EXHIBIT 4.43
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of December 8, 2004 (this "AGREEMENT"),
among Tower Semiconductor Ltd., a public company organized under the laws of the
State of Israel (the "SELLER"), General Atlantic Partners (Bermuda), L.P., a
Bermuda limited partnership ("GAP BERMUDA"), GapStar, LLC, a Delaware limited
liability company ("GAPSTAR"), GAP Coinvestments III, LLC, a Delaware limited
liability company ("GAPCO III"), GAP Coinvestments IV, LLC, a Delaware limited
liability company ("GAPCO IV"), and GAPCO GmbH & Co. KG, a German limited
partnership ("GAPCO KG" and, collectively, with GAP Bermuda, GapStar, GAPCO III
and GAPCO IV, the "PURCHASERS").
WHEREAS, upon the terms and conditions set forth in this Agreement, the
Seller proposes to sell to each Purchaser the aggregate number of Ordinary
Shares and Preferred Shares (as each term is defined below) of Saifun
Semiconductors Ltd., a private company organized under the laws of the State of
Israel (the "COMPANY"), set forth opposite such Purchaser's name on SCHEDULE 2.1
hereto at the Price Per Share (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, and unless the context requires
a different meaning, the following terms have the meanings indicated:
"AFFILIATE" means, with respect to a specified Person, a Person that
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
"AGGREGATE PURCHASE PRICE" means the Price Per Share multiplied by the
Purchased Shares.
"AGREEMENT" means this Agreement as the same may be amended, supplemented
or modified in accordance with the terms hereof.
"ARTICLES OF ASSOCIATION" means the Articles of Association of the Company
as in effect on the date hereof, as amended from time to time.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of Israel or the State of New York are
authorized or required by law or executive order to close.
"CLAIMS" means any actions, suits, proceedings, claims, complaints,
disputes, arbitrations or investigations.
"CLOSING" has the meaning set forth in Section 2.3 of this Agreement.
"CLOSING DATE" has the meaning set forth in Section 2.3 of this Agreement.
"COMPANY" has the meaning set forth in the recitals to this Agreement.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"CONTROL" (including the terms "CONTROLLING," "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise.
"$" means United States dollars.
"GAP BERMUDA" has the meaning set forth in the preamble to this Agreement.
"GAPCO III" has the meaning set forth in the preamble to this Agreement.
"GAPCO IV" has the meaning set forth in the preamble to this Agreement.
"GAPCO KG" has the meaning set forth in the preamble to this Agreement.
"GAPSTAR" has the meaning set forth in the preamble to this Agreement.
"GOVERNMENTAL AUTHORITY" means the government of any nation, state, city,
locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"INDEMNIFIED PARTY" has the meaning set forth in Section 7.1(a) of this
Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7.1(a) of this
Agreement.
"IPO" has the meaning set forth in Section 2.2 of this Agreement.
"IPO PRICE" means the final price per share (net of underwriters' discounts
and commissions) of the Ordinary Shares offered in the IPO as stated in the
final prospectus relating to the IPO.
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"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, voting restriction (statutory or other), lien
(statutory or other) or preference, priority, right or other security interest
or preferential arrangement of any kind or nature whatsoever.
"LOSSES" has the meaning set forth in Section 7.1 of this Agreement.
"MAJOR SHAREHOLDERS" has the meaning set forth in the Articles of
Association.
"NIS" means New Israeli Shekels.
"ORDERS" has the meaning set forth in Section 3.2 of this Agreement.
"ORDINARY SHARES" means the Ordinary Shares of nominal value NIS 0.01 each
of the Company.
"PERSON" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"PREFERRED SHARES" means the Series B Preferred Shares of nominal value NIS
0.01 each of the Company.
"PRICE PER SHARE" means the higher of (i) $14.00; or (ii) the price per
share at which any of the Purchasers and/or their Affiliates, prior to Closing,
enter into a written agreement to purchase, or receive the right to purchase,
securities of the Company (subject to adjustment for share splits, share
combinations, share dividends, share bonus issuances, recapitalizations,
reorganizations and the like).
"PURCHASED SHARES" means an aggregate of 2,704,024 Ordinary Shares and
58,608 Preferred Shares.
"PURCHASERS" has the meaning set forth in the preamble to this Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of October 2, 2000 by and among the Company, Mr. Boaz Eitan and the
Investors listed on Schedule A thereto.
"REQUIREMENT OF LAW" means, as to any Person, any law, statute, treaty,
rule, regulation, right or determination of an arbitrator or a court or other
Governmental Authority or stock exchange (including, without limitation, the
Companies Law, 5759-1999, of the State of Israel), in each case applicable or
binding upon such Person or any of its property or to which such Person or any
of its property is subject or pertaining to any or all of the transactions
contemplated or referred to herein.
