EXHIBIT 99.3
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (the "AGREEMENT") is made and entered
into effective as of August 24, 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 company organized under the laws of the
State of Israel (the "PURCHASER").
WHEREAS, Tower is an independent manufacturer of wafers whose Ordinary
Shares are traded on the Nasdaq National Market under the symbol TSEM and whose
Ordinary Shares and certain other securities are traded on the Tel-Aviv Stock
Exchange ("TASE") under the symbol TOWER;
WHEREAS, pursuant to a letter of undertaking executed by the Purchaser
dated May 17, 2006 (the "LETTER OF UNDERTAKING") to Bank Hapoalim B.M. and Bank
Leumi Le-Israel B.M. (collectively the "BANKS"), the Purchaser has committed to
the Banks, subject to certain conditions as provided in the Letter of
Undertaking, to invest in the Company a sum of one hundred (100) million US
Dollars as set forth in this Agreement (the "INVESTMENT");
WHEREAS, pursuant to the Letter of Undertaking, the Purchaser acknowledged
and agreed that the Investment in Tower is a condition precedent to the closing
of an amendment of the Facility Agreement between the Banks and Tower dated
January 18, 2001, as contemplated by the Memorandum of Understanding between the
Banks and Tower, dated May 17, 2006 (the "AMENDMENT"); and
WHEREAS, the parties hereto agree that all amounts paid by the Purchaser
under the Equipment Purchase Agreement between the Company and the Purchaser,
dated May 17, 2006 (the "EQUIPMENT PURCHASE AGREEMENT") shall be deemed to have
been invested in the Company as part of the Investment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. ISSUE AND SALE OF SECURITIES BY THE COMPANY.
1.1 SECURITIES. Subject to and in accordance with the terms and conditions
of this Agreement, the Company shall issue to the Purchaser, and the Purchaser
shall purchase from the Company for an aggregate purchase price of US
$100,000,000 (one hundred million US dollars) (the "NOTE PURCHASE PRICE") an
equity convertible capital note, which capital note is convertible into
65,789,474 (sixty-five million, seven hundred and eighty-nine thousand, four
hundred and seventy-four) shares (subject to adjustments to changes in capital
structure, stock splits, etc.), such capital note being fully convertible, at
any time, in whole or in part and freely transferable, at any time, in whole or
in part (for the removal of doubt, in form and substance satisfactory to the
Purchaser and with rights which are at least as good as those provided to the
Banks) (the "CAPITAL NOTE"). For the avoidance of doubt, the Capital Note
issuable hereunder shall not entitle TIC to interest, dividends, early
redemption rights (for the removal of doubt, no conversion of capital notes by
TIC into shares shall be deemed a redemption or pre-payment of the capital
note), anti-dilution rights, or any adjustments due to changes to interest
rates, the market price of the Company's shares or indexation of any kind, but
shall entitle TIC, as a capital note holder, to participate in rights offerings
and shall be subject to certain adjustments, including share splits,
combinations and other adjustments all as agreed to with the Purchaser prior to
Closing and with rights which are at least as good as those provided to the
Banks.
2. CLOSING.
2.1 CLOSING DATE. The issue and allotment of the Capital Note, the purchase
thereof by the Purchaser and the registration of the Capital Note in the name of
the Purchaser in the register of the Company, shall take place at a closing (the
"CLOSING") to be held on a business day in Tel Aviv, Israel and no later than
three (3) business days (in Tel Aviv) after the conditions to Closing set forth
in Sections 6 and 7 below have been satisfied or waived in accordance with their
terms at the offices of Xxxxx Xxxxx & Co., One Azrieli Center, Tel-Aviv, Israel,
or such other time and place as the parties shall mutually agree. In the event
that the Closing does not take place prior to October 31, 2006, the Purchaser
shall have the right, but not the obligation, to cancel this Agreement unless
the Purchaser has caused the Closing not to have occurred in breach of this
Agreement. The Company shall use its commercially reasonable best efforts to (i)
take or cause to be taken all necessary actions, and do or cause to be done all
things, necessary, proper or advisable under this Agreement and applicable laws
to consummate and make effective all the transactions contemplated by this
Agreement as soon as practicable, including, without limitation, preparing and
filing all documentation to effect all necessary filings, notices, petitions,
statements, registrations, submissions of information, applications and other
documents and (ii) obtain all approvals required to be obtained from any third
party necessary, proper or advisable to the transactions contemplated by this
Agreement. The Purchaser shall cooperate with the Company in the achieving the
above but the primary responsibility (including but not limited to bearing the
relevant expenses therefor) shall be the Company's.
