Exhibit 10.1
SHAREHOLDERS RIGHTS AGREEMENT
This Shareholders Rights Agreement (this "AGREEMENT") is entered into as of the
2 day of October 2000, by and among SAIFUN SEMICONDUCTORS LTD., an Israeli
company No. ▇▇-▇▇▇▇▇▇-▇, having its main place of business at the Topper
Building, 65 Hamelacha St., Industrial ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the
"COMPANY"), and the shareholders listed in SCHEDULE A (severally and not jointly
referred to as "SHAREHOLDERS" and each one as "SHAREHOLDER").
WHEREAS following the execution of a Share Purchase Agreement, dated October 2,
2000, between the Company and certain entities specified therein (the
"INVESTORS") (the "SHARE PURCHASE AGREEMENT"), the Company and the
Shareholders desire to make certain provisions as hereinafter set forth
regarding ownership of the shares of the Company, and relating to the
rights and obligations of the Shareholders as shareholders of the Company;
NOW THEREFORE, THE PARTIES DECLARE, STIPULATE AND AGREE AS FOLLOWS:
1. INTERPRETATION; DEFINITIONS.
1.1. The recitals and Exhibits hereto consist an integral part hereof.
1.2. The headings of the sections and subsections of this Agreement
are for convenience of reference only and are not to be
considered in construing this Agreement.
1.3. In this Agreement, unless the context otherwise requires:
1.3.1. "AS-CONVERTED BASIS" means as if all classes of shares of
the Company have been converted into Ordinary Shares.
1.3.2. "AMENDED ARTICLES" means the amended Articles of
Association to be adopted by the shareholders of the Company
pursuant to Section 6.1 to the Share Purchase Agreement..
1.3.3. "FULLY DILUTED BASIS" means as if all outstanding options
and warrants and convertible instruments or any other
similar rights, agreements or commitments of any Person to
receive shares in the Company have been exercised in full;
all ungranted options under the ESOP deemed granted and
exercised, and after conversion of all shareholders' loans
to equity (to the extent there are any such loans).
1.3.4. "BOARD" means the board of directors of the Company.
1.3.5. "CORPORATE DOCUMENTS" means the Company's Memorandum of
Association and Articles of Association.
1.3.6. "INTERESTED PARTY" means any "Interested party" as such
term is defined in the Israeli Securities Law of 1968 and
any officer or director of the Company or any Person owning
shares of the
Company (excluding employees solely under stock option or
share purchase plans) or any member of the family or
affiliate of such officer, director or shareholder, Person
controlled by it or Person controlling it or Person under
common control with it.
1.3.7. "MAJORITY INVESTORS" means Investors holding the majority
of the voting power of the Preferred B Shares (and any
Ordinary Shares into which such Preferred B Shares have been
converted), on an as-converted basis.
1.3.8. "ORDINARY SHARES" means the ordinary shares of the Company
NIS 0.01 par value each.
1.3.9. "ORIGINAL ISSUE PRICE" means the price actually paid by
each respective shareholder for each Preferred Share of the
Company held by such shareholder.
1.3.10. "PERSON" means an individual, corporation, partnership,
joint venture, trust or unincorporated organization.
1.3.11. "PREFERRED SHARES" means the Class A Preferred Shares and
the Class B Preferred Shares of the Company.
1.3.12. "PREFERRED A SHARES" means the Class A Preferred Shares
of the Company, NIS 0.01 par value each.
1.3.13. "PREFERRED B SHARES" means the Class B Preferred Shares
of the Company, NIS 0.01 par value each.
1.3.14. "IPO" means an initial public offering of the Company's
securities.
1.3.15. "FOUNDER" means ▇▇. ▇▇▇▇ ▇▇▇▇▇.
1.3.16. "TOWER" means Tower Semiconductors Ltd.
1.3.17 "TOWER AGREEMENT" means the Agreement between the Company
and Tower dated October 9, 1997.