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"RIGHTS OF FIRST REFUSAL" means the rights of first refusal in favor of the
Major Shareholders as set forth in Articles 35 through 42 (inclusive) of the
Articles of Association to purchase all of the Purchased Shares proposed to be
sold to the Purchasers under this Agreement.
"SALE" means (a) (i) the merger, reorganization or consolidation of the
Company into or with one or more Persons, (ii) the merger or consolidation of
one or more Persons into or with the Company or (iii) a tender offer or other
business combination or series of related business combinations, if, in the case
of (i), (ii) or (iii), the shareholders of the Company prior to the transaction
do not retain at least a majority of the voting power of the surviving Person or
(b) the sale by the Company to another Person of all or substantially all of the
assets of the Company.
"SALE BY PURCHASER" means the sale of any or all of the Purchased Shares by
any Purchaser or Purchasers to a third party, excluding (i) any such sale
consummated in connection with a Sale and (ii) any sale, transfer or other
disposition of any of the Purchased Shares to any Affiliate of such Purchaser or
Purchasers, provided however that the sale by such Purchaser or Purchasers or
any of its or their Affiliates of the first 2,762,632 shares of the Company sold
after the Closing Date shall be deemed a sale of Purchased Shares for the
purposes of this definition.
"SALE BY PURCHASER PRICE" means, with respect to any Sale By Purchaser, the
cash price paid in consideration of each Purchased Share in the Sale By
Purchaser, PROVIDED that if any portion of the consideration paid in such Sale
By Purchaser is other than cash, the calculation of the price per share of such
non-cash consideration shall be mutually agreed upon by the parties or, in the
event the parties are unable to reach agreement on a price per share, by a
mutually agreed upon internationally recognized appraiser.
"SALE PRICE" means, with respect to any Sale, the cash price per share paid
in consideration of each Purchased Share by the surviving Person; PROVIDED that
if any portion of the consideration paid in such Sale is other than cash, the
calculation of the cash price per share of such non-cash consideration shall be
determined by (i) the internationally recognized investment banking firm
retained by the Company to deliver a fairness opinion to the Board of Directors
with respect to such Sale, if so retained, or (ii) the Company's Board of
Directors, if the Company does not retain such investment banking firm.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the United States Securities and
Exchange Commission thereunder.
"SELLER" has the meaning set forth in the preamble to this Agreement.
"SHARE DEEDS" has the meaning set forth in Section 2.4(a)(i) of this
Agreement.
"SHAREHOLDERS RIGHTS AGREEMENT" means the Shareholders Rights Agreement,
dated as of October 2, 2000, by and among the Company and the Shareholders
listed on Schedule A thereto.
"TRANSACTION DOCUMENTS" means this Agreement and the Share Deeds.
"TRIGGER EVENT" has the meaning set forth in Section 2.2.
"TRIGGER EVENT PRICE" has the meaning set forth in Section 2.2.
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ARTICLE II
PURCHASE AND SALE OF ORDINARY SHARES AND PREFERRED SHARES
2.1 PURCHASE AND SALE OF ORDINARY SHARES AND PREFERRED SHARES. Subject to
the terms and conditions herein set forth, the Seller agrees to sell to each
Purchaser, and each Purchaser, jointly and not severally, agrees to purchase
from the Seller on the Closing Date the Purchased Shares at the Price Per Share
(as the Purchased Shares and Aggregate Purchase Price are allocated among the
Purchasers on SCHEDULE 2.1 and subject to adjustment for share splits, share
combinations, share dividends, share bonus issuances, recapitalizations,
reorganizations and the like).
2.2 ADDITIONAL PAYMENT. Upon each occurrence of any of the following: (i)
the pricing in the final prospectus relating to the Company's initial public
offering of its Ordinary Shares (the "IPO") pursuant to an effective
registration statement under the Securities Act, (ii) the Company's execution of
a definitive and binding agreement relating to a Sale, or (iii) any Purchaser's
execution of a definitive and binding agreement relating to a Sale By Purchaser
(each of the foregoing clauses (i), (ii), and (iii)), a "TRIGGER EVENT"), the
Purchasers will pay the Seller on the closing date of the IPO, Sale or Sale By
Purchaser, as the case may be, by wire transfer of immediately available funds
to a United States dollar account designated by the Seller, an amount equal to
the excess of (A) the product of (I) the product of 10% multiplied by the number
of Purchased Shares (subject to anti-dilution adjustment after the date hereof
for share splits, share combinations and similar events) multiplied by (II) the
difference between (x) either the IPO Price, the Sale Price, or the Sale By
Purchaser Price, as the case may be (the price in such Trigger Event is referred
to as the "TRIGGER EVENT PRICE"), minus (y) the Price Per Share (subject to
anti-dilution adjustment after the date hereof for share splits, share
combinations and similar events) minus (B) any previous payments made by the
Purchasers to the Seller pursuant to this Section 2.2 as a result of a Trigger
Event (subject to anti-dilution adjustment after the date hereof for share
splits, share combinations and similar events); PROVIDED, however, that (A)
subject to the fulfillment of (B) below, this Section 2.2 shall terminate and be
of no further effect on and after September 1, 2005, (B) the Seller is entitled
to payment under this Section 2.2 upon the occurrence of each Trigger Event
prior to September 1, 2005, (C) this Section 2.2 shall have no effect if the
Price Per Share (subject to anti-dilution adjustment after the date hereof for
share splits, share combinations and similar events) is greater than or equal to
the Trigger Event Price and (D) in the event of the occurrence of more than one
(1) Trigger Event prior to September 1, 2005, this Section 2.2 shall have no
effect for such subsequent Trigger Event only if the Trigger Event Price of such
subsequent Trigger Event is less than or equal to the Trigger Event Price of any
previous Trigger Event or of the Price Per Share. For the avoidance of doubt and
subject to the limitation provided in the definition of "Sale By Purchaser",
this Section 2.2 shall not apply to any securities of the Company purchased by
the Purchasers or any of their Affiliates after the Closing.