2.2 TRANSACTIONS UPON CLOSING. At the Closing, the following transactions
shall occur, which transactions shall be deemed to take place simultaneously and
no transaction shall be deemed to have been completed or any document delivered
until all such transactions have been completed and all required documents
delivered:
(a) the Company shall deliver to the Purchaser copies of resolutions
of the Company's Audit Committee, the Company's Board of Directors and the
Company's shareholders approving the execution and performance of this
Agreement, including the issuance of the Capital Note;
(b) in accordance with the set-off provision of Section 2.2(g) below,
the Note Purchase Price minus the Purchase Price (as defined in the
Equipment Purchase Agreement) of the Call Option Exercise (as defined
below) (the "CALL OPTION PURCHASE PRICE") shall be transferred by the
Purchaser to the Company by wire transfer into the account of the Company,
in accordance with the written instructions provided by the Company to the
Purchaser;
(c) the Company shall deliver to the Purchaser a copy of the approval
of the TASE for listing the shares issuable upon conversion of the Capital
Note (the "SHARES");
(d) the Company shall record such issuance of the Capital Note in the
name of the Purchaser on the records of the Company; and
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(e) the Company shall be deemed to have exercised its Call Option (as
defined in the Equipment Purchase Agreement) pursuant to the Equipment
Purchase Agreement and in accordance with the terms set forth therein (the
"CALL OPTION EXERCISE");
(f) (i) Equipment Agreements (as defined in the Equipment Purchase
Agreement) shall be assigned by the Purchaser to the Company, to the extent
that they are assignable; (ii) Future Payments (as defined in the Equipment
Purchase Agreement) with respect to Non-Assignable Obligations (as defined
in the Equipment Purchase Agreement) shall be held in trust by the
Purchaser; and (iii) title to Purchased Assets (as defined in the Equipment
Purchase Agreement) shall be transferred or deemed transferred to the
Company, all as set forth in Section 2 of the Equipment Purchase Agreement;
and
(g) for the avoidance of all doubt, the Purchaser and the Company
shall set-off the Note Purchase Price payable by the Purchaser hereunder
with the Call Option Purchase Price and any other sums relating to
obligations owed and payable by the Company to the Purchaser pursuant to
the Equipment Purchase Agreement or the transactions contemplated thereby;
and
(h) The Closing of the Amendment shall take place simultaneously with
the Closing under this Agreement.
3. POST CLOSING OBLIGATIONS OF THE PARTIES.
In the event that after the Closing any Equipment Agreement that prior to
Closing was not assignable to the Company becomes assignable, the Purchaser
shall as soon as practicable assign such Equipment Agreement to the Company and
transfer the balance, as of the date of assignment, if any, of the Future
Payments related thereto back to the Company, provided, that, upon assignment,
the Purchaser is completely released from any obligations under such Equipment
Agreement.
For the avoidance of doubt, to the extent that the Call Option Purchase Price
exceeds the Note Purchase Price, such amounts shall not be deemed paid by the
Company as part of the Investment.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchaser, as follows:
4.1 ORGANIZATION. The Company is duly organized and validly existing under
the laws of the State of Israel and has full corporate power and authority to
own, lease and operate its properties and assets and to conduct its business as
now being conducted and to perform all its obligations under this Agreement.
