Exhibit 14
This
Registration Rights Agreement (this “Agreement”) is made and entered into
effective as of September 28, 2006 by and between TOWER SEMICONDUCTOR LTD. (the
“Company” or “Tower”), a company organized under the
laws of the State of Israel, and ISRAEL CORPORATION LTD., a corporation organized under
the laws of the State of Israel (“TIC” or the
“Investor”).
WHEREAS,
Tower is an independent manufacturer of wafers whose Ordinary Shares are traded on the
Nasdaq Stock Market (“NASDAQ”) under the symbol “TSEM” and
whose Ordinary Shares and certain other securities are traded on the Tel-Aviv Stock
Exchange (“TASE”) under the symbol “TSEM”;
WHEREAS,
TIC and Tower have entered into a Securities Purchase Agreement dated August 24, 2006
(the “Purchase Agreement”), the conditions to the effectiveness of which
include, inter alia, the issuance to TIC of an equity-equivalent convertible
capital note which will in turn be convertible, in whole or in part, by the Investor at
any time and from time to time into shares of Tower; and
WHEREAS,
Tower, TIC and certain other shareholders of Tower entered into a Registration Rights
Agreement, dated January 18, 2001 (the “2001 Registration Rights
Agreement”); for the avoidance of doubt, nothing herein shall derogate from or
limit the registration rights granted to TIC pursuant to the 2001 Registration Rights
Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Investor hereby agree as follows:
| 1. |
DEFINITIONS
AND INTERPRETATION. |
| |
As
used in this Agreement, the following terms shall have the following meanings: |
| |
(a) |
“Capital Note” means any capital note that is convertible into
shares of Tower. |
| |
(b) |
“Holder” means TIC, any transferee or assignee to whom TIC,
assigns its rights, in whole or in part, and any transferee or assignee thereof
to whom a transferee or assignee assigns its rights, in accordance with Section
9. |
| |
(c) |
“ISA” means the Israel Securities Authority or any similar or
successor agency of Israel administering the Israel Securities Law. |
| |
(d) |
“Israel Securities Law” means the Israel Securities Law,
5728-1968 (including the regulations promulgated thereunder), as amended. |
| |
(e) |
“1933 Act” means the U.S. Securities Act of 1933, as amended,
and the rules and regulations thereunder, or any similar successor statute. |
| |
(f) |
“1934 Act” means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar successor
statute. |
| |
(g) |
“Register”, “registered”, and
“registration” refer to a registration effected by preparing
and filing a registration statement in compliance with the 1933 Act and the
effectiveness of such registration statement in accordance with the 1933 Act or
the equivalent actions under the laws of another jurisdiction. |
| |
(h) |
“Registrable Securities” means (i) the ordinary shares of the
Company issued or issuable upon conversion of any Capital Note by any Holder,
and (ii) any shares of capital stock issued or issuable with respect to the
ordinary shares of the Company issued or issuable upon conversion of the Capital
Note as a result of any stock split, stock dividend, rights offering,
recapitalization, merger, exchange or similar event or otherwise, as described
in any Capital Note. |
| |
(i) |
“Registration Statement” means a registration statement or
registration statements of the Company covering Registrable Securities filed
with (a) the SEC under the 1933 Act, and (b) the ISA under the Israel Securities
Law, to the extent required under the Israel Securities Law, so as to allow the
Holder to freely resell the Registrable Securities in Israel, including on the
TASE. |
| |
(j) |
“SEC” means the United States Securities and Exchange
Commission or any similar or successor agency of the United States administering
the 1933 Act. |
- 2 -
| |
(a) |
Words
importing the singular shall include the plural and vice versa and
words importing any gender shall include all other genders and
references to persons shall include partnerships, corporations and
unincorporated associations. |
| |
(b) |
Any
reference in this Agreement to a specific form or to any rule or regulation
adopted by the SEC shall also include any successor form or amended
or successor rule or regulation subsequently adopted by the SEC, all
as the same may be in effect at the time. |
| |
(c) |
Any
reference in this Agreement to a statute, act or law shall be construed as a
reference to such statute, act or law as the same may have been, or
may from time to time be, amended or reenacted. |
| |
(d) |
A
“person” shall be construed as a reference to any person,
firm, company, corporation, government, state or agency of a state or
any association or partnership (whether or not having separate legal
personality) or two or more of the aforegoing. |
| |
(e) |
“Including” and
“includes” means, including, without limiting the
generality of any description preceding such terms. |
| |
(f) |
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the
provisions hereof. |
| |
(a) |
The
Company shall prepare, and, as soon as practicable but in no event later
than 45 days after the date of this Agreement file with the SEC a
Registration Statement on Form F-3 and make all required filings with
the ISA covering the resale of all of the then Registrable Securities
that are not already registered. The Company shall use its best
efforts to have the Registration Statement declared effective by the
SEC and the ISA as soon as possible after such filing with the SEC
and the ISA. |
| |
(b) |
In
the event that Form F-3 shall not be available for the registration of the
resale of Registrable Securities hereunder, the Company shall (i)
