STATE OF ISRAEL Underwriting Agreement
STATE OF
ISRAEL
[Names of
Underwriters]
As
Representatives of the several Underwriters,
[Address]
Dear
Sirs:
The
Government of Israel on behalf of the State of Israel (“Israel”) proposes to
sell to the entities listed on Schedule I hereto (the “Underwriters”), for
whom you (the “Representatives”) are
acting as representatives, $_________ principal amount of its ____% Bonds due
_____ (the “Offered
Securities”) pursuant to the provisions of a Fiscal Agency Agreement
dated as of March 13, 2000, as amended by Amendment No. 1 to Fiscal Agency
Agreement dated as of February 24, 2004 (the “Fiscal Agency
Agreement”), between Israel and Citibank, N.A., as fiscal agent (the
“Fiscal
Agent”).
The terms
which follow, when used in this Agreement, shall have the meanings
indicated:
“2009 Registration
Statement” means the registration statement filed with the Commission on
February 11, 2009 (Registration Statement File No. 333-________), which 2009
Registration Statement was declared effective by the Commission on
___________. In the event any post-effective amendment to the 2009
Registration Statement becomes effective prior to the Closing Date (as
hereinafter defined), the term “2009 Registration Statement” shall also mean
such registration statement as so amended.
“Act” means the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Basic Prospectus”
means the prospectus included in the 2009 Registration Statement in the
form filed with the Commission, which prospectus, pursuant to Rule 429 of the
Act, relates to the 2009 Registration Statement, as such prospectus is amended
or supplemented to the date of this Agreement, but excluding any amendments or
supplements related solely to an offering of a series of debt securities other
than the Offered Securities.
“Commission” means the
Securities and Exchange Commission.
“Effective Date” shall
mean each date that the Registration Statement and any post-effective amendment
or amendments thereto became or becomes effective.
“Execution Time” shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto.
“free writing
prospectus” has the meaning set forth in Rule 405.
“issuer free writing
prospectus” has the meaning set forth in Rule 433.
“preliminary
prospectus” means any preliminary form of the Prospectus used in
connection with the offering of the Offered Securities that omits Rule 430A
Information, including, without limitation, the Basic Prospectus and any
preliminary prospectus supplement.
“Prospectus” means the
Basic Prospectus together with the prospectus supplement.
“prospectus
supplement” means the final prospectus supplement filed with the
Commission pursuant to Rule 424, specifically relating to the Offered
Securities.
“Registration
Statement” shall mean the 2009 Registration Statement. Such
term shall include any Rule 430A Information deemed to be included in the
Registration Statement at the Effective Date as provided by
Rule 430A.
“Release” means
Release No. 33-6424 under the Act relating to delayed offerings by foreign
governments or political subdivisions thereof.
“Rule 164”, “Rule 405”, “Rule 415”,
“Rule 424”,
“Rule 430A” and
“Rule 433”
refer to such rules under the Act as applicable to registration statements
subject to Schedule B under the Act in accordance with the Release and, to
the extent any such rule is not directly applicable, mean the provisions
thereunder as made applicable by the Release.
“Rule 430A
Information” means information with respect to the Offered Securities and
the offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A.
“Time of Sale
Prospectus” means the preliminary prospectus, the free writing
prospectuses, if any, and other information, in each case identified in Schedule
II hereto.
As used
herein, the terms “Registration Statement”, “Basic Prospectus”, “Prospectus”,
“preliminary prospectus” and “Time of Sale Prospectus” shall include in each
case the material, if any, incorporated by reference therein.
1. Representations and
Warranties. Israel represents and warrants to, and agrees
with, each Underwriter as set forth in this Section 1.
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(a) Israel
meets the requirements for use of Schedule B under the Act, is a “seasoned
foreign government” within the meaning of the Release and has filed with the
Commission the Registration Statement, including a form of Basic Prospectus, for
registration under the Act of the offering and sale of the Offered
Securities. Israel may have filed with the Commission one or more
amendments to the Registration Statement and may have used a
preliminary prospectus, each of which has previously been furnished to the
Underwriters. Such Registration Statement, as so amended, has become
effective. Although the Basic Prospectus may not include all the
information with respect to the Offered Securities and the offering thereof
required by the Act and the rules thereunder to be included in the Prospectus,
the Basic Prospectus includes all such information required by the Act and the
rules thereunder as applicable pursuant to the Release to be included therein as
of the Effective Date. Israel will hereafter file with the Commission
pursuant to the Release and Rules 415 and 424(b)(2) or (5) either
(x) a prospectus supplement to the Basic Prospectus or (y) an
amendment to such Registration Statement, including such prospectus
supplement. In the case of clause (x), Israel has included in
such Registration Statement, as amended as of the Effective Date of the 2009
Registration Statement, the information required for such procedure pursuant to
the Release. As filed, such prospectus supplement or such amendment
and prospectus supplement shall include all such required information with
respect to the Offered Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to any modification thereof,
shall be in all substantive respects in the form furnished to the Underwriters
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall be in such form with only such specific additional information and
other changes (beyond those contained in the Basic Prospectus and any
preliminary prospectus) as Israel has advised the Underwriters, prior to the
Execution Time, will be included or made therein and to which the
Representatives shall have agreed.