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2.3 CLOSING. Unless this Agreement shall have been terminated pursuant to
Article IX, and subject to the satisfaction or waiver of the conditions set
forth in Articles V and VI, the closing of the sale and purchase of the
Purchased Shares (the "CLOSING") shall take place at the offices of Naschitz,
Brandes & Co., the Purchasers' Israeli counsel, at 10:00 a.m., local time, on
the first Business Day after the eighth day following the date upon which the
conditions set forth in Articles V and VI shall be satisfied or waived in
accordance with this Agreement, or at such other time, place and date that the
Seller and the Purchasers may agree in writing (the "CLOSING DATE").
2.4 DELIVERIES.
(a) SELLER DELIVERIES. On the Closing Date, the Seller shall make the
following deliveries to the Purchasers:
(i) The Seller shall deliver to each Purchaser a duly executed
Deed of Transfer of Shares governing the sale of the Purchased Shares
being purchased by such Purchaser from the Seller (collectively, the
"SHARE DEEDS").
(ii) The Seller shall deliver to the Purchasers a certificate
executed by the Chief Executive Officer of the Seller, in form and
substance satisfactory to the Purchasers, dated the Closing Date,
certifying that the representations and warranties of the Seller
contained in Article III hereof are true and correct in all respects
at and on the date hereof and the Closing Date and that the Seller has
performed and complied with all covenants and obligations of the
Seller under this Agreement.
(iii) The Seller shall deliver to the Purchasers evidence
reasonably satisfactory to the Purchasers that the transfer of the
Purchased Shares to the Purchasers has been duly registered in the
shareholder register of the Company.
(b) PURCHASERS DELIVERIES. On the Closing Date, the Purchasers shall
deliver to the Seller the Aggregate Purchase Price by wire transfer of
immediately available funds to a United States dollar account designated by
the Seller.
(c) JOINT DELIVERIES. On the Closing Date, the Seller and the
Purchasers will make the following deliveries:
(i) The Seller and each Purchaser shall deliver to the Company
the Share Deeds with respect to the Purchased Shares, in each case
executed by the Seller and the applicable Purchaser.
(ii) The Seller and each Purchaser shall deliver to the Company
the approval of the Investment Center of the transactions contemplated
by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to each of the Purchasers as
follows:
3.1 EXISTENCE AND POWER. The Seller (a) is a company duly organized and
validly existing under the laws of the State of Israel, and (b) has all
requisite company power and authority to execute, deliver and perform its
obligations under this Agreement and each of the other Transaction Documents.
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3.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Seller of this Agreement and each of the other Transaction
Documents, (a) have been duly authorized by all necessary company action, (b) do
not contravene the terms of the Seller's organizational documents, or any
amendment thereof, (c) do not violate, conflict with or result in any breach or
contravention of, or the creation of any Lien under, any Contractual Obligation
of the Seller, except for the Rights of First Refusal, or any Requirement of Law
of or in Israel or the United States applicable to the Seller and (d) do not
violate any judgment, injunction, suit, award, decree or order of any nature of
any Governmental Authority (collectively, "ORDERS") against, or binding upon,
the Seller.
3.3 TITLE TO PURCHASED SHARES. The Seller owns beneficially and of record
the Purchased Shares and has good and valid title to the Purchased Shares free
and clear of all Liens, subject to the Rights of First Refusal as of the date
hereof. Except for the Rights of First Refusal, the Seller has the unrestricted
power and authority to transfer the Purchased Shares to the Purchasers. Upon
delivery to the Purchasers of the Share Deeds and payment therefor, the
Purchasers shall acquire good and valid title to such Purchased Shares free and
clear of all Liens. The Purchased Shares represent all of the securities of the
Company owned by the Seller and its Affiliates.
