o a breach by the office holder of his duty of loyalty; provided that a
company may indemnify an office holder for, or enter into an insurance
contract that would provide coverage for, any monetary liability
incurred as a result of a breach by the office holder of his duty of
loyalty in the event the office holder acted in good faith and had a
reasonable basis to believe that the act would not prejudice the
company;
o a breach by the office holder of his duty of care if such breach was
done intentionally or in disregard of the circumstances of the breach
or its consequences, other than mere negligence;
o any act or omission done with the intent to derive an illegal personal
benefit; or
o any fine levied against the office holder as a result of a criminal
offense.
REQUIRED APPROVALS
In addition, pursuant to the Companies Law, indemnification of and
procurement of insurance coverage for our office holders must be approved by our
audit committee and board of directors and, for indemnification and insurance
for directors and controlling shareholders, also, subject to certain exceptions,
by our shareholders.
INDEMNIFICATION LETTERS
We have granted indemnification letters to our directors and officers. The
aggregate amount of the indemnification under such letters may not exceed an
amount equal to 25% of our equity capital as set forth in our most recent
consolidated financial statements prior to such payment.
Under the indemnification letters, we agreed to indemnify our directors and
officers for any liability or expenses which are indemnifiable according to the
law as follows: a monetary liability imposed on a director or an officer or
incurred by a director or an officer in favor of another person under a
judgment, including a judgment granted in the case of a settlement or an
arbitration award approved by the court, provided that such director or
officer's actions were associated with one or more of the Determining Events (as
defined below) or any matter associated, directly or indirectly, with the
Determining Events, that, in any such case, in the opinion of the board of
directors are anticipated in light of the actual activities of the Company as of
the date of the letter of indemnification, provided that the maximum amount of
such indemnification does not exceed the amount set forth above.
The following are considered Determining Events under the indemnification
letters, among others:
o Acts with regard to investments (whether or not implemented) performed
by the Company, its subsidiaries or affiliates (whether before or
after the investment is made);
o The offering of securities, including public and private offerings;
o A credit, sale or purchase of assets or liabilities transaction;
o The filing of a report or announcement required by the Israeli
Companies Law, Israeli Securities Law and related regulations or by
any similar law or regulation;
o Acts relating to employment of employees;
o Any act causing bodily injury, sickness, death and damage to property;
o Any restructuring of the Company, reorganization or any resolution in
connection with the aforesaid, including any merger split, variation
of the share capital of the Company, subsidiaries or affiliates, the
dissolution or sale thereof, issue of any security whatsoever of the
Company, subsidiary or affiliate or performance of any distribution
(within the meaning of the Companies Law) or any procurement bid by or
in connection with any of the aforesaid;
o Any expression, statement, including expression of a viewpoint or
opinion made in good faith by the Officer in the course of and by
virtue his position, including within the course of general meetings
or meetings of the Board of Directors of the Company, a subsidiary or
affiliate thereof or any committees of the Board of Directors, and
negotiations and communications with suppliers, advisors and clients;
o Actions submitted against an Officer in connection with the
dissolution or receivership of the Company, a subsidiary or affiliate;
o Acts or decisions in connection with drafting or approval of financial
statements, business plans or forecasts in connection with the
Company, a subsidiary or an affiliate;
o Granting of liens on Company assets and granting guarantees on behalf
of the Company;
o Compliance with various governmental requirements in Israel and
outside Israel;
o Establishment and management of financial policy, including credit
policies, hedging against changes in currency exchange rates and
utilization of cash reserves;
o Any action and/or decision relating to preparation of work plans,
including pricing, marketing, distribution and instructions to
employees, to customers and to suppliers and to cooperative
arrangements, including with competitors;
o Any action and/or decision relating to product development or relating
to the conduct of product testing, approvals, sales, distribution or
licensing;
o Any action and/or decision that may be considered as an infringement
of the intellectual property rights of a third party;
o Representations and any undertaking granted vis-a-vis third parties or
the Company, a subsidiary or affiliate or vis-a-vis any person acting
on behalf thereof; and
o Each of the Determining Events in connection with the position of the
Officer in a subsidiary or an affiliate.