register the resale of the Registrable Securities on another
appropriate form reasonably acceptable to the Holders of the
Registrable Securities to be registered on such Registration
Statement and (ii) undertake to register the Registrable Securities
on Form F-3 as soon as such form is available, provided that, in each
such event, the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a
Registration Statement on Form F-3 covering the Registrable
Securities has been declared effective by the SEC. |
- 3 -
| |
(a) |
Following
the filing and effectiveness of each Registration Statement with the
SEC pursuant to Section 2(a), the Company shall keep the Registration
Statement effective pursuant to Rule 415 of the 1933 Act and under
the Israel Securities Law at all times until the earlier of (i) the
date as of which all of the Holders confirm to the Company in writing
that they may sell all of the Registrable Securities covered by such
Registration Statement without restriction pursuant to all of the
following: (x) Rule 144(k) under the 1933 Act, (y) the Israel
Securities Law and (z) other securities or “blue sky” laws
of each jurisdiction in which the Company obtained a registration or
qualification in accordance with Section 3(d) below or (ii) the date on which
the Holders shall have sold all the Registrable Securities covered by
such Registration Statement (A) in accordance with such Registration
Statement (except to another Holder pursuant to Section 9) or (B) to
the public pursuant to Rule 144 under the 1933 Act, (the “Registration
Period”) the Company to ensure that such Registration
Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall 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, in
light of the circumstances in which they were made, not misleading,
subject to Section 3(e) below. |
| |
(b) |
The
Company shall prepare and file with the SEC and the ISA (to the extent
required) such amendments (including post-effective amendments) and
supplements to each Registration Statement and the prospectus used in
connection with such Registration Statement, which prospectus is to
be filed pursuant to Rule 424 under the 1933 Act or under the Israel
Securities Law, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and,
during such period, comply with the provisions of the 1933 Act and
the Israel Securities Law with respect to the disposition of all
Registrable Securities of the Company covered by such Registration
Statement until such time as all of such Registrable Securities shall
have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such
Registration Statement, which, for the avoidance of doubt, shall
include sales on the Nasdaq Stock Market and the TASE, as well as
sales not made on such exchanges. In the case of amendments and
supplements to a Registration Statement which are required to be
filed pursuant to the Agreement (including pursuant to this Section 3(b)
by reason of the Company filing a report on Form 20-F, Form 6-K or
any analogous report under the 1934 Act), the Company shall have
incorporated such report by reference into the Registration
Statement, if applicable, or shall file such amendments or
supplements with the SEC and the ISA on the same day on which the
1934 Act report is filed which created the requirement for the
Company to amend or supplement the Registration Statement. |
- 4 -
| |
(c) |
The
Company shall furnish each Holder whose Registrable Securities are included
in any Registration Statement, without charge, (i) promptly after the
same is prepared and filed with the SEC, at least three (3) copies of
such Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated
therein by reference, all exhibits and each preliminary prospectus
(or such other number of copies as such Holder may reasonably
request), (ii) upon the effectiveness of any Registration Statement,
at least ten (10) copies of the prospectus included in such
Registration Statement and all amendments and supplements thereto (or
such other number of copies as such Holder may reasonably request)
and (iii) such other documents, including copies of any preliminary
or final prospectus and of any Registration Statements and
prospectuses filed with the ISA, as such Holder may reasonably
request from time to time in order to facilitate the disposition of
the Registrable Securities owned by such Holder. |
| |
(d) |
The
Company shall use its best efforts to (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by
the Holders of the Registrable Securities covered by a Registration
Statement under such other securities or “blue sky” laws of
all the states of the United States, (ii) prepare and file in those
jurisdictions, such amendments (including post-effective amendments)
and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the
Registration Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times
during the Registration Period, and (iv) take all other actions
reasonably necessary or advisable to qualify the Registrable
Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a
condition thereto to (x) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(d), or (y) file a general consent to service of process in
any such jurisdiction. The Company shall promptly notify each Holder
who holds Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the
securities or “blue sky” laws of any jurisdiction in the
United States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose. |
- 5 -
| |
(e) |
The
Company shall notify each Holder in writing of the happening of any event,
as promptly as practicable after becoming aware of such event, as a
result of which the prospectus included in a Registration Statement,