2. RIGHTS OF PREFERRED SHARES.
The Company covenants that the Preferred Shares shall have, inter
alia, the following rights and privileges, as more fully set forth in
the Amended Articles:
2.1. Liquidation Preference. (A) In the event of (i) any dissolution
or liquidation of the Company; (ii) any bankruptcy, insolvency or
creditors' arrangement proceeding, under any companies,
bankruptcy or insolvency or similar law, whether voluntary or
involuntary, is commenced by or against the Company; or (iii) a
receiver, a liquidator or a trustee in a creditors' arrangement
has been appointed to Company's assets; or (B) unless otherwise
agreed by the holders of at least two thirds (2/3) of the
Preferred Shares, upon any event of sale of all or substantially
all of the assets or shares of the Company or a merger or
acquisition of the Company pursuant to which the shareholders of
the Company will not be the majority shareholders of the
surviving entity (a "DEEMED LIQUIDATION EVENT"), any assets of
the Company available for distribution (including
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securities or any other assets received by the Company or its
shareholders in such Deemed Liquidation Event) ("DISTRIBUTABLE
ASSETS") shall be distributed pursuant to the following order of
preference:
2.1.1. The holders of the Preferred B Shares shall be entitled to
receive, prior to and in preference to any payments to any
of the holders of Ordinary Shares and Preferred A Shares, an
amount in US Dollars per Preferred B Share calculated as
follows (the "PREFERRED B LIQUIDATION AMOUNT"): (A) if the
value of the Distributable Assets ("COMPANY VALUE") is less
than US $500 million, then each holder of the Preferred B
Shares shall be entitled to receive at its discretion, for
each Preferred B Share, prior to and in preference to
payments to the holders of Preferred A Shares and Ordinary
Shares, an amount equal to either: (i) the Original Issue
Price (adjusted for any event of share combination or
subdivision, issuance of bonus shares, stock splits or any
other recapitalization of the Company's shares (a
"RECAPITALIZATION EVENT") plus 28% (twenty eight percent) or
(ii) its pro rata share among all shareholders of the
Company (B) if the Company Value is between US$500 million
and US$750 million, each holder of the Preferred B Shares
shall be entitled to receive for each Preferred B Share,
prior to and in preference to payments to the holders of
Preferred A Shares and Ordinary Shares, an amount equal to
128% (one hundred twenty eight percent) of the amount
reflecting its proportionate holding in the Company (for
example, assuming the holders of the Preferred B Shares hold
10% of the share capital of the Company and the Company
Value is US$500 million, they will be entitled to receive
US$64 million); (C) if the Company Value exceeds US$750
million, each holder of the Preferred B Shares shall be
entitled to receive, prior to and in preference to payments
to the holders of Preferred A Shares and Ordinary Shares, an
amount reflecting its proportionate holding in the Company
but in any event not less than the maximum amount to which
it is entitled under sub-clause (B) above, i.e not more than
US$96 million.
2.1.2. If after payment of the Preferred B Liquidation Amount is
paid in full to the Investors there remain any Distributable
Assets, they shall be distributed to the holders of
Preferred A Shares as follows (the "PREFERRED A LIQUIDATION
AMOUNT"): (A) If by the time of the Deemed Liquidation Event
the holders of Preferred A Shares have not exercised the
options granted to them under the agreement dated March 24
1998 ("Options"), the following will apply: (i) if the value
of the Distributable Assets is less than US$ 50 million, the
holders of the Preferred A Shares shall be entitled to
receive prior to and in preference to payments to the
holders of Ordinary Shares a sum which shall be the lower of
US$6 million or all of the remaining Distributable Assets.
(ii) if the value of the Distributable Assets is between
US$50 million and US$100
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million, the holders of the Preferred A Shares shall be
entitled to receive prior to and in preference to payments
to the holders of Preferred A Shares and Ordinary Shares a
sum which shall be 12% of the remaining Distributable
Assets, or (B) If by the time of the Deemed Liquidation
Event, the holders of Preferred A Shares have exercised the
Options, the following will apply: (i) if the value of the
Distributable Assets is less than US$50 million, the holders
of the Preferred A Shares shall be entitled to receive prior
to and in preference to payments to the holders of Preferred
A Shares and Ordinary Shares a sum which shall be the lower
of US$9 million or all of the remaining Distributable
Assets; (ii) if the value of the Distributable Assets is
between US$50 million and US$100 million, the holders of the
Preferred A Shares shall be entitled to receive prior to and
in preference to payments to the holders of Preferred A
Shares and Ordinary Shares a sum which shall be the
combination of US$3 million plus 12% of all the remaining
Distributable Assets.
