Exhibit 10l
AGREEMENT
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Drafted and Executed in Tel-Aviv on March 30, 1994
By and Between
Investment Company of Bank Hapoalim Ltd.
3 Daniel Frish Street, Tel Aviv
("Investment Company" hereinafter)
as the First Party,
and
Ampal (Israel) Ltd., and
Ampal Industries (Israel) Ltd.
111 Arlozorov Street, Tel-Aviv
(collectively "Ampal" hereinafter)
as the Second Party.
WHEREAS the Parties are shareholders in that company known as Ophir Holdings
Ltd. (hereinafter "Ophir" or "the Company"), and
WHEREAS the Parties are interested in reducing to writing that which was
orally agreed upon between themselves on November 12, 1993 with reference to
delineating the scope of their relationship with one another as Ophir
shareholders,
Accordingly, it is hereby agreed, declared and
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stipulated between the Parties as follows:
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1. Recitals and Interpretation
1.1 This Agreement's recitals constitute an integral part thereof.
1.2 Section headings shall not be utilized in the interpretation of
this Agreement, their sole purpose being to facilitate reading.
1.3 In this Agreement the terms which follow shall have the definitions
which are set forth next to such terms:
1.3.1 "Shareholders" or "Parties" - Investment company and
Ampal.
1.3.2 "Shareholders' Total Holdings" - (in percentages) - the
number of ordinary shares held by the Shareholders (as
they are described above) with reference to the total
number of all ordinary shares issued by the Company.
2. Duration of Agreement
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This Agreement shall remain in effect as long as each of the Parties
hereto is entitled to appoint at least one director to Ophir's Board of
Directors and as long as the total number of directors which the Parties
hereto are entitled to appoint shall constitute the majority of Ophir's
directors.
Should one of the foregoing conditions cease to exist, this Agreement
shall automatically terminate, effective on the date such condition
ceased to exist.
3. Appointment of Ophir's Directors
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3.1 In the relations between them, the Parties agree that as long as
GMUL Investments Company Ltd. (or whoever succeeds it and in the
event that the following right will be assertable by the successor)
has the right to appoint one of Ophir's directors, Ophir's Board of
Directors shall consist of at least seven directors.
After Ophir has attained the status of a "company" within the
meaning of Section 96(a) of the Companies Ordinance (New Version)
of 1983, Ophir's Board of Directors shall consist of at least seven
directors, and additional directors from the public ("pub. dir."
hereinafter) in such a number as required by law.
3.2 Those of Ophir's directors who are not pub. dir. and which the
Parties are entitled to recommend to the general meeting for their
appointment, in accordance with this sub-section 3.2 (hereinafter,
within this sub-section, "the number of directors") shall be
recommended jointly by the Parties in the manner hereinafter set
forth:
3.2.1 Each Shareholder shall be entitled to recommend one
director for each quantity of ordinary shares held by
such party which constitute, in terms of percentage, out
of the total number of ordinary shares issued by the
Company, a sum equal to the total number of shareholder's
shares divided by the number of directors (hereinafter
"the right-conferring sum").
3.2.2 In the event that in accordance with sub-section 3.2.1,
above, the number of directors appointed does not equal
the number of directors authorized, then that shareholder
that holds the remainder of shares (i.e. those shares
that have not voted to appoint a director in accordance
with sub-section 3.2.1, above) which is closest to "the
right-conferring sum" shall have the right to recommend
the appointment of one additional director occasioned by
the remainder, and this procedure shall be repeated until
directors equal in number to the total number of
directors authorized are appointed.
In the event that two Shareholders hold equal remainders (as
provided above), and a number of directors equal to the number
of authorized directors has not been appointed, the
Shareholders shall jointly recommend a director, per force of
their remainders.
3.2.3 As long as it is not otherwise agreed upon by the parties
in writing, the number of directors subject to the
provisions of this sub-section shall be six.
3.3 Ophir's pub. dir., in the event that there are any, shall be
recommended jointly by the Shareholders.