(b) On
the Effective Date of any part of the Registration Statement, such part of the
Registration Statement did or will, on the date filed each preliminary
prospectus did or will, and, when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined below), the
Prospectus (as supplemented in the case of the Closing Date) will, comply in all
material respects with the applicable requirements of the Act, the rules
thereunder and the Release; on the Effective Date of any part of the
Registration Statement, such part of the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; the Registration Statement as of the date
hereof does not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; the Time of Sale Prospectus does not, and at
the time of each sale of the Offered Securities in connection with the offering
and at the Closing Date (as defined below), the Time of Sale Prospectus, as then
amended or supplemented by Israel, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statement therein, in the light of the circumstances under which they were
made, not misleading; the Prospectus does not contain and, as amended or
supplemented, if applicable, at the Closing Date (as defined below) will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that Israel
makes no representations or warranties as to the information contained in or
omitted from the Registration Statement, the Time of Sale Prospectus or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to Israel by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement, the Time of Sale
Prospectus or the Prospectus (or any supplement thereto).
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(c) Israel
is not an “ineligible issuer” in connection with the offering pursuant to Rules
164, 405 and 433. Any free writing prospectus that Israel is required
to file pursuant to Rule 433(d) has been, or will be, filed with the Commission
in accordance with the requirements of the Act. Each free writing
prospectus that Israel has filed, or is required to file, pursuant to Rule
433(d) or that was prepared by or on behalf of or used or referred to by Israel
complies or will comply in all material respects with the requirements of the
Act. Except for the free writing prospectuses, if any, identified in
Schedule II hereto, and electronic roadshows, each furnished to you before first
use, Israel has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing
prospectus.
(d) The
issuance and sale of the Offered Securities have been duly authorized, and, when
duly executed, authenticated, issued and delivered as provided in the Fiscal
Agency Agreement and paid for in accordance with the terms hereof, will be duly
and validly issued and outstanding, and will constitute valid and binding
obligations of Israel for the payment and performance of which the full faith
and credit of Israel will be pledged; the Offered Securities will rank pari passu without any
preference among themselves; the payment obligations of Israel will at all times
rank at least equally with all other payment obligations of Israel relating to
unsecured, unsubordinated “external indebtedness” (as defined in the Offered
Securities); and the Offered Securities, when issued and delivered, will conform
to the description thereof contained in the Prospectus.
(e) Israel
is a member of the International Monetary Fund and the International Bank for
Reconstruction and Development.
(f) Israel
is not a party to any agreement with the United States of America relating in
any way to the immunity of Israel from jurisdiction of courts, suit, execution
upon a judgment, attachment prior to judgment or in aid of execution upon a
judgment or any other legal process. Israel is, under the law of
Israel, subject to civil and commercial law with respect to its obligations
under this Agreement, the Fiscal Agency Agreement and the Offered Securities and
has agreed not to assert the defense of immunity, on the grounds of sovereignty
or otherwise, in respect of any suit, action or proceeding arising out of or
relating to claims under this Agreement, the Fiscal Agency Agreement or the
Offered Securities, except any such suit, action or proceeding instituted by a
holder of the Offered Securities (other than an Underwriter instituting such
suit, action or proceeding in its capacity as an Underwriter under this
Agreement) arising out of or based on United States federal or state
securities laws.
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2. Purchase and
Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, Israel agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from Israel, at a purchase price of _______% of the principal amount
thereof, plus accrued interest on the Offered Securities from ___________ to the
Closing Date, the principal amount of the Offered Securities set forth opposite
such Underwriter’s name in Schedule I hereto.
3. Delivery and
Payment. Delivery of and payment for the Offered Securities
shall be made at 10:00 a.m., New York City time, on ___________, which date and
time may be postponed by agreement between the Representatives and Israel or as
provided in Section 10 hereof (such date and time of delivery and payment
for the Offered Securities being herein called the “Closing
Date”). Delivery of the Offered Securities shall be made to
the Underwriters through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters against payment by the several
Underwriters of the purchase price thereof to or upon the order of Israel by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in next day funds. Delivery of the Offered
Securities shall be made at such location as the Representatives shall
reasonably designate at least one business day in advance of the Closing Date,
and payment for the Offered Securities shall be made at the offices of
_________________________. Certificates for the Offered Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
Israel
agrees to have the Offered Securities available for inspection, checking and
packaging by the Underwriters in New York, New York, not later
than
1:00 p.m.
on the business day prior to the Closing Date.
4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus. Each of the Underwriters represents and warrants that
it has complied with and will comply with all applicable provisions of the
Financial Services and Markets Xxx 0000 with respect to anything done by it in
relation to the Offered Securities in, from or otherwise involving the United
Kingdom. Each Underwriter severally covenants with Israel not to take
any action that would result in Israel being required to file with the
Commission under Rule 433(d) a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by Israel,
but for the action of the Underwriter.