2.1.3. Any remaining Distributable Assets or securities shall be
distributed pro-rata to the holders of Ordinary Shares of
the Company to the exclusion of the holders of Preferred A
Shares and Preferred B Shares.
2.1.4. Notwithstanding the provisions of sub-section 2.1.3 above,
the Preferred A Shareholders may elect (by decision of
majority of the Preferred A Shareholders) to forgo the
provisions of sub-section 2.1.2 above, and in such case all
of the remaining Distributable Assets of the Company then
available for distribution, after full payment of the
Preferred B Liquidation Amount, shall be distributed
pro-rata among the holders of the Preferred A Shareholders
and Ordinary Shares, in proportion to their respective
shareholdings in the Company on an as-converted basis to the
exclusion of the holders of Preferred B Shares.
2.2. Voting Rights. The holders of the Preferred Shares shall be
entitled to vote in all shareholders meetings, and each of them
shall have votes in the number of Ordinary Shares into which such
Preferred Shares held by it could then be converted.
2.3. Dividend Participation. In the event that any dividends or other
distributions, whether in cash or in securities or other assets,
have been declared or distributed by the Company, each holder of
the Preferred B Shares shall be entitled to receive for each
Preferred B Share, prior to and in preference to distributions to
the other shareholders, an amount equal to the amount to which
such shareholder is entitled pursuant to the provisions of
Section 2.1 above.
2.4. Conversion of Preferred Shares. Each Preferred Share shall be
convertible into Ordinary Shares par value NIS0.01 of the
Company. Initially, the conversion ratio shall be one-to-one, but
such conversion ratio shall be adjusted: (i) in
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accordance with any Recapitalization Event, and (ii) pursuant to
the anti-dilution provisions set forth herein, all as more fully
set forth in the Amended Articles. Each Preferred Share shall be
convertible into an Ordinary Share at any time at the election of
its Holder, and automatically upon (i) the election of the
Majority Investors;(ii) an IPO, or (iii) a merger or acquisition
of the Company pursuant to which the shareholders of the Company
will not be the majority shareholders of such new entity.
2.5. Anti Dilution. Until the earlier of (i) 24 months after the
Closing (as defined in the Share Purchase Agreement) or (ii) IPO,
if the Company issues any securities, including rights, options
or warrants to purchase equity securities of the Company
including exercisable into, convertible to or exchangeable for
Ordinary Shares, at a price per share (the "NEW PRICE") lower
than the Price Per Share paid by the Investors for each Preferred
B Share, as adjusted from time to time for any Recapitalization
Event, then in each such event the conversion price of the
Preferred B Shares shall be reduced, for no additional
consideration, in accordance with a standard "Weighted Average"
formula, all according to the terms and conditions as set forth
in the Amended Articles. The foregoing anti-dilution protection
shall not apply upon the following issuances of shares and
options: (i) to employees, consultants and directors (excluding
the Founder) in the framework of the ESOP approved by the Board.;
(ii) issuances of shares constituting up to 10% of the issued and
outstanding share capital of the Company to a strategic investor
(which means any business entity, which adds to the prospects of
the Company a material value beyond the purchase price of its
shares, which, has entered or simultaneously with the investment
in the Company enters into a commercial agreement with the
Company, which agreement is deemed by the Board as materially
contributing to the Company's research & development, marketing,
distribution or sales); (iii) in exchange for the acquisition of
another entity, line of business or technology; or (vi) a
Recapitalization Event of the Company's shares capital.