4.2 MEMORANDUM AND ARTICLES OF ASSOCIATION. The Company has made available
for inspection by the Purchaser complete and correct copies of the Memorandum of
Association and Articles of Association of the Company, as amended to the date
furnished. Such Memorandum and Articles of Association are in effect as of the
date hereof and as will be in effect at the Closing.
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4.3 SHARE CAPITALIZATION.
As at August 17, 2006, the authorised share capital of the Company consists
of 500,000,000 (five hundred million) ordinary shares, of which 85,406,010
(eighty five million four hundred and six thousand and ten) shares are issued
and outstanding, 40,600,675 (forty million six hundred thousand six hundred and
seventy five) shares are reserved for issuance upon exercise of outstanding
options and warrants (including options granted to employees, officers,
directors, related parties, banks, contractors and other public investors),
51,143,776 (fifty one million one hundred and forty three thousand seven hundred
and seventy six) shares are reserved for issuance upon conversion of outstanding
convertible debentures, 4,341,571 (four million three hundred and forty one
thousand five hundred and seventy one) shares are reserved for issuance upon
conversion of convertible debentures issuable upon exercise of outstanding
warrants and 14,124,285 (fourteen million one hundred and twenty four thousand
two hundred and eighty five) shares are reserved for future grants of options to
employees, officers, consultants and directors. All issued and outstanding share
capital of the Company has been duly authorized, and is validly issued and
outstanding and fully paid and non-assessable. The Capital Note and the Shares
issued upon its conversion will be validly issued, fully paid, nonassessable and
not subject to any pledge, lien or restriction on transfer, except for
restrictions on transfer imposed hereunder and by the applicable securities
laws. The Company has reserved for issuance enough ordinary shares to issue the
Shares. The issuance of the Capital Note and the Shares issued upon its
conversion will not conflict with the Memorandum of Association or the Articles
of Association of the Company then in effect nor with any outstanding warrant,
option, call, preemptive right or commitment of any type relating to the
Company's capital stock.
4.4 AUTHORIZATION; APPROVALS. Prior to the Closing, all corporate action on
the part of the Company necessary for the execution, delivery and performance of
this Agreement shall have been taken. Except as set forth in SCHEDULE 4.4, no
consent, approval or authorization of, exemption by, or filing with, any
governmental or regulatory authority or any third party is required in
connection with the execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby. Other than approval by the Company's shareholders, this Agreement when
executed and delivered by or on behalf of the Company, shall constitute the
valid and legally binding obligations of the Company, legally enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other laws relating to creditor's rights generally and general principles of
equity.
4.5 CROSS-DEFAULT. The Company is not in default under the Equipment
Purchase Agreement or the Agreement dated August 1, 2006 with regard to the use
of some of the Equipment by Tower (hereinafter, the "AUGUST 1 AGREEMENT").
4.6 NO CONFLICTS. Neither the execution and delivery of this Agreement by
Tower, nor the compliance with the terms and provisions of this Agreement on the
part of Tower, will: (i) violate any statute or regulation of any governmental
authority, domestic or foreign, affecting Tower; (ii) require the issuance of
any authorization, license, consent or approval of any governmental agency, or
any other person other than as set forth in SCHEDULE 4.4; or (iii) conflict with
or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, loan agreement or other material agreement
or instrument to which Tower is a party, or by which Tower is bound, or
constitute a default thereunder, the effect of which might have a material
adverse effect on Tower.
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4.7 NO LITIGATION. There are no actions, suits, proceedings, or injunctive
orders, pending or threatened against or affecting Tower relating to the subject
matter of this Agreement and/or the Equipment Purchase Agreement and/or the
August 1 Agreement.
4.8 NO BROKERS. Tower has not engaged any broker or finder in connection
with the transactions contemplated by this Agreement, and no broker or other
person is entitled to any commission or finder's fee in connection with such
transactions.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company as follows:
5.1 ORGANIZATIONS; GOOD STANDING. The Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Israel with full corporate power and authority to perform all its obligations
under this Agreement.
