtue of its holding the shares of the Common
Stock, preferred voting rights in Ampal, and the Bank is interested
in equalizing the rights of the shares of the Common Stock to the
rights of the shares of the Class A Stock, and for that purpose a
Committee of the disinterested directors of Ampal has been
designated to deal with the equalization rights; and
WHEREAS The Seller is interested in selling 7,242,352 of the Seller's
Shares in Ampal, safeguarding its right to choose to sell either
7,242,352 shares of the Class A Stock, or to sell 5,742,351 shares
of the Class A Stock and 1,500,001 shares of the Common Stock
(herein - the "SOLD SHARES"), in stages and in the manner set forth
herein below, in order to be able to comply with the provisions of
the Banking (Licensing) Law - 1981 (herein - the "BANKING LAW");
and
WHEREAS The Seller has approached a number of potential entities, each of
which it was reasonable to assume is an "Accredited Investor" as
the term is defined in Rule 501 enacted under the Securities Act
of 1933 (herein - "ACCREDITED INVESTOR" and the "SECURITIES ACT"),
or a "Sophisticated Person" as described in Rule 506(b)(2)(ii)
enacted by virtue of the Securities Act, and the Bank has reported
this approach to the Securities & Exchange Commission in the U.S.A.
(herein - the "SEC") and to the Israel Securities Authority, and
within the framework of those reports the Bank made known its
intention to initiate a procedure of equalizing the rights of the
Common Stock to the rights of Class A Stock; and
WHEREAS After such report the matter of the approach was published in the
Israeli communication media, without the Bank initiating or taking
any part in such publication, and following which a number of addi-
tional interested entities approached the Bank, as to each of which
it was also reasonable to assume is an Accredited Investor or
Sophisticated Person, requesting information with respect to the
sale of part of the Seller's Shares in Ampal; and
WHEREAS A number of interested entities, the Shareholders among them, re-
sponded to the Bank's approach and submitted bids to purchase part
of the Seller's Shares in Ampal, and the Shareholders' bid was
found to be the most suitable among the bids submitted, although
the Bank did not accept it as is, and after negotiating on various
subjects, the Seller, the Buyer and the Shareholders reached the
agreements set forth herein below; and
WHEREAS The Shareholders and the Buyer wish to purchase the Sold Shares,
as set forth herein, through a foreign company or companies to be
established by them for the purpose of the purchase (herein - the
"Final Buyer"), at least 75% of whose shares (whether its or
theirs, as the case may be), will be held by the Shareholders
(whether by all or some of them), directly or through companies
of which they (or some of them) hold at least 75% of their shares,
as set forth herein; and
WHEREAS The Shareholders have not as yet established the Final Buyer but
have established the Buyer at an interim stage; all of the Buyer's
shares are held by them and by another company which is fully
owned by them, with the intention that the Buyer will transfer all
its rights and obligations under this Agreement to the Final
Buyer, with respect to which all the conditions included in the
Purchaser's representations and warranties in sections 4.3 - 4.7
to this Agreement are met.
THEREFORE, IT IS DECLARED, STIPULATED AND AGREED AMONG THE PARTIES AS
FOLLOWS:
1. PREAMBLE, APPENDICES, HEADINGS, EXHAUSTIVE AGREEMENT AND CONSTRUCTIONS:
1.1 The Preamble hereof and the Annexes attached hereto, constitute an
integral part hereof.
1.2 The headings of the Clauses hereof are for convenience only; they are
not part of the Agreement and should be given no significance for the
purpose of construing this Agreement or any of the provisions hereof.
1.3 The emphasis herein are only for convenience in reading and should be
given no significance for the purpose of construing this Agreement or
any of the provisions hereof.
1.4 This Agreement exhausts all agreements and understanding between the
Seller and the Buyers with respect to the transaction contemplated
herein. Neither the Seller nor any of the Buyers have declared or
made any representation whatsoever which is not included herein. For
the removal of doubt it is hereby clarified that the document re-
questing bids prepared by the Bank and the bids documents prepared by
all or some of the shareholders shall have no validity in the rela-
tionship among the parties hereto commencing from the date of signa-
ture hereof, without derogating in any way from the bank guarantee
mentioned in Clause 6.4 below and the confidentiality undertaking
signed by the Shareholders. The confidentiality undertaking shall
remain in effect until the 'Closing Date', as defined in Clause 2.1
below.
2. DEFINITIONS
2.1 In this Agreement the following words or expressions shall have the
meaning set forth beside them unless the context requires otherwise:
"THE BANK" means - Bank Hapoalim B.M.
"ATAD" means - Atad Hevra Lehashkaot Limited
"THE SELLER" means - the Bank and Atad, jointly and severally.
"THE BUYER" means - Rebar Financial Corp., and in such case as
specified in Clause 2.2 below, means - the Final Buyer.
"THE SHAREHOLDERS" means - Daniel Steinmetz, Binyamin Steinmetz and
Raz Steinmetz, jointly and severally, whether or not they are direct
shareholders of the Final Buyer.
"THE BUYERS" means - the Buyer and the Shareholders, jointly and
severally.
"CLASS A STOCK" means - shares of Class A, $1 par value each, of
Ampal.
"COMMON STOCK" means - shares of Common stock, $1 par value each, of
Ampal.
"4% PREFERRED SHARES" means - accumulating and participating 4%
preferred shares, $5 par value each, of Ampal, each convertible to
five shares of Class A Stock.
"6-1/2% PREFERRED SHARES" means - accumulating 6-1/2% preferred shares,
$5 par value each, of Ampal, each convertible to three shares of
Class A Stock.
"PREFERRED SHARES" means - 4% preferred Shares and 6-1/2% preferred
shares together.
"AMPAL'S CAPITAL BASE" means - the total par value of Ampal's issued
and paid-up share capital of the shares entitled to participate in
Ampal's profits, assuming that: (i) the rights of the shares of the
Common Stock are equal to those of the shares of the Class A Stock;
and (ii) all preferred shares were converted to shares of the Class A
Stock; i.e:
Common Stock $ 3,000,000
Class A Stock $24,612,939
TOTAL $27,612,939
"PAID AND FREE" means - fully paid-up shares, clean and free of any
debt, lien, encumbrance or other third party right.
"WEIGHTED VOTING RIGHTS" means - the weighted voting rights presently
attributable to the shares of the Common Stock compared with the
voting rights of the shares of the Class A Stock.
"THE PROCEDURE OF EQUALIZATION OF RIGHTS" means any of the following
procedures; - (i) to amend the Certificate of Incorporation of Ampal
so that all shares of the Common Stock are reclassified as the Class
A Stock; or, alternatively (ii) to amend the Certificate of Incorpo-
ration of Ampal so that the majority of shares of the Common Stock
(the Seller assumes this to be about 2,900,000 shares of the Common
Stock) are reclassified as shares of the Class A Stock, thus cancel-
ling the Weighted Voting Rights of the balance shares of the Common
Stock remaining in the Seller's possession, so that each share of the
Common Stock will have one vote at Ampal's shareholder meetings; in
each of the above alternatives the Seller reserves the right to
demand Ampal to receive a share certificate of the Class A Stock
against each share of the Common Stock canceled as a result of the
amendment of Ampal's Certificate of Incorporation; or (iii) to
replace the shares of the Common Stock with shares of the Class A
Stock, in the framework of which the Seller will receive one share of
the Class A Stock for one share of the Common Stock, provided that
simultaneously with the exchange of shares Ampal undertakes to both
the Seller and the Buyer, finally and irrevocably, that it shall make
no use whatsoever of all or some of the shares of the Common Stock
(including sale, transfer, issuance or any other action). In addi-
tion, it is agreed that soon after completion of the exchange of
shares described above, the parties shall do the best they can to:
(a) cancel the shares of the Common Stock by amending Ampal's Certif-
icate of Incorporation or in any other way agreed upon by the par-
ties; or (b) retire all of the shares of the Common Stock by amending
Ampal's Certificate of Incorporation, if possible, or any other way;
or (iv) a procedure similar to the one above which will lead to a
result that would have been achieved by either of these procedures;
all of the above shall apply whether or not the 'Compensation' (as
defined below) is received in the framework of the Procedure of
Equalization of Rights.
"COMPENSATION" means - compensation for the loss of the Weighted
Voting Rights, which can be the 'Additional Shares' and/or the
'Options for Additional Shares', as these terms and defined below,
and/or monetary compensation.
"THE ADDITIONAL SHARES" means - shares of the Class A Stock which the
Seller shall receive in the framework of the Procedure of Equaliza-
tion of Rights in addition to equalization of rights of one share of
the Common Stock to those of one share of the Class A Stock, or in
addition to receiving one share of the Class A Stock for every share
of the Common Stock.
"THE OPTIONS FOR ADDITIONAL SHARES: means - options for the purchase
of shares of the Class A Stock or exercisable by using shares of the
Class A Stock which the Seller shall receive in the framework of the
Procedure of Equalization of Rights, in addition to receiving one
share of the Class A Stock for every share of the Common Stock, or in
addition to equalization of the rights of one share of the Common
Stock to those of one share of the Class A Stock.
"THE ADDITIONAL DIVIDEND" means - the dividend that the Board of
Directors of Ampal is authorized to resolve to distribute, at its
discretion, over and above the preferred dividend which the holders
of the Preferred Shares are entitled to receive.
"THE PROCEDURE OF WAIVING THE WEIGHTED VOTING RIGHTS" means - the
Seller, as holder of the shares of the Common Stock, shall unilater-
ally and irrevocably waive the Weighted Voting Rights of the shares
of the Common Stock, so that each share of the Common Stock shall
have one vote at Ampal Shareholders' meetings, and the Seller shall
make its best effort to cause Ampal's incorporation documents to be
amended accordingly. In the framework of this procedure, the Seller
has the right to cause Ampal's incorporation documents to be amended
in such a way that the power to distribute the Additional Dividend,
in a manner discriminating between the rate of dividend received by
the owner of a share of the Class A Stock, and the rate of dividend
received by the owner of a share of the Common Stock, will be invest-
ed solely in the general meeting of Ampal, and that in voting on such
a decision, the Weighted Voting Rights of the shares of the Common
Stock will be preserved.
"THE BASE SHARES" means - 5,742,351 shares of the Class A Stock out
of the Sold Shares.
"THE BALANCE OF THE SOLD SHARES" means - the balance of the Sold
Shares which the Seller has to transfer to the Buyer after having
transferred the Base Shares, i.e. either 1,500,001 shares of the
Class A Stock or 1,500,001 shares of the Common Stock.
"THE BALANCE OF THE SELLER'S SHARES IN AMPAL" means - shares of the
Class A Stock or options to shares of the Class A Stock or shares of
the Common Stock, after the Procedure of Equalization of Rights or
the Procedure of Waiving the Weighted Voting Rights has been execut-
ed, which remain in the Seller's possession in Ampal after the
transfer of the Sold Shares to the Buyer.
"CLOSING DATE" means - the fifth business day after fulfillment of
all the "preliminary conditions" set forth in Clause 18 hereof, or an
earlier date to be agreed upon by the parties.
"LEGAL AND PERMITTED" means - the action or inaction in question
being permitted and not contrary to the provisions of any 'law' (as
defined below) and/or agreement and/or undertaking of any kind which
the Buyers or the Seller or Ampal have undertaken or for which they
are liable (including the undertakings in Ampal's incorporation
documents and/or the directives of any authority in Israel and the
U.S.).
"LAW" means - primary legislation, regulations, and directives of any
public authority or any authority operating under law, or governmen-
tal agency authorized to deal with the relevant issue in the relevant
country.
"SUBSIDIARY" means - a company in which another company holds,
directly or indirectly, fifty percent or more of the par value of its
issued share capital or of the rights to profit or its voting power,
or has the right to appoint half or more of the directors thereof.
"THE SELLER'S ACCOUNT" means - Account No. 028321 in Branch 579 of
the Bank.
"THE BANK'S OFFICES" means - conference room in the offices of the
Bank, at 65 Yehuda Halevy Street, Tel Aviv.
"DOLLAR" or "$" means - United States dollar.
"LIBOR" means - the interbank interest rate as published in London by
Reuters at midday, with respect to loans for three-month periods.
"SHEKEL" means - New shekels of the State of Israel.
"BUSINESS DAY" means - a day in which the Bank is open to the public,
excluding Sunday.
"AMEX" means - the American Stock Exchange in New York.
2.2 If the Buyers wish to transfer the Buyer's rights and obligations under
this Agreement to the Final Buyer, the Buyers shall notify the Seller
and will cause the Final Buyer to sign the same Agreement which has
been signed by the parties hereto, a copy of which shall be delivered
to the Seller. With the acts of signing and delivering the Agreement
to the Seller, the Final Buyer will become a party to this Agreement
and it shall be deemed to be a party to this Agreement as of the date
of signing, and the definitions "the Buyer" and "the Buyers" herein
will also include and relate to the Final Buyer, without releasing
the Shareholders and the Buyer (so long as it has not been liquidat-
ed) from their undertakings and obligations vis-a-vis the Seller
hereunder; and the Final Buyer, the Buyer and the Shareholders shall
be jointly and severally liable to the Seller.
2.3 The singular includes the plural and vice versa.
2.4 A period calculated from a certain date or up to a certain date shall
not include the first date.