3.4 The Shareholders shall jointly vote in favor of the appointment of
whoever at all relevant times shall be the Managing Director, as an
additional director of Ophir.
3.5 A Shareholder upon whose recommendation one of Ophir's directors
was appointed, shall be entitled to assemble a general meeting for
the purpose of discharging the director appointed upon its
recommendation and to recommend the appointment of another director
in his place.
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3.6 In the event of the vacancy of a director's position on Ophir's
Board of Directors, for whatever reason, the Shareholder on whose
recommendation such director was appointed, shall have the right to
recommend for appointment a director to fill such vacancy.
3.7 The Shareholders hereby obligate themselves to vote, at Ophir's
general meetings, in favor of the appointment/discharge of
directors in accordance with the recommendations of the Parties as
provided in sub-sections 3.2 - 3.6, above.
4. Voting at General Meetings
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4.1 Prior to the assembly of each of Ophir's general meetings
(excepting those general meetings on whose agenda appears solely
the appointment of directors who are not pub. dire.), the Parties
shall assemble at a preliminary meeting whose purpose will be to
formulate a united stand on those issues set forth in the agenda
for such general meeting (excepting the appointment of directors
who are not pub. dir.) and the manner of voting on such issues.
Where a general meeting has not yet been called and where a Party
hereto is of the opinion that a general meeting ought to be called,
the Parties shall, within the framework of the preliminary meeting,
consider and decide by agreement on those issues which they intend
on raising on Ophir's general meeting agenda and the manner of
voting on such issues.
The preliminary meeting may be conducted in writing.
4.2 In the absence of consensus between the Parties with reference to
the manner of voting on any particular issue, where a preliminary
meeting is not assembled or not held for whatever reason with
reference to such issue, or where the lack of consensus arises as a
result of differences of opinion expressed by the Parties with
reference to said issue, the Parties shall refrain from taking a
stand at Ophir's general meeting with reference to such issue on
which lack of consensus between the Parties exists, or from voting
against the adoption of a decision thereon, and in such a manner as
to preserve the status quo as it existed prior to the convening of
the general meeting.
4.3 At votings at Ophir's general meetings with reference to
transactions between Ophir and any of the Shareholders, and/or at
votings with reference to which, according to law, ratification by
an Ophir general meeting is required, and/or at votings that could
be affected as a result of influence, directly or indirectly, with
reference to Ophir's investment in Mivnat Holdings Ltd. and/or in
Mivney Ta'asia Ltd., the Parties shall enjoy voting freedom and the
provisions of this section 4 shall not apply.
5. Right of First Refusal With Reference to Transfer of Ophir's Shares
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The Shareholders hereby grant each other the right of first refusal with
reference to the transfer of Ophir's shares, subject to the following
terms and conditions:
5.1 Any Party who intends on selling Ophir's Shares ("Seller"
hereinafter) shall give the other Party notice of this fact
("Notice" hereinafter).
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Such Notice shall contain the following particulars: the number of
shares being offered for sale, the price demanded therefor, the
terms of payment therefor and the identity of the offeree.
5.2 Within 30 days after receipt of the Notice, the other Party shall
reply to the Seller in writing ("Response" hereinafter).
The Response shall be either of the following:
a. "Affirmative Response" - in which will be identified the
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number of shares that the sender of the Response is willing to
purchase and whose meaning it shall be that the sender of the
Response is willing to purchase the number of shares
designated and at the price and terms of payment set forth in
the Notice; an affirmative response with reference to all the
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shares offered for sale shall be hereinafter referred to as an
"Affirmative Response".
In the event an Affirmative Response is given without
reference to the number of shares, same shall be deemed as a
full Affirmative Response.
b. "Negative Response" - including the giving of an Affirmative
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Response with changes, that are not in favor of the Seller,
with reference to one or more of the terms of the Notice (and
to which thereafter no other Response is sent within 30 days,
in which case it will be deemed a Negative Response); or a
partial Affirmative Response; or the failure to give any
response whatsoever within 30 days as provided above, which
failure will be considered, on the tho day after receipt of
the Notice, as a Negative Response.