5.2 AUTHORIZATION; APPROVALS. Prior to the Closing, all corporate action on
the part of the Purchaser necessary for the execution and delivery of this
Agreement and other agreements contemplated hereby has been taken. No consent,
approval or authorization of, exemption by, or filing with, any governmental or
regulatory authority is required in connection with the execution, delivery and
performance by the Purchaser of this Agreement and the consummation by the
Purchaser of the transactions contemplated hereby, except the approval of the
Israeli Comptroller of Restrictive Trade Practice ("COMPTROLLER"), to the extent
required under law. This Agreement and other agreements contemplated hereby,
when executed and delivered by or on behalf of the Purchaser, shall constitute
the valid and legally binding obligations of the Purchaser, legally enforceable
against the Purchaser in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws relating to creditor's rights generally and general
principles of equity.
5.3 INVESTMENT INTENT; NO REGISTRATION
The Purchaser is acquiring the Capital Note and the Shares issued upon
its conversion for its own account and not with a view to their
distribution within the meaning of Section 2(11) of the Securities Act of
1933 (the "SECURITIES ACT"). The Purchaser has requisite knowledge and
experience in financial and business matters to be capable of evaluating
the merits and risks of an investment in the Company and is an accredited
investor as defined under Regulation D as promulgated by the United States
Securities and Exchange Commission; and
The Purchaser understands that none of the Capital Note or the Shares
issued upon its conversion have been registered under the Securities Act,
the Israeli Securities Law or the laws of any jurisdiction, and agrees that
the Capital Note and the Shares issued upon its conversion may not be sold,
offered for sale, transferred, pledged, hypothecated or otherwise disposed
of except in compliance with the Securities Act, Israeli Securities Law or
any applicable securities laws of any jurisdiction (including but not
limited to pursuant to an exemption therefrom). The Purchaser also
acknowledges that the Capital Note and the Shares issued upon its
conversion, upon issuance, will bear the following legend:
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THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE OR OTHER
JURISDICTION'S SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD, OFFERED
FOR SALE OR PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
THE ACT OR AN OPINION OF COUNSEL (SATISFACTORY IN FORM AND SUBSTANCE TO THE
COMPANY) THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO
RULE 144 OF THE ACT.
5.4 CROSS-DEFAULT. The Purchaser is not in default under the Equipment
Purchase Agreement or the August 1 Agreement.
5.5 NO LITIGATION. There are no actions, suits, proceedings, or injunctive
orders, pending or threatened against or affecting the Purchaser relating to the
subject matter of this Agreement and/or the Equipment Purchase Agreement and/or
the August 1 Agreement.
5.6 NO BROKERS. The Purchaser has not engaged any broker or finder in
connection with the transactions contemplated by this Agreement, and no broker
or other person is entitled to any commission or finder's fee in connection with
such transactions.
6. CONDITIONS OF CLOSING OF THE PURCHASER.
The obligations of the Purchaser to purchase the Capital Note and to transfer
the Note Purchase Price at the Closing are subject to the fulfillment at or
before the Closing of the following conditions precedent, any one or more of
which may be waived in whole or in part by the Purchaser, which waiver shall be
at the sole discretion of the Purchaser:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
by the Company in this Agreement shall have been true and correct when made,
and, shall be true and correct in all material respects as of the Closing, as if
made on the date of the Closing.6.2 THE AMENDMENT. The conditions precedent for
the closing of transactions contemplated by the Amendment shall have been
satisfied (unless waived by the Banks) and shall have been concluded in a manner
which is satisfactory to the Purchaser other than the Investment contemplated by
this Agreement.
6.3 COVENANTS. All covenants, agreements, and conditions contained in this
Agreement to be performed or complied with by the Company prior the Closing
shall have been performed or complied with by the Company prior to or at the
Closing.