2.5 Wherever the time for performing any action whatsoever is stipulated,
the reference to the time prevailing where the action is to be
performed, and if the action in question is to send a notice which
must reach the recipient by a certain hour, the reference is the time
prevailing where the recipient is located.
3. THE SELLER'S DECLARATIONS
The Seller hereby declares as follows:
3.1 Ampal's registered share capital consists of shares of the Common
Stock, shares of the Class A Stock, 4% Preferred Shares and 6-1/2%
Preferred Shares.
Ampal's registered share capital, its issued and paid-up capital
according to Form 10-K and the Seller's holdings in the various types
of Ampal shares, as of December 31, 1995, are as set forth in the
following table:
Issued
Regis- and Paid-
Type of Par tered Up Capi- Seller's
Shares Value Capital tal Holdings
Common Stock $1 3,000,000 3,000,000 3,000,000
Class A Stock $1 60,000,000 20,459,992* 10,116,633
4% Preferred $5 650,000 199,030 3,350
Shares
6-1/2% Pre- $5 4,282,850 1,052,599 122,536
ferred Shares
[*After deducting 605,400 shares of Class A Stock purchased by Ampal
and held as Treasury Stock.]
3.2 Up to September 30, 1995, Ampal issued: (i) 4,500,000 Warrants
(herein - the "WARRANTS"). Each Warrant confers the right to pur-
chase one share of the Class A Stock for a consideration of an added
conversion price of $16 per share; (ii) 134,900 options in the
framework of the Incentive Stock Options Plan (herein - the "INCEN-
TIVE OPTIONS"). Each such Incentive Option is convertible to one
share of the Class A Stock for a consideration of an added conversion
price of $10.9 per share.
3.3 The shares of the Class A Stock of Ampal's share capital are regis-
tered for trade on AMEX.
3.4 7,242,352 shares of the Class A Stock constitute 35.40% of Ampal's
issued and paid-up share capital, and constitute 26.23% of Ampal's
Capital Base.
3.5 All of the Seller's Shares in Ampal are Paid and Free.
3.6 The Seller has not undertaken to transfer any part of its shares in
Ampal and Ampal has not undertaken, to the Seller's best knowledge,
to issue Ampal shares or options or warrants of any type or to issue
other securities of any type, that may be converted into shares.
Save for the conversion rights of holders of Preferred Shares,
Warrants and Incentive Options, no person whatsoever has any right to
obligate and Seller to sell Ampal shares or other Ampal securities to
him, and to the Seller's best knowledge, no person whatsoever has the
right to obligate Ampal to issue to him shares or other securities.
To avoid doubt, the contents of this clause do not relate to the
Additional Shares or the Options for Additional Shares which the
Seller may have (if any), as a result of the Procedure of Equaliza-
tion of Rights (if executed), as to which separate provisions exist.
3.7 No person or legal entity is entitled to purchase the Sold Shares,
and to the Seller's best knowledge, in reliance upon the Buyer's
representations and warranties, as well as subject to the Buyer
furnishing to Ampal the declarations and representations required by
Law or under Ampal's incorporation documents, for the purpose of
registering the Sold Shares in the name of the Buyer, there is
nothing to prevent the sale and transfer of the Sold Shares to the
Buyer.
3.8 The Sold Shares shall be sold to the Buyers as provided herein, "as
is", i.e. the Seller makes no representation and gives no undertaking
to the Buyer with respect to the value of the Sold Shares, the value
of Ampal, the value of its assets, the condition of Ampal's business
and assets, any limitations there may be with respect thereto and
with respect to any other matter as to which no express representa-
tion was made or undertaking given by the Seller herein.
3.9 The sale of the Sold Shares or of the Compensation Shares (if any) or
of the 'Surplus Shares' (if any, and if sold to the Buyer) as defined
in Clause 5.4 below), by the Seller to the Buyer, and the Seller's
entering into this Agreement with the Buyers and performance of the
actions required hereunder does not constitute a violation of any
Law, or of Ampal's documents of incorporation or any other of the
Seller's undertakings.
3.10 None of the Seller's undertakings hereunder contradict any Law.
3.11 Ampal's Form 10-K, delivered to the Buyers, is a true representation,
according to the Seller's best knowledge, of Ampal's financial
condition and all the extraordinary events that occurred in Ampal
until the date of signature of the above report. As conveyed by
Ampal to the Seller, from the date of signature of Ampal's Annual
Report to the date of signature hereof, no actions have been under-
taken by Ampal deviating from the normal course of business, and no
significant adverse change has occurred in Ampal's financial condi-
tion.
4. THE BUYER'S DECLARATIONS
The Buyers hereby declare as follows:
4.1 The Shareholders are a party hereto and undertake, jointly and
severally, direct responsibility to the Seller for the truth of each
of the Buyer's declarations, for complete fulfillment of all of the
Buyer's undertakings and the liabilities applicable to it vis-a-vis
the Seller hereunder, and for the Buyer's compliance with all terms
hereof, and everything as if they were the Buyer themselves.
4.2 The Buyer is a corporation lawfully incorporated in and under the
laws of the British Virgin Islands. At least 75% of the Buyer's
issued and fully paid share capital is held by the Shareholders,
directly or through a company fully owned by them.
4.3 At least 75% of the share capital of the Final Buyer (if there is a
Final Buyer), will be held by all or some of the Shareholders,
directly or through a company or companies in which they (or some of
them) hold at least 75% of the shares, so that the total holdings of
the Shareholders in the Final Buyer, directly and/or indirectly, will
be at least 75% of the share capital of the Final Buyer.
4.4 The Buyer was established for the purpose of purchasing the Sold
Shares hereunder; there is no individual or corporation who owns 50%
or more of the voting rights in the Buyer or who is entitled, by
virtue of an agreement or of being a shareholder in the Buyer togeth-
er with rights conferred on it by an agreement, to appoint half or
more of the directors in the Buyer's Board of Directors, and there-
fore there is no person controlling the Buyer as in the meaning of
Regulations 16 C.F.R. SECTION 801.1(b)(1) and (2), enacted under Section
18A of the Hart-Scott-Rodino Antitrust Improvements Act, 15 U.S.C.
The Buyer does not prepare a balance sheet on a regular basis.
The Buyer has made no sales whatsoever. The total value of the
Buyer's assets, save for the amount designated to pay for the Sold
Shares and legal fees and costs connected with the purchase thereof,
is less than $10,000,000.
The Buyer was not established or structured for the purpose of
avoiding fulfilling the requirements of the Hart-Scott-Rodino Anti-
trust Improvements Act, as defined in 16 C.F.R. SECTION 801.90.
4.5 The Buyer is purchasing the Sold Shares for itself, or for the Final
Buyer, for long term investment objectives, and is an Accredited
Investor. The Buyers are aware, inter alia, that under U.S. law
various limitations apply to the ability of the Buyer to sell the
Sold Shares. With respect to the Class A shares included in the Sold
Shares, the Buyers are aware that the Buyer will be prevented for a
certain period from selling any quantity whatsoever on AMEX or any
other stock exchange in which the shares of the Class A Stock are
registered for sale, and subsequently the Buyer shall have the right
to sell limited and certain quantities of the shares of the Class A
Stock out of the Sold Shares on AMEX or any other stock exchange as
aforesaid, under certain conditions.
4.6 The Buyers have the ability and business experience to analyze,
examine and check the Buyer's investment in the purchase of the Sold
Shares, including the risks involved therein, the condition of Ampal,
the feasibility of the purchase and its suitability for their pur-
pose. The Buyers have received, read and checked the documents which
are specified in Annex "A" to this Agreement, and all other relevant
information and documents as to the condition of Ampal's businesses
and assets, as required, in their opinion, for the purpose of entering
into this Agreement.
4.7 The Buyer has the financial ability to execute the investment in the
purchase of the Sold Shares and to perform its undertakings hereun-
der.
4.8 None of the Buyer's undertakings hereunder contradict any law.
4.9 The Buyers are aware that Ampal's principal assets and businesses are
investments in corporations which are active in Israel or connected
with Israel, and the Buyer is purchasing the Sold Shares as repre-
senting this situation, and knowing that Ampal intends to continue
doing so. For the removal of doubt, it is clarified that the above
will not derogate from Ampal's freedom of action to manage its
businesses or to invest in businesses not connected with Israel,
subject to the limitations on the management of businesses applicable
directly to Ampal or to corporations in which Ampal owns shares, due
to the Bank holding shares in Ampal, under any law in the U.S. or
Israel.
In that respect, the Buyer declares that it is aware that Ampal is a
Grandfathered Non-bank Subsidiary of a banking entity but because of
certain activities and investments of Ampal, the Bank may be deemed
as one engaging in non-banking activities in the U.S.
Furthermore, the Buyer is aware that due to the United States Inter-
national Banking Act of 1978, the Bank and Ampal are subject to the
provisions of the United States Bank Holding Company Act of 1956, and
as a result, the Bank and Ampal are subject to restrictions relating
to Ampal's direct and indirect investment activities in the U.S.,
including a prohibition to invest (i) in more than 5% of the voting
rights or 25% or more of the capital rights of (a) any corporation
whatsoever incorporated under the laws of the United States; or (b)
any corporation not incorporated under the laws of the United States,
the majority of whose assets are located in the U.S. or the majority
of whose revenues derive from the U.S. subject to certain exceptions;
or (ii) in 25% or more of the voting rights of any corporation whatsoever
the majority of whose assets are not in the U.S. or the majority
of whose revenues do not derive from the U.S., if such corporation:
(a) engages, directly or by means of its holdings in other corpora-
tions, in certain types of business in the U.S., or (b) it owns
holdings in corporations dealing in other types of business in the
U.S., all as set forth in the above Acts.
4.10 The Buyers hereby expressly declare that the Seller neither gave nor
made any representation whatsoever with respect to the value of the
Sold Shares; the value of Ampal and its asset; the limitations that
might apply with respect thereto; and with respect to any other
matter with respect to which the Seller made no express representa-
tion herein, and that the Buyer is purchasing the Sold Shares "as
is", subject to the truth of the Seller's Declarations herein.
4.11 The Buyers confirm that a representative on their behalf was present
at the meeting of Ampal's Board of Directors held in Ampal's offices
on March 28, 1996, and that he reviewed the documents presented at
the said Board of Directors meeting.
4.12 Subject to the truth of the Seller's declarations, the Buyers hereby
waive any claim or demand of any type whatsoever vis-a-vis the Seller
concerning the value of the Sold Shares, the value of Ampal, its
assets, the condition of its business and assets, and the feasibility
of purchasing the Sold Shares hereunder.
4.13 For the avoidance of doubt, it is hereby clarified that if the Buyer
transfers all of its rights and obligations under this Agreement to
the Final Buyer, the declarations in Clauses 4.3, 4.4, 4.5, 4.6 and
4.7 herein will also vest in the Final Buyer, without derogating from
the Final Buyer's liability and obligations with respect to all the
provisions of Clause 4.
5. THE TRANSACTION
5.1 The Seller hereby undertakes to sell to the Buyer and the Buyer
hereby undertakes to buy from the Seller the Sold Shares in the
manner set forth below.
5.2 The Sold Shares shall be sold to the Buyer in two stages, as follows:
5.2.1 IN THE FIRST STAGE, the Seller shall transfer to the Buyer, on
the Closing Date, the Base Shares, i.e. 5,742,351 shares of
the Class A Stock out of the Sold Shares.
The sale and transfer of the Base Shares to the Buyer shall
take place on the Closing Date, in the manner set forth in
Clause 7 hereof.
5.2.2 IN THE SECOND STAGE, the Seller shall transfer to the Buyer,
on the 'Supplemental Closing Date' (as defined below), the
balance of the Sold Shares, by one of the following two op-
tions, at the Seller's discretion:
(i) THE FIRST OPTION - the Seller has the option to demand
of the Buyer to buy, as the Balance of the Sold Shares,
an additional 1,500,001 shares of the Class A Stock
(herein - the "FIRST OPTION" and the "FIRST OPTION
SHARES").
(ii) THE SECOND OPTION - the Seller has the option to demand
of the Buyer to buy, as the Balance of the Sold Shares,
1,500,001 shares of the Common Stock (herein - the
"SECOND OPTION" and the "SECOND OPTION SHARES"). The
Second Option shall be available to the Seller if nei-
ther the Procedure of Equalization of Rights nor the
Procedure of Relinquishing the Weighted Rights has been
executed by the 'Supplemental Closing Date' (as defined
below).
The Seller's selection of one of the above two Options and the
transfer of the First Option Shares or the Second Option Shares, as
the case may be, from the Seller to the Buyer, may be executed at the
Closing Date or at a later date on any Business Day, of which the
Seller shall notify the Buyer, which shall be no later than March 31,
1997 (herein - the "SUPPLEMENTAL CLOSING DATE"). If the Seller
receives an extension from The Bank of Israel to complete the trans-
action contemplated herein, the Supplemental Closing Date may be up
to the last date of the said extension, or September 30, 1997,
whichever is earlier.
5.2.3 The Seller shall notify the Buyer in writing of the Option it
has selected (the "SELECTION NOTICE"). The Seller shall also
inform the Buyer in the Selection Notice of the date it has
established as the Supplemental Closing Date, provided the
Supplemental Closing Date stated in the Selection Notice shall
be no less than 5 business days from the day on which the
Selection Notice reaches the Buyer. The aforesaid selection
by the Seller shall be final and binding upon both Seller and
Buyer.
