AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED
AND RESTATED
This
Registration Rights Agreement (this “Agreement”)
was
made on 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”)
and is
hereby amended and restated by the parties on September 25, 2008.
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 conditions to the effectiveness of which included,
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;
WHEREAS,
TIC and Tower have entered into a Securities Purchase Agreement dated September
25, 2008 (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;
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.
WHEREAS
the parties intend that the registration rights set forth in this Agreement
be
applicable with respect to all shares issuable upon conversion or exercise
of
any and all capital notes issued to TIC on September 28, 2006 or issuable
pursuant to (i) that certain Conversion Agreement between Tower and TIC of
even
date herewith, (ii) that certain Undertaking made by TIC to the Company of
even
date herewith (the “Undertaking”), and (iii) warrants held by TIC;
and
WHEREAS,
the parties wish to amend and restate this Agreement in its entirety;
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 Bank 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) the ordinary shares of
the
Company issued or issuable upon exercise of a Warrant, (iii) the
ordinary
shares of the Company issuable upon conversion of any Capital Note
issued
to TIC pursuant to the Undertaking, and (iv) any shares of capital
stock
issued or issuable with respect to the ordinary shares of the Company
as a
result of any stock split, stock dividend, rights offering,
recapitalization, merger, exchange or similar event or otherwise,
including as described in any Capital
Note.
|
(i)
|
“Registration
Statement” means
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.
|
(k)
|
“Warrant”
means the warrants issued to TIC by the Company prior to the date
hereof
and which are amended on the date
hereof.
|
-
2 -
In
this
Agreement:
(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.
|
2. |
DEMAND
REGISTRATION.
|
(a) |
The
Company shall prepare, no later than 45 days after the date on which
the
Company receives a written request from TIC from time to time file
with
the SEC a Registration Statement on Form F-3 and make all required
filings
with the ISA covering the resale of all, or at the request of TIC,
any
portion 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 -
3. |
RELATED
OBLIGATIONS.
|
(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.
|
(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.
|
-
4 -
(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.
|
(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.
|
-
5 -
(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.
|
(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. The Company shall 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,
in the
case of the TASE, by not later than the date hereof, and in the case
of
the NASDAQ (and/or other applicable exchanges) not later than the
effective date of such Registration Statement
.
|
(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.
|
(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).
|
-
6 -
(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.
|
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
the
issuance of any stop order or suspension as referred to 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 clause (i) of Section 3(e) or receipt of notice
that
no supplement or amendment is required.
-
7 -
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.
6. |
INDEMNIFICATION.
|
In
the
event any Registrable Securities are included in a Registration Statement under
this Agreement:
(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.
|
-
8 -
(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.
|
(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).
|
-
9 -
(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.
|
7. |
CONTRIBUTION.
|
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.
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.
-
10 -
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
|
(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.
-
11 -
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.
11. |
OTHER
REGISTRATION STATEMENTS; 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. For the purposes of this Section 11(a) only, Registration
Statement shall mean a Registration Statement that is filed for an
amount
of Registrable Securities, that the Holder believes in good faith
can be
reasonably sold pursuant to such Registration
Statement.
|
(b)
|
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.
|
(c)
|
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.
|
-
12 -
12. |
MISCELLANEOUS.
|
(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
Tower 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:
|
|
Xxxxx
Xxxxx & Xx.
|
|
0
Xxxxxxx Xxxxxx
|
|
00xx
Xxxxx, Xxx Xxxxx Xxxxx
|
|
Xxx-Xxxx,
Xxxxxx 00000
|
|
Facsimile:
(00) 000 0000
|
|
Attention:
Xxxxx X. Xxxxxxxx, Adv.
|
|
to
TIC at:
|
Israel
Corporation Ltd.
|
Xxxxxxxxx
Xxxxx
|
|
00
Xxxxxx Xx.
|
|
Xxx
Xxxx Xxxxxx 00000
|
|
Facsimile:
(00) 000 0000
|
|
Attention:
Chief Financial Officer
|
|
with
a copy to:
|
|
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.
|
-
13 -
(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.
|
(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 another 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.
|
[Remainder
of page intentionally left blank]
-
14 -
[Signature
Page to TIC Amended and Restated Registration Rights Agreement]
IN
WITNESS WHEREOF, the parties have caused this amended and restated Registration
Rights Agreement to be duly executed as of the day and year first above
written.
TOWER
SEMICONDUCTOR LTD.
|
|||||
/s/
Xxxx Xxxxxxx & /s/ Xxxxx Xxxxx
|
|||||
Name:
|
Xxxx
Xxxxxxx & Xxxxx Xxxxx
|
||||
Its:
|
Acting
VP/CFO & Treasurer
|
||||
ISRAEL
CORPORATION LTD.:
|
|||||
/s/
Avisar Paz & Nir Gilad
|
|||||
By:
|
Avisar
Paz & Nir Gilad
|
||||
Title:
|
CFO
& CEO
|
-
15 -