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6.4 CONSENTS, ETC. The Company shall have secured all permits, consents and
authorizations that shall be reasonably necessary or required lawfully for the
Company to consummate this Agreement and to issue the Capital Note and the
Shares issued upon its conversion to be purchased by the Purchaser at the
Closing, including the approval of the Company's Audit Committee, Board of
Directors and General Assembly and third party and/or governmental consents and
the approval of all of the parties to the Registration Rights Agreement by and
between the Company, SanDisk Corporation, Alliance Semiconductor Corp., Macronix
International Co., Ltd., QuickLogic Corporation, and the Purchaser, dated
January 18, 2001 of the registration rights that will be received by the
Purchaser pursuant to the Registration Rights Agreement entered into by the
Parties, if necessary.
6.5 REGISTRATION RIGHTS AGREEMENT. The Company and the Purchaser shall have
entered into a registration rights agreement in form and substance satisfactory
to the Purchaser and with rights which are at least as good as those provided to
the Banks and no worse than those currently enjoyed by the Purchaser and
provides a satisfactory arrangement with respect to the registration rights of
the Shares of the Company owned by the Purchaser on the date of this Agreement.
6.6 DELIVERY OF DOCUMENTS. All of the documents to be delivered by the
Company, and all actions to be performed or concluded pursuant to Section 2 by
the Company, shall be in a form and substance reasonably satisfactory to the
Purchaser and its counsel and shall have been delivered to the Purchaser.
6.7 ANTITRUST APPROVAL. To the extent required under law, the unconditional
approval of the Comptroller to the consummation of the Closing under this
Agreement has been received.
7. CONDITIONS OF CLOSING OF THE COMPANY.
The obligations of the Company to sell and issue the Capital Note at the Closing
are subject to the fulfillment at or before the Closing of the following
conditions precedent, any one or more of which may be waived in whole or in part
by the Company, which waiver shall be at the sole discretion of the Company:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
by the Purchaser in this Agreement shall have been true and correct when made,
and shall be true and correct in all material respects as of the Closing, as if
made on the date of the Closing.
7.2 COVENANTS. All covenants, agreements, and conditions contained in this
Agreement to be performed or complied with by the Purchaser prior the Closing
shall have been performed or complied with by the Purchaser prior to or at the
Closing.
7.3 CONSENTS, ETC. The Purchaser and the Company shall have secured all
permits, consents and authorizations, including, without limitations, approval
of its corporate organs that shall be reasonably necessary or required lawfully
for the Company to consummate this Agreement and to issue the Capital Note and
the Shares issued upon its conversion to be purchased by the Purchaser at the
Closing.
7.4 DELIVERY OF DOCUMENTS. All of the documents to be delivered by the
Purchaser, and all actions to be performed or concluded pursuant to Section 2 by
the Purchaser, shall be in a form and substance reasonably satisfactory to the
Company and its counsel.
7.5 ANTITRUST APPROVAL. To the extent required under law, the unconditional
approval of the Comptroller to the consummation of the Closing under this
Agreement has been received.
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8. COVENANTS. Between the date hereof, and the Closing Date:
8.1 ORDINARY COURSE. The Company will operate in the ordinary course of
business as now being conducted and as currently proposed to be conducted.
8.2 DIVIDENDS. The Company will not declare, make or pay any dividend or
other distribution.
8.3 ACTIONS INCONSISTENT WITH THIS AGREEMENT. Neither the Purchaser nor the
Company will take any action inconsistent with this Agreement. For the avoidance
of any doubt, nothing herein shall require the Purchaser to take or refrain from
taking any action as a shareholder or investor in the Company. Nothing herein
shall prohibit the Purchaser from exercising, prior to the Closing, any rights
it may have under the Equipment Purchase Agreement to sell the Purchased Assets
or assign the Equipment Agreements to third parties.
9. INDEMNIFICATION PURSUANT TO THE EQUIPMENT PURCHASE AGREEMENT. Nothing herein
shall derogate from the Company's obligations to indemnify the Purchaser for any
amount paid or incurred by the Purchaser pursuant to the Equipment Purchase
Agreement.
10. MISCELLANEOUS.
10.1 FURTHER ASSURANCES. Each of the parties hereto shall perform such
further acts and execute such further documents as may reasonably be necessary
to carry out and give full effect to the provisions of this Agreement and the
intentions of the parties as reflected thereby.