3.4 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No approval, consent,
compliance, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person to which the Seller
is subject, and no lapse of a waiting period under a Requirement of Law which is
applicable to the Seller is necessary or required in connection with the
execution, delivery or performance (including, without limitation, the sale and
delivery of the Purchased Shares) by, or enforcement against, the Seller of this
Agreement, each of the other Transaction Documents or the transactions
contemplated hereby. The Seller understands that the transactions contemplated
hereby may require the Company to receive the approval of the Investment Center,
the receipt or waiver of which is a condition to Closing set forth in Article V.
3.5 BINDING EFFECT. This Agreement has been duly executed and delivered by
the Seller, prior to the Closing the Share Deeds will have been duly executed
and delivered by the Seller, and this Agreement constitutes, and the Share Deeds
will constitute, the legal, valid and binding obligations of the Seller,
enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
3.6 LITIGATION. There are no actions, suits, proceedings, claims,
complaints, disputes, arbitrations or investigations pending or, to the
knowledge of the senior officers of the Seller, threatened, at law, in equity,
in arbitration or before any Governmental Authority against the Seller
purporting to enjoin or restrain the execution, delivery or performance by the
Seller of this Agreement or any of the other Transaction Documents.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants, severally and not
jointly, to the Seller as follows:
4.1 EXISTENCE AND POWER. Such Purchaser (a) is a limited liability company
or limited partnership, as the case may be, duly organized and validly existing
under the laws of the jurisdiction of its formation and (b) has the requisite
limited partnership or limited liability company, as the case may be, power and
authority to execute, deliver and perform its obligations under this Agreement
and each of the other Transaction Documents.
4.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by such Purchaser of this Agreement and each of the other
Transaction Documents (a) have been duly authorized by all necessary limited
partnership or limited liability company, as the case may be, action, (b) do not
contravene the terms of such Purchaser's organizational documents, or any
amendment thereof, (c) do not violate, conflict with or result in any breach or
contravention of, or the creation of any Lien under, any Contractual Obligation
of such Purchaser or any Requirement of Law of or in Israel or the United States
applicable to such Purchaser and (d) do not violate any Orders of any
Governmental Authority against, or binding upon, such Purchaser.
4.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No approval, consent,
compliance, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person to which such Purchaser is
subject, and no lapse of a waiting period under any Requirement of Law which is
applicable to such Purchaser, is necessary or required in connection with the
execution, delivery or performance (including, without limitation, the purchase
of the Purchased Shares being purchased by such Purchaser pursuant to Section
2.1) by, or enforcement against, such Purchaser of this Agreement, each of the
other Transaction Documents or the transactions contemplated hereby. Each
Purchaser understands that the transactions contemplated hereby may require the
Company to receive the approval of the Investment Center, the receipt or waiver
of which is a condition to the Closing set forth in Article V.
4.4 BINDING EFFECT. This Agreement has been duly executed and delivered by
such Purchaser and constitutes the legal, valid and binding obligation of such
Purchaser, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (regardless of whether considered in a
proceeding at law or in equity).
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4.5 LITIGATION. There are no actions, suits, proceedings, claims,
complaints, disputes, arbitrations or investigations pending or, to the
knowledge of such Purchaser, threatened, at law, in equity, in arbitration or
before any Governmental Authority against such Purchaser purporting to enjoin or
restrain the execution, delivery or performance by such Purchaser of this
Agreement or any of the other Transaction Documents.
4.6 ACCREDITED INVESTOR. Such Purchaser is an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Securities Act. Each Purchaser
acknowledges that the Seller is not providing such Purchaser with any
representation or warranty concerning the business, operations, financial
performance or prospects of the Company. Each Purchaser has conducted its own
independent review of the business, operations, financial performance and
prospects of the Company and has determined to purchase the Purchased Shares
solely on the basis of such review.
4.7 LOCK-UP. In order to induce the Seller to sell the Purchased Shares to
the Purchasers, the Purchasers are agreeing with the Company not to sell,
transfer, assign or otherwise dispose of seventy-five percent (75%) of the
Purchased Shares for eighteen (18) months following the Closing, subject to
certain exceptions agreed upon by the Company and the Purchasers.
ARTICLE V
CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
The obligation of the Purchasers to purchase the Purchased Shares, to pay
the Aggregate Purchase Price at the Closing and to perform their other
obligations hereunder shall be subject to the satisfaction as determined by, or
waiver by, the Purchasers of the following conditions on or before the Closing
Date:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Seller contained in Article III shall be true and correct in all respects.
5.2 SELLER'S PERFORMANCE.
(a) All of the covenants and obligations that the Seller is required
to perform or to comply with pursuant to this Agreement at or prior to the
Closing shall have been duly performed and complied with in all respects.