We agreed to indemnify our directors and officers for the following legal
expenses:
o reasonable legal expenses, including attorneys' fees, disbursed or
which a director or an officer is ordered to pay by a court in
proceedings filed against such director or officer by the Company or
another corporation according to the Company's request, as the case
may be, or in the name of either of the aforesaid or by any other
person or under a criminal charge from which such director or officer
may be exonerated, or under a criminal charge of which such director
or officer is convicted not requiring proof of any MENS REA; and
o reasonable legal expenses, including attorneys' fees, expended in
connection with an investigation or proceeding against a director or
an officer by an authorized authority, and that concludes without an
indictment against such director or officer and either (i) no monetary
payments are imposed on such director or officer in lieu of criminal
proceedings or (ii) monetary payments are imposed on such director or
officer in lieu of criminal proceedings, provided that the alleged
criminal offense does not require proof of any MENS rea.
ITEM 7. RECENT SALES OF UNREGISTERED SECURITIES
None.
ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE
See Exhibit Index after signature page.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(l)(iii) do not
apply if the registration statement is on Form S-3 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) To file a post-effective amendment to the registration statement to
include any financial statements required by Item 8.A of Form 20-F at the start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the Act
need not be furnished, PROVIDED, that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of Regulation S-X if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
(5) That, for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B (Sec 230.430B of this
chapter):
A. Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
B. Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof. PROVIDED, HOWEVER, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made
in any such document immediately prior to such effective date; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance
on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. PROVIDED, HOWEVER, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(6) That, for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial distribution of the
securities: The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(d) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against the
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-1 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Misgav, in the State of Israel, on March 9, 2010.
TEFRON LTD.
By: /s/ Eran Rotem By: /s/ Amit Meridor
- ------------------ --------------------
Eran Rotem Amit Meridor
Chief Financial Officer Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Amit Meridor Chief Executive Officer March 9, 2010
- -------------------- (principal executive officer)
Amit Meridor
/s/ Eran Rotem Chief Financial Officer (principal March 9, 2010
- -------------------- financial and accounting officer)
Eran Rotem
* Chairman of the Board of Directors March 9, 2010
- --------------------
Yacov Gelbard
* Director March 9, 2010
- --------------------
Ishay Davidi
- -------------------- Director March__, 2010
Meir Shamir
* Director March 9, 2010
- --------------------
Avi Zigleman
- -------------------- Director March__, 2010
Shirith Kasher
- -------------------- Director March__, 2010
Zvi Limon
* External Director March 9, 2010
- --------------------
Eli Admoni
* External Director March 9, 2010
- --------------------
Yacov Elinav
* By: /s/ Eran Rotem
- --------------------
Name: Eran Rotem March 9, 2010
Title: Attorney-in-Fact
Authorized Representative in the United States:
TEFRON U.S.A., INC.
By: /s/ Eran Rotem March 9, 2010
- ------------------
Name: Eran Rotem
Title: CFO
By: /s/ Steve Goad March 9, 2010
- ------------------
Name: Steve Goad
Title: Director of USA operation
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Form of Rights Agent Agreement. **
4.2 Specimen Certificate for Ordinary Shares.**
4.3 Form of Rights Certificate and Form of Instruction Letter. **
5.1 Opinion of Gross, Kleinhendler, Hodak, Halevy, Greenberg &
Co., Israeli counsel for Tefron Ltd., as to the validity of the
ordinary shares.**
10.1 Agreement, dated March 2, 2010, among Tefron Ltd., Hi-Tex Founded
by Tefron Ltd. and Macro Clothing Ltd. and Bank Leumi L'Israel
Ltd., Bank HaPoalim Ltd. and Israel Discount Bank Ltd. (English
translation).*
23.1 Consent of Gross, Kleinhendler, Hodak, Halevy, Greenberg &
Co. (included in Exhibit 5.1).**
23.2 Consent of Kost Forer Gabay & Kasierer, a Member Firm of
Ernst & Young Global. *
24.1 Power of Attorney (included on signature page).
99.1 Form of Letter to Record Holders. **
99.2 Form of Letter to Securities Dealers, Commercial Banks, Trust
Companies and Other Nominees. **
99.3 Form of Letter to Clients. **
99.4 Letter, dated January 6, 2010, from Norfet, Limited Partnership
to Bank Leumi L'Israel Ltd., Bank HaPoalim Ltd. and Israel
Discount Bank Ltd. committing that it (and/or its designee) will
participate in a rights offering and/or private placement, and in
the framework of such rights offering and/or private placement
not less than $4 million would be invested in Tefron's equity
(English translation). *
- ----------
* Filed herewith.
** Previously filed.
