EXHIBIT 4.44
AGREEMENT
This Agreement (this "AGREEMENT"), dated as of December 31, 2004, by and
among Tower Semiconductor Ltd. an Israeli company (the "Seller"), ▇▇▇▇ ▇▇▇▇▇
("Sarig"), ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("Zamir"), Clal Electronics Industries Ltd. ("Clal"),
Gemini Israel III LP ("GEMINI") and k.t. Concord Venture Fund (Cayman), L.P.,
and k.t. Concord Venture Fund (Israel), L.P (collectively "CONCORD" and together
with Sarig, Zamir, Clal and Gemini, the "NEW PURCHASERS").
WITNESSETH :
WHEREAS, the Seller is a holder of 2,704,024 Ordinary Shares of Saifun
Semiconductors Ltd. (the "COMPANY"), nominal value NIS 0.01 each (the "ORDINARY
SHARES") and 58,608 Series B Preferred Shares of the Company, nominal value NIS
0.01 each (the "PREFERRED SHARES" and together with the Ordinary Shares, the
"SHARES");
WHEREAS, the Seller executed a Share Purchase Agreement with 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 "ORIGINAL PURCHASERS")
dated December 8, 2004 (the "SPA").
WHEREAS, in accordance with the Company's Articles of Association (the
"ARTICLES") and pursuant to section 5.3 of the SPA, the Seller sent a Notice of
Offer (as defined in the Company's Articles and as approved by the Original
Purchasers ) to all Major Shareholders (as defined in the Articles) offering
such Major Shareholders to exercise their right of first refusal as set forth in
the Articles;
WHEREAS, the New Purchasers have provided the Seller with Purchase Notices (as
defined in the Articles) in which they notified the Seller of their desire to
purchase all of the Shares;
NOW, THEREFORE, the parties hereby agree as follows :
1. SALE OF SHARES. Subject to the terms and conditions hereof, the Seller
hereby transfers to the New Purchasers, and the New Purchasers hereby purchase
from the Seller, the number of Ordinary Shares of the Company and the number of
Series B Preferred Shares of the Company set forth next to each New Purchaser's
name in Schedule 1 attached hereto under the column entitled "Number of Ordinary
Shares" and "Number of Preferred Shares", as applicable. The Sellers and the New
Purchasers hereby make the deliveries required by section 2.4 of the SPA. In
addition, each New Purchaser shall deliver to the Company the letter undertaking
attached hereto as SCHEDULE 2.
2. TERMS OF SALE. The rights and obligations set forth in the SPA and
applicable to the Original Purchaser shall apply, mutatis mutandis, to each of
the New Purchasers, including without limitation, the additional payment
obligation set forth in Section 2.2 and the lock-up obligation on the Shares set
forth in Section 4.7 of the SPA.
3. REPRESENTATIONS AND WARRANTIES: The Seller hereby confirms that all
representations and warranties made by the Seller in Article III of the SPA are
true and correct in all respects at and on the day hereof and all the covenants
and obligations contained in the SPA to be performed by the Seller prior to or
at the Closing Date have been fully performed and complied with.
4. ENTIRE AGREEMENT. This Agreement and the SPA shall constitute the entire
agreement of the parties with respect to its subject matter and supersedes all
prior oral or written agreements in regard thereto.
5. AMENDMENTS. This Agreement or any provision hereof may be amended,
modified, waived, discharged or terminated only pursuant to a written instrument
making specific reference to this Agreement and duly signed by or on behalf of
each of the parties hereto.
6. GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed according to the laws of the State of Israel, without
regard to the conflict of laws provisions thereof. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the date first above written.
TOWER SEMICONDUCTOR LTD.
By: _________________________________
Print Name: _______________________
Title: ______________________________
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_______________________________
▇▇▇▇ ▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Clal Electronics Industries Ltd.
By: _____________________________
Name:___________________________
Title:____________________________
Gemini Israel III LP, by it General Partner Gemini Capital Associates III
LP, by its General Partner, Gemini Israel Funds Ltd.
By: _____________________________
Name:___________________________
Title:____________________________
k.t. Concord Venture Fund (Cayman), L.P., & k.t. Concord Venture Fund
(Israel), L.P., both by Concord (k.t.) Investment Partners Ltd.--the
General Partner.