(b) Each document required to be delivered by the Seller pursuant to
Sections 2.4(a) and 2.4(c) shall have been delivered.
5.3 WAIVER OF RIGHTS OF FIRST REFUSAL. Either (a) all the Major
Shareholders shall have waived in writing their Rights of First Refusal with
respect to all of the Purchased Shares, (b) the twenty-one (21) day notice
period under Article 38 of the Articles of Association relating to the Rights of
First Refusal shall have expired without the Major Shareholders having elected
to exercise their Rights of First Refusal with respect to all of the Purchased
Shares or (c) the Seller shall have complied with Articles 35 through 42
(inclusive) of the Articles of Association and none of the Major Shareholders
shall have any right to purchase any of the Purchased Shares. Each Purchaser
acknowledges that any waiver by the Purchasers of the condition set forth in the
foregoing clauses (a) and (b) shall not limit the obligation of the Seller to
comply with the Rights of First Refusal. If pursuant to the Rights of First
Refusal the Seller is obligated to transfer all of the Purchased Shares to the
Major Shareholders, notwithstanding anything to the contrary in this Agreement,
the Purchasers shall have no recourse against the Seller as a result of the
Seller's sale of all of the Purchased Shares to the Major Shareholders so long
as such sale is on the same terms and conditions as set forth herein.
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5.4 NO MATERIAL JUDGMENT OR ORDER. There shall not be on the Closing Date
any Order of a court of competent jurisdiction or any ruling of any Governmental
Authority or any condition imposed under any Requirement of Law which would
prohibit or restrict (i) the purchase of the Purchased Shares or (ii) the
consummation of the transactions contemplated by this Agreement.
5.5 CONSENTS AND APPROVALS.
(a) All approvals of the Investment Center which are necessary or
required in connection with the performance or consummation of the
transactions contemplated by this Agreement, shall have been obtained and
be in full force and effect.
(b) All other consents, exemptions, authorizations, or other actions
by, or notice to, or filings with, Governmental Authorities and other
Persons in respect of all Requirements of Law which are necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Seller of this Agreement and each of the other
Transaction Documents shall have been obtained and be in full force and
effect, except for the filing with the Israeli Registrar of Companies
concerning the transfer of the Purchased Shares, and the Purchasers shall
have been furnished with appropriate evidence thereof and all applicable
waiting periods relating thereto shall have expired.
ARTICLE VI
CONDITIONS TO THE OBLIGATION
OF THE SELLER TO CLOSE
The obligation of the Seller to sell the Purchased Shares and to perform
its other obligations hereunder shall be subject to the satisfaction as
determined by, or waiver by, the Seller of the following conditions on or before
the Closing Date:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Purchasers contained in Article IV shall be true and correct in all
respects.
6.2 PURCHASERS' PERFORMANCE.
(a) All of the covenants and obligations that the Purchasers are
required to perform or to comply with pursuant to this Agreement at or
prior to the Closing shall have been duly performed and complied with in
all respects.
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(b) The Purchasers shall be prepared to deliver the Aggregate Purchase
Price for the Purchased Shares in accordance with Section 2.4(b) and each
document required to be delivered by the Purchasers pursuant to Section
2.4(c) shall have been delivered.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION.
(a) Except as otherwise provided in this Article VII and subject to
the limitations set forth in this Section 7.1, the Seller (the
"INDEMNIFYING PARTY") agrees to indemnify, defend and hold harmless each of
the Purchasers and its Affiliates and their respective officers, directors,
agents, employees, subsidiaries, partners, members and controlling persons
(each, an "INDEMNIFIED PARTY") to the fullest extent permitted by law from
and against any and all losses, Claims, or written threats thereof
(including, without limitation, Claims by a third party), damages, expenses
(including reasonable fees, disbursements and other charges of counsel
incurred by any Indemnified Party in any action between the Indemnifying
Party and any Indemnified Party or between any Indemnified Party and any
third party or otherwise) or other liabilities (collectively, "LOSSES")
resulting from or arising out of any breach of any representation or
warranty, covenant or agreement by the Seller in the Transaction Documents.
The maximum amount of indemnification and contribution payments made by the
Seller to all Indemnified Parties under this Section 7.1 shall not exceed,
in the aggregate, the sum of (i) the Aggregate Purchase Price plus (ii) any
reasonable expenses (including reasonable fees, disbursements and other
charges of counsel incurred by any Indemnified Party in any action between
the Indemnifying Party and any Indemnified Party or between any Indemnified
Party and any third party or otherwise) resulting from or arising out of
any breach of any representation or warranty, covenant or agreement by the
Seller in the Transaction Documents.