2.6. Registration Rights. The Company hereby grants to the holders of
the Preferred B Shares, the holders of the Preferred A Shares,
the Founder and Tower registration rights as more fully set forth
in EXHIBIT 2.6 attached hereto (the "REGISTRATION RIGHTS
AGREEMENT").
3. MANAGEMENT OF THE COMPANY.
3.1. From and after the Closing, the Shareholders agree that the
provisions of this Section 3 shall apply:
3.2. Board of Directors.
3.2.1. From and after the date hereof, the Board of Directors
shall consist of up to seven (7) directors.
3.2.2. The holders of the majority of the Preferred B Shares are
entitled to appoint and replace from time to time one (1)
member of the
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Board, by a written notice to the Company (the "PREFERRED B
DIRECTOR").
3.2.3. The holders of the majority of the Preferred A Shares are
entitled to appoint and replace from time to time one (1)
member of the Board, by a written notice to the Company (the
"PREFERRED A DIRECTOR"; the Preferred A Director and the
Preferred B Director, shall be referred to as the "PREFERRED
DIRECTORS").
3.2.4. Dr. Yoav Nissan-▇▇▇▇▇ shall represent Tower on the Board
until such time as the Tower Agreement is terminated or
Tower's holdings in the Company are reduced to less than 3%
of the issued and outstanding share capital of the Company.
In the event that Dr. Yoav Nissan-▇▇▇▇▇ resigns or otherwise
terminates his membership on the Board, or in the event that
he ceases to be employed by Tower, and Tower holds 5% or
more of the issued and outstanding share capital of the
Company, the Company and Tower will appoint a mutually
agreed upon Board member as his replacement. Such director
will maintain his or her position as long as Tower holds 5%
or more of the issued and outstanding share capital of the
Company.
3.2.5. The remaining members of the Board will be appointed by a
general meeting of the holders of the Ordinary Shares
excluding Tower, the holders of the Preferred A Shares and
preferred B Shares.
3.2.6. In addition to the appointment of one director, the
holders of the Preferred A Shares will be entitled to
appoint one observer, and such observer will be invited to
attend the meetings of the Board (without the right to vote
thereat) and will receive all written information as a
regular member of the Board.
3.2.7. The right of the holders of Preferred A Shares to appoint
the Preferred A Director and an observer to the Board will
expire if their holdings in the Company are reduced to less
than 4% of the issued and outstanding share capital of the
Company (on an as-converted basis). The right of the holders
of Preferred B Shares to appoint the Preferred B Director
will expire if their holdings in the Company are reduced to
less than 4% of the issued and outstanding share capital of
the Company (on an as-converted basis).
3.2.8. The Board shall meet as frequently as reasonably necessary
but in any event at least once every calendar quarter. The
Company undertakes that: (i) within 45 days from Closing, it
will obtain a Directors and Officers liability insurance
policy covering the Preferred Directors, which insurance
policy shall provide adequate insurance coverage for the
Preferred Directors; and (ii) it shall maintain such
insurance policy in full force and effect for as long
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as a Preferred Director serves as a director or may be
subject to possible claims with regard to his/her service as
a director of the Company. The Investors shall have similar
rights to appoint representative to the board of directors
of any Subsidiary and to any committee of the Board of
Directors or of the board of directors of any Subsidiary.
Subject to applicable law, the Company undertakes to insure
the Preferred Directors against directors and officers
liability to the greatest extent permitted under law, and to
indemnify the Preferred Director in respect to personal
liability, all as set forth in the Amended Articles.
3.3. Quorum. The presence of a majority of the directors including a
Preferred Director shall constitute a quorum for meetings of the
Board, and the presence of a majority of the shareholders
including shareholders holding the majority in interest of the
Preferred B Shares shall constitute a quorum for general
meetings. Notwithstanding the aforesaid, if within half an hour
of the time arranged for a Board meeting or for a general
meeting, respectively, no quorum is present, such meeting shall
stand adjourned to the same day of the following week, at the
same hour and in the same place, or in the event that such a day
is not a business day, then to the first business day thereafter,
and in such adjourned meeting if no quorum is present within half
an hour of the time arranged, the present directors or
shareholders (as applicable) shall be deemed a quorum.