as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
shall use its best efforts to minimize the period of time during which a
Registration Statement includes an untrue statement of a material
fact or omission to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
shall promptly notify each Holder in writing (i) when a prospectus or
any prospectus supplement or post-effective amendment has been filed
so that the Registration Statement does not include an untrue
statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, and when a Registration Statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to each Holder by facsimile on the
same day of such effectiveness and by overnight mail), (ii) of any
request by the SEC or the ISA for amendments or supplements to a
Registration Statement or related prospectus or related information,
and (iii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate. |
| |
(f) |
The
Company shall use its best efforts to prevent the issuance of any stop order
or other suspension of effectiveness of a Registration Statement, or
the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or
suspension at the earliest possible moment and to notify each Holder
who holds Registrable Securities being sold of the issuance of such
order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose. |
- 6 -
| |
(g) |
The
Company shall cause all the Registrable Securities covered by a Registration
Statement to be listed on each securities exchange on which
securities of the same class or series issued by the Company are then
listed, including the NASDAQ and the TASE and the Company shall, not
later than the effective date of a Registration Statement, deliver to
the Holders a copy of the approvals of the TASE and the NASDAQ
(and/or any other exchange, if applicable) to the listing of the
Registrable Securities covered by such Registration Statement on such
exchange. |
| |
(h) |
The
Company shall cooperate with the Holders who hold Registrable Securities
being offered and, to the extent applicable, facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered
pursuant to a Registration Statement and enable such certificates to
be in such denominations or amounts, as the case may be, as the
Holders may reasonably request and registered in such names as the
Holders may request. |
| |
(i) |
The
Company shall provide a transfer agent and registrar of all Registrable
Securities and a CUSIP number not later than the effective date of
the applicable Registration Statement. |
| |
(j) |
If
requested by a Holder, the Company shall (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment
such information as a Holder requests to be included therein,
information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any
other terms of the offering of the Registrable Securities to be sold
in such offering; (ii) as soon as practicable make all required
filings of such prospectus supplement or post-effective amendment
after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment; and (iii) as soon
as practicable, supplement or make amendments to any Registration
Statement if reasonably requested by a Holder of such Registrable
Securities. |
- 7 -
| |
(k) |
In
the event of any underwritten public offering of the Registrable Securities,
enter into and perform its obligations under an underwriting
agreement with usual and customary terms that are generally
satisfactory to the managing underwriter of such offering. The Holder
shall also enter into and perform its obligations under such an
agreement (the terms of which must be satisfactory to the Holder if
the Holder is to participate in such offering). |
| |
(l) |
The
Company shall afford the Holder and its representatives (including counsel)
the opportunity at any time and from time to time during the
Registration Period to make such examinations of the business affairs
and other material financial and corporate documents of the Company
and its subsidiaries as the Holder may reasonably deem necessary to
satisfy itself as to the accuracy of the registration statement
(subject to a reasonable confidentiality undertaking on the part of
the Holder and its representatives). |
| |
(m) |
The
Company shall furnish, at the request of the Holder in connection with the
registration of Registrable Shares pursuant to this Agreement, on the
date that such Registrable Shares are delivered to the underwriters
for sale, if such securities are being sold through underwriters, or,
if such securities are not being sold through underwriters, on the
date that the Registration Statement with respect to such securities
becomes effective and on the date of each post-effective amendment
thereof: (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters, if any,
and to the Holder; and (ii) a letter, dated such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holder. |
| |
(n) |
The
Company shall comply with all applicable rules and regulations of the SEC
and shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the
1933 Act as soon as practicable after the effective date of the
Registration Statement and in any event no later than 45 days after
the end of a 12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company’s first
fiscal quarter commencing after the effective date of the
Registration Statement. |
- 8 -
| 4. |
OBLIGATIONS
OF THE HOLDERS. |
| |
Each
Holder agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in the first sentence of Section 3(e) or in Section 3(f), such
Holder will immediately discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until such Holder’s
receipt of the copies of the supplemented or amended prospectus contemplated by the first
