AMENDMENT NO. 1 to TAG ALONG AGREEMENT Made and entered into on this 25th day of September, 2008 (“this Amendment No. 1”) By and Between: ISRAEL CORPORATION LTD.
AMENDMENT
NO. 1
to
Made
and
entered into on this 25th
day of
September, 2008
(“this
Amendment No. 1”)
By
and
Between:
ISRAEL
CORPORATION LTD.
a
company
duly organised under the laws of the State of Israel
(hereinafter,
“TIC”)
and
BANK
HAPOALIM B.M.
a
banking
corporation organised under the laws of the State of Israel
(hereinafter,
“the
Bank”)
| WHEREAS: |
TIC
and the Bank are parties to a Tag Along Agreement dated September 28,
2006 (“the
Tag Along Agreement”)
with respect to the securities of Tower Semiconductor Ltd. (“Tower”);
and
|
| WHEREAS: |
the
Bank and Bank Leumi le-Israel B.M. (collectively, “the
Banks”)
and Tower are parties to a Facility Agreement dated January 18, 2001,
as amended and restated on August 24, 2006 and as further amended by
Amendment No. 1 thereto, dated September 10, 2007 (“the
Facility Agreement”);
and
|
| WHEREAS: |
at
the request of Tower, the Banks and Tower have entered into a further
Amending Agreement dated September 25, 2008 (“the
2008 Amending Agreement”),
the conditions to the effectiveness of which include, inter
alia,
the conversion by each Bank of approximately US $85,000,000
(eighty-five million United States Dollars) of its loans made to
Tower
pursuant to the Facility Agreement and all US $15,000,000 (fifteen
million United States Dollars) of loans made by each Bank to Tower
pursuant to each Bank’s Equipment Facility Agreement dated
September 10, 2007 with Tower, into an equity-equivalent convertible
capital note (“the
New Capital Notes”)
to be issued to the Bank or its nominee in the amount of
US $100,000,000 (one hundred million United States Dollars) which
will in turn be convertible, in whole or in part, at any time and
from
time to time into 70,422,535 (seventy million four hundred and twenty-two
thousand five hundred and thirty-five) shares of Tower (“the
New Shares”)
and the entering into by the Bank and TIC of this Amendment No. 1, so
as to include the New Capital Notes and the New Shares issuable upon
conversion thereof within the tag along rights granted to the Bank
by TIC
pursuant to the Tag Along Agreement;
and
|
| WHEREAS: |
the
parties wish to amend the Tag Along Agreement as set out
below,
|
NOW,
THEREFORE, THE PARTIES AGREE AS FOLLOWS:
| 1. |
Capitalised
terms in this Amendment No. 1 shall bear the meaning ascribed to such
terms in the Tag Along Agreement unless the context otherwise
requires.
|
| 2. |
The
recitals to the Tag Along are hereby amended to add the following
as the
penultimate “WHEREAS” clause:
|
| “WHEREAS: |
at
the request of Tower, the Banks and Tower have entered into a further
Amending Agreement dated September 25, 2008 (‘the
2008 Amending Agreement’),
the conditions to the effectiveness of which include, inter
alia,
the conversion by each Bank of approximately US $85,000,000
(eighty-five million United States Dollars) of its loans made to
Tower
pursuant to the Facility Agreement and all US $15,000,000 (fifteen
million United States Dollars) of loans made by each Bank to Tower
pursuant to each Bank’s Equipment Facility Agreement dated
September 10, 2007 with Tower, into an equity-equivalent convertible
capital note ‘the
New Capital Notes’)
to be issued to the Bank or its nominee in the amount of
US $100,000,000 (one hundred million United States Dollars) which
will in turn be convertible, in whole or in part, at any time and
from
time to time into 70,422,535 (seventy million four hundred and twenty-two
thousand five hundred and thirty-five) shares of Tower (‘the
New Shares’)
and the entering into by the Bank and TIC of Amendment No. 1 to this
Agreement, so as to include the New Capital Notes and the New Shares
issuable upon conversion thereof within the tag along rights granted
to
the Bank by TIC pursuant to the this Agreement;
and”
|
-
2
-
| 3. |
Clause 2.3(i)
of the Tag Along Agreement is hereby amended to read in its entirety
as
follows:
|
“(i) Capital
Notes issued pursuant to clause 5.4 of the Amending Agreement and pursuant
to clause 5.4 of the 2008 Amending Agreement (collectively, ‘the
Amending Agreements’),
or
Shares received from the conversion of any such Capital Notes issued pursuant
to
the Amending Agreements;”
| 4. |
TIC
refers to the representations and warranties made by it in the Tag
Along
Agreement and hereby confirms that such representations and warranties
are
true and correct on the date hereof as if all references therein
to “this
Agreement” were references to “this Amendment
No. 1”.
|
| 5. |
This
Amendment No. 1 shall be read together with the Tag Along Agreement,
and save for the changes contained herein, all the terms and conditions
contained in the Tag Along Agreement remain unchanged, and in full
force
and effect.
|
| 6. |
The
recitals hereto shall form an integral part of this Amendment No.
1.
|
| 7. |
This
Amendment No. 1 may be amended only by a written document signed by
both parties hereto.
|
[Remainder
of page intentionally left blank]
-
3
-
[Signature
Page to Amendment No. 1 to Bank Hapoalim Tag Along
Agreement]
IN
WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 to the
Tag Along Agreement as of the date hereinbefore mentioned.
|
for
ISRAEL
CORPORATION LTD
|
for
BANK HAPOALIM B.M.
|
|||
|
Signature:
|
/s/Avisar
Paz & Nir Gilad
|
Signature:
|
/s/
Xxxx Xxxxxxx & /s/ Liat Kenforty
|
|
|
Name
|
Avisar
Paz & Nir Gilad
|
Name:
|
Xxxx
Xxxxxxx & /s/ Liat Kenforty
|
|
|
Title
|
CFO
& CEO
|
Title:
|
Customer
Relation Manager
|
|
-
4
-