5. Agreements. Israel
agrees with the several Underwriters that:
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(a) Israel
will use its best efforts to cause the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, to become effective as soon as
reasonably practicable thereafter. Prior to the termination of the
offering of the Offered Securities, Israel will not file any amendment of the
Registration Statement or supplement (including the Prospectus or any
preliminary prospectus) to the Basic Prospectus or the Time of Sale Prospectus
unless Israel has furnished the Underwriters a copy for their review prior to
filing and will not file any such proposed amendment or supplement to which the
Representatives reasonably object, unless Israel is otherwise advised by its
U.S. counsel that such filing is required under the Act. Subject to
the foregoing sentence, Israel will cause the Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed by
such Rule and will provide evidence satisfactory to the Underwriters of such
timely filing. Israel will promptly advise the Underwriters
(i) when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination
of the offering of the Offered Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iv) of any request by
the Commission for any amendment of the Registration Statement or supplement to
the Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (vi) of the receipt by Israel of any notification with
respect to the suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. Israel will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such qualification and,
if issued or suspended, to obtain as soon as possible the withdrawal
thereof.
(b) Israel
will furnish to the Underwriters a copy of each proposed free writing prospectus
to be prepared by or on behalf of, used by, or referred to by Israel and not to
use or refer to any proposed free writing prospectus to which the
Representatives reasonably object.
(c) Israel
will not take any action that would result in an Underwriter or Israel being
required to file with the Commission pursuant to Rule 433(d) a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter
otherwise would not have been required to file thereunder.
(d) If
the Time of Sale Prospectus is being used to solicit offers to buy the Offered
Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Time of Sale Prospectus in order to make
the statements therein, in the light of the circumstances, not misleading, or if
any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, Israel shall forthwith prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that
the statements in the Time of Sale Prospectus as so amended or supplemented will
not, in the light of the circumstances when delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
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(e) If,
at any time when a prospectus relating to the Offered Securities is required to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the respective rules thereunder, Israel
promptly will (i) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus to the Underwriters
in such quantities as they may reasonably request.
(f) Israel
will endeavor to qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriters shall
reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Underwriters may
reasonably designate; provided, however, that Israel
shall not be obligated to file any general or unlimited consent to service of
process in any jurisdiction.
(g) Israel
will make generally available to holders of the Offered Securities, as soon as
practicable, a statement in the English language of revenues and expenditures of
Israel covering the first full fiscal year of Israel beginning after the date of
this Agreement which will satisfy the provisions of Section 11(a) of the
Act; it is understood that this undertaking shall be deemed satisfied if Israel
has filed its Annual Report on Form 18-K for the year ended
December 31, _______.
(h) So
long as any of the Offered Securities are outstanding, Israel will furnish to
the Underwriters copies of all reports and financial statements filed with the
Commission in connection with the Offered Securities.
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(i) Until
the business day following the Closing Date, Israel will not, without the
consent of the Representatives, offer or sell in the United States, or announce
the offering in the United States of, any securities other than normal course
offers of State of Israel Bonds sold through the Development Corporation for
Israel.
(j) Israel
will furnish to the Underwriters and counsel for the Underwriters, without
charge, copies of the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any preliminary prospectus, the Time of Sale
Prospectus and the Prospectus and any supplement thereto as the Underwriters may
reasonably request. Israel will pay the expenses of printing or other
production of all documents relating to the offering of Offered Securities
pursuant to this Agreement.
(k) Israel
will use best efforts to cause the Offered Securities to be listed on the
Luxembourg Stock Exchange.
6. Expenses. Whether
or not the transactions contemplated hereunder are consummated or this Agreement
is terminated, except as set forth in the next sentence, Israel will pay all
costs and expenses incident to the performance of the obligations of Israel
hereunder, including, without limiting the generality of the foregoing,
(i) all costs and expenses incident to the filing with the Commission of
the Registration Statement (including all exhibits thereto), any preliminary
prospectus, the Prospectus and any amendments thereof or supplements thereto,
(ii) any fees charged by securities rating services for rating the Offered
Securities, and (iii) all costs and expenses of Israel’s Israeli, United States
and any other outside counsel. Except as provided in Section 8
hereof, the Underwriters will pay (i) all their own costs and expenses and all
costs and expenses related to the Bloomberg roadshow, (ii) all costs and
expenses incident to the printing and distributing of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus and any amendments
thereof or supplements thereto, (iii) all costs and expenses (including
reasonable fees of counsel to the Underwriters and their disbursements) incurred
in connection with “Blue Sky” qualifications, (iv) all costs and expenses
related to the eligibility and acceptance of the Offered Securities for deposit
with The Depository Trust Company, (v) any costs and expenses, including fees of
listing agents, in connection with the listing of the Offered Securities on the
Luxembourg Stock Exchange, (vi) any fees of the Fiscal Agent, and (vii) all
costs and expenses of the Underwriters’ Israeli, United States and any other
outside counsel.
7. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Offered Securities shall be subject to the accuracy
in all material respects of the representations and warranties on the part of
Israel contained herein as of the time of the execution of this Agreement and
the Closing Date, to the accuracy in all material respects of the statements of
Israel made in any certificates pursuant to the provisions hereof, to the
performance by Israel of its obligations hereunder and to the following
additional conditions:
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(a) If
the Registration Statement has not become effective prior to the Execution Time,
unless the Representatives agree in writing to a later time, the Registration
Statement will become effective not later than (i) 6:00 p.m. New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 p.m. New York City time on such
date or (ii) 12:00 noon on the business day following the day on which
the public offering price was determined, if such determination occurred after
3:00 p.m. New York City time on such date; if filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b) and in accordance with
Section 5(a) of this Agreement; no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and any request of the
Commission for additional information shall have been complied with to the
satisfaction of the Representatives.
(b) Israel
shall have furnished to the Underwriters the written opinion, satisfactory to
the Representatives, of the Legal Advisor to the Ministry of Finance of the
State of Israel (the “Legal Advisor”) dated
the Closing Date, to the effect that:
(i) the Offered
Securities have been duly and validly authorized and executed in accordance with
the laws of Israel and, when duly authenticated in accordance with the terms of
the Fiscal Agency Agreement and delivered and paid for in accordance with the
terms of this Agreement, the Offered Securities will be valid and binding
obligations of Israel entitled to the benefits of the Fiscal Agency
Agreement;
(ii) the
obligations of Israel under the Fiscal Agency Agreement, this Agreement and the
Offered Securities are and will be direct, general and unconditional obligations
of Israel, and are, under the laws of Israel, subject to civil and commercial
substantive and procedural law and to the procedural requirements relating to
enforcement and recognition of foreign judgments. The Offered
Securities will rank pari passu, without any
preference among themselves; the payment obligations of Israel will at all times
rank at least equally with all other payment obligations of Israel relating to
unsecured and unsubordinated “external indebtedness” (as defined in the Offered
Securities) of Israel; the full faith and credit of Israel has been pledged for
the due and punctual payment of the principal of and interest on the Offered
Securities and for the performance of the obligations of Israel with respect
thereto;
(iii) Israel has
the power and authority required for the execution and delivery of this
Agreement, the issuance of the Offered Securities and the performance by Israel
of its obligations thereunder and hereunder and under the Fiscal Agency
Agreement; and none of the execution or delivery by Israel of this Agreement or
the Offered Securities, the performance of its obligations hereunder or
thereunder or under the Fiscal Agency Agreement, or the fulfillment by Israel of
the terms hereof or thereof or under the Fiscal Agency Agreement requires, under
Israeli law, any publication, waiver, consent, filing, registration,
authorization or approval;
9
(iv) the Fiscal
Agency Agreement has been duly authorized, executed and delivered by Israel in
accordance with the laws of Israel and is a valid and binding agreement of
Israel;
(v) this Agreement
has been duly authorized, executed and delivered by Israel in accordance with
the laws of Israel;
(vi) all statements
in the Registration Statement, the Time of Sale Prospectus and the Prospectus
with respect to or involving laws, statutes and regulations of or pertaining to
Israel are accurate in all material respects and fairly present the information
purported to be shown;
(vii) the
provisions of this Agreement and the Offered Securities wherein Israel consents
to the jurisdiction of certain courts in the United States and agrees not
to assert the defense of immunity, on the grounds of sovereignty or otherwise,
are valid and binding; final judgment against Israel in any such suit, action or
proceeding brought, in accordance with such provisions, in the courts of Israel
or Federal or state courts in the City of New York would be conclusive and
binding upon Israel and may be enforced in the courts of Israel, without retrial
or reexamination but subject to the procedural requirements relating to
enforcement and recognition of foreign judgments;
(viii) under
Israeli law in effect as of the date of such opinion, payments made under the
Offered Securities will be exempt from Israeli taxation, and there are no
transfer, stamp or similar taxes under the laws of Israel payable in connection
with the issuance, transfer and sale of the Offered Securities or the execution
and delivery of this Agreement;
(ix) the choice of
New York law to govern the validity, construction and performance of this
Agreement, the Offered Securities and the Fiscal Agency Agreement would be
upheld by an Israeli court as a valid and effective choice of law under the laws
of Israel;
(x) none of the
execution or delivery by Israel of this Agreement or the Offered Securities, the
performance by Israel of its obligations hereunder or thereunder or under the
Fiscal Agency Agreement, or the fulfillment by Israel of the respective terms
hereof or thereof or of the Fiscal Agency Agreement, will violate any provision
of the laws of Israel or, to the best knowledge of the Legal Advisor, violate
any order, rule or regulations of any Israeli Court, regulatory body, or
administrative body or governmental body;
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(xi) none of the
execution or delivery by Israel of this Agreement or the Offered Securities, the
performance by Israel of its obligations hereunder or thereunder or under the
Fiscal Agency Agreement, or the fulfillment of the respective terms hereof or
thereof or of the Fiscal Agency Agreement by Israel, will, to the best knowledge
of the Legal Advisor after due inquiry, violate, or result in a breach of, the
terms of, or cause a default under, any note, note agreement, bank loan, or any