By: _____________________________
Name:___________________________
Title:____________________________
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SCHEDULE 1
REQUESTED
ORDINARY PRE. B TOTAL $
---------- ---------- ---------- ----------
Gemini Israel III L.P. 349,566 7,577 357,143 5,000,002
K.T. Concord Venture Fund (Cayman) L.P. 167,584 10,393 177,977 2,491,678
K.T. Concord Venture Fund (Israel) L.P. 33,515 2,079 35,594 498,316
Total Concord Group 201,099 12,472 213,571 2,989,994
Clal Electronics Industries Ltd 2,148,359 37,559 2,185,918 30,602,852
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ 3,000 0 3,000 42,000
▇▇▇▇ ▇▇▇▇ 2,000 1,000 3,000 42,000
---------- ---------- ---------- ----------
Total 2,704,024 58,608 2,762,632 38,676,848
========== ========== ========== ==========
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Schedule 2
December 31, 2004
Saifun Semiconductors Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Sappir Industrial Park
Netanya ▇▇▇▇▇
▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
On the date hereof, each person (a "Purchaser" and collectively, the
"Purchasers") executing this letter agreement is purchasing from Tower
Semiconductor Ltd. ("Tower") the aggregate number of Ordinary Shares and Class B
Preferred Shares of Saifun Semiconductors Ltd. (the "Company") set forth
opposite such person's name on Schedule 1 hereto (all of such Ordinary Shares
and Class B Preferred Shares, the "Purchased Shares").
In order to induce the Company to register the transfer by Tower of the
Purchased Shares to the Purchasers on the register of shareholders of the
Company, each Purchaser, severally and not jointly, hereby agrees and covenants
as follows:
Prior to eighteen (18) months following the date hereof (the "Lock-up Expiration
Date"), the Purchasers will not, directly or indirectly, without the prior
written consent of the Company, offer, sell, contract to sell, pledge or
otherwise dispose of (each such transaction, a "Disposition"), seventy-five
percent (75%) of the Purchased Shares and the Ordinary Shares issuable upon the
conversion of the Class B Preferred Shares purchased by the Purchasers from
Tower (the "Purchased Securities"); provided, however, that the foregoing shall
not prevent or restrict (a) the Purchasers from Disposing of their Purchased
Securities in connection with a sale of the Company (whether by merger,
consolidation, tender offer, exchange offer, sale of shares, other business
combination transaction, sale of all or substantially all of the assets or
otherwise), (b) the Purchasers from transferring their Purchased Securities in
accordance with Article 43 of the Articles of Association (provided that any
such transferee agrees to be bound by the terms of this letter agreement) or (c)
the Purchasers from Disposing of up to 25% of their Purchased Securities at any
time following the date hereof; and provided further, that if, prior the Lock-Up
Expiration Date, ▇▇▇▇ ▇▇▇▇▇ makes a Disposition, in one or more transactions, of
any of his shares of the Company resulting in an aggregate sale price for all
Dispositions in the aggregate (calculated by multiplying the price per share of
each Disposition by the aggregate number of shares sold in such Disposition and
then aggregate such products) in excess of US$7,000,000, then the foregoing
restrictions set forth in this letter agreement shall terminate and be of no
further force or effect. For the avoidance of doubt, this letter agreement shall
not apply to any securities of the Company acquired by any Purchaser other than
from Tower on the date hereof.
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In addition to clause (a) above, if requested by the managing underwriter of the
Company's firm commitment underwritten initial public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(an "IPO"), each Purchaser agrees, in connection with such IPO, to enter into a
customary lock-up agreement with the managing underwriter restricting the
Disposition of securities of the Company held by such Purchaser for a period of
not longer than 180 days from the date of the final prospectus relating to the
IPO so long as such lock-up agreement is in form and substance identical to the
lock-up agreements entered into by the directors, officers and other Major
Shareholders (as defined in the Articles of Association of the Company) of the
Company.
This letter agreement shall be governed by and construed in accordance with the
laws of the State of Israel without regard to the principles of conflicts of law
thereof. Any dispute arising under or in relation to this letter agreement shall
be resolved in the competent court of Tel Aviv-Jaffa District, and each of the
parties hereby submits irrevocably to the jurisdiction of such court.
Sincerely yours,
Agreed and accepted:
Saifun Semiconductors Ltd.
By:_________________________
Name:
Title:
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SHARE TRANSFER DEED
The undersigned, Tower Semiconductor Ltd. (the "Transferor"), does hereby
transfer to __________ (the "Transferee"), pursuant to the terms of that certain
Agreement between the Transferor and the New Purchasers (as defined therein)
dated December 31, 2004, _____ Ordinary Shares of nominal value NIS 0.01 each
and _____ Series B Preferred Shares of nominal value NIS 0.01 each (the
"Shares") in Saifun Semiconductors Ltd., an Israeli company (the "Company") to
be held by the Transferee, its administrators and its assigns, upon all of the
terms and conditions subject to which the Transferor held such Shares and said
Transferee does hereby agree to accept such Shares.
Dated: December 31, 2004 Dated: December 31, 2004
TOWER SEMICONDUCTOR LTD.
By: By:
Name: Name:
Title: Title:
Transferor Transferee
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