5.2.4 If the Supplemental Closing Date is on the Closing Date, all
of the Sold Shares shall be transferred by the Seller to the
Buyer in the manner set forth in Clause 7 hereof, mutatis
mutandis.
5.3 For the removal of doubt it is clarified that:
5.3.1 In the case of the Seller choosing the First Option, but has
not executed the Procedure of Equalization of Rights by the
Supplemental Closing Date, the Seller is obligated to complete
the Procedure of Waiving the Weighted Voting Rights no later
than the Supplemental Closing Date; until that date the Sell-
er, in its relationship with the Buyer, shall be deemed as if
the Procedure of Waiving the Weighted Voting Rights had al-
ready been performed by the Closing Date, save for those cases
in which the Seller has to use the shares of the Common Stock
with their Weighted Voting rights in order to fulfill its
undertakings and to exhaust its rights hereunder, and the
Seller undertakes to act accordingly.
5.3.2 In the case of the Seller choosing the Second Option, the
Second Option Shares shall confer on the Buyer, at the Supple-
mental Closing Date, the same Weighted Voting Rights possessed
by the majority of the shares of the Common Stock on the date
of signature hereof. In such case, the Seller has no right to
initiate the Procedure of Equalization of Rights or the Proce-
dure of waiving the Weighted Voting Rights in the future in
any way whatsoever, whether by virtue of its holdings in the
balance of the shares of the Common Stock or otherwise.
5.4 Should the Seller receive, as compensation, in the framework of the
Procedure of the Equalization of Rights, the Additional Shares and/or
the Options for Additional Shares and/or monetary compensation, the
following provisions shall apply:
5.4.1 In order for the proportion of the Seller's holdings in
Ampal's Capital Base to revert to what it was before the
dilution which came about due to the allocation of the Addi-
tional Shares and/or the Options for Additional Shares (assum-
ing these Options are converted to shares of the Class A
Stock), the Seller will transfer to the Buyer, on the Supple-
mental Closing Date, a proportional part of any kind of com-
pensation which the Seller receives, in a number proportional
to the Sold Shares in the voting rights of Ampal, at the time
of transfer, (herein - the "PROPORTIONAL PART"); this means
that in addition to the First Option Shares (i.e. in addition
to the 1,500,001 shares of the Class A Stock), the Seller will
transfer to the Buyer the Proportional Part of the Additional
Shares or of the Options for Additional Shares, as the case
may be (herein - the "COMPENSATION SHARES"). Such transfer of
the Compensation Shares, being Paid and Free, shall be for no
additional consideration whatsoever by the Buyer to the Seller.
Should the Seller receive monetary compensation, in the frame-
work of the Procedure of Equalization of Rights, the Seller
shall transfer to the Buyer, on the Supplemental Closing Date,
the Proportional Part of the amount of the monetary compensa-
tion received (herein - the "BUYER'S SHARE IN THE MONETARY
COMPENSATION"), for no additional consideration whatsoever by
the Buyer to the Seller.
5.4.2 If the receipt of the Additional Shares, or the exercise of
the Options for the Additional Shares (when they are exer-
cised), after transfer of the Compensation Shares to the
Buyer, causes the Seller's proportion of Ampal shares to
exceed (potentially or actually) the proportion permitted
under the Banking Law, the Seller shall have the right (op-
tion) to demand that the Buyer purchase, at the Supplemental
Closing Date, any additional quantity of Class A Stock so
that, after sale thereof to the Buyer, the Seller's shares in
Ampal shall be equal to the number it held previously (herein
- the "SURPLUS SHARES"), for a consideration as set forth in
Clause 6.2 below.
Should the Seller decide to exercise the option given to it in
this Clause, it shall notify the Buyer, in writing, in the
Selection Notice. Should the Seller notify of the exercise of
the option, the Seller's notice shall be final and binding
upon both Seller and Buyer.
5.5 The provisions hereof were drafted on the assumption that either the
Procedure of Equalization of Rights (should the Seller choose this
Procedure) or the Procedure of Waiving the Weighted Voting Rights
would be completed before the Supplemental Closing Date and no later
than March 31, 1997. It is agreed that if the Seller decides to move
the Supplemental Closing Date to before the Procedure of Equalization
of Rights, the Seller undertakes that this Procedure or the Procedure
of Equalization of Rights shall be completed no later than March 31,
1997, with no further extension. In the event the Supplemental
Closing Date is moved forward as above, all the provisions hereof,
with respect to the relationships between the parties, shall apply as
if the Procedure of Equalization of Rights or the Procedure of
Waiving the Weighted Voting Rights had been completed on or before
the Supplemental Closing Date, subject to the following:
5.5.1 The date stipulated in Clause 5.3.1 for the completion of the
Procedure of Equalization of Rights or the Procedure of Waiv-
ing the Weighted Voting Rights shall be postponed, as set
forth in this Clause 5.5 above.
5.5.2 If the Seller receives Compensation in the framework of the
Procedure of Equalization of Rights, the provisions of Clause
5.4.1 above, and 5.4.2 above (if the Seller exercises his
option under Clause 5.4.2) shall be executed soon after execu-
tion of the Procedure of Equalization of Rights, and in any
event no later than September 30, 1997. The Seller shall
notify the Buyer of the Closing Date which shall be a business
day not less than five business days from the date on which
the Seller's notice reaches the Buyer. The provisions of
Clauses 7.2.1, 7.2.2, 7.2.5 and 7.2.6 hereof shall apply
mutatis mutandis as the case may be.
5.5.3 The Seller's undertaking in Clauses 9.2 and 9.3 shall be
performed as is, simultaneously or soon after completion of
the Procedure of Equalization of Rights or the Procedure of
Waiving the Surplus Voting Rights.
5.5.4 The Seller's undertaking in Clause 9.8 shall also apply after
the Supplemental Closing Date and until the date of completion
of the Procedure of Equalization of Rights or the Procedure of
Waiving the Weighted Voting Rights.
5.5.5 The first section of Clause 10.1 shall be read as an undertak-
ing by the Seller (and not as a right) to complete the Proce-
dure of Waiving the Weighted Voting Rights if the Procedure of
Equalization of Rights is not completed, and if on the Supple-
mental Closing Date the Seller chooses to transfer to the
Buyer the First Option Shares, all as set forth in Clause
10.1, but in the framework of the dates stipulated therefor in
Clause 5.5 above.
6. CONSIDERATION
6.1. In consideration for the sale of the Sold Shares to the Buyer, the
Seller shall be entitled to receive from the Buyer the
'Consideration' as in clause 6.1.2 (herein - the "CONSIDERATION") or,
if the Seller exercises the Second Option, the Consideration as well
as the 'Additional Consideration,' as defined in Clause 6.1.3, all as
set forth below.
6.1.1. For each of the shares of the Class A Stock and the shares of
the Common Stock sold to the Buyer as part of the Sold Shares,
the Buyer shall pay the Seller the price obtained from combin-
ing the following amounts:
(i) $7.74 (seven dollars and seventy-four cents);
(ii) An amount equal to LIBOR interest on the amount in sub
paragraph (i) above, calculated commencing on February
16, 1996 until the actual date of payment.
(herein - the "SHARE PRICE").
6.1.2. The Consideration is the amount obtained from multiplying the
Share Price by the 7,242,352 Sold Shares to be transferred to
the Buyer.
6.1.3. In the event that the Seller selects the Second Option and
transfers the Second Option Shares to the Buyer on the Supple-
mental Closing Date, the Buyer shall pay the Seller for the
Sold Shares, in addition to the Consideration, the amount of
$2,200,000 (two million two hundred thousand dollars) plus an
amount equal to the interest at the LIBOR rate, as calculated
on the amount of $2,200,000, commencing on February 16, 1996
until the actual date of payment (herein - the "ADDITIONAL
CONSIDERATION"), for the Weighted Voting Rights conferred by
holding the Second Option Shares. (The result is that the
price of each share of the Common Stock of the Second Option
Shares will be $9.20666 plus an amount equal to the LIBOR
interest on $9.20666 calculated commencing on February 16,
1996 until the actual date of payment.)
6.2. For all Surplus Shares, in the event that the Seller chooses to
transfer them to the Buyer, the Buyer shall pay the Seller an amount
equal to the Share Price multiplied by the number of the Surplus
Shares (herein - the "SURPLUS SHARES CONSIDERATION").
6.3. The amounts which the Buyer shall pay hereunder are stated in dol-
lars, and shall be paid, at the Seller's choice: (i) in dollars; or
(ii) in shekels at the representative exchange rate of the dollar on
the date of actual payment of each sum, which shall always occur on a
business day on which interbank dollar trading is conducted in
Israel. (Should the payment date fall on a day which is not a
business day, the payment shall be deferred to the nearest following
business day.) If the Bank of Israel does not publish a representa-
tive exchange rate on the date of payment, any such sum shall be paid
according to the average between the sale rate and the purchase rate
of orders for transfers and checks in dollars with respect to the
actual date of payment, as prevailing at the Bank.
6.4. On the date of signature hereof, the Buyer shall furnish to the Bank
an autonomous, unconditional bank guarantee, in an amount equivalent
to 10% of the amount of the Consideration (herein - the "BANK GUARAN-
TEE") valid until 7 days after the Closing Date, and if a specific
expiration date is stipulated therein, the Buyer shall ensure exten-
sion thereof accordingly. The Buyer shall have the right, at its
choice, to issue a new bank guarantee in place of the bank guarantee
furnished to the Seller in respect of the Buyer's offer to acquire
part of the Seller's shares in Ampal, or to extend the validity or
the existing bank guarantee and to add an additional bank guarantee
so that the amount of the two bank guarantees together shall be
equivalent to 10% of the amount of the Consideration.
The Bank Guarantee shall serve to guarantee the amount which the
Buyer is to pay on the Closing Date against execution of the Seller's
undertakings on that date; the Bank will have the power to foreclose
this Guarantee if the Buyer does not pay what is due from it to the
Seller on the Closing Date.
7. ACTS TO BE PERFORMED ON THE CLOSING DATE AND ON THE SUPPLEMENTAL
CLOSING DATE
7.1. The Seller shall transfer the Base Shares out of the Sold Shares,
i.e. 5,742,351 shares of the Class A Stock, to the Buyer, simulta-
neously with and against receipt of the Consideration, on the Closing
Date, at 12.00 P.M., at the Bank's Offices, in the manner set forth
below:
7.1.1. The Seller shall deliver to the Buyer share transfer deed or
deeds, signed by the Seller, relating to the Base Shares,
together with all other documents required by law to register
the Base Shares in the name and ownership of the Buyer in
Ampal's Register of Shareholders.
7.1.2. Simultaneously and against execution of the aforesaid in
subclause 7.1.1 above, and in Clauses 7.3 and 7.4 below, the
Buyer shall pay the Seller the Consideration, by crediting the
Seller's account with that amount, and the Seller on its part
shall release the Bank Guarantee to the Buyer.
7.1.3. The part of the Consideration to be paid for the Balance of
the Sold Shares (based on the assumption that the Seller will
select the First Option), i.e. the amount obtained from the
multiplication of the Share Price by 1,500.001 (herein - the
"DEPOSIT AMOUNT"), shall be held by the Bank in a deposit
account (herein - the "DEPOSIT ACCOUNT"). The Deposit Account
shall be held by the Bank in the Deposit Account for the
Seller and the Buyer, and shall be released to the Seller
together with the amounts accrued with respect to the Deposit
Amount, as set forth in Clause 7.2.2 below.
7.2. On the Supplemental Closing Date, at 12.00 P.M., in the Bank's
offices, the Seller shall transfer to the Buyer the Balance of the
Sold Shares, as well as the Compensation Shares (if any) and the
Surplus Shares (if the Bank exercises its right to sell them to the
Buyer), in the manner set forth below:
7.2.1. Should the Seller give notice of his selection of the First
Option, the Seller shall deliver to the buyer a transfer deed
or deeds signed by the Seller relating: (i) to the First
Option Shares, i.e. 1,500,001 shares of the Class A Stock; and
(ii) to the Compensation Shares, if the Seller received the
Additional Shares and/or the Options for the Additional Shares
in the framework of the Procedure of Equalization of Rights,
as set forth in Clause 5.4.1 above.
Furthermore, the Seller shall deliver to the Buyer all other
documents required on its part to register these shares and/or
options in the name and ownership of the Buyer in Ampal's
Register of Shareholders.
Should the Seller receive monetary compensation in the frame-
work of the Procedure of Equalization of Rights, the Seller
shall transfer to the Buyer the Buyer's Share in the Monetary
Compensation.
7.2.2. Simultaneously and against execution of the aforesaid in sub
clause 7.2.1 above and Clauses 7.3 and 7.4 below, the Buyer's
legal counsel shall confirm to the Bank that the Seller has
transferred to the Buyer the Balance of the Sold Shares, and
this document shall serve for the purpose of releasing the
Deposit Amount and its proceeds transferring them to the
Seller.
7.2.3. Should the Seller notify of its selection of the Second Op-
tion, the Seller shall deliver to the Buyer a share transfer
deed or deeds duly signed by the Seller relating to the Second
Option Shares, i.e. 1,500,001 shares of the Common Stock.