other agreement or instrument for money borrowed to which Israel is a
party;
(xii) there is no
action, suit, or proceeding pending, or to the knowledge of the Legal Advisor,
threatened against or affecting Israel, before any court or administrative
agency in Israel, challenging the validity or enforceability of this Agreement,
the Fiscal Agency Agreement, or the Offered Securities or the transactions
contemplated hereby or thereby;
(xiii) the
Registration Statement, as amended, any preliminary prospectus supplement, and
the Prospectus, and their filing with the Commission, have been duly authorized
by and on behalf of Israel and the Registration Statement has been duly executed
on behalf of Israel;
(xiv) the Legal
Advisor shall further confirm that appropriate officials in the Ministry of
Finance have been apprised of the disclosure standards applicable to the
offering described in this Agreement and have reviewed the Time of Sale
Prospectus and the Prospectus. Based on such review, the results of
which have been discussed with the Legal Advisor, the Legal Advisor shall
confirm that, although the Legal Advisor shall not have made an independent
investigation or verification of the correctness and completeness of the
information included in the Time of Sale Prospectus or the Prospectus, nothing
has come to the Legal Advisor’s attention that would lead the Legal Advisor to
believe that (except as to the financial and statistical data contained therein
as to which the Legal Advisor need not express any belief) (a) any part of
the Registration Statement, when such part became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make statements therein not misleading, (b)
the Registration Statement or the Prospectus, on the date of this Agreement,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (c) the Time of Sale Prospectus as of the date of this Agreement
or, as amended or supplemented, if applicable, as of the Closing Date contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (d) the Prospectus,
as amended or supplemented, as applicable, as of the Closing Date contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and
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(xv) the
appointment of the Authorized Agent in Section 13 below and any waiver in
that section by Israel in respect thereto are legal, valid and binding in
accordance with their respective terms under the laws of Israel.
In
rendering such opinion, the Legal Advisor may rely without independent
investigation on the opinion pursuant to paragraph (c) below as to matters
of New York and United States Federal law and such opinion shall be subject to
any limitations and exceptions contained in the opinion so relied
upon. References to the Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The
Underwriters shall have received on and as of the Closing Date an opinion,
satisfactory to the Representatives, of Xxxxxx & Xxxxxx LLP, special
United States counsel to Israel, to the effect that:
(i) the Offered
Securities, when duly authorized, executed, authenticated and issued in
accordance with the terms of the Fiscal Agency Agreement and delivered and paid
for in accordance with the terms of this Agreement, will be valid and binding
obligations of Israel entitled to the benefits of the Fiscal Agency
Agreement;
(ii) the Fiscal
Agency Agreement constitutes a valid and legally binding agreement of Israel,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights and to general equity
principles;
(iii) no consent,
approval, authorization, order, registration, clearance, qualification or filing
(each, a “Governmental
Authorization”) of or with any United States Federal or state government,
administrative agency, commission or other body is required for the issue and
sale of the Offered Securities or the consummation by Israel of the transactions
contemplated by this Agreement or the Fiscal Agency Agreement, except such as
have been obtained under the Act and such Governmental Authorizations as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Offered Securities by the Underwriters;
(iv) the statements
in the Registration Statement, the Time of Sale Prospectus and the Prospectus
under the captions “Debt Securities”, “Collective Action Securities” and
“Description of the Bonds” insofar as they purport to constitute a summary of
certain provisions of the Offered Securities and the Fiscal Agency Agreement
provide a fair summary of such provisions;
12
(v) the statements
in the Registration Statement and the Prospectus under the caption “Taxation”,
insofar as they purport to constitute a summary of the material
United States Federal income and estate tax consequences of the purchase,
ownership and disposition of the Offered Securities, provide a fair summary of
such consequences;
(vi) Israel has
validly submitted, under the laws of the State of New York and the Federal
laws of the United States, to the jurisdiction of the State and Federal courts
in the Borough of Manhattan in the City of New York, in any suit, action or
proceeding arising out of or based on this Agreement, the Fiscal Agency
Agreement or the Offered Securities, except any such suit, action or proceeding
instituted by a holder of the Offered Securities (other than an Underwriter
instituting such suit, action or proceeding in its capacity as an Underwriter
under this Agreement) arising out of or based on United States Federal or state
securities laws;
(vii) the documents
expressly incorporated by reference in the Time of Sale Prospectus and the
Prospectus as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the case may
be, appear on their face to comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder;
(viii) the
agreement of Israel contained in this Agreement, the Offered Securities and the
Fiscal Agency Agreement that each will be governed and construed in accordance
with the laws of the State of New York, except with respect to its
authorization and execution by and on behalf of Israel, is valid and
binding;
(ix) the Offered
Securities are exempt from the provisions of the Trust Indenture Act of 1939, as
amended, under Section 304(a)(6) of said Act, and no indenture in respect
of the Offered Securities need be qualified under said Act; and
(x) the
Registration Statement has become effective under the Act as of the date and
time specified in such opinion, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending before or threatened by the
Commission.