(b) In connection with the obligation of the Indemnifying Party to
indemnify for expenses relating to any action between any Indemnified Party
and any third party other than the Indemnifying Party as set forth above,
the Indemnifying Party shall, upon presentation of appropriate invoices
containing reasonable detail, reimburse each Indemnified Party for all such
reasonable expenses (including reasonable fees, disbursements and other
charges of counsel incurred by such Indemnified Party in any action between
the Indemnified Party and any third party) as they are incurred by such
Indemnified Party; PROVIDED, however, that if an Indemnified Party is
reimbursed under this Article VII for any expenses, such reimbursement of
expenses shall be refunded to the Indemnifying Party to the extent it is
finally judicially determined that the Indemnified Party is not entitled to
indemnification from the Indemnifying Party under this Article VII. In
connection with the obligation of the Indemnifying Party to indemnify for
expenses relating to any action between the Indemnifying Party and the
Indemnified Party as set forth above, the Indemnifying Party shall, within
ten (10) Business Days of the later of: (i) a final judicial determination
or a final settlement between the Indemnifying Party and the Indemnified
Party, in which the Indemnified Party is entitled to indemnification from
the Indemnifying Party under this Article VII and (ii) presentation of
appropriate invoices containing reasonable detail, reimburse each
Indemnified Party for all such reasonable expenses (including reasonable
fees, disbursements and other charges of counsel incurred by such
Indemnified Party in any action between such Indemnified Party and the
Indemnifying Party) in full to the Indemnifying Party.
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7.2 NOTIFICATION. Each Indemnified Party under this Article VII shall,
promptly after the receipt of notice of the commencement of any Claim or any
other action against such Indemnified Party in respect of which indemnity may be
sought from the Indemnifying Party under this Article VII, notify the
Indemnifying Party in writing of the commencement thereof. The omission of any
Indemnified Party to so notify the Indemnifying Party of any such action shall
not relieve the Indemnifying Party from any liability which it may have to such
Indemnified Party under this Article VII unless, and only to the extent that,
such omission results in the Indemnifying Party's forfeiture of substantive
rights or defenses. In case any such Claim shall be brought against any
Indemnified Party, and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to assume the
defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; PROVIDED, HOWEVER, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense. Notwithstanding the foregoing, in any Claim in
which both the Indemnifying Party, on the one hand, and an Indemnified Party, on
the other hand, are, or are reasonably likely to become, a party, such
Indemnified Party shall have the right to employ separate counsel and to control
its own defense of such Claim if, in the reasonable opinion of counsel to such
Indemnified Party, either (x) one or more defenses are available to such
Indemnified Party that are not available to the Indemnifying Party or (y) a
conflict or potential conflict exists between such Indemnifying Party, on the
one hand, and such Indemnified Party, on the other hand, that would make such
separate representation advisable; PROVIDED, HOWEVER, that the Indemnifying
Party (i) shall not be liable for the fees and expenses of more than one counsel
to all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for
all of such reasonable fees and expenses of such counsel (x) incurred in any
action between the Indemnifying Party and the Indemnified Parties, following the
final judicial determination or final settlement of such action as set forth in
Section 7.1(a) and (y) incurred in any action between the Indemnified Parties
and any third party, as such expenses are incurred. The Indemnifying Party
agrees that it will not, without the prior written consent of the Purchasers,
settle, compromise or consent to the entry of any judgment in any pending or
threatened Claim relating to the matters contemplated hereby (if any Indemnified
Party is a party thereto or has been actually threatened to be made a party
thereto) unless such settlement, compromise or consent includes an unconditional
release of each Indemnified Party from all liability arising or that may arise
out of such Claim. The Indemnifying Party shall be liable for any settlement of
any Claim effected against an Indemnified Party without its written consent,
which consent shall not be unreasonably withheld.
7.3 CONTRIBUTION. If the indemnification provided for in this Article VII
from the Indemnifying Party is unavailable to an Indemnified Party hereunder in
respect of any Losses referred to herein, then the Indemnifying Party, in lieu
of indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and
such Indemnified Party in connection with the actions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
faults of the Indemnifying Party and such Indemnified Party shall be determined
by reference to, among other things, whether any action in question has been
made by, or relates to information supplied by, the Indemnifying Party or such
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Losses referred to above shall be
deemed to include, subject to the limitations set forth in Sections 7.1 and 7.2,
any legal or other fees, charges or expenses reasonably incurred by such party
in connection with any investigation or proceeding.
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7.4 EXCLUSIVE REMEDY. Except in the case of fraud or willful or intentional
misconduct, the indemnification and contribution rights accorded to an
Indemnified Party under this Article VII shall be the exclusive remedy of the
Indemnified Parties; PROVIDED, however, that notwithstanding the foregoing or
anything to the contrary contained in this Agreement, nothing in this Article
VII shall restrict or limit any rights that any Indemnified Party may have to
seek equitable relief.