Furthermore, the Seller shall deliver to the Buyer all the
other documents required on its part to register these shares
in the name and ownership of the Buyer in Ampal's Register of
Shareholders.
7.2.4. Simultaneously and against execution of the aforesaid in
subclause 7.2.3 above, and in Clauses 7.3 and 7.4 below, the
Buyer's legal counsel shall confirm to the Bank that the
Seller has transferred to the Buyer the Balance of the Sold
Shares, and this document shall serve for the purpose of
releasing the Deposit Amount and the benefits thereof and
transferring them to the Seller; and the Buyer shall pay the
Seller the Additional Consideration, by crediting the Seller's
account with the amount of the Additional Consideration.
7.2.5. Should the Seller exercise the option given to it to sell to
the Buyer the Surplus Shares as aforesaid in Clause 5.4.2
above, the Seller shall deliver to the Buyer a share transfer
deed or deeds duly signed by the Seller relating to the Sur-
plus Shares.
Furthermore, the Seller shall deliver to the Buyer all the
other documents required on its part to register these shares
in the name and ownership of the Buyer in Ampal's Register of
Shareholders.
7.2.6. Simultaneously and against execution of the aforesaid in
subclause 7.2.5 above, and in Clauses 7.3 and 7.4 below, the
Buyer shall pay the Surplus Shares Consideration to the Sell-
er, by crediting the Seller's account with this amount.
7.3. The Ampal shares of all classes transferred by the Seller to the
Buyer on the Closing Date and the Supplemental Closing Date shall be
Paid and Free Shares at the time of transfer. The Options for the
Additional Shares which the Seller will transfer to the Buyer (if it
will transfer them) will be paid options (exclusive of the amount
paid in exercising the option, if such an amount is payable) clear
and free of any debt, lien, encumbrance or other third party right.
7.4. Without derogating from the aforesaid, the Seller and the Buyer
undertake to sign and deliver to each other and/or to Ampal (as the
case may be) all documents required, and shall do whatever is neces-
sary on their part in order to validate all transfers of shares
(and/or options) as set forth in this Clause 7, and to register them
lawfully in Ampal's Register of Shareholders.
7.5. The Seller is aware that the Buyer intends to pledge all or part of
the Sold Shares to a banking institution in Israel or Europe, in
order to secure a loan which the Buyer will use to finance the
purchase of the Sold Shares. The Seller will assist the Buyer and
will use its best efforts to the extent Legal and Permitted, so that
Ampal will assist the Buyer, to facilitate the pledge of the Base
Shares on the Closing Date and the pledge of the Balance of the Sold
Shares at the Supplemental Closing Date. For the removal of doubt,
it is clarified that failure to obtain the above loan will not
release the Buyer from its obligations hereunder.
7.6. Notwithstanding Sub-clause 5.2.1 and Clause 7.1 above, the Seller
will be entitled to postpone the transfer of that part of the Base
Shares, as decided by the Seller, until the Supplemental Closing
Date, provided that it will notify the Buyer, by written notice,
which the Buyer will receive at least seven days before the Closing
Date. In that event, the following provisions shall apply:
7.6.1. The Seller will transfer to the Buyer, on the Closing Date,
any amount of shares of the Class A Stock of the Base Shares
as the Seller shall decide, for which the Buyer will pay to
the Seller a proportional part of the Consideration, calculat-
ed according to the share price, multiplied by the amount of
shares transferred.
7.6.2. The balance of the Base Shares will be transferred by the
Seller to the Buyer on the Supplemental Closing Date, together
with the First Option Shares or the Second Option Shares, as
the case may be, against payment of the balance of the Consid-
eration, or, if the Seller has chosen the Second Option,
against payment of the balance of the Consideration and the
Additional Consideration.
7.6.3. The Bank Guarantee will be reduced to an amount equivalent to
10% of the Consideration and will continue to remain in full
force until 7 days after the Supplemental Closing Date, in
order to secure payment of the balance of the Consideration,
against performance of the Seller's undertakings on that date.
The Bank may foreclose on the Guarantee if the Buyer does not
pay what is due from it to the Seller on the Supplemental
Closing Date.
7.6.4. In the case of transfer of part of the Base Shares, according
to this clause, the provisions of this Agreement will apply,
including Clauses 8 and 9 below, as if the Seller transferred
to the Buyer all the Base Shares on the Closing Date. The
provisions of Clauses 7.1 to 7.5 above, will apply mutatis
mutandis and subject to the provisions of this Clause 7.6.
8. THE SELLER'S UNDERTAKINGS FROM THE DATE OF SIGNATURE HEREOF UNTIL THE
CLOSING DATE
In the period between the signature hereof until the Closing Date, the
Seller undertakes:
8.1. To do the best it can, to the extent Legal and Permitted, so that a
person whose name is stipulated by the Buyer shall be entitled to
participate, as observer on behalf of the Buyer (herein - the "OB-
SERVER"), in all meetings of Ampal's board of directors and in all
meetings of Ampal's board committees that shall take place after
signature hereof. The Observer shall have no voting rights, however,
to the extent Legal and Permitted, he shall be entitled to review any
document of Ampal which a director has the right to review and to
request any information that a director has the right to request in
connection with Ampal's business affairs.
8.2. To vote at Ampal's general meetings in the following manner:
8.2.1. To oppose any change in Ampal's documents of incorporation
which is not required for the purposes of the Procedure of
Equalization of Rights or the Procedure of Waiving the Weight-
ed Voting Rights.
8.2.2. To oppose adoption of any resolution at Ampal's shareholder
meeting which might prejudice the Buyers' rights as provided
in this Agreement.
8.3. To the extent Legal and Permitted, to do the best it can to act in
accordance with the provisions of Clauses 8.1 and 8.2 above, mutatis
mutandis and, to the extent possible, with respect to Ampal's subsid-
iaries as well, and to the extent possible, with respect to Ophir
Holdings Ltd. and Moria Hotels Ltd. as well.
8.4. To transfer to the Buyer, on the Closing Date, any dividend that
shall be distributed with respect to the Sold Shares from the date of
signature hereof until the Closing Date.
8.5. To exercise, legitimately, its influence in Ampal and its institu-
tions in order to ensure that no actions shall be taken or contracts
executed in Ampal or by Ampal which might prejudice the Buyers'
rights as established herein (such as issuance of Ampal's shares to a
third party), or deviating from the ordinary course of business and
to which the Buyers expressed their opposition within a reasonable
period of time, all provided the matter is Legal and Permitted.
8.6. To do the best it can, and to act in accordance with the aforesaid in
Clause 8.5 above, mutatis mutandis and to the extent possible, with
respect to Ampal's subsidiaries as well, and to the extent possible,
with respect to Ophir Holdings Ltd. and Moria Hotels Ltd. as well.
8.7. The documents of incorporation of Ampal's subsidiaries do not confer
on the Seller, by virtue of its holdings in Ampal, any special rights
whatsoever, and the Seller is no party to any agreement made among
the holders of the shares of any of Ampal's subsidiaries in their
status as shareholders as aforesaid. But if it becomes clear,
nevertheless, that the Seller directly has voting rights or rights to
appoint managers in any of Ampal's subsidiaries, by virtue of its
holdings in Ampal, the Seller shall act to assign such rights to
Ampal or the Buyer, and if this is not possible, the Seller shall act
to cancel them, as soon as possible after the Closing Date. The
aforesaid in this Clause does not relate to voting rights and/or
rights to appoint managers and/or any other rights available to or at
the disposal of the Bank in any of the subsidiaries by virtue of the
terms of any security and/or the exercise thereof.
9. THE SELLER'S UNDERTAKINGS FROM THE CLOSING DATE UNTIL THE SUPPLEMENTAL
CLOSING DATE
In the period from the Closing Date until the Supplemental Closing Date
the Seller undertakes:
9.1. To do the best it can so that as soon as possible after the Closing
Date, three persons recommended by the Buyer shall be appointed as
members of the Ampal board of directors, and shall serve until the
general meeting of Ampal's shareholders mentioned in Clause 9.2 below
is convened.
9.2. To do everything that is required and legal to cause, soon after
completion of the Procedure of Equalization of Rights or the Proce-
dure of Waiving the Weighted Voting Rights, that Ampal's board of
directors shall recommend that the general meeting of Ampal's share-
holders be convened, at any event no later than March 31, 1997, and
shall vote therein on the election of a 13-member board of directors,
as follows: three members of the Board shall be persons recommended
by the Seller and all other members of the board shall be persons
recommended by the Buyer.
9.3. To do everything that is required and legal to cause, immediately
after execution of the Procedure of Equalization of Rights or the
Procedure of Waiving the Weighted Voting Rights and until the general
meeting mentioned in Clause 9.2 above is convened, the appointment of
additional directors to Ampal's board of directors who shall be
persons recommended by the Buyer, and they shall serve until the
general meeting adopts the resolution mentioned in Clause 9.2 above,
in such a manner that the total number of directors recommended by
the Buyer shall exceed those recommended by the Seller.
9.4. To the extent Legal and Permitted, to use its best efforts so that,
on the Closing Date or soon thereafter, the directors appointed by
Ampal in companies whose shares are held by Ampal (herein - the "HELD
COMPANIES") who are employees of or recommended by the Seller, shall
be replaced by directors recommended by the Buyer and the Seller, pro
rata to the Seller's and Buyer's holdings in Ampal (such proportion-
ate holdings as after the date of the Supplemental Closing and based
on the assumption that the Procedure of Equalization of Rights took
place), and in such manner that the number of directors recommended
by the Buyer shall exceed the number of directors who are employed or
recommended by the Bank by at least one. For the removal of doubt it
is clarified that in light of the amendment of the provisions of the
Banking Law (Amendment No. 11), pursuant to which the Bank shall no
longer have the right from a certain date to appoint directors from
among those employed or recommended by it in the Held Companies, the
Seller shall have no objection that from that date onwards all
directors whose appointment is recommended by Ampal shall be those
recommended by the Buyer.
For the removal of doubt it is clarified that Ampal employees serving
as directors in Held Companies shall not be deemed, for the purposes
of this Clause, as directors whose appointment was recommended by the
Bank.
9.5. To do the best it can so that no changes shall occur in the duration
and terms of employment and service of members of Ampal's board of
directors and its senior executives, as that term is defined in the
Companies Ordinance [New Version] - 1983, except with the Buyer's
written consent.
9.6. So long as no general meeting has been held in Ampal as mentioned in
Clause 9.2 above, to do everything that is required and legal to
cause that no Substantial Resolution, as defined below, shall be
brought up for discussion by the Seller or adopted by Ampal's board
of directors, without prior coordination, consultation and consent
among the directors recommended by the Seller and those recommended
by the Buyer, all provided that the matter is Legal and Permitted.
A "SUBSTANTIAL RESOLUTION" means - a resolution that might prejudice,
directly or indirectly, the rights acquired by the Buyers hereunder,
being a resolution or undertaking by Ampal deviating from the ordi-
nary course of Ampal's business, or investment in or sale of Ampal's
property at a price of $3,000,000 (three million Dollars) or more.
9.7. For the removal of doubt it is clarified that the fulfillment of the
undertakings in Clause 9.2 and 9.6 is conditioned upon the Buyer
assisting the Seller, to the best of its ability, to fulfill its
obligations and exercising its voting power in Ampal accordingly.
9.8. Not to sell or to assign in any other way and not to encumber all or
some of the shares of Common Stock. For the removal of doubt it is
clarified that exercise of the Second Option or changes occurring in
the rights of the shares of Common Stock as a result of the Procedure
of Equalization of Rights or of the Procedure of Waiving the Weighted
Voting Rights, as provided herein, shall not be considered a viola-
tion of this undertaking.
9.9. To transfer to the Buyer on the Supplemental Closing Date any divi-
dend that shall be distributed with respect to the Balance of the
Sold Shares from the Closing Date to the Supplemental Closing Date.
9.10. The parties recognize the fact that 'State or Municipal Taxes'
as defined below, applies to the Seller. Therefore the Seller
undertakes to bear any 'State or Municipal Taxes', if any are
applicable, with respect to (i) the transfer of the Sold Shares
to the Buyer pursuant to the provisions hereof; and/or (ii)
transfers of the Seller's Additional Shares in Ampal to the
Buyer, including by virtue of the Buyer's exercise of the right
of first refusal or by virtue of the Seller's exercise of an
option as provided herein, or otherwise. (Any transfer pursuant
to Sub-clause (i) and/or (ii) shall be called in this Clause
below - the "Transfer").
"STATE OR MUNICIPAL TAXES" means - New York State Real Property
Transfer Gains Tax or New York State Real Estate Transfer Tax or New York
City Real Property Transfer Tax.
The Seller undertakes to indemnify the Buyer for any loss, damage or
expenses, including interest and fines, caused to the Seller as a
result of any demand claim by the tax authorities to pay State or
Municipal Taxes due with respect to the Transfer, including, and
without derogating from the generality of the aforesaid, amounts
which the Buyer shall pay by way of a compromise, reasonable expenses
which the Buyer shall incur in order to defend against any claim or
demand (including reasonable legal costs and lawyers' fees). The
Buyer shall transfer to the Seller a copy of any such claim or
demand, immediately upon receipt thereof. If the claim or demand is
addressed to the Seller and not to the Buyer, the Buyer shall respond
positively to any reasonable request by the Seller to assist it in
defending against the claim or demand, provided the Seller shall pay
instead of the Buyer or shall refund to the Buyer any expenses that
may be involved therein.