In giving
such opinion, Xxxxxx & Xxxxxx LLP may (i) assume that the Fiscal
Agency Agreement, the Offered Securities and this Agreement have been duly
authorized, executed and delivered by the appropriate party or parties thereto
and that each such party has adequate power and authority to enter therein and
(ii) rely without independent investigation on the opinion delivered
pursuant to paragraph (b) above as to matters governed by the laws of
Israel and such opinion shall be subject to any limitations and exceptions
contained in the opinion delivered pursuant to paragraph (b)
above.
13
In
addition, Xxxxxx & Xxxxxx LLP shall have furnished the Underwriters
with a letter, dated the Closing Date, confirming that as United States counsel
to Israel, such counsel reviewed the Registration Statement, the Time of Sale
Prospectus and the Prospectus as then amended or supplemented, participated in
discussions with your representatives and those of Israel and its Israeli
counsel, and advised Israel as to the requirements of the Securities Act and the
applicable rules and regulations thereunder; on the basis of the information
that such counsel gained in the course of the performance of such services,
considered in the light of their understanding of the applicable law and the
experience they have gained through their practice under the Securities Act,
such counsel will confirm to you that, in their opinion, the Registration
Statement and the Prospectus as then amended or supplemented, as of the
Effective Date of the 2009 Registration Statement and as of the latest Effective
Date of any part of the Registration Statement, appeared on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder; nothing that came to such counsel’s attention in the course of the
limited procedures described in such letter has caused such counsel to believe
that any part of the Registration Statement, when such part became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; nothing that came to such counsel’s attention in the
course of such limited procedures described in such letter has caused such
counsel to believe that the Registration Statement or the Prospectus on the date
of this Agreement contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; nothing that has come to such counsel’s
attention in the course of the limited procedures described in such letter has
caused such counsel to believe that the Time of Sale Prospectus as of the date
of this Agreement or as amended or supplemented, if applicable, as of the
Closing Date contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and nothing
that has come to such counsel’s attention in the course of the limited
procedures described in such letter has caused such counsel to believe that the
Prospectus (as then amended or supplemented) as of the Closing Date contains any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
counsel may state that the limitations inherent in the independent verification
of factual matters and the character of determinations involved in the
registration process are such that they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Time of Sale Prospectus or the Prospectus except for
those made under the captions “Debt Securities”, “Collective Action Securities”
and “Description of the Bonds” in the Time of Sale Prospectus or the Prospectus
as then amended and supplemented insofar as they purport to summarize certain
provisions of documents therein described; that such counsel do not express any
opinion or believe as to (1) the financial statements and related schedules or
other financial data or (2) statistical information and data contained in
the Registration Statement or the Prospectus as then amended or supplemented, or
as to matters of the laws of Israel; and that their letter is furnished as
United States counsel for Israel to you and is solely for your
benefit.
14
(d) The
Underwriters shall have received from ____________, counsel for the
Underwriters, such opinion and letter, dated the Closing Date, with respect to
the issuance and sale of the Offered Securities, the Fiscal Agency Agreement,
the Registration Statement, the Time of Sale Prospectus, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and Israel shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters. In giving such opinion, ______________ may rely
without independent investigation on the opinion delivered pursuant to
paragraph 7(b) above as to the matters governed by the laws of Israel and
such opinion shall be subject to any limitations and exceptions contained in the
opinion delivered pursuant to paragraph (b) above.
(e) Israel
shall have furnished to the Underwriters a certificate of Israel, signed by
either (i) the Director General and the Accountant General of the Ministry
of Finance or (ii) the Consul and Chief Fiscal Officer for the Western
Hemisphere and the Deputy Chief Fiscal Officer for the Western Hemisphere of the
Ministry of Finance, dated the Closing Date, to the effect that the signer of
such certificate has carefully examined the Registration Statement, the Time of
Sale Prospectus, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the
representations and warranties of Israel in this Agreement are true and correct
in all material respects on and as of the Closing Date with the same effect as
if made on the Closing Date and Israel has complied in all material respects
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to Israel’s knowledge,
threatened; and
(iii) there has
been no material adverse change or any development involving a prospective
material adverse change in the condition (financial, economic or political) of
Israel from that set forth in the Time of Sale Prospectus and the Prospectus
(exclusive of any supplement thereto dated after the Execution Time) that was
not disclosed to the Underwriters prior to the Execution Time.
15
(f) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given
in the Registration Statement (exclusive of any amendment thereof dated after
the Execution Time), the Time of Sale Prospectus and the Prospectus (exclusive
of any supplement thereto dated after the Execution Time), there shall not have
been any change or any development involving a prospective change in the
condition (financial, economic or political) of Israel from that set forth in
the Registration Statement that, in the judgment of the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed with the
offering or delivery of the Offered Securities as contemplated by the
Registration Statement, the Time of Sale Prospectus and the Prospectus (in each
case exclusive of any amendment or supplement thereto dated after the Execution
Time).
(g) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of Israel’s debt securities by Standard and Poor’s Corporation or Xxxxx’x
Investors Service, Inc. or any written notice given of any intended or potential
change in any such rating that is not an upward change.
