EXHIBIT 4.44
****CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
AGREEMENT
This Agreement (this "AGREEMENT"), dated as of December 31, 2004, by and
among Tower Semiconductor Ltd. an Israeli company (the "Seller"), ****
(collectively ****, the "NEW PURCHASERS").
WITNESSETH :
WHEREAS, the Seller is a holder of 2,704,024 Ordinary Shares of Saifun
Semiconductors Ltd. (the "COMPANY"), nominal value NIS 0.01 each (the "ORDINARY
SHARES") and 58,608 Series B Preferred Shares of the Company, nominal value NIS
0.01 each (the "PREFERRED SHARES" and together with the Ordinary Shares, the
"SHARES");
WHEREAS, the Seller executed a Share Purchase Agreement with , a Bermuda limited
partnership ("****"), , a Delaware limited liability company ("****"), ****, a
Delaware limited liability company ("****"),****, a Delaware limited liability
company ("****"), and ****, a German limited partnership ("****" and,
collectively, with ****, ****, **** and ****, the "ORIGINAL PURCHASERS") dated
December 8, 2004 (the "SPA").
WHEREAS, in accordance with the Company's Articles of Association (the
"ARTICLES") and pursuant to section 5.3 of the SPA, the Seller sent a Notice of
Offer (as defined in the Company's Articles and as approved by the Original
Purchasers ) to all Major Shareholders (as defined in the Articles) offering
such Major Shareholders to exercise their right of first refusal as set forth in
the Articles;
WHEREAS, the New Purchasers have provided the Seller with Purchase Notices (as
defined in the Articles) in which they notified the Seller of their desire to
purchase all of the Shares;
NOW, THEREFORE, the parties hereby agree as follows :
1. SALE OF SHARES. Subject to the terms and conditions hereof, the Seller
hereby transfers to the New Purchasers, and the New Purchasers hereby purchase
from the Seller, the number of Ordinary Shares of the Company and the number of
Series B Preferred Shares of the Company set forth next to each New Purchaser's
name in Schedule 1 attached hereto under the column entitled "Number of Ordinary
Shares" and "Number of Preferred Shares", as applicable. The Sellers and the New
Purchasers hereby make the deliveries required by section 2.4 of the SPA. In
addition, each New Purchaser shall deliver to the Company the letter undertaking
attached hereto as SCHEDULE 2.
2. TERMS OF SALE. The rights and obligations set forth in the SPA and
applicable to the Original Purchaser shall apply, mutatis mutandis, to each of
the New Purchasers, including without limitation, the additional payment
obligation set forth in Section 2.2 and the lock-up obligation on the Shares set
forth in Section 4.7 of the SPA.
3. REPRESENTATIONS AND WARRANTIES: The Seller hereby confirms that all
representations and warranties made by the Seller in Article III of the SPA are
true and correct in all respects at and on the day hereof and all the covenants
and obligations contained in the SPA to be performed by the Seller prior to or
at the Closing Date have been fully performed and complied with.
4. ENTIRE AGREEMENT. This Agreement and the SPA shall constitute the entire
agreement of the parties with respect to its subject matter and supersedes all
prior oral or written agreements in regard thereto.
5. AMENDMENTS. This Agreement or any provision hereof may be amended,
modified, waived, discharged or terminated only pursuant to a written instrument
making specific reference to this Agreement and duly signed by or on behalf of
each of the parties hereto.
6. GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed according to the laws of the State of Israel, without
regard to the conflict of laws provisions thereof. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the date first above written.
TOWER SEMICONDUCTOR LTD.
By:
Print Name: _______________________
Title: ______________________________
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****CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
_______________________________
****
_______________________________
****
****
By: _____________________________
Name:___________________________
Title:____________________________
****
By: _____________________________
Name:___________________________
Title:____________________________
****
By: _____________________________
Name:___________________________
Title:____________________________
3
****CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
SCHEDULE 1
REQUESTED
ORDINARY PRE. B TOTAL $
---------- ---------- ---------- ----------
**** 349,566 7,577 357,143 5,000,002
**** 167,584 10,393 177,977 2,491,678
**** 33,515 2,079 35,594 498,316
**** 201,099 12,472 213,571 2,989,994
**** 2,148,359 37,559 2,185,918 30,602,852
**** 3,000 0 3,000 42,000
**** 2,000 1,000 3,000 42,000
---------- ---------- ---------- ----------
Total 2,704,024 58,608 2,762,632 38,676,848
========== ========== ========== ==========
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SHARE TRANSFER DEED
The undersigned, Tower Semiconductor Ltd. (the "Transferor"), does hereby
transfer to __________ (the "Transferee"), pursuant to the terms of that certain
Agreement between the Transferor and the New Purchasers (as defined therein)
dated December 31, 2004, _____ Ordinary Shares of nominal value NIS 0.01 each
and _____ Series B Preferred Shares of nominal value NIS 0.01 each (the
"Shares") in Saifun Semiconductors Ltd., an Israeli company (the "Company") to
be held by the Transferee, its administrators and its assigns, upon all of the
terms and conditions subject to which the Transferor held such Shares and said
Transferee does hereby agree to accept such Shares.
Dated: December 31, 2004 Dated: December 31, 2004
TOWER SEMICONDUCTOR LTD.
By: By:
Name: Name:
Title: Title:
Transferor Transferee
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