For the removal of doubt it is clarified that the term the "Buyer" in
this clause with respect to New York State Real Property Transfer
Gains Tax also includes whoever is affiliated with the Buyer from
whom the tax authorities may demand payment of the above tax.
10. THE BUYER'S UNDERTAKINGS FROM THE CLOSING DATE UNTIL THE SUPPLEMENTAL
CLOSING DATE.
10.1. The Buyer is aware that so long as the Seller has not selected
the Second Option, or so long as the Supplemental Closing Date
is not yet due, whichever is earlier, the Seller reserves the
right: (i) to initiate a Procedure of Equalization of Rights, in
the framework of which the Seller may receive the Compensation,
or (ii) to initiate a Procedure of Waiving the Weighted Voting
Rights, if the range of the rates of compensation determined as
fair by the investments bank selected by Ampal (herein - the
"INVESTMENT BANK") or the ratio of conversion of the shares of
the Common Stock to shares of the Class A Stock determined by it
as fair shall not be acceptable to the Seller, or for any other
reason.
In any of the above cases the Buyer undertakes, upon the
Seller's written demand, which must reach the Buyer three busi-
ness days before the vote, to support any proposed resolution
initiated by the Seller in the context of the Procedure of
Equalization of Rights, whatever the rate of the Compensation,
provided that the Compensation (if compensation is recommended)
does not deviate from the range of the Compensation determined
as fair by the Investment Bank; or to support the Procedure of
Waiving the Weighted Voting Rights, whether by voting at a
meeting of Ampal's shareholders (general meetings or meetings of
shareholders of a certain class) or in any other way; all pro-
vided the matter is Legal and Permitted.
10.2. The Buyer has agreed to support the Procedure of Equalization of
Rights, if it is required to do so as provided in Clause 10.1,
above based on the Buyer's and the Seller's mutual opinion and
assumption that execution of the Procedure of Equalization of
Rights or the Procedure of Waiving the Weighted Voting Rights is
for the benefit of Ampal and its shareholders, and that no
financial damage will be caused to the Buyer as a result of such
support at the Seller's request, neither before nor after the
support. The parties agree that if, nevertheless, financial
damage is caused to the Buyer, the Seller shall indemnify the
Buyer for any financial obligation with which the Buyer may be
charged under any court judgment.
10.3. It is agreed between the parties that any breach of the Buyer's
undertaking in Clause 10.1 shall constitute a fundamental viola-
tion of the Agreement, without reflecting in any way to the
classification of violation of other undertakings.
11. THE SELLER'S AND THE BUYER'S UNDERTAKINGS FROM THE SUPPLEMENTAL CLOSING
DATE.
11.1. The Buyer and the Seller shall act towards each other honestly
and fairly.
11.2. So long as the Bank holds, directly or indirectly, shares in
Ampal, conferring on it as least 19.5% of the voting rights in
Ampal (herein - the "MINIMUM HOLDING"), the Buyer undertakes,
subject to the matter being Legal and Permitted, as follows:
11.2.1. To do the best it can so that the directors elected by
Ampal's general meeting shall include directors recommended
by the Seller, whose number out of the total number of
directors shall not exceed the Seller's proportional share
in the voting rights in Ampal at that time, and shall be
close as possible to that number.
For the removal of doubt it is clarified that so long as 13
directors serve on the Company's board of directors, and
the balance of the Seller's Shares in Ampal confers on the
Seller 25% of the voting rights in Ampal, the number of
directors recommended by the Seller shall not exceed three.
If the Seller shall be entitled to recommend the appoint-
ment of more than three directors (as a result of the
increase in the total number of members of the board), all
other directors recommended by the seller (above the three)
shall be such as are not deemed to be 'Israeli Residents'
as that term is defined in the Income Tax Ordinance [New
Version] - 1961 (herein - "NON-ISRAELI").
Notwithstanding the aforesaid in Clause 11.2 above, the
provisions of this Clause 11.2.1 shall apply even if the
rate of the Bank's holdings shall decline to below the
Minimum Holding, provided it is no less than 8-1/3% (eight
and one-third percent).
11.2.2. To do the best it can so that Ampal shall not knowingly
perform any act or execute any transactions which might in
all likelihood lead the Bank to breach any Law or to commit
an offense under any Law, or that will cause or in all
probability cause 'Significant Damage to the Bank' as that
term is defined below, and if such act was performed or
transaction executed the Buyer shall do its best in order
to restore the situation to its previous condition as far
as possible. This undertaking shall not apply in a case
where Ampal, under the provisions of any Law, is obligated
to perform the act or execute the transaction, as well as
in the case where failure to perform the act or execute the
transaction might cause serious damage to Ampal ("Damage"
in this context does not include loss of profit).
"SIGNIFICANT DAMAGE TO THE BANK" - detrimental to the
Bank's ability to operate as a bank in the U.S. and/or to
continue to hold in Ampal the maximum quantity of holdings
permitted under U.S. law and/or the Banking Law.
11.2.3. If, as a result of the execution of the Procedure of Waiv-
ing the Weighted Voting Rights, the rights of the shares of
Common Stock are not equalized, with respect to distribu-
tion of dividend, to the rights of the Class A shares, and
the authority to adopt a certain resolution with respect to
distribution of the Additional Dividend, while preserving
the Weighted Voting Rights of the Common Stock, as set
forth in Clause 2.1 above (in the definition of the term
"the Procedure for Waiving the Weighted Voting Rights") is
not transferred to Ampal's general meeting, the Buyer shall
support the distribution of the Additional Dividend provid-
ed the rate of the Additional Dividend received by the
Common Stock shall be identical to the rate of dividend
received by the Class A Stock.
11.2.4. If a motion is brought before Ampal's board of directors
to resolve that Ampal shares shall be issued to the Buyer
or to any third party in a private placement, and as a
result of such issuance the rate of the Seller's holdings
in Ampal's share capital is diluted, and the Seller objects
to such issuance, the Buyer shall do its best efforts so
that the Seller shall have the right to purchase, in the
framework of the said private placement and on the same
terms, shares in Ampal in such quantity as shall cause the
rate of the Seller's holdings in Ampal's shares to be the
same rate as it was before the private placement.
11.2.5. To the extent that the Banking Law enables or shall enable
the Seller, expressly, to protect certain interests (such
as, for instance, the right to prevent the adoption of
certain resolutions in a corporation, as set forth in
Section 1(7)(2) of the Banking Law (Licensing) (Amendment
No. 11) - 1996, or the right to appoint directors as a
number not exceeding one quarter of the directors until
December 31, 1999 and one fifth of the directors commencing
on January 1, 2000, subject to the content of Clause 11.2.1
hereof), the Buyer undertakes to do its best efforts to
ensure the protection of such interests. Without derogat-
ing from this undertaking, the Seller and the Buyer shall
act together in order to establish these rights in Ampal's
documents of incorporation, in such a way as to confer such
rights, expressly, on the Bank and the Buyer, so long as
either of them holds, directly and/or indirectly, 20% at
least of the voting rights in Ampal.
11.3. Should the rate of the Seller's holdings become less than the
Minimum Holding (herein - the "EVENT") not due to sale or trans-
fer of shares by the Seller, the Seller shall notify the Buyer
thereof in a written notice that shall reach the Buyer no later
than thirty business days after the Event became known to the
Seller (herein - the "NOTICE OF THE EVENT"). Should the Seller
state in the Notice of the Event the date on which it learned of
the Event and that it intends to complete, within six (6) months
from the date the Event became known to the Seller, the rate of
its holdings in Ampal up to the rate of the Minimum Holding as
above, the Seller's undertakings in Clause 11.2 above shall
continue to be in effect for the above period of six (6) months.
Should the Notice of the Event not reach the Buyer by the above
date, or should the Seller not state in the Notice of the Event
that it intends to complete its holdings as aforesaid, or should
the Seller not complete its holdings during the above period,
the Seller's above undertakings shall be cancelled.
For the removal of doubt it is clarified that if the ratio of
the Seller's holdings in Ampal becomes less than the Minimum
Holding as a result of the transfer or sale of shares by the
Seller, the Seller shall no longer be entitled to the defense
rights granted to it in the case of such holding as mentioned
above, even if it subsequently bought Additional Shares in Ampal
which raised the ratio of its holdings above the Minimum Holding.
11.4. For the removal of doubt it is clarified that the effect of all
or each of the undertakings in Clause 11.2 is conditioned on (i)
that no damage shall be caused to the legitimate rights and
interests of the Buyer or the Shareholders due to the fulfill-
ment of the undertakings; (ii) the Seller shall bear any finan-
cial damage caused to the Buyer and/or Ampal as a result there-
of, for which the Buyer or Ampal shall be charged under any
judgment before or after fulfillment of the undertakings; and
(iii) that the Seller shall assist the Buyer to fulfill its
undertakings and shall exercise its voting power in Ampal ac-
cordingly. Thus, for instance, the Buyer's undertaking in
Clause 11.2.1 above shall apply only if the Seller supports the
appointment of directors recommended by the Buyer.
For the removal of doubt it is clarified that the aforesaid in
Sub-clause (i) shall not apply in the case of any violation of
the legitimate rights of the Buyer or the Shareholders (includ-
ing a right which has financial significance) which they have
relinquished hereunder.
11.5. Notwithstanding the aforesaid in Clause 11.2.1 above which
limits the number of directors the appointment of which the
Seller has the right to recommend in such a way that they shall
not exceed the ratio of the Seller's pro rata share in the
voting rights in Ampal at that time, it is agreed that if the
following three conditions are fulfilled cumulatively:
(i) the result obtained from computing the number of directors
which the Seller is entitled to recommend as above, pro
rata to its voting rights in Ampal, is a whole number and
a fraction; and
(ii) the Seller's pro rata share in the voting rights in
Ampal is 19.5% or more; and
(iii) the Banking Law at that time shall permit the Seller
to appoint directors in a number exceeding its pro rata share
in the voting rights in Ampal;
then the fraction obtained as result of the computation in (i) above
shall be rounded upward, provided that the number of directors which
the Seller shall have the right to recommend does not in any event
exceed 25% of the number of members of the board or the maximum rate
permitted to the Seller under the Banking Law, whichever is lower,
and that the director which the Seller shall be entitled to
recommend as a result of the rounding upward of the fraction shall
be a Non-Israeli.
11.6. Should a resolution be adopted in Ampal concerning the
distribution of the Additional Dividend, as a result of which
the holders of each share of the Common Stock shall not
receive dividend at a rate identical to that received by the
holders of shares of the Class A Stock, and the Buyer
supported the resolution in violation of the undertaking set
forth in Clause 11.2.3 above, the Buyer shall indemnify the
Seller in an amount equal to that percentage of the dividend,
'after tax', as that term is defined below, which the Seller
did not receive due to the said violation (herein - the
"AMOUNT OF THE DIVIDEND SHORTFALL"). Such percentage shall
be calculated by multiplying the Amount of the Dividend
Shortfall by the ratio of the Class A Stock held by the
Buyer to the total number of the Class A Stock issued by
Ampal. "AFTER TAX" for the purpose of this Clause means -
after the effective tax which shall be borne by the Buyer
with respect to the amount of the Dividend Shortfall (gross)
it received, taking account of any tax credit or tax
reduction it received with respect thereto.
11.7. If, as a result of execution of the Procedure of Equalization
of Rights or Procedure of Waiving the Weighted Voting Rights
the Common Stock shall remain in the possession of the Seller
which shall be deemed a separate class of shares for the
purpose of taking decisions requiring approval of meetings
for each class of shares separately (herein - "Class
Meetings"), then in order to avoid a situation in which the
ability of Ampal to take decisions requiring the approval of
Class Meetings shall be limited and dependent on obtaining
the Seller's approval as owner of the shares of the Common
Stock, the Seller undertakes as follows:
11.7.1. To do its best so that, for the purposes of resolutions re-
quiring a vote of each class of shares separately, the
Common Stock shall not be deemed a separate class of shares
but as voting together with the Class A Stock at a general
meeting of Ampal's shareholders (as set forth in Ampal's
incorporation documents with respect to resolutions not
requiring the approval of meetings of holders of each class
of shares separately) and at Class Meetings of the Class A
Stock, with each share of the Common Stock having one vote
just as a share of the Class A Stock, and it if becomes
apparent that this is impossible, to do the best it can in
order to achieve the same result in another way.
11.7.2. So long as the Seller has not succeeded in executing the
aforesaid in Section 11.7.1 above, the Seller undertakes
that in Class Meetings of the Common Stock it shall vote
for adopting a resolution identical to those adopted at
Class Meetings of the Class A Stock.
11.7.3. Furthermore, and without derogating from the provisions of
Clauses 12 and 13 below, the Seller undertakes that it shall
not sell or transfer the Common Stock in any other way but
to the Buyer, at the Share Price (as defined). If the Buyer
shall not want to purchase the Common Stock as provided in
this Clause or in the framework of exercising the right of
first refusal, the Seller shall have the right to sell the
shares of the Common Stock to another purchaser, provided
the other purchaser takes upon himself the Seller's under-
takings in this Clause 11.7 and also undertakes to impose
the same obligations on anyone to whom he shall transfer
the above Common Stock, and so on, provided the purchaser
and his replacements shall agree to the contents of Clause
11.8 below.