3.4. Board and Shareholders Decisions.
3.4.1. Subject to any applicable mandatory law and the following
provisions, all resolutions and actions of the Board and of
the shareholders of the Company shall be taken by a majority
vote.
3.4.2. Notwithstanding the aforesaid, until the consummation of
the IPO any action or resolution of the Company's general
meeting, or of the Company's Board of Directors, as
applicable, regarding any of the following issues shall
require the affirmative consent of the majority holders of
the Preferred B Shares or with the affirmative consent of
the Preferred B Director: Change the terms and provisions of
the Preferred B Shares or any other term or condition of the
Articles of Association of the Company so as to affect
adversely the rights of the Preferred B Shares.
3.4.3. Notwithstanding the aforesaid, until the consummation of
the IPO any action or resolution of the Company's general
meeting, or of the Company's Board of Directors, as
applicable, regarding any of the following issues shall
require the affirmative consent of the majority holders of
the Preferred A Shares or with the affirmative consent of
the Preferred A Director: Change the terms and provisions of
the Preferred A Shares or any other term or condition of the
Articles of Association of the Company so as to affect
adversely the rights of the Preferred A Shares.
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3.4.4. Notwithstanding the aforesaid, until the consummation of
the IPO any action or resolution of the Company's general
meeting, or of the Company's Board of Directors, as
applicable, regarding any of the following issues shall
require the affirmative consent of a majority of 70% of the
holders of the Preferred A Shares and the Preferred B
Shares, as one group:
3.4.4.1. Any material transaction with any officer,
director, shareholder or any other Interested Party,
except with Tower, M Systems - Flash Disk Pioneers Ltd.
and Infineon AG),
3.4.4.2. Liquidation, dissolution, winding-up, or any other
event which means or entails the cessation of the
operations of the Company as an on-going independent
business entity; and
3.4.4.3. Issuance of share capital, or options, or warrants
to purchase shares, or other securities ranking senior
to the Preferred B Shares, or increase in the number of
authorized securities beyond those specified in this
Agreement and in the Amended Articles - if such
increase adversely affects the rights and privileges of
the holders of the Preferred A and/or B Shares.
3.5. Accounts and Records. The Company will keep true records and
books of account in which full, true and correct entries will be
made of all dealings or transactions in relation to its business
and affairs in accordance with generally accepted accounting
principles applied on a consistent basis.
3.6. Access to Information. The representative appointed by the
Investors shall have, at any reasonable time, only at a
reasonable frequency and upon reasonable notice, full access to
all books and records of the Company, and shall be entitled to
review them at their discretion and to inspect the properties of
the Company all subject to customary confidentiality agreement.
Such representative of the Investors shall also be entitled to
consult with management of the Company regarding the Company, its
assets, liabilities, business and prospects, upon reasonable
notice. Such representative shall be allowed to report its
findings to the Investors, provided the Investors do not have a
conflict of interest with the Company and provided the Investors
sign a Non Disclosure Agreement in a form reasonably acceptable
to the Company.
3.7. Information Rights. Prior to the IPO, each Preferred Director and
after the termination of such Preferred Director, the
representative to be elected by the holders of Preferred Shares
who were entitled to appoint such Preferred Director, shall be
entitled to receive from the Company: (i) reviewed quarterly
financial statements (including a balance sheet, statement of
income and statement of cash flow), within 45 days from the end
of each quarter (ii) annual financial statements, audited by a
firm affiliated with one of the "Big-Five" US accounting firms
(including a balance sheet, statement of income and statement of
cash
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flow), within 90 days after the end of each fiscal year; (iii)
all reports prepared by the Company for shareholders and (iv) for
as long as the holders of the Preferred B Shares or the holders
of the Preferred A Shares, as applicable (in each case, the
"Appointing Holders") have a right to appoint the Preferred
Director, any other information that each of the applicable
Appointing Holders may reasonably request. For avoidance of
doubt, the Preferred Director may transfer all above materials to
the applicable Appointing Holders provided that with respect to
subsections (iii) and (iv) such applicable Appointing Holders do
not have a conflict of interest with the Company and provided
that with respect to all subsections (i) - (iv) above they sign a
Non Disclosure Agreement in a form reasonably acceptable to the
Company.