ARTICLE VIII
COVENANTS
8.1 ASSIGNMENT UNDER REGISTRATION RIGHTS AGREEMENT. Pursuant to Paragraph
11 of the Registration Rights Agreement, effective as of the Closing the Seller
hereby assigns to each Purchaser all of the Seller's rights and obligations
under the Registration Rights Agreement with respect to the Purchased Shares
being purchased by such Purchaser from the Seller. Without limiting the
foregoing, the Seller shall within twenty (20) days of the date hereof (i)
furnish the Company with written notice of the name and address of each
Purchaser and (ii) furnish the Company with written notice of the assignment of
registration rights with respect to the Purchased Shares.
8.2 ASSIGNMENT UNDER SHAREHOLDERS RIGHTS AGREEMENT. Effective as of the
Closing the Seller hereby assigns to each Purchaser all of the Seller's rights
and obligations under the Shareholders Rights Agreement with respect to the
Purchased Shares being purchased by such Purchaser from the Seller or otherwise.
8.3 NO OTHER SALES. The Seller hereby covenants and agrees that it shall
not sell or agree to sell, directly or indirectly, whether pursuant to Article
40 of the Articles of Association or otherwise, any of the Purchased Shares to
any Major Shareholder or any other Person unless required to do so pursuant to
the exercise by the Major Shareholder(s) of the Rights of First Refusal with
respect to all of the Purchased Shares.
8.4 SATISFACTION OF CONDITIONS. The Seller shall take all actions
reasonably necessary to cause the conditions set forth in Sections 5.3 and 5.5
to be satisfied as promptly as practicable.
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ARTICLE IX
TERMINATION OF AGREEMENT
9.1 TERMINATION. This Agreement may be terminated prior to the Closing as
follows:
(a) at the election of the Seller or the Purchasers by written notice
to the other parties hereto after 5:00 p.m., New York time, on January 17,
2005, if the Closing shall not have occurred, unless such date is extended
by the mutual written consent of the Seller and the Purchasers; PROVIDED,
however, that the right to terminate this Agreement under this Section
9.1(a) shall not be available to any party whose breach of any
representation, warranty, covenant, condition or agreement under this
Agreement has been the cause of, or resulted in, the failure of the Closing
to occur on or before such date; or
(b) at any time on or prior to the Closing Date, by mutual written
consent of the Seller and the Purchasers.
If this Agreement so terminates, it shall become null and void and have no
further force or effect, except as provided in Section 9.2.
9.2 SURVIVAL. If this Agreement is terminated and the transactions
contemplated hereby are not consummated as described above, then (a) this
Agreement shall become void and of no further force and effect, except for the
provisions of Article I, this Section 9.2 and Sections 10.2 through 10.10
(inclusive) and (b) none of the parties hereto shall have any liability for any
damages (including, without limitation, actual, compensatory, speculative,
indirect, unforeseeable or consequential damages or lost profits) resulting from
any termination of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties made herein shall survive the execution and delivery of this
Agreement until the second anniversary of the date hereof, except for the
representation and warranty set forth in Section 3.3 which shall survive until
the expiration of the applicable statute of limitations.
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10.2 NOTICES. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, email, courier
service or personal delivery:
(a) if to any of the Purchasers:
c/o General Atlantic Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
Telecopy: (203) 622-8818
Email: ptrahanas@gapartners.com
mnimetz@gapartners.com
Attention: Philip P. Trahanas
Matthew Nimetz
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telecopy: (212) 757-3990
Email: dcifu@paulweiss.com
Attention: Douglas A. Cifu, Esq.
(b) if to the Seller:
Tower Semiconductor Ltd.
Migdal Haemek Industrial
Post Office Box 619
Migdal Haemek, Israel 10056
Telecopy: 972-4-654-7788
Email: carmel@towersemi.com
Attention: Carmel Vernia
with a copy to:
Yigal Arnon & Co.
1 Azrieli Center
Tel Aviv 67021
Email: davids@arnon.co.il
Telecopy: 972-3-608-7714
Attention: David H. Schapiro
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All such notices, demands and other communications shall be deemed to have
been duly given (i) when delivered by hand, if personally delivered; (ii) one
Business Day after being sent, if sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery; (iii) five (5) Business
Days after being sent, if sent by registered or certified mail, return receipt
requested, postage prepaid; and (iv) when receipt is mechanically acknowledged,
if telecopied or electronically confirmed, if emailed. Any party may, by notice
given in accordance with this Section 10.2, designate another address or Person
for receipt of notices hereunder. Any party may give any notice, request,
consent or other communication under this Agreement using any other means
(including, without limitation, personal delivery, messenger service or first
class mail), but no such notice, request, consent or other communication shall
be deemed to have been duly given unless and until it is actually received by
the party to whom it is given.