11.8. Should the Buyer initiate a Procedure of Equalization of
Rights with respect to all shares of the Common Stock, after
purchasing the Shares of the Second Option, i.e. 1,500,001
shares of the Common Stock, with the preferential rights they
confer, the Seller undertakes, upon the Buyer's written
demand, to support any proposed resolution initiated by the
Buyer in the framework of the Procedure of Equalization of
Rights, provided the Compensation, if any is recommended,
shall not exceed such compensation determined as fair by the
Investment Bank; all this whether by way of voting at a
meeting of Ampal's shareholders (general meetings or meetings
of shareholders of a certain class) or in any other way,
provided the matter is Legal and Permitted. In the event
Compensation is received due to the Procedure of Equalization
of Rights initiated by the Buyer for all the shares of Common
Stock, the Buyer shall be entitled to all of the Compensation
given to all holders of all the shares of Common Stock not-
withstanding the fact that it was the owner of only 1,500,001
shares of the Common Stock.
Both the Buyer and the Seller are of the opinion that the
Buyer's execution of the Procedure of Equalization of Rights
is also for the benefit of Ampal and its shareholders, and
the Seller agreed to support the Procedure of Equalization
of Rights on the basis of the opinion and assumption, to
which both the Seller and Buyer ascribe, that no financial
damage shall be caused to the Seller as a result of such
support at the Buyer's demand, whether before or after the
support, and that if, notwithstanding the above, any
financial damage is caused to the Seller, the Buyer shall
indemnify the Seller for any amount which the Seller may be
charged under any judgment. For the removal of doubt it is
clarified that giving the Buyer full Compensation with
respect to the shares of the Common Stock, as well as the
implications that the Procedure of Equalization of Rights
may have on the Seller's rights in Ampal, shall not be
considered damage caused to the Seller due to the Procedure
of Equalization of Rights, provided the Procedure of
Equalization of Rights shall relate to all shares of the
Common Stock.
11.9. The Seller and the Buyer undertake to cause that their
representatives shall be present at Ampal's general meetings
by virtue of all the shares held by them, in order to prevent
a situation of the absence of a legal quorum at such meetings.
11.10. The Seller's undertaking in Clause 9.10 above shall apply to
the Seller even after the Supplemental Closing Date.
12. RIGHT OF FIRST REFUSAL NO. 1
12.1. The Seller hereby grants the Buyer the right to purchase from
the Seller, on the terms set forth in this Clause 12, part of
the Balance of the Seller's Shares in Ampal which the Seller
shall wish to sell in order to reduce its holdings in Ampal's
shares to a ratio of 20% (in this Clause - the "OFFERED
SHARES").
12.2. Should the Seller wish to sell the Offered Shares, all at once
or in parts, the following provisions shall apply to each such sale:
12.2.1. Should there be a purchaser (in this Clause - the
"PURCHASER") who is willing to purchase all or part of
the Offered Shares, as the case may be, the Seller shall
furnish to the Buyer, before executing the sale to the
Purchaser, a written notice (in this Clause - the "NOTICE
OF SALE") setting forth the name and address of the
Purchaser, and the number and class of the Offered Shares
which the Seller is prepared to sell and which the Purchaser
is prepared to buy, and the sale price in dollars which the
Purchaser is prepared to pay for the Offered Shares
immediately upon purchase thereof (in this Clause - the
"SALE PRICE").
The Notice of Sale shall be in the text attached hereto
as APPENDIX B.
12.2.2. Should there be no Purchaser for the Offered Shares contem-
plated by the Notice of Sale, the Seller shall state this
in the Notice of Sale. In such case the "SALE PRICE" of the
shares contemplated in the Notice of Sale shall be the
average closing price of the share on AMEX during the seven
trading days prior to the date of dispatch of the Notice
of Sale.
12.2.3. The Seller undertakes not to purchase and/or to create a
demand for Ampal's shares in the 30 days prior to the Notice
of Sale.
12.3. Should the Notice of Sale be received by the Buyer, the Buyer
shall have the right to purchase the shares specified in the
Notice of Sale at the Sale Price stated in the Notice of Sale.
Should the Buyer wish to purchase the shares specified in the
Notice of Sale, it shall notify the Seller thereof by written
notice (in this Clause - the "NOTICE OF ACCEPTANCE") which
shall reach the Seller no later than 5:00 P.M. on the seventh
business day after the day on which the Buyer has received
the Notice of Sale.
The Notice of Acceptance shall relate to all the shares
offered in the Notice of Sale.
12.4. Should the Buyer send the Seller a Notice of Acceptance which
shall reach the Seller within the time established therefor in
Clause 12.3 above (the date on which the Notice of Acceptance
was received shall be called in this Clause - the "ACCEPTANCE
DATE"), the Notice of Sale and the Notice of Acceptance shall
be considered an offer and acceptance which are binding on
both the Seller and the Buyer. The transfer of the shares
contemplated in the Notice of Sale from the Seller to the
Buyer, being Free and Clear, shall be carried out in the
offices of the Bank, on the date of which the Seller shall
notify the Buyer in writing, which shall be not before the
seventh business day after the Acceptance Date and no later
than 60 days after the Acceptance Date, and the provisions of
Clause 7.4 hereof shall apply to this transfer, mutatis
mutandis.
12.5. Should the Buyer receive a Notice of Sale and the Seller not
receive a Notice of Acceptance by the time stipulated therefor
in Clause 12.3 above, the following provisions shall apply:
12.5.1. In the first case, mentioned n Clause 12.2.1 above, the
Seller shall have the right to sell to the Purchaser all
the shares contemplated in the Notice of Sale, provided
that a sale agreement is signed no later than 3 months
from receipt of the Notice of Sale by the Buyer, at a
price which shall be no less than the Sale Price.
12.5.2. In the second case, mentioned in Clause 12.2.2 above, the
Seller shall have the right to sell all the shares
contemplated in the Notice of Sale in the framework of
trade on a stock exchange, whether all at once or in
stages, provided that such sale shall be completed no
later than 6 months from receipt of the Buyer's receipt
of the Notice of Sale, at a price which shall be no less
than 95% of the Sale Price.
12.6. The Buyer's rights under this Clause 12 shall not apply:
12.6.1. With respect to (i) a sale or transfer of the Seller's
Shares in Ampal, to which this Clause 12 refers, to the
Bank and/or a subsidiary of the Bank; and (ii) with
respect to the sale of the Bank's shares in Atad to a
subsidiary of the Bank in which the Bank holds, directly
or indirectly, 75% at least of its share capital; provided
that in both the above cases the transferee takes upon
itself, with respect to the shares transferred to it, all
of the Seller's undertakings herein, without releasing the
Seller from its obligations. The Seller and the transferee
shall be jointly and severally liable vis-a-vis the Buyers.
The Seller shall send the Buyer a copy of this Agreement
duly signed by the transferee.
12.6.2. In the case where the Seller shall have to sell the Offered
Shares to which this Clause 12 refers (including by way of
sale of the Bank's shares in Atad), in a sale enforced on
the Bank as a result of an action or transactions by Ampal
as in Clause 11.2.2 above.
12.7. For the removal of doubt it is clarified that subject to the
contents of Clauses 12.6.1(ii) and 12.6.2 above, the contents
of this Clause 12 shall also apply to the sale of the Bank's
shares in Atad, constituting, indirectly, a sale of all or
part of the Balance of the Seller's Shares in Ampal. In such
case, the Seller undertakes, before the sale, to cause Atad
to offer to the Buyer to purchase part of its shares in
Ampal, in accordance with the provisions of this Clause 12.
This part shall be such as to bring the Buyer to a situation
wherein it would have been if the Seller had offered for sale
the shares in Ampal held by Atad and not the shares in Atad
held by the Bank .
12.8. The "Purchaser" in this Clause means - a purchaser, who is
not a subsidiary of the Seller, in good faith and for monetary
consideration.
13. RIGHT OF FIRST REFUSAL NO. 2
13.1. The Seller hereby gives the Buyer the right to purchase from
the Seller out of the Balance of the Seller's Shares in Ampal
which the Seller shall wish to sell not on a stock exchange,
after selling the shares to which Clause 12 above relates.
This right of first refusal is given by the Seller to the
Buyer on the terms set forth in this Clause 13.
13.2. Should the Seller, after having already sold all the offered
shares under Clause 12 above, wish to sell additional shares
in Ampal, whether all at once or in parts, and the Seller has
a purchaser (in this Clause - the "PURCHASER") who is prepared
to purchase the quantity and class of shares which the Seller
wishes to sell at that time (in this Clause - the "OFFERED
QUANTITY"), the Seller shall furnish to the Buyer, before
executing the sale to the Purchaser, a notice of sale as in
Clause 12.2 above and in the text as in APPENDIX C (in this
Clause -- the "NOTICE OF SALE"), stating whether it is
offering to the Buyer to purchase all the Offered Quantity
or only half thereof (the quantity of shares offered to the
Buyer by the Seller shall be called in this Clause - the
"OFFERED SHARES").
13.3. Should the Notice of Sale be received by the Buyer, the Buyer
shall have the right to purchase the Offered Shares at the
price stated in the Notice of Sale (in this Clause - the
"SALE PRICE"). Should the Buyer wish to purchase the Offered
Shares, it shall notify the Seller thereof in a written
notice (in this Clause - the "NOTICE OF ACCEPTANCE") which
shall reach the Seller no later than 5:00 P.M. on the
seventh business day after the day on which the Buyer received
the Notice of Sale. The Notice of Acceptance must relate to
all of the offered Shares.
13.4. Should the Buyer send the Seller a Notice of Acceptance which
shall reach the Seller within the time established therefor in
Clause 13.3 above (the date on which the Notice of Acceptance
reached the Seller shall be called in this Clause - the
"ACCEPTANCE DATE"), the Notice of Sale and the Notice of
Acceptance shall be considered an offer and acceptance which
are binding on both the Seller and the Buyer. The transfer
of the Offered Shares from the Seller to the Buyer, being
Free and Clear, shall be done in the offices of the Bank, on
the date of which the Seller shall notify the Buyer in
writing, which shall be not before the seventh business day
after the Acceptance Date and shall be no later than 60 days
after the Acceptance Date and the provisions of Clause 7.4
hereof shall apply to this transfer, mutatis mutandis.
13.5. Should the Buyer receive the Notice of Sale and the Seller
shall not receive a Notice of Acceptance by the date
established therefor in Clause 13.3 above, the Seller shall
have the right to sell to the Purchaser all the Offered
Shares, provided a binding sale agreement is signed no later
than 3 months from the Buyer's receipt of the Notice of Sale,
and at the Sale Price stated in the Notice of Sale. For the
removal of doubt it is clarified that, if in the Notice of
Sale the Purchaser has been offered half the shares which the
Seller wished to sell at that time, the Seller is entitled to
sell the Purchaser the second half, whether or not the Buyer
has sent a Notice of Acceptance.
13.6. The Buyer's rights under this Clause 13 shall not apply:
13.6.1. With respect to (i) a sale or transfer of the Seller's
Shares in Ampal, to which this Clause 13 refers, to the
Bank and/or a subsidiary of the Bank; and (ii) with respect
to the sale of the Bank's shares in Atad to a subsidiary of
the Bank in which the Bank holds, directly or indirectly,
75% at least of its share capital; provided that in both
the above cases the transferee takes upon itself, with
respect to the shares transferred to it, all of the Seller's
undertakings herein, without releasing the Seller from its
obligations. The Seller and the transferee shall be
jointly and severally liable vis-a-vis the Buyers. The
Seller shall send the Buyer a copy of this Agreement duly
signed by the transferee.
13.6.2. In the case where the Seller shall have to sell the Balance
of the Seller's Shares in Ampal, or the Bank's shares in
Atad, to which this Clause 13 refers, in a sale enforced on
the Bank by law as a result of an action or transactions by
Ampal as in Clause 11.2.2 above.
13.7. For the removal of doubt it is clarified that subject to the
contents of Clauses 13.6.1(ii) and 13.6.2 above, the contents
of this Clause 13 shall also apply to the sale of the Bank's
shares in Atad, constituting, indirectly, a sale of all or
part of the Balance of the Seller's Shares in Ampal. In such
case, the Seller undertakes, before the sale, to cause Atad
to offer to the Buyer to purchase part of its shares in Ampal,
in accordance with the provisions of this Clause 13. This
part shall be such as to bring the Buyer to a situation
wherein it would have been if the Seller had offered for
sale the shares in Ampal held by Atad and not the shares in
Atad held by the Bank.
13.8. The "Purchaser" in this Clause means - a purchaser, who is
not a subsidiary of the Seller, in good faith and for monetary
consideration.
14. RIGHT OF FIRST REFUSAL NO. 3 WITH RESPECT TO SALE ON A STOCK EXCHANGE
14.1. The Seller hereby gives the Buyer the right to purchase from
the Seller, in a sale not on a stock exchange, such number
of shares of Class A Stock in a quantity equal to those
which the Seller shall sell from time to time on a stock
exchange, after selling the shares referred to in Clause 12
above. Such sale to the Buyer shall be on the terms set
forth in this Clause 14. For the removal of doubt it is
clarified that the Seller shall have the right to sell
its shares in Ampal on a stock exchange as provided in
this Clause only after it has sold all the shares to which
Clause 12 above refers, and as provided in Clause 12.