3.8. Reporting Requirements. The Company's management shall submit to
the Board monthly reports, financial statements and budgets, in
such format and containing such information as the Board shall
require. An annual budget and operating plan shall be submitted
to the Board at least 30 days prior to the first day of the year
covered by such plan. For avoidance of doubt, each Preferred
Director may transfer all above materials to the applicable
Appointing Holders provided they sign a Non Disclosure Agreement
in a form reasonably acceptable to the Company.
3.9. Pre-emptive Rights. Until the IPO, each Major Shareholder in the
Company (as defined in the Amended Articles) shall be entitled to
participate in all future issuances by the Company of any capital
stock of the Company, in the manner and subject to such
exclusions as set forth in the Company's Amended Articles.
3.10. Right of First Refusal. Until the IPO, the Major Shareholders of
the Company (as defined in the Amended Articles) shall have a
mutual right of first refusal in respect of any proposed sale,
transfer or other disposition of shares of the Company by a
shareholder, in the manner and subject to such exclusions as set
forth in the Company's Amended Articles.
3.10A Co Sale Rights. Holders of Preferred Shares and Tower shall have
co sale rights as detailed in the Amended Articles.
3.11. Bring Along. Prior to an IPO, in the event that shareholders of
the Company holding at least 80% of the Company's issued and
outstanding share capital on a fully diluted and as converted
basis shall elect to sell all of their shares to a third party
(the "PROPOSING SHAREHOLDERS") then all remaining shareholders
(the "REMAINING SHAREHOLDERS") shall be required, if so demanded
by the Proposing Shareholders, to sell all of their shares in the
Company to such third party at the same price and upon the same
terms and conditions as the Proposing Shareholders, all as more
fully set forth in the Amended Articles. Proceeds received under
this Section shall be distributed among the shareholders of the
Company in accordance with distribution instructions set forth in
Section 2.1 hereof.
4. CONFIDENTIALITY; NON-COMPETE
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4.1. Without derogating from any other agreement or undertaking to
which any of the parties hereto is subject, and in addition to
any such agreement or undertaking, the parties undertake to abide
by the provisions of this Section 4.
4.2. Each party hereto undertakes to keep in strict confidence, and
not to use for any purpose whatsoever except for the benefit of
the Company, any and all information relating in any way to the
Company and its business which had been provided to such party by
the Company, except: (i) information which is or shall be in the
public domain not due to any act of such party in breach of law
or agreement; (ii) information which became or shall become known
to such party prior to disclosure by Company of such information
to such party; (iii) information which became or shall become
known to such party from a source other than Company other than
by the breach of an obligation of confidentiality owed to the
Company; (iv) information that was or shall be independently
developed by such party; or (v) information which such party is
required to disclose under any applicable law. Notwithstanding
the aforesaid, in connection with periodic reports to their
shareholders or partners, the holders of Preferred Shares may
make general statements, not containing technical information,
regarding the nature and progress of the Company's business, and
may provide summary financial information of the Company. In
addition, in the event that any holder of Preferred Shares or its
partners or parent companies (any such entity, a "PARENT
COMPANY") is or shall become publicly traded and/or otherwise
subject to certain disclosure duties under applicable securities
laws and regulations (including any regulations and rules of
stock exchanges), or any other laws and regulations, the Company
shall furnish it with financial statements and/or any other
information as such holder of Preferred Shares or its Parent
Company may require in order to comply with any disclosure
requirements under such laws and regulations.