(h) Subsequent
to the Execution Time, no proceeding shall be pending or threatened to restrain
or enjoin the issuance, sale or delivery of the Offered Securities or in any
manner to question the laws, proceedings, directives, resolutions, approvals,
consents or orders under which the Offered Securities are to be issued or to
question the validity of the Offered Securities, and none of such laws,
proceedings, directives, resolutions, approvals, consents or orders shall have
been repealed, revoked or rescinded in whole or in part.
(i) Subsequent
to the Execution Time, Israel shall not have ceased to be a member of the
International Monetary Fund and the International Bank for Reconstruction and
Development.
(j) Prior
to the Closing Date, Israel shall have furnished to the Underwriters such
further information, certificates, opinions and other documents as the
Representatives may reasonably request.
If any of
the conditions specified in this Section 7 shall not have been fulfilled in
all material respects when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance to
the Representatives and to counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to Israel in writing or by telephone or telegraph
confirmed in writing.
The
documents required to be delivered by this Section 7 shall be delivered at
the office of ______________, counsel for the Underwriters, at ________________,
at the Closing Date.
16
8. Reimbursement of
Underwriters’ Expenses. If the sale of the Offered Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 7 hereof is not satisfied, because
of any termination pursuant to Section 11 hereof or because of any refusal,
inability or failure on the part of Israel to perform any agreement herein or
comply with any provision hereof other than by reason of a default by any of the
Underwriters, Israel will reimburse the Underwriters severally upon demand for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Offered Securities.
9. Indemnification and
Contribution. 1)Israel agrees to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Securities Exchange
Act of 1934 (the “Exchange Act”)
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Offered Securities as originally filed or in any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or, in the case of any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus, in light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that Israel
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to Israel by
or on behalf of any Underwriter specifically for inclusion
therein. This indemnity agreement will be in addition to any
liability which Israel may otherwise have. Israel further agrees to
indemnify and hold harmless each Underwriter against any requirement under the
laws of Israel to pay any stamp or similar taxes in connection with the issuance
of the Offered Securities to such Underwriter by Israel.
(b) Each
Underwriter severally agrees to indemnify and hold harmless Israel, to the same
extent as the foregoing indemnity from Israel to each Underwriter, but only with
reference to written information relating to such Underwriter furnished in
writing to Israel by or on behalf of such Underwriter specifically for inclusion
in the documents referred to in such foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. Israel acknowledges that each Underwriter’s name,
solely with respect to such Underwriter, on the cover page of the prospectus
supplement and each Underwriter’s name, address and principal amount of bonds
purchased, solely with respect to such Underwriter, the second, third and fourth
sentences of the second paragraph, the third paragraph and the seventh paragraph
under the heading “Underwriting” in the prospectus supplement constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in such foregoing
indemnity, and the Underwriters confirm that such statements are
correct.
17
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel, if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying
party. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to local counsel) for all such indemnified parties and that such
fees and expenses shall be reimbursed as they are incurred. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
18
(d) In
the event that the indemnity provided in paragraph (a) or (b) of this
Section 9 is unavailable or insufficient (unless such indemnity is
unavailable or insufficient by operation of the provisos set forth therein) to
hold harmless an indemnified party for any reason, Israel and the Underwriters
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively, “Losses”) to which
Israel and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by Israel and by the
Underwriters from the offering of the Offered Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among the
Underwriters relating to the offering of the Offered Securities) be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Offered Securities purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, Israel and the Underwriters shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of Israel and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by Israel shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses),
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by Israel or the Underwriters. Israel and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 9, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each official of Israel who shall have signed the
Registration Statement shall have the same rights to contribution as Israel,
subject in each case to the applicable terms and conditions of this
paragraph (d).
10. Default by an
Underwriter. If any one or more Underwriters shall fail or
refuse to purchase and pay for any of the Offered Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase and pay shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Offered Securities set forth opposite their names in
Schedule I hereto bears to the aggregate principal amount of Offered
Securities set forth opposite the names of all the remaining Underwriters) the
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that the
remaining nondefaulting Underwriters shall not be obligated to purchase any of
the Offered Securities if the aggregate principal amount of Offered Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 9.09% of the aggregate principal amount of Offered Securities and any
remaining nondefaulting Underwriter shall not be obligated to purchase more than
110% of the principal amount of Offered Securities set forth opposite its name
in Schedule I hereto. If the foregoing maximums are exceeded,
the remaining Underwriters, or other underwriters acceptable to the
nondefaulting Underwriters, shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Offered Securities, and if such
nondefaulting Underwriters, or other underwriters acceptable to the
nondefaulting Underwriters, do not purchase all the Offered Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
Israel. In the event of a default by any Underwriter as set forth in
this Section 10, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Underwriters shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement
unless the context requires otherwise, any underwriter, other than the
Underwriters, who purchases Offered Securities which a defaulting Underwriter
agreed but failed to purchase. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to Israel and
any nondefaulting Underwriter for damages occasioned by its default
hereunder.
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11. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to Israel prior to delivery of and payment for
the Offered Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange or
settlement of securities trading generally shall have been materially disrupted,
(ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or Israeli authorities or (iii) there shall
have occurred (x) any outbreak or escalation of hostilities in which the
United States or Israel is involved or declaration by the United States or
Israel of a national emergency or war or other calamity or crisis or (y) a
material adverse change in the general economic, political or financial
conditions in Israel or the United States the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
Offered Securities as contemplated by the Prospectus.