5.3 The service of an Affirmative Response shall be deemed as an
acceptance of the Seller's offer contained in the Notice with
reference to the number of shares that are identified in the
Response and the day upon which service of the Response is effected
shall be deemed the day on which the transaction is consummated
subject to the terms set forth in the Notice.
5.4 The service of a Negative Response shall be construed as giving the
Seller the right to sell to the offeree identified in the Notice
that number of shares with reference to which no Affirmative
Response was received and on those terms set forth in the Notice
(or at a price higher than the price set forth in the Notice and on
the same payment terms as those set forth in the Notice), and this
within 90 days of receipt of the last Response.
5.5 The provisions of this section 5 shall not apply after Ophir has
attained the status of a "Company" within the meaning of Section
96(a) of the Companies Ordinance (New Version) of 1983.
5.6 The Parties hereby agree that in the event that Ophir's Board of
Directors does not approve of the transfer of shares made in
accordance with or not contrary to the provisions of this section,
the Parties shall effectuate a change in Ophir's by-laws to the
effect that same will negate the requirement that Ophir's Board of
Directors must approve the transfer of the shares made in
accordance with and not contrary to the provisions of this section.
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5.7 The transfer of shares to a company within the transferor's group
of companies shall not be subject to the right of first refusal as
provided in this Agreement, provided that such transferee company
shall agree to be bound by the provisions of this section in full.
6. Transfer of Rights
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The Shareholders are not permitted to transfer those rights created by
this Agreement to others, in whole or in part, excepting to companies
within the transferor's group of companies, provided that such
transferee companies shall agree to be bound by the terms of this
Agreement in full.
7. Arbitration
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7.1 All disputes between any and all of the Parties, with reference to
this Agreement, its interpretation or performance, shall be decided
by a single arbitrator, agreed upon jointly by the Parties. In the
event that the Parties do not reach agreement on an arbitrator
within 15 days from the date that one of the Parties demanded from
the other that arbitration be conducted, the arbitrator shall be
appointed, upon application by one of the Parties, by the President
of the Israel Bar Association.
7.2 The arbitrator shall be bound by substantial law, but not by rules
of evidence and procedures established by law, and shall be
entitled to proceed with the arbitration, or any sitting thereof,
including the rendition of a judgment, even in the absence of a
Party summoned by him in writing and who did not appear. The
arbitrator must set forth the reasons for each decision made by
him.
7.3 The arbitrator shall be authorized to render interlocutory and
partial decisions and to order specific performance.
7.4 The arbitrator's decisions and their reasons shall be set forth in
writing by him.
7.5 The arbitrator shall render his judgment within 6 months of the
date that the dispute, pursuant to the provisions of this section,
was submitted to him, and shall be entitled to extend such period,
in three month increments each time, for extraordinary reasons
given by him in writing.
7.6 The arbitrator shall maintain a protocol of the deliberations and
shall transfer a printed copy thereof to each of the Parties a
reasonable period of time before the next sitting of the
arbitration.
7.7 This section shall be considered an arbitration agreement made
between the Parties.
8. Miscellaneous
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8.1 This Agreement expresses the full agreement of the Parties with
reference to all the matters and interests covered thereby, and it
replaces and cancels all other agreements or understandings, oral
or written, that existed, if same existed, between the Parties,
with reference to the matters and interests covered thereby, which
anteceeded the execution of this Agreement.
8.2 Any modification and/or correction of the Agreement and/or any of
its terms and conditions shall be of no effect unless made in
writing and executed by all the Parties.
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8.3 The addresses of the Parties to this Agreement are as set forth in
the recitals to this Agreement.
Notices may be given by letter or by means of facsimile, sent to
the office of the recipient.
In Witness Hereof have the Parties Affixed their Seals:
/s/Investment Company of Bank Hapoalim Ltd. /s/Ampal Industries Ltd.
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Investment Company of Ampal (Israel) Ltd.
Bank Hapoalim Ltd.
/s/Ampal Industries (Israel) Ltd.
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Ampal Industries (Israel) Ltd.
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