sentence of Section 3(e) or receipt of notice that no supplement or amendment is required. |
| 5. |
EXPENSES
OF REGISTRATION. |
| |
All
expenses, other than underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees, printers and accounting
fees, fees and disbursements of counsel to the Company and the Holders, including in
connection with such examinations described in Section 3(l) above, shall be paid by
the Company. |
| |
In
the event any Registrable Securities are included in a Registration Statement under this
Agreement: |
- 9 -
| |
(a) |
To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Holder, the directors,
officers, partners, employees, agents, representatives of, and each
Person, if any, who controls any Holder within the meaning of the
1933 Act or 1934 Act (each, an “Indemnified Person”), against any
losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in
settlement or expenses, joint or several, (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim,
suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or
other regulatory agency, body or the SEC or the ISA, whether pending
or threatened, whether or not a person to be indemnified is or may be a
party thereto (“Indemnified Damages”), to which any
of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or
any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under the securities
or other “blue sky” laws of any jurisdiction in which
Registrable Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement, preliminary
prospectus, final prospectus or “free writing prospectus” (as
such term is defined in Rule 405 under the 0000 Xxx) or any amendment
or supplement to any such prospectus or the omission or alleged
omission to state therein any material fact necessary to make the
statements made therein, in light of the circumstances under which
the statements therein were made, not misleading, (iii) any violation
or alleged violation by the Company of the 1933 Act, the 1934 Act,
any other law, including, without limitation, any state securities
law, the Israel Securities Law or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities pursuant
to a Registration Statement or (iv) any material violation of this
Agreement (the matters in the foregoing clauses (i) through (iv)
being, collectively, “Violations”). Subject to Section
6(c), the Company shall reimburse the Indemnified Persons promptly as
such expenses are incurred and are due and payable, for any legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything
to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim by an
Indemnified Person arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished
in writing to the Company by such Indemnified Person expressly for
inclusion in any such Registration Statement, preliminary prospectus,
final prospectus or free writing prospectus or any such amendment thereof or supplement
thereto and (ii) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person and shall
survive the transfer of the Registrable Securities by the Holders pursuant to Section 9. |
- 10 -
| |
(b) |
In
connection with any Registration Statement in which a Holder is
participating, each such Holder agrees, severally and not jointly, to
indemnify, hold harmless and defend, to the same extent and in the
same manner as is set forth in Section 6(a), the Company, each of its
directors, each of its officers who signs the Registration Statement,
each Person, if any, who controls the Company within the meaning of
the 1933 Act or the 1934 Act (each an “Indemnified Party”), against any
Claim or Indemnified Damages to which any of them may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim
or Indemnified Damages arise out of or are based upon any Violation,
in each case to the extent, and only to the extent, that such
Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for
inclusion in Registration Statement, preliminary prospectus, final
prospectus or free writing prospectus and, subject to Section 6(c),
such Holder will reimburse any legal or other expenses reasonably
incurred by an Indemnified Party in connection with investigating or
defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with
respect to contribution contained in Section 7 shall not apply to
amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Holder; provided,
further, however, that the Holder shall be liable under this Section
6 for only that amount of a Claim or Indemnified Damages as does not
exceed the net proceeds to such Holder as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and
shall survive the transfer of the Registrable Securities by the
Holders pursuant to Section 9. |
- 11 -
| |
(c) |
Promptly
after receipt by an Indemnified Person or Indemnified Party under this
Section 6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a Claim,
such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under
this Section 6, deliver to the indemnifying party a written notice of
the commencement thereof, and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed,
to assume control of the defense thereof with counsel mutually
satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to
retain its own counsel with the fees and expenses of not more than
one counsel for such Indemnified Person or Indemnified Party to be
paid by the indemnifying party, if, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party
would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other
party represented by such counsel in such proceeding. In the case of
an Indemnified Person, legal counsel referred to in the immediately