4.3. The holders of Preferred Shares confirm that, in the event that
any of them shall invest in any entity which directly competes
with the Company's products, then, absent the Board's prior
written approval, the applicable Preferred Director shall not
simultaneously serve as a director of such entity which competes
with the Company. It is agreed that in the event a certain holder
of Preferred Shares shall make an equity investment in a company
which is a competitor of the Company, the applicable Preferred
Director shall be entitled to provide such holder of Preferred
Shares with any material concerning the Company which is of a
confidential nature, provided however without derogating from the
forgoing in this Agreement, that such holder of Preferred Shares
shall not be entitled to convey the said confidential information
to the said competitor. For the prevention of doubt and for
purposes of this Section 4.3 only, financial statements shall not
be regarded as confidential. Furthermore, for purposes of this
Section 4.3, a Competitor shall be taken to mean any legal entity
in which the holder of Preferred Shares holds at least 5% of the
equity or a legal entity in which the holder of Preferred Shares
has a representative at the board of directors.
5. MISCELLANEOUS.
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5.1. Subject to EXHIBIT 5.1, this Agreement constitutes the full and
entire understanding and agreement between the parties with
regard to the subject matters hereof, and supersedes all prior
agreements between all or some of the parties hereof with regard
to such subject matters, and especially the applicable provisions
of that certain Share Purchase and Shareholders Agreement dated
March 24, 1998, entered into between the Company and the holders
of the Preferred A Shares. 5.2. Each party hereto agrees that the
provisions of this Agreement shall govern in the event of any
conflict between such provisions and any provision of the Amended
Articles, and the parties shall take such actions as may be
necessary to amend the Amended Articles accordingly.
5.3. Each of the parties shall take such actions, including the
execution and delivery of further instruments and voting its
shares in the Company, as may be necessary to give full effect to
the provisions hereof and to the intent of the parties hereto.
5.4. Except as otherwise provided herein, this Agreement shall bind
and inure to the benefit of and be enforceable by the Company and
its successors and assigns and the Shareholders and any
subsequent holders of Shares and the respective successors and
assigns of each of them, so long as they hold Shares.
5.5. A party may waive any of its rights hereunder provided, however,
that such waiver shall be in writing and shall apply only to such
party's rights hereunder.
5.6. No delay or omission to exercise any right, power, or remedy
accruing to any party upon any breach or default under this
Agreement, shall be deemed a waiver of any other breach or
default therefore or thereafter occurring. Any waiver, permit,
consent, or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions
of this Agreement, must be in writing and shall be effective only
to the extent specifically set forth in such writing.
5.7. All remedies, either under this Agreement or by law or otherwise
afforded to any of the parties, shall be cumulative and not
alternative.
5.8. This Agreement shall be governed exclusively by and construed
solely in accordance with, the laws of the State of Israel. The
competent court in Tel Aviv, Israel, shall have exclusive
jurisdiction over any dispute relating to this Agreement.
5.9. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable law,
then such provision shall be excluded from this Agreement and the
remainder of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance
with its terms; provided, however, that in such event this
Agreement shall be interpreted so as to give effect, to the
greatest extent consistent with and permitted by applicable law,
to the meaning and intention of the excluded provision as
determined by such court of competent jurisdiction.
5.10. Any notice under this Agreement shall be in writing and shall be
deemed to have been duly given and received for all purposes (a)
when received or seven (7) days after it is mailed by prepaid
registered mail; (b) upon the transmittal thereof by
11
facsimile; or (c) upon the manual delivery thereof, to the
respective addressee or fax numbers set forth above or to such
other address of which notice as aforesaid is actually received.
5.11. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and enforceable against
the parties actually executing such counterpart, and all of which
together shall constitute one and the same instrument.
5.12. Certain Investors may from time to time designate, by a written
notice submitted to the Company, a person or persons who shall be
authorized to act for such Investors in matters related to or
arising from this Agreement and the shareholding in the Company.
Any document/resolution signed/confirmed by such designee/s shall
be considered as a document/resolution signed/confirmed by the
designating Investors. Any Investor may cancel such
authorization, by written notice to the Company, but such
cancellation shall not have a retroactive power.
5.13. Any term of this Agreement may be amended only with the written
consent of the Company, the holders of a majority of the
Preferred A Shares and the holders of a majority of the Preferred
B Shares.
IN WITNESS WHEREOF the parties have signed this Agreement as of the
date first hereinabove set forth.