14.2. Should the Seller sell the Shares in its possession on AMEX
(or on any other stock exchange if these shares are listed
for trade on other stock exchanges, whether inside or outside
the U.S.), it shall give the Buyer a written notice with
respect thereto within seven business days after the date on
which the shares were sold (in this Clause - the "NOTICE OF
SALE"). In the Notice of Sale the Seller shall state the
date on which the shares were sold and the quantity of shares
sold.
14.3. Should a Notice of Sale be received by the Buyer, the Buyer
shall be entitled to notify the Seller in writing (in this
Clause - the "BUYER'S NOTICE") which shall reach the Seller
within three business days from the date of receipt of the
Notice of Sale, that it is interested in purchasing from the
Seller the quantity of shares stated in the Notice of Sale.
14.4. Should the Buyer's Notice reach the Seller by the date
specified in Clause 14.3 above, the Seller shall sell to
the Buyer, in a sale not on a stock exchange, the quantity
of shares stated in the Buyer's Notice, and the Buyer shall
pay in consideration therefor the same price (per share)
that the Seller obtained for the shares sold on a stock
exchange.
14.5. The Buyer's rights under this Clause 14 shall not apply in a
case where the Seller has to sell the Shares referred to in
this Clause 14 in a sale enforced on the Bank by law as the
result of an action or transaction by Ampal as set forth in
Clause 11.2.2 above.
15. RESTRICTION OF TRANSFER OF AMPAL'S SHARES BY THE BUYER
15.1. The Buyer hereby undertakes not to transfer all or part of
the Ampal shares in its possession except pursuant to an
effective registration statement under the Securities Act
while fulfilling the provisions of the State securities
laws of the U.S., or in reliance on an exemption from such
registration. Accordingly, on each share certificate of
the Sold Shares, a clause shall appear referring to the
above restrictions.
15.2. The Buyer hereby undertakes that, before transferring any of
its shares in Ampal, but no later than the day on which the
Buyer delivers to Ampal the share certificates relating to
the shares the Buyer wishes to transfer, the Buyer shall
send to Ampal an opinion, satisfactory to Ampal, according
to which the shares may be transferred without registration
under the Securities Act. This opinion shall include a
reasonably detailed description of the proposed transfer and
the basis for the exemption from registration.
15.3. A "transfer" for the purpose of this Clause 15 shall mean a
sale as that term is defined in Section 2(3) of the Securities
Act, and any transfer resulting from any kind of pledge or
lien whatsoever. The Seller is aware that the Buyer intends
to enter into a loan agreement for the purpose of financing
the purchase of the Sold Shares, pursuant to which all or
part of the Sold Shares shall serve as collateral for the
repayment of the loan. The loan agreement shall be subject
to the provisions of any relevant law, but shall not be
subject to the provisions of Clauses 15.4 and 15.5 below.
15.4. Without derogating from the aforesaid, the Buyer hereby
undertakes not to sell or transfer or assign the rights with
respect to any quantity whatsoever of the Sold Shares, until
the Supplemental Closing Date, and in any case not before
March 31, 1997.
15.5. Without derogating from any provision hereof, and as long
as the Seller holds the Minimum Holding in Ampal, the Buyer
hereby undertakes not to sell and/or to transfer of its
shares in Ampal such quantity of shares which shall confer
on whoever purchases them (one buyer or a group of buyers
with a cooperation agreement among them), whether alone or
together with the Buyer (if there will be a cooperation
agreement between them), more voting rights than those
conferred to the Seller by virtue of its holdings in Ampal
at that time, unless whoever buys Ampal's shares from the
Buyer undertakes all of the Buyer's obligations to the
Seller hereunder, and confirms this to the Seller in
writing, but without releasing the Buyer and the Shareholders
from their undertakings, to the extent Ampal Shares remain in
the Buyer's possession and there is a cooperation agreement
between it and the purchaser.
16. TAG ALONG
16.1. In addition to, and without derogating from the Buyer's under-
takings set forth in Clause 15 above, the Buyer hereby grants
the Seller the right to participate in the Buyer's sale of
shares of the Class A Stock of Ampal, in a transaction not
on a stock exchange, on the terms set forth in this Clause
16 below.
16.2. Should the Buyer wish to sell a block of shares of the Class
A Stock out of its Ampal's shares, in a transaction not on a
stock exchange, and the size of the block exceeds 2% of
Ampal's Capital Base, and it has a purchaser (in this Clause
- the "PURCHASER") who is prepared to purchase:
(a) The amount of shares which the Buyer wishes to sell at that
time (in this Clause - the "FIRST CASE"); or
(b) The amount of shares which the Buyer wishes to sell at that
time, and also, if that is the case, an additional amount of
shares larger than the above amount which the Buyer wishes to
sell (in this Clause - the "SECOND CASE");
The Buyer shall furnish to the Seller, before executing the
sale to the Purchaser, a written notice (in this Clause -
the "NOTICE OF SALE") setting forth: (i) the name and address
of the Purchaser; (ii) the price the Purchaser is prepared to
pay per share (in this Clause - the "PRICE PER SHARE"); and
(iii) if the First Case is relevant - the quantity of shares
the Buyer wishes to sell and the Purchaser is prepared to
purchase; or, if the Second Case is relevant - the amount of
Shares the Buyer wishes to sell and the larger amount of
shares which the Purchaser is prepared to purchase.
The overall amount of shares stated in the Notice of Sale
shall be called herein - the "BLOCK OF SHARES".
For the removal of doubt it is clarified that if during a
period of 3 consecutive months the Buyer sold in a sale not
on a stock exchange, to one purchaser in a number of separate
transactions, shares of the Class A Stock in Ampal out of the
Sold Shares, the overall number of which exceeded 2% of
Ampal's capital base, this shall be deemed one transactions
to which the provisions of this Clause apply.
16.3. The Seller shall have the right to participate in the Buyer's
sale of the shares simultaneously with the Buyer's sale of the
shares to the Purchaser, and on the same terms pursuant to
which the shares are sold by the Buyer to a purchaser, to
sell to the Purchaser a part of the Block of Shares which
shall not exceed the 'Relative Share' thereof. "RELATIVE
SHARE" in this Clause means - as the ratio of the overall
number of shares of the Class A Stock and shares of the Common
Stock held by the Seller at the time of sending the Notice of
Sale to the overall number of shares of the Class A Stock and
shares of the Common Stock held by the Seller and the Buyer
at that time.
16.4. Should the Seller wish to exercise its right and also sell to
the Purchaser part of the Block of Shares, it shall notify the
Buyer in writing (in this Clause - the "NOTICE OF PARTICIPA-
TION"). In order for the Notice of Participation to take
effect, it shall reach the Buyer no later than 5:00 P.M. on
the seventh business day after the day on which the Seller
received the Notice of Sale (herein - the "LAST DATE"); and
it shall include the number of shares out of the Block of
Shares which the Seller wishes to sell to the Purchaser,
provided this quantity does not exceed the Relative Share
of the Seller.
16.5. Should the Notice of Participation reach the Buyer by the
Last Date, the Notice of Sale and the Notice of Participation
shall be considered an offer and acceptance binding both the
Seller and the Buyer to sell to the Purchaser the Block of
Shares, in such manner as each of them shall sell to the
Purchaser the quantity of Shares it wanted and is entitled to
sell, as in the Notice of Sale and the Notice of Particip-
ation, and such terms pursuant to which the Buyer shall sell
the Shares to the Purchaser shall apply to the sale.
If in the Second Case, the number of shares which the Buyer
wishes to sell to the Purchaser, together with the number of
shares which the Seller wishes to sell to the Purchaser, does
not amount to the whole Block of Shares, the Buyer and the
Seller shall not be obligated to sell to the Purchaser the
whole Block of Shares but only that quantity of Shares they
had agreed to sell.
16.6. Should the Seller receive a Notice of Sale, and no Notice of
Participation reached the Buyer by the Last Date, the Buyer
shall be entitled to sell to the Purchaser an amount of shares
not exceeding the amount stated in the Notice of Sale as the
amount it wishes to sell to the Purchaser, on the terms set
forth in the Notice of Sale, provided that a binding sale
agreement is signed no later than 3 months from the Last Date.
16.7. The Seller's rights under this Clause 16 shall not apply to
the sale of shares by the Buyer: (i) to all or some of the
Shareholders; or (ii) to a 'Relative' (as defined below) of
the Shareholders; or (iii) to a company (in this Clause - the
"HELD COMPANY") in which all or some of the Shareholders
and/or their Relatives hold 50% or more of the voting rights
or rights to appoint directors or rights to profits, whether
directly or indirectly (for instance, by means of companies
in which they and/or their Relatives and/or some of them hold
shares at a ratio conferring on them, serially, the overall
rate of holdings required as aforesaid in the Held Company;
or (iv) to an 'Affiliated Corporation' (as defined below),
provided that in all three of the above cases the transferee
shall take upon himself, with respect to the shares trans-
ferred to him, all the undertakings of the Buyer hereunder,
without releasing the Buyer and the Shareholders from their
obligations. The Buyer, the Shareholders and the transferee
shall be jointly and severally liable vis-a-vis the Seller.
The Buyer shall send to the Seller a copy of that agreement
signed by the transferee.
"RELATIVE" means - spouse, parent, descendant, brother or sister
and the spouses of each of these.
"CONTROLLING INTEREST" means - a shareholding in a corporation,
whether directly or indirectly, conferring on the holder 50% or more
of the voting rights in the corporation or of the rights to appoint
directors or the rights to profits.
"AFFILIATED CORPORATION" means - a corporation in which the Buyer has
a Controlling Interest or a corporation which has a Controlling
Interest in the Buyer.
16.8. The "Purchaser" in this Clause means - a purchaser in good
faith and for monetary consideration.
17. REGISTRATION RIGHTS AGREEMENT
It is hereby agreed that the Buyer and the Seller shall cooperate in
order to achieve a registration rights agreement with Ampal which shall
oblige Ampal to cooperate both with the Seller and with the Buyer, and
to do whatever is required of Ampal under the law in order for each of
the Buyer and the Seller to be able to offer Ampal's shares in their
possession to the public, in the U.S. and/or in Israel (or anywhere else
on which the Buyer or the Seller shall decide), pursuant to Ampal's
prospectus, and which shall confer on both the Buyer and the Seller the
right to participate in public offerings to be made by Ampal anywhere,
and to offer in that context Ampal's shares in the possession of each
of them as aforesaid.
It is also agreed that if either the Buyer or the Seller shall offer
for sale to the public Ampal's shares in their possession under a
registration statement, and not according to a registration rights
agreement, the other party shall have the right to participate in the
sale as aforesaid with an identical or smaller number of shares at its
choice.
18. PREREQUISITE CONDITIONS
18.1. The sale of the Sold Shares to the Buyer hereunder depends
on two cumulative prerequisite conditions (herein - the "PREREQUISITE
CONDITIONS"), as follows:
18.1.1. Submission of a notice of merger to the Restrictive Trade
Practices Commissioner in Israel (herein - the "COMMISSION-
ER") and obtaining his approval of a 'merger', as required
in Section 19 of the Restrictive Trade Practices Law - 1988
(herein - the "RESTRICTIVE TRADE PRACTICES LAW"). The
notice of merger shall be submitted by the Buyer and Ampal
no later than 10 days from the date of signature hereof,
while reserving the right to contend that the Restrictive
Trade Practices Law does not apply to the transaction
contemplated hereby. The Seller shall do everything in its
power in order to ensure that Ampal shall comply with this
timetable.
For the removal of doubt it is clarified that in view of the
contents of the end of Section 20(b) of the Restrictive
Trade Practices Law, the Condition of this Clause shall be
considered to have been fulfilled even in a case where the
Commissioner does not notify the merging parties within 30
days from the date on which he received the notice of
merger, as to whether or not he approves of the merger.
18.1.2. Receipt of the permit from the Foreign Currency Controller
for the purpose of executing the transaction contemplated
hereby.
18.2. Should all the Prerequisite Conditions not be fulfilled within
45 days from the date of signature hereof, this Agreement
shall be null and void and no rights or obligations shall
derive therefrom for any party whatsoever, and the parties
shall have no claim or demand one from the other due to the
termination of the Agreement.
18.3. Notwithstanding the aforesaid in Clause 18.2 above, if the
delay in fulfilling the Prerequisite Conditions derives from
inquiries with the Commissioner or the Foreign Currency
Controller, each party shall have the right to notify the
other in writing of its wish to extend the time for fulfilling
the Conditions by an additional 45 days (herein - the
"ADDITIONAL PERIOD"), and the 45 day period mentioned in
Clause 18. 2 shall be extended by an additional 45 days. In
all of the above cases the parties shall do their best
efforts (and the Seller shall cause that Ampal shall also do
its best efforts) so that the Prerequisite Conditions are
fulfilled. Until the end of the Additional Period each party
has the right to notify the other party in writing of the
extension of the Additional Period by a further 45 days.
Should the Prerequisite Conditions not be fulfilled by the end
of the Additional Period (which was extended according to the
Buyer's notice or according to the Seller's notice, whichever
is later), this Agreement shall be null and Void, and no
rights or obligations shall derive therefrom for any party
whatsoever, and the parties shall have no claim or demand
one from the other due to the termination of the Agreement.