preceding sentence shall be selected by the Holders holding a
majority in interest of the Registrable Securities included in the
Registration Statement to which the Claim relates. The Indemnified Party or
Indemnified Person shall cooperate with the indemnifying party in
connection with any negotiation or defense of any such action or
Claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the Indemnified Party
or Indemnified Person which relates to such action or Claim. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to
defend such action but the omission to so notify the indemnifying
party will not relieve such indemnifying party of any liability that
it may have to any Indemnified Person or Party otherwise than under
this Section 6(c), including under Section 6(e). |
| |
(d) |
The
indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are
incurred. |
| |
(e) |
The
indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the
law. |
| |
To
the extent any indemnification by an indemnifying party is prohibited or limited by law or
insufficient to hold an Indemnified Person or an Indemnified Party, as the case may be,
harmless, then the indemnifying party, in lieu of indemnifying such Indemnified Person or
Indemnified Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Person or Indemnified Party as a result of such Claims and Indemnified Damages
(each as defined in Section 6(a) above) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the Indemnified Person
or Indemnified Party, as the case may be, on the other in connection with the statements
or omissions that resulted in such loss, liability, claim, damage, or expense as well as
any other relevant equitable considerations. The relative fault of the indemnifying party
and of the Indemnified Person or Indemnified Party, as the case may be, shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the Indemnified Person or Indemnified
Party and the parties’ relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. |
- 12 -
| |
Notwithstanding
the foregoing, (i) no person involved in the sale of Registrable Securities, which person
is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) in connection with such sale, shall be entitled to contribution from any person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be
limited in amount to the net amount of proceeds received by such seller from the sale of
such Registrable Securities pursuant to such Registration Statement. |
| 8. |
REPORTS
UNDER THE 1934 ACT. |
| |
With
a view to making available to the Holders the benefits of Rule 144 promulgated under the
1933 Act or any other similar rule or regulation of the SEC that may at any time permit
the Holders to sell securities of the Company to the public without registration
(“Rule 144”), the Company agrees to: |
| |
(a) |
make
and keep public information available, as those terms are understood and
defined in Rule 144; |
| |
(b) |
file
with the SEC in a timely manner all reports and other documents required by
the Company under the 1993 Act and the 1934 Act so long as the
Company remains subject to such requirements and the filing of such
reports and other documents is required for the applicable provisions
of Rule 144; and |
- 13 -
| |
(c) |
furnish
to each Holder so long as such Holder owns Registrable Securities,
promptly upon request, (i) a written statement by the Company that it
has complied with the reporting requirements of Rule 144, the 1933
Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be
reasonably requested to permit the Holders to sell such securities
pursuant to any rule or regulation of the SEC allowing the Holder to
sell any securities without registration. |
| 9. |
ASSIGNMENT
OF REGISTRATION RIGHTS. |
| |
The
rights under this Agreement shall be freely assignable, in whole or in part at any time
and from time to time during the Registration Period, by the Holder to any transferee of
all or any portion of a Capital Note or of the Registrable Securities (provided that, in
the case of the transfer of Registrable Securities only, the rights under the Agreement
may be transferred only if the Holder reasonably believes that such transferee cannot
immediately make a public distribution of such Registrable Securities without restriction
under the 1933 Act, the Israel Securities Law or other applicable securities laws) if: (i)
the Holder agrees in writing with the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to the Company within a reasonable time after such
transfer or assignment; (ii) the Company is, within a reasonable time after such transfer
or assignment, furnished with written notice of (a) the name and address of such
transferee or assignee, and (b) the securities with respect to which such registration
rights are being transferred or assigned; and (iii) within a reasonable period of time
after such transfer or assignment, the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein. At the transferee’s
request, the Company shall promptly prepare and file any required prospectus supplement
under Rule 424(b)(3) of the 1933 Act or other applicable provision of the 1933 Act and/or
the Israel Securities Law to appropriately amend the list of selling shareholders
thereunder to include such transferee. |
| 10. |
AMENDMENT
OF REGISTRATION RIGHTS. |
| |
Provisions
of this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Holders. Any amendment or waiver effected
in accordance with this Section 10 shall be binding upon each Holder and the Company. No
such amendment shall be effective to the extent that it applies to less than all of the
Holders of the Registrable Securities. No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of any of this