▇▇▇▇ ▇▇▇▇▇
------------------------------------
Saifun Semiconductors Ltd.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: CEO
-----------------------------
Date: 11/10/2000
-----------------------------
12
IN WITNESS WHEREOF the parties have signed this Agreement as of the date first
hereinabove set forth.
NAME OF SHAREHOLDER SIGNATURE
------------------- ---------
▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 2/10/2000
▇▇▇▇▇,▇▇▇▇ and Anat Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 2/10/2000
▇▇▇▇, ▇▇▇▇ and Adi Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 2/10/2000
Shikmat Eitan Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 2/10/2000
Notziz Atuf Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 2/10/2000
Deboranit Ha'horesh Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 2/10/2000
▇▇▇▇▇ ▇▇▇▇▇▇ (in trust for employees
& Ass) By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Date: 3/10/00
Tower Semiconductor Ltd. By: /s/ [illegible]
------------------------------------
Date: 4/10/00
13
STI Venture Fund Ltd. By: /s/ [illegible]
------------------------------------
Date:
----------------------------------
P.L.E 1997 Ltd. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Date: 3/10/00
Gemini ▇▇▇▇▇▇ ▇▇ Parallel Fund L.P. By: /s/ [illegible]
------------------------------------
Date: October 3, 2000
Gemini ▇▇▇▇▇▇ ▇▇ L.P. By: /s/ [illegible]
------------------------------------
Date: October 3, 2000
Advant PGGM Gemini L.P. By: /s/ [illegible]
------------------------------------
Date: October 3, 2000
Targa Capital Ltd. By: /s/ [illegible]
------------------------------------
Date: October 3, 2000
Partners Financial Managers Inc. By: /s/ [illegible]
------------------------------------
Date: Oct. 3rd 2000
Mallard Investments L.P. By: /s/ [illegible]
------------------------------------
Date: Oct. 3rd 2000
Samro B.V. By: /s/ [illegible]
------------------------------------
Date: 10/3/00
14
Gemini Partners Investors L.P. By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Date: October 3, 2000
K.T. Concord Ventures Fund (Cayman)
L.P. By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Date: 10/3/00
K.T. Concord Ventures Funds (Israel)
L.P. By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Date: 10/3/00
Deaneary Investments Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
Aftis Technology Investments Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
Lorentech Technologies Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
York Holdings Group Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
L.U.D.O. (Holdings) Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
15
Moritz Israeli Investments Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
▇▇▇▇▇▇ Israeli Investments Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
Virtgotech Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
Alumot Technology Investments Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
Kanfei Zahav Investment Company Ltd. By: /s/ ▇▇▇▇▇▇
------------------------------------
Date:
----------------------------------
T.B.S. Group Ltd. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Date: 3/10/05
Gad Shilo By: /s/ Gad Shiloh
------------------------------------
Date: 4/10/00
▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Date: 4/10/00
16
▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Date: 3 Oct. 2000
Bank Hapoalim By: /s/ [illegible]
------------------------------------
Date: October 5, 2000
Clal Electronics Industries Ltd. By: /s/ [illegible]
------------------------------------
Date:
----------------------------------
M-Systems Flash Disk Pioneers Ltd. By: /s/ [illegible]
------------------------------------
Date: Oct. 2, 2000
Gemini Israel III LP By: /s/ [illegible]
------------------------------------
Date: October 3, 2000
Infineon Technologies AG By: /s/ [illegible]
------------------------------------
Date: October 5, 2000
BAS Capital Funding Corporation By: /s/ [illegible]
------------------------------------
Date: October 2, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equity
Funding Inc. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Date: 10/2/00
Microdent Ltd. By: /s/ [illegible]
------------------------------------
Date: 3/10/05
17
▇▇▇▇▇ Investments Ltd. By: /s/ ▇▇▇▇▇▇
------------------------------------
Date: 3/10/00
Neon Holdings Ltd. By: /s/ Manacor S.A.
------------------------------------
Date: 4/10/00
Pre-Seed hi-tech Investment By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Date: 3/10/00
▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Date: 3/10/00
18