EXHIBIT 99.17
FIRST AMENDMENT
TO A
WARRANT ISSUED ON
AUGUST 4, 2005
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THIS FIRST AMENDMENT is made on the 28th day of September, 2006,
between:
(1) TOWER SEMICONDUCTOR LTD., a company incorporated in Israel
(registered number 52-004199-7), having its registered office at
X.X. Xxx 000, Xxxxxx Xxxxxx 00000, Xxxxxx ("THE COMPANY");
AND
(2) BANK LEUMI LE-ISRAEL B.M. ("THE HOLDER")
WHEREAS:
(A) pursuant to a Warrant issued on August 4, 2005 ("THE WARRANT"), the Company
granted the Holder the right to purchase 4,132,232 Warrant Shares at the
Warrant Price, which is US $1.21 (one United States Dollar and twenty-one
cents) per share; and
(B) at the request of the Company, the Company and the Banks entered into an
Amending Agreement, dated August 24, 2006, to the Agreement, one of the
conditions to the effectiveness thereof is the entering into of this First
Amendment to the Warrant,
NOW THEREFORE IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:
1. Unless otherwise defined in this Amendment, terms defined and references
contained in the Warrant, shall have the same meaning and construction in
this Amendment.
2. The Warrant is hereby amended as follows:
2.1. The legend at the top of the first page of the Warrant is hereby
amended to read in its entirety as follows:
THIS WARRANT HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR ANY U.S. STATE
OR OTHER JURISDICTION'S SECURITIES LAWS. THIS WARRANT, AND THE
SECURITIES ISSUABLE PURSUANT THERETO, MAY NOT BE SOLD, OFFERED
FOR SALE OR PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT UNDER THE ACT WITH
RESPECT TO THIS WARRANT OR THE SECURITIES ISSUABLE PURSUANT
THERETO OR AN OPINION OF COUNSEL (REASONABLY SATISFACTORY TO THE
COMPANY) THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD
PURSUANT TO RULE 144 OF THE ACT OR ON THE TEL-AVIV STOCK EXCHANGE
IN COMPLIANCE WITH REGULATION S UNDER THE ACT.
2.2. Clause 2A ("EXERCISABILITY; TERM") is hereby amended as follows:
2.2.1. the words "the date which is 5 (five) years following the Ninth
Amendment Closing Date" before the parenthetical phrase "("THE
FIRST TRANCHE EXPIRATION DATE")" are hereby deleted and the date
"September 28, 2011" substituted therefor;
2.2.2. the words "the date of signature by the Company and the Banks
of an agreement by the Banks to reschedule the repayment dates of
the Interest Payment Loans (as defined in the Ninth Amendment)"
before the parenthetical phrase "("THE SECOND TRANCHE
EXERCISABILITY DATE")" are hereby deleted and the date "September
28, 2006" substituted therefor; and
2.2.3. the words "the date which is 5 (five) years following the
Second Tranche Exercisability Date" before the parenthetical
phrase "("THE SECOND TRANCHE EXPIRATION DATE")" are hereby
deleted and the date "September 28, 2011" substituted therefor.
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2.3. Clause 3 ("EXERCISE OF WARRANT") is hereby amended by deleting the
words "and, provided further, that if the Second Tranche
Exercisability Date does not occur, no more than 2,066,116 (two
million and sixty-six thousand, one hundred and sixteen) Warrant
Shares will be exercisable during the term of this Warrant".
2.4. Clause 6 ("INVESTMENT REPRESENTATION") is hereby amended as follows:
2.4.1. to amend the first sentence to read in its entirety as follows:
"This Warrant has not been registered under the Securities Act,
or any other securities laws.";
2.4.2. to amend the third sentence thereof to read in its entirety as
follows: "The Warrant Shares have been registered under the
Securities Act on Form F-3 Registration Statement No.
333-131315.".
2.5. Clause 8 ("TRANSFER OF THIS WARRANT OR SHARES") is hereby amended:
2.5.1. to delete the words "or securities purchaseable hereunder" from
the first sentence thereof; and
2.5.2. to add the words at the end of the second sentence thereof, "or
unless sold pursuant to Rule 144 of the Securities Act".
2.6. Clause 9 (including, for the avoidance of doubt, Clause 9A, 9B and 9C)
("REGISTRATION RIGHTS") is hereby amended to read in its entirety as
follows: "The Company covenants and agrees to provide the Holder the
registration rights provided in the registration rights agreement,
dated September 28, 2006 between the Company and Bank Leumi Le-Israel
B.M., a copy of which is attached hereto as APPENDIX A, as such may be
amended from time to time ("THE REGISTRATION RIGHTS AGREEMENT"). Such
registration rights may be assigned by the Holder pursuant to and in
accordance with the terms of the Registration Rights Agreement but
only to a transferee or assignee of this Warrant pursuant to and in
accordance with Section 8 of this Warrant.".
2.7. Clause 12 is hereby amended by adding the following to the end
thereof:
", provided that if this Warrant has been amended, at the request
of the Holder, the Company shall issue an amended and restated
Warrant certificate reflecting such amendment or amendments. In
addition, but without derogating from the aforesaid, if this
Warrant has been amended, the Holder shall have the right, at the
option of the Holder, at any time and, if applicable, from time
to time, to surrender this Warrant certificate and receive an
amended and restated Warrant certificate reflecting any such
amendment or amendments."
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2.8. Clause 13 is hereby amended to delete the Facsimile No. "(03)
514-9017" and substitute "(00) 000-0000" therefor, to add, immediately
thereafter, "with a copy to (which shall not constitute notice): Leumi
and Co. Investment House Ltd., 00 Xxxxxxxx Xxxxxx, Xxx-Xxxx 00000,
Xxxxxx, Fax: 000-0-0000000, Attn: Head of Investment Sector" and to
delete the Facsimile No. "(00) 000-0000" and substitute "(04)
604-7242" therefor.
3. Save as amended expressly pursuant to this Amendment, the provisions of the
Warrant shall continue in full force and effect and the Warrant and this
Amendment shall be read and construed as one instrument.
4. This Amendment shall be governed by and construed in accordance with the
laws of the State of Israel.
IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED THIS FIRST AMENDMENT ON THE 28TH DAY
OF SEPTEMBER 2006.
for: TOWER SEMICONDUCTOR LTD.
By: __________________________
Title: __________________________
for BANK LEUMI LE-ISRAEL B.M.
By: _________________________
Title: __________________________
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