10.2 GOVERNING LAW; JURISDICTION. This Agreement will be governed by the
laws of the State of Israel without regard to conflicts of law principles. Any
suit, action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in the Courts of Tel Aviv-Jaffa, and each of
the parties hereby consents to the jurisdiction of such courts in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum.
10.3 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise expressly
limited herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators of
the parties hereto. This Agreement may not be assigned by any party without the
prior written consent of the other party hereto. However, all of Tower's rights
to receive cash, but none of its obligations, under this Agreement may be
assigned by Tower, including by way of a first ranking fixed pledge and charge,
in favor of the Banks (or the permitted successors or assignees of the Banks),
provided that such pledges or charges shall not take effect on any portion of
the Share Purchase Price that could be set off against other obligations of the
Company.
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10.4 EXPENSES. The Company shall bear the expenses and costs of both
parties to the transactions contemplated hereby.
10.5 ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement, the Schedules
hereto and the Equipment Purchase Agreement, constitute the full and entire
understanding and agreement between the parties with regard to the subject
matters hereof and thereof. Any term of this Agreement may be amended and the
observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only with the
written consent of the parties to this Agreement.
10.6 NOTICES, ETC. All notices and other communications required or
permitted hereunder to be given to a party to this Agreement shall be in writing
and shall be faxed or mailed by registered or certified mail, postage prepaid,
or otherwise delivered by hand or by messenger, addressed to such party's
address as set forth below or at such other address as the party shall have
furnished to each other party in writing in accordance with this provision:
If to the Purchaser: Israel Corporation Ltd.
Xxxxxxxxxx Xxxxx,
00 Xxxxxx Xx.
Xxx Xxxx Xxxxxx 00000
Fax: 000-0-000-0000
Attn: Chief Financial Officer
with a copy to
(which shall not
constitute notice): Gornitzky & Co.
00 Xxxxxxxxxx Xxxx.,
Xxx-Xxxx 00000 Xxxxxx
Fax: 000-0-000-0000
Attn: Adv. Xxx Xxxxxx
if to the Company: Tower Semiconductor Ltd.
Ramat Gavriel Industrial Area
X.X. Xxx 000
Xxxxxx Xxxxxx Xxxxxx 00000
Fax. 000-0-0000000
Attn: Xxxx Xxxxxxx, Acting CFO
with a copy to
(which shall not
constitute notice): Xxxxx Xxxxx & Co.
1 Azrieli Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxxxxx, 00000
Fax: 00-000-0000
Attn: Xxxxx Xxxxxxxx, Adv.
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or such other address with respect to a party as such party shall notify
each other party in writing as above provided. Any notice sent in accordance
with this Section 10.6 shall be effective (i) if mailed, five (5) business days
after mailing, (ii) if sent by messenger, upon delivery, and (iii) if sent via
facsimile, one (1) business day following transmission and electronic
confirmation of receipt.
10.7 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to any party upon any breach or default under this
Agreement, shall be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent, or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. Unless provided otherwise
herein, all remedies, either under this Agreement or by law or otherwise
afforded to any of the parties, shall be cumulative and not alternative.
10.8 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable law, then such
provision shall be excluded from this Agreement and the remainder of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms; provided, however, that in such
event this Agreement shall be interpreted so as to give effect, to the greatest
extent consistent with and permitted by applicable law, to the meaning and
intention of the excluded provision as determined by such court of competent
jurisdiction.
10.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be deemed
an original, and all of which together shall constitute one and the same
instrument.
10.10 HEADINGS. The headings of the sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
IN WITNESS WHEREOF, each of the parties has signed this Agreement as of the
date first hereinabove set forth.
TOWER SEMICONDUCTOR LTD. ISRAEL CORPORATION LTD.
By: ________________________ By: ________________________
Name: ________________________ Name: ________________________
Title: ________________________ Title: ________________________
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