10.3 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties hereto. Subject to applicable securities laws and the
terms and conditions thereof, the Purchasers may assign any of their rights
under this Agreement to any of their respective Affiliates, provided that each
such assignee shall make the representations and warranties under Article IV and
assumes in writing the obligations of such assignor under this Agreement. The
Seller may not assign any of its rights under this Agreement without the prior
written consent of the Purchasers. Except as set forth and in Article VII, no
Person other than the parties hereto and their successors and permitted assigns
is intended to be a beneficiary of this Agreement.
10.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of the Seller or any Purchaser in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
(b) Any amendment, supplement or modification of or to any provision
of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by the Seller or the Purchasers from the terms of
any provision of this Agreement, shall be effective (i) only if it is made
or given in writing and signed by the Seller and the Purchasers and (ii)
only in the specific instance and for the specific purpose for which made
or given. Except where notice is specifically required by this Agreement,
no notice to or demand on the Seller in any case shall entitle the Seller
to any other or further notice or demand in similar or other circumstances.
10.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
10.6 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
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(b) The parties hereto irrevocably submit to the exclusive
jurisdiction of any state or federal court sitting in the County of New
York, in the State of New York over any suit, action or proceeding arising
out of or relating to this Agreement. To the fullest extent they may
effectively do so under applicable law, the parties hereto irrevocably
waive and agree not to assert, by way of motion, as a defense or otherwise,
any claim that they are not subject to the jurisdiction of any such court,
any objection that they may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
THE SELLER AND EACH OF THE PURCHASERS EACH HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH PARTY (I) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER TRANSACTION DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
10.7 SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
10.8 ENTIRE AGREEMENT. This Agreement, together with the exhibits and
schedules hereto, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises,
representations, warranties or undertakings, other than those set forth or
referred to herein or therein. This Agreement, together with the exhibits and
schedules hereto, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
10.9 PUBLIC ANNOUNCEMENTS. Neither the Seller nor the Purchasers will make
any public statements or issue any press releases with respect to this Agreement
or the transactions contemplated hereby without the prior written consent of the
other parties hereto, except to the extent such party reasonably believes such
public statement is required by any Requirement of Law, including, without
limitation, any securities or stock market regulation, or to the extent required
by the Purchasers in connection with their customary internal reporting.
Notwithstanding the foregoing, the Seller will not use or refer to the name of
any Purchaser in any public statement or disclosure without the consent of such
Purchaser except to the extent that the Seller reasonably believes such
statement or disclosure is required by applicable law or stock market
regulations, provided that the Seller will provide a draft of such statement or
disclosure prior to its publication or dissemination so that such Purchaser has
a reasonable opportunity to review and comment on such draft. A press release
with respect to the sale of the Purchased Shares shall be approved by the
parties upon the Closing and released for publication.
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10.10 FURTHER ASSURANCES. Each of the parties shall execute such documents
and perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any Governmental Authority or any other Person)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
10.11 STAMP DUTY. Any stamp duty payable on the sale of the Purchased
Shares, including any stamp duty owed on this Agreement, shall be divided
equally between the Purchasers (as a group) and the Seller.
10.12 EXPENSES. Subject to Section 10.11 and the following sentence, each
party to this Agreement shall bear and pay all of its own fees, costs and
expenses (including legal fees and accounting fees) that have been incurred or
that are incurred by such party in connection with the transactions contemplated
by this Agreement and the negotiations leading up to the execution of this
Agreement. Without derogating from the previous sentence, expenses up to an
amount of $20,000 incurred by the Company in connection with the due diligence
review of the Company conducted by the Purchasers in connection with this
Agreement, shall be borne equally by the Seller and the Purchasers (as a group)
provided however, that neither the Seller nor the Purchasers shall be obligated
to bear expenses in an amount greater than $10,000.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
TOWER SEMICONDUCTOR LTD.
By: ____________________________________
Name:
Title:
GENERAL ATLANTIC PARTNERS (BERMUDA), L.P.
By: GAP (BERMUDA) LIMITED,
its General Partner
By: _____________________________________
Name:
Title:
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Sole Member
By: _____________________________________
Name:
Title:
GAP COINVESTMENTS III, LLC
By: _____________________________________
Name:
Title:
GAP COINVESTMENTS IV, LLC
By: _____________________________________
Name:
Title:
GAPCO GMBH & CO. KG
By: GAPCO MANAGEMENT GMBH,
its General Partner
By: _____________________________________
Name:
Title:
SCHEDULE 2.1
PURCHASED SHARES AND PURCHASE PRICE
PURCHASED PURCHASED
PURCHASER ORDINARY SHARES PREFERRED SHARES PURCHASE PRICE
--------- --------------- ---------------- --------------
GAP Bermuda 2,499,173 54,167 $35,746,760
GapStar 33,800 733 $ 483,462
GAPCO III 133,432 2,892 $ 1,908,536
GAPCO IV 34,814 755 $ 497,966
GAPCO KG 2,805 61 $ 40,124
Total: 2,704,024 58,608 $38,676,848