18.4. Should this Agreement be terminated under this Clause, the Bank
shall return to the Buyer the Bank Guarantee it delivered.
19. MISCELLANEOUS
19.1. Each party shall do whatever is required of it in order to
obtain all the approvals required on its part in order to exe-
cute the transaction contemplated hereby, including the approval
of the relevant institutions of the Seller, Ampal and the Buyer.
For the removal of doubt it is clarified that the Seller shall
see to obtaining all the approvals required, to the extent any
are required, from Ampal. The parties shall cooperate to the
extent required in order to obtain the approvals and permits to
execute the transaction contemplated hereby.
19.2. The parties hereby undertake, within the bounds of reason, to
amend and adapt the structure of the transaction and the provi-
sions of this Agreement to the extent required by the con-
straints of the law in the U.S. and Israel in order to enable
each party to comply with the provisions of any law without
either of them incurring any damage.
19.3. At the request of one of the parties, both parties shall
support the initiative of either of them or its representatives on
Ampal's board of directors the object of which is to cause Ampal
to register its shares or any part thereof on the Tel Aviv Stock
Exchange.
19.4. The Buyer and the Seller undertake hereby to sign all the
documents required, including representations and declarations
required by law, and to do whatever is necessary on their part
in order to give due validity to all the transfers of shares
hereunder.
19.5. The parties confirm to each other that they know of no person to
whom is owed or who claims he is owed any amount whatsoever as
brokerage fees, commission or finder's fee in connection with
the transaction contemplated hereby, and in any event, neither
party shall bear such expenses caused to the other party, and
there is no obligation for one party to participate in expenses
of this kind caused to the other party.
19.6. This Agreement cannot be amended except by a written document
signed by all parties.
19.7. This Agreement does not confer any rights whatsoever to a third
party, and the parties' rights hereunder, one to the other, may
not be transferred to any person or entity without the consent
of the other party, excluding the transfer to the Final Buyer as
provided herein.
19.8. Stamp tax applicable to this Agreement and to any other document
related hereto, including share transfer certificates, if applicable,
shall apply to and be paid by the Seller and the Buyer in equal shares
among them, and if one party pays in full, the other parties shall
indemnify it immediately upon its demand by the amount due from them.
20. JURISDICTION AND GOVERNING LAW
20.1. The Jurisdiction for the purposes hereof is hereby established
as the qualified court with the applicable jurisdiction in
Israel, Tel Aviv-Jaffa. However, nothing in the aforesaid shall
prevent the parties from initiating proceedings in the courts of
the State of New York, and the U.S. Federal Courts located in
the Borough of Manhattan in New York City, if Ampal shall be a
necessary litigant in such proceedings.
20.2. The laws of the State of Israel shall apply to this Agreement,
the construction and execution hereof and any litigation hereun-
der, unless the litigation takes place in the State of New York,
U.S., in which case the laws of the State of New York shall
apply.
For the removal of doubt, it is clarified that the meaning of
the determination with respect to the applicable laws is that
this law (the laws of the State of Israel or the laws of the
State of New York, as the case may be) include also the rules of
choice of law under such law, and in any question which such
rules shall refer, unreservedly, to the other law (such as, for
instance when Israeli law refers to American law in questions
connected with the technique of transferring shares in Ampal),
the other law shall apply.
21. ADDRESSES AND NOTICES
21.1. The parties' addresses for the purpose hereof and for the
purpose of service of court papers, are as follows:
The Bank and Atad: c/o the Bank, whose address for the purpose
hereof is:
63 Yehuda Halevy Street, Tel Aviv, Fax No. 03-567-6008
The Shareholders and the Buyer: c/o Mr. Daniel Steinmetz, whose
address for the purpose hereof is: 35 Bazel Street, Tel Aviv,
Fax No.: 03-546-1888
21.2. Any notice sent to the addressee according to the above address
shall be considered to have reached the possession and knowledge
of the addressee as follows:
21.2.1. If sent by registered mail, 4 days from the time of dispatch
by registered mail.
21.2.2. If delivered by hand, by personal delivery, upon receipt by
the addressee.
21.2.3. If sent by fax, at the time of receipt by the addressee,
provided that if received after 5:00 P.M. on Sunday to Thurs-
day or if received on Friday or on a day which is not a busi-
ness day, it shall be considered to have been received on the
next business day. "Business day" for the purposes of this
Clause shall include Sunday.
21.3. For the purpose of delivering court papers in connection with
legal proceedings initiated in the courts in the State of New
York, the parties hereby appoint representatives whose domicile
is New York for the purpose of receiving court papers in these
proceedings, as set forth below.
21.3.1. The Shareholders and the Buyer hereby appoint Kenneth
L. Henderson, of the law firm of Robinson Silverman
Pearce Aronsohn & Berman LLP, whose address in New York
is 1290 Avenue of the Americas, New York, NY 10104.
21.3.2. The Bank and Atad hereby appoint the Commissioner of
the Administration of the Western Hemisphere Region of
the Bank, whose address is 1177 Avenue of the Americas,
New York, New York 10103.
21.4 Each party shall have the right to change its above address if
it sends to the other party a written notice of change of ad-
dress, and from the date on which the notice reaches the posses-
sion and knowledge of the addressee, the address of such party
shall be the new address. A new address under Clause 21.1 shall
be in Israel. A new address under Clause 21.3 shall be in
Manhattan, New York.
IN WITNESS WHEREOF THE PARTIES HAVE HEREBY SIGNED, THIS 12TH DAY OF MAY,
1996.
/s/
__________________________________
Bank Hapoalim B.M.
/s/
___________________________________
Atad Hevra Lehashkaot Limited
/s/
___________________________________
Rebar Financial Corp.
/s/
___________________________________
Daniel Steinmetz
/s/
___________________________________
Binyamin Steinmetz
/s/
___________________________________
Raz Steinmetz
ANNEX A
Clause 4.6
LIST OF DOCUMENTS TRANSMITTED TO THE PURCHASERS
21.3.2. Form 10-K, as of December 31, 1994.
21.3.3. Form 10-K, as of December 31, 1995.
21.3.4. Form 10-Q, as of March 31, 1995.
21.3.5. Form 10-Q, as of June 30, 1995.
21.3.6. Form 10-Q, as of September 30, 1995.
21.3.7. Form 8-K, as of June 28, 1995.
21.3.8. Notice of annual meeting of shareholders to be held on July 6, 1995.
21.3.9. Minutes from a special meeting of shareholders of Ampal, which took
place on November 8, 1995.
ANNEX B/1
Clause 12.2
(in the event a purchaser exists)
date: _______
To
Rebar Financial Corp.(1)
c/o Mr. Daniel Steinmetz
35 Bazel St.
Tel-Aviv
Dear Sir,
Re: Notice of Sale
In connection with the right of first refusal No. 1, granted to you in Clause
12 of the agreement between us dated May 12, 1996 (hereinafter, "the Agree-
ment"), the following is hereby given to you, in accordance with Section 12.2
of the Agreement, through this notice of sale:
1. We hereby notify you that it is our intention to sell a portion of our
shares in Ampal American Israel Corporation ("Ampal") in order to decrease
our holdings in Ampal to 20% (the "Offered Shares"), and we have a purchaser
(the "Purchaser") for the offered shares.
2. Name and address of the Purchaser: _________________
Number and class of the Offered Shares _____________
The sale price, in dollars, of the Offered Shares
(the "Sale Price") is: ____________________________
3. If you would like to purchase the Offered Shares at the Sale Price, you
must send us a notice of receipt (the "Notice of Receipt") which must relate
to all of the shares offered in this notice, and this not later than
5:00 P.M. on the seventh business day after which you have received this
notice (the "Date of Receipt").
4. If the Notice of Receipt reaches us by the Date of Receipt, the transfer
of the Offered Shares will be executed in consideration for payment for the
Offered Shares and as stated in Clause 12.4 of the Agreement, in the offices
of the Bank on ____ day(2) at ____ hour.
5. If the Notice of Receipt does not reach us by the Date of Receipt, we
will be allowed to sell all of the Offered Shares which are the subject of
this notice to the Purchaser, in accordance with Clause 12.5.1 of the
Agreement.
6. Words and terms used in this document, which are defined in the
Agreement, shall bear the same meanings.
Respectfully yours,
Bank Hapoalim B.M.
and/or Atad Hevra Lehashkaot B.M.
________________________________
1 If the Buyer transfers its rights and responsibilities to the Final Buyer,
according to the Agreement, the notice will be addressed to the Final Buyer
and not to the Buyer.
2 This day shall be a business day not prior to the seventh business day
after the Date of Receipt and shall be not later than 60 days from the Date
of Receipt.
ANNEX B/2
Clause 12.2
(in the event a purchaser does not exist)
date: _______
To
Rebar Financial Corp.(1)
c/o Mr. Daniel Steinmetz
35 Bazel St.
Tel-Aviv
Dear Sir,
Re: Notice of Sale
In connection with the right of first refusal No. 1, granted to you in Clause
12 of the agreement between us dated May 12, 1996 (hereinafter, "the Agree-
ment"), the following is hereby given to you, in accordance with Section 12.2
of the Agreement, through this notice of sale:
1. We hereby notify you that it is our intention to sell a portion of our
shares in Ampal American Israel Corporation ("Ampal") in order to decrease
our holdings in Ampal to 20% (the "Offered Shares"), and we do not have a
purchaser (the "Purchaser") for the offered shares.
2. The sale price, in dollars, of the Offered Shares (the "Sale Price")(2)
is: _____________________________
3. If you would like to purchase the Offered Shares at the Sale Price, you
must send us a notice of receipt (the "Notice of Receipt") which must relate
to all of the shares offered in this notice, and this not later than 5:00
P.M. on the seventh business day after which you have received this notice
(the "Date of Receipt").
4. If the Notice of Receipt reaches us by the Date of Receipt, the transfer
of the Offered Shares will be executed in consideration for payment for the
Offered Shares and as stated in Clause 12.4 of the Agreement, in the offices
of the Bank on ____ day(3) at ____ hour.
5. If the Notice of Receipt does not reach us by the Date of Receipt, we
will be allowed to sell all of the Offered Shares which are the subject of
this notice, in accordance with Section 12.5.2 of the Agreement.
6. Words and terms used in this document, which are defined in the
Agreement, shall bear the same meanings.
Respectfully yours,
Bank Hapoalim B.M.
and/or Atad - Hevra Lehashkaot B.M.
________________________________
1 If the Buyer transfers its rights and responsibilities to the Final Buyer,
according to the Agreement, the notice will be addressed to the Final Buyer
and not to the Buyer.
2 Here will be the amount derived from the multiplication of the number of
Offered Shares by the average closing price of the share of AMEX during the
seven days of trading prior to the transmittal date of the notice of sale.
3 This day shall be a business day established by the Purchaser, which
shall be not prior to the seventh business day after the Date of Receipt
and shall be not later than 60 days from the Date of Receipt.
ANNEX C
Clause 13.2
date: _______
To
Rebar Financial Corp.(1)
c/o Mr. Daniel Steinmetz
35 Bazel St.
Tel-Aviv
Dear Sir,
Re: Notice of Sale
In connection with the right of first refusal No. 2,
granted to you in Clause 13 of the agreement between us dated May 12,
1996 (hereinafter, "the Agreement"),the following is hereby given to you, in
accordance with Section 13.2 of the Agreement, through this notice of sale:
1. We hereby notify you that we have sold all of the "Offered Shares"
referred to in Clause 12 of the Agreement and it is our intention to sell
additional shares of our shares in Ampal American Israel Corporation
("Ampal"), and we have a buyer (the "Buyer") for the shares that we intend
to sell.
2. Name and address of the Buyer: _____________________
Number and Class of the shares offered by us to be purchased:
_______________________________________
Number and Class of the shares offered to you (the "Offered
Shares")(2): ______________________________
The sale price, in dollars, of the Offered Shares
(the "Sale Price") is: ___________________________
3. If you would like to purchase the Offered Shares at the Sale Price, you
must send us a notice of receipt (the "Notice of Receipt") which must relate
to all of the shares offered in this notice, and this not later than 5:00
P.M. on the seventh business day after which you have received this notice
(the "Date of Receipt").
4. If the Notice of Receipt reaches us by the Date of Receipt, the transfer
of the Offered Shares will be executed in consideration for payment for the
Offered Shares and as stated in Clause 13.4 of the Agreement, in the offices
of the Bank on ____ day(3) at ____ hour.
5. If the Notice of Receipt does not reach us by the Date of Receipt, we
will be allowed to sell all of the
Offered Shares which are the subject of this notice, in
accordance with Clause 13.5 of the Agreement.
6. Words and terms used in this document, which are defined in the
Agreement, shall bear the same meanings.
Respectfully yours,
Bank Hapoalim B.M.
and/or Atad - Hevra Lehashkaot B.M.
________________________________
1 If the Buyer transfers its rights and responsibilities to the Final Buyer,
according to the Agreement, the notice will be addressed to the Final Buyer
and not to the Buyer.
2 Here it will be explained whether the reference is made to the entire
amount of the shares offered to the Purchaser or only to half of the amount.
3 This day shall be a business day which shall be not prior to the seventh
business day after the Date of Receipt and shall be not later than 60 days
from the Date of Receipt.