12. Representations and
Indemnities To Survive. The respective agreements,
representations, warranties, indemnities and other statements of Israel and of
the Underwriters set forth in or made in writing pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or Israel or any of the officers, directors or
controlling persons referred to in Section 9 hereof, and will survive
delivery of and payment for the Offered Securities. The provisions of
Sections 8 and 9 hereof shall survive the termination or cancelation of
this Agreement.
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13. Submission to Jurisdiction;
Agent for Service of Process. Israel and the Underwriters
agree that the Federal courts of the United States sitting in the Southern
District of New York, the courts of the State of New York sitting in the City of
New York and the courts of Israel shall have exclusive jurisdiction in
respect of any legal action or proceeding brought against Israel and arising out
of or relating to this Agreement. In respect of any such proceeding
which may be brought hereunder, Israel irrevocably submits to the jurisdiction
of the Federal courts of the United States in the Southern District of
New York, the courts of the State of New York sitting in the City of
New York and the courts of Israel and waives any right of objection to the
laying of venue in any such court, including, without limitation, any objection
on the basis of inconvenient forum. Israel irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Agreement
from which no appeal has been taken or is available.
Israel
hereby appoints the Consul and Chief Fiscal Officer for the Western Hemisphere
of the Ministry of Finance of the Government of Israel, whose office address is
presently at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, as its
authorized agent (“Authorized Agent”) to
receive on its behalf service of process in any proceeding which may be brought
under the immediately preceding paragraph of this Section 13 in a Federal
court of the United States in the Southern District of New York or in a
New York State court in the City of New York. Israel may
nominate a substitute or replacement for its Authorized Agent in the State of
New York by giving notice thereof to you, but such appointment shall not be
effective until the successor to the Authorized Agent accepts appointment as
such. Israel agrees that it will at all times maintain an Authorized
Agent to receive such service, as above provided. The failure of the
Authorized Agent to give Israel notice of the service of any process shall not
affect the validity of any proceeding based on that process or any judgment
obtained pursuant to it. Israel will take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment or appointments in full force and effect
as aforesaid. Service of process upon the Authorized Agent at the
address indicated in this Section 13, or at such other address in the
Borough of Manhattan in the City of New York, as may be the office of the
Authorized Agent at the time of such service, and written notice of such service
to Israel (mailed or delivered to Israel at the address set forth in
Section 14) hereof shall be deemed, in every respect, effective service of
process upon Israel.
In
respect of any proceeding which may be brought under this Agreement, Israel
irrevocably agrees not to assert the defense of immunity, on the grounds of
sovereignty or otherwise, from jurisdiction, execution or attachment in aid of
execution, personally and in respect of any of its property.
Neither
the submission to jurisdiction, the appointment of the Authorized Agent or the
agreements with respect to immunity in this Section 13 shall be interpreted
to include actions brought under the United States Federal securities laws or
any State securities laws (other than any legal action or proceeding instituted
by an Underwriter in its capacity as an Underwriter under this
Agreement).
21
Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Underwriters, will be mailed or delivered to ___________________;
or, if sent to Israel, will be mailed or delivered to it at:
Government
of Israel
Ministry
of Finance
000
Xxxxxx Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Consul
and Chief Fiscal Officer
with a
copy to:
Government
of Israel
Ministry
of Finance
0 Xxxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxxxx 00000
ISRAEL
Attn: Accountant
General
14. English
Documents. All documents to be delivered under this Agreement
by Israel shall be in the English language or accompanied by a certified English
translation.
15. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
persons referred to in Section 9 hereof, and no other person will have any
right or obligation hereunder. No purchaser of any Offered Securities
from any Underwriter shall be deemed to be a successor or assign merely by
reason of such purchase.
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of law principles of such State, except with respect to its
authorization and execution by and on behalf of Israel, which shall be governed
by the law of Israel.
17. Counterparts. This
Agreement may be signed in two or more counterparts, which together shall
constitute one and the same instrument.
18. No Fiduciary
Duty. Israel acknowledges that in connection with the offering
of the Offered Securities: (i) the Underwriters have acted at arms length, are
not agents of, and owe no fiduciary duties to, Israel or any other person, (ii)
the Underwriters owe Israel only those duties and obligations set forth in this
Agreement and prior written agreement (to the extent not superseded by this
Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of Israel. Israel waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the Offered
Securities.
22
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among Israel and the several
Underwriters.
Very
truly yours,
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THE
GOVERNMENT OF ISRAEL, ON BEHALF OF STATE OF ISRAEL
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By:
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Title:
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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The
foregoing Agreement is
hereby
confirmed and accepted
as
of the date first above written.
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By: _______________________
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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For
themselves and the other
Several
Underwriters named in
Schedule
I to the foregoing
Agreement.
SCHEDULE
I
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Underwriters
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Principal
Amount of
Offered
Securities
to be Purchased
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Total:
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$
|
SCHEDULE
II
ANNEX A
to
SCHEDULE
II