Agreement unless the same consideration also is offered to all of the parties to this
Agreement. |
- 14 -
| 11. |
OTHER
REGISTRATION STATEMENTS; DEMAND AND INCIDENTAL REGISTRATIONS; NO
CONFLICTING AGREEMENTS. |
| |
(a) |
From
and after the time of filing of any Registration Statement filed pursuant
hereto and prior to the effectiveness thereof, the Company shall not
file a registration statement (including any shelf registration
statements) (other than on Form S-8) with the SEC with respect to any
securities of the Company, provided that nothing herein shall limit
the filing of any registration statement demanded to be filed
pursuant to a “demand” right granted by the Company prior
to the filing of any such Registration Statement. |
| |
(b) |
If
at any time during the Registration Period there is not an effective
Registration Statement covering all of the then Registrable
Securities, the Company shall, upon the demand of any Holder,
immediately file a registration statement covering all of the then
Registrable Securities and the provisions of this Agreement shall
apply to such Registration Statement, mutatis mutandis. |
| |
(c) |
If
at any time the Company shall determine to prepare and file with the SEC
and/or the ISA a registration statement relating to an underwritten
offering for its own account or the account of others under the 1933
Act and/or the Israel Securities Law of any of its equity securities,
other than on Form F-4 or Form S-8 (each as promulgated under the
0000 Xxx) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or
business or equity securities issuable in connection with stock
option or other employee benefit plans, then the Company shall send
each Holder written notice of such determination and, if within
twenty days after receipt of such notice, any such Holder shall so
request in writing, the Company shall include in such registration
statement all or any part of such Registrable Securities such Holder
requests to be registered, subject to customary underwriter cutbacks
applicable on a basis consistent with the Company’s obligation
to other existing holders of registration rights. |
- 15 -
| |
(d) |
The
Company represents and warrants to the Holder that the Company is not a
party to any agreement that conflicts in any manner with the Holder’s
rights to cause the Company to register Registrable Shares pursuant
to this Agreement. |
| |
(a) |
Any
notices, consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) three business days after deposit if deposited in the mail for mailing
by certified mail, postage prepaid, in each case properly addressed
to the party to receive the same. The addresses and facsimile numbers
for such communications shall be: |
| |
to the Borrower at:
|
Tower Semiconductor Ltd.
X.X. Xxx 000
Xxxxxx Xxxxxx
Xxxxxx
Facsimile: (00) 000 0000
Attention: Xxxx Xxxxxxx
Acting Chief Financial Officer
|
| |
with
a copy to (which shall not constitute notice): |
| |
Xxxxx Xxxxx & Xx.
0 Xxxxxxx Xxxxxx
00xx Xxxxx, Xxx Xxxxx Xxxxx
Xxx-Xxxx, Xxxxxx 00000
Facsimile: (00) 000 0000
Attention: Xxxxx X. Xxxxxxxx, Adv./
Xxx Xxxxx, Adv. |
| |
to TIC at:
|
Israel Corporation Ltd.
Xxxxxxxxx Xxxxx
00 Xxxxxx Xx.
Xxx Xxxx Xxxxxx 00000
Facsimile: (00) 000 0000
Attention: Chief Financial Officer
|
- 16 -
| |
with
a copy to (which shall not constitute notice): |
| |
Gornitzky & Co.
00 Xxxxxxxxxx Xxxx.
Xxx Xxxx, Xxxxxx 00000
Facsimile: (00) 000 0000
Attention: Xxx Xxxxxx, Adv.
|
| |
to any other Holder at:
|
such address as shall be notified to the Company
pursuant to Section 9 above.
|
| |
(b) |
Failure
of any party to exercise any right or remedy under this Agreement or
otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof. |
| |
(c) |
This
Agreement shall be governed by and construed in accordance with the laws of
the State of Israel as applicable to contracts between two residents
of the State of Israel entered into and to be performed entirely
within the State of Israel. Any dispute arising under or in relation
to this Agreement shall be resolved in the competent court for Tel
Aviv-Jaffa district, and each of the parties hereby submits
irrevocably to the jurisdiction of such court. |
| |
(d) |
This
Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein and therein. This Agreement
supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof. |
| |
(e) |
Neither
this Agreement, nor any of Tower’s obligations hereunder, may be
assigned by Tower, except with the prior written consent of all the
Holders. Subject to the requirements of Section 9, this Agreement
shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties hereto. |
| |
(f) |
The
headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof. |
| |
(g) |
This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this
Agreement. |
- 17 -
| |
(h) |
Each
party shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby. |
| |
(i) |
The
language used in this Agreement will be deemed to be the language chosen by
the parties to express their mutual intent and no rules of strict
construction will be applied against any party. |
| |
(j) |
This
Agreement is intended for the benefit of the parties hereto and their
respective successors and permitted assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other
person. |
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly
executed as of the day and year first above written.
| |
COMPANY:
TOWER SEMICONDUCTOR LTD.
By: /s/ Xxxx Xxxxxxx; /s/ Xxxxx Xxxxx
Name: Xxxx Xxxxxxx; Xxxxx Xxxxx
Its: VP Finance; Treasurer |
| |
ISRAEL CORPORATION LTD.:
By: /s/ Xxxxx Xxxxx; /s/ Avisar Paz
Name: Xxxxx Xxxxx; Avisar Paz
Its: CEO; CFO
|
- 18 -
