Pre-Effective Amendment to Registration Statement of a Foreign Private Issuer — Form F-2 Filing Table of Contents
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F-2/A — Pre-Effective Amendment to Registration Statement of a Foreign Private Issuer
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 4
TO
FORM F-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
TOWER SEMICONDUCTOR
LTD.
(Exact name of Registrant as specified in its charter)
Israel
Not Applicable
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
P.O. Box 619
Migdal Haemek, Israel,
23105
972-4-650-6611
(Address
and telephone number of Registrant’s principal executive offices)
Tower Semiconductor USA
4300 Stevens Creek
Blvd., Suite 175 San Jose, California95129
Tel: 408-551-6500
Facsimile: 408-551-6509
(Name, address and telephone number of agent for service)
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date of this
registration statement.
If the only securities being
registered on this form are being offered pursuant to dividend or interest reinvestment
plans, please check the following box: o
If any of the securities being
registered on this form are to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, please check the following box: x
If this form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. o
If this form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this form is a post-effective
amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If delivery of the prospectus is
expected to be made pursuant to Rule 434, please check the following box: o
The registrant hereby amends this
registration statement on the date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance with Section
8(a) of the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
The
Israeli Companies Law-1999, or the Companies Law, which entered into effect on February 1,2000 and was amended most recently in March 2005, provides that a company may include in
its articles of association provisions allowing it to:
1.
partially
or fully, exempt in advance, an office holder of the company from his
responsibility for damages caused by the breach of his duty of care to the
company, except for damages caused to the Company due to any breach of such
Office Holder’s duty of care towards the company in a “distribution” (as
defined in the Companies Law).
2.
enter
into a contract to insure the liability of an office holder of the company by
reason of acts or omissions committed in his capacity as an office holder of
the company with respect to the following:
(a)
the
breach of his duty of care to the company or any other person;
(b)
the
breach of his fiduciary duty to the company to the extent he acted in good
faith and had a reasonable basis to believe that the act or omission
would not prejudice the interests of the company; and
(c)
monetary
liabilities or obligations which may be imposed upon him in favor of
other persons.
monetary
liabilities or obligations imposed upon him in favor of other persons
pursuant to a court judgment, including a compromise judgment or an
arbitrator’s decision approved by a court, by reason of acts or
omissions of such person in his capacity as an office holder of the
company;
(b)
reasonable
litigation expenses, including attorney’s fees, actually
incurred by such office holder or imposed upon him by a court, in an
action, suit or proceeding brought against him by or on behalf of us
or by other persons, or in connection with a criminal action from
which he was acquitted, or in connection with a criminal action which
does not require criminal intent in which he was convicted, in each
case by reason of acts or omissions of such person in his capacity as
an office holder; and
(c)
reasonable
litigation expenses, including attorneys’ fees, actually
incurred by such office holder due to an investigation or a
proceeding instituted against such office holder by an authority
competent to administrate such an investigation or proceeding, and
that was finalized without the filing of an indictment against such
office holder and without any financial obligation imposed on such
office holder in lieu of criminal proceedings, or that was finalized
without the filing of an indictment against such office holder but
with financial obligation imposed on such office holder in lieu of
criminal proceedings of a crime which does not require proof of
criminal intent.
The
Companies Law provides that a company’s articles of association may provide for
indemnification of an office holder post-factum and may also provide that a company may
undertake to indemnify an office holder in advance, as described in:
i.
sub-section
3(a) above, provided such undertaking is limited to and actually sets
forth the types of occurrences, which, in the opinion of the company’s
board of directors based on the current activity of the Company, are,
at the time such undertaking is provided, foreseeable, and to an
amount and degree that the board of directors has determined is
reasonable for such indemnification under the circumstances; and
ii.
sub-sections
3(b) and 3(c) above.
The
Companies Law provides that a company may not indemnify or exempt the liabilities of an
office holder or enter into an insurance contract which would provide coverage for the
liability of an office holder with respect to the following:
—
a
breach of his fiduciary duty, except to the extent described above;
—
a
breach of his duty of care, if such breach was done intentionally,
recklessly or with disregard of the circumstances of the breach or
its consequences;
—
an
act or omission done with the intent to unlawfully realize personal
gain; or
—
a
fine or monetary settlement imposed upon him.
Under
the Companies Law, the term “office holder” includes a director, managing
director, general manager, chief executive officer, executive vice president, vice
president, other managers directly subordinate to the managing director and any other
person fulfilling or assuming any such position or responsibility without regard to such
person’s title.
The
grant of an exemption, an undertaking to indemnify or indemnification of, and procurement
of insurance coverage for, an office holder of a company requires, pursuant to the
Companies Law, the approval of the company’s audit committee and board of directors,
and, in certain circumstances, including if the office holder is a director, the approval
of the company’s shareholders.
We
have entered into an insurance contract for directors and officers and have procured
indemnification insurance for our office holders to the extent permitted by our Articles
of Association. We have never had the occasion to indemnify any of our office holders.
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
hereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) To
file a post-effective amendment to the Registration Statement to include any
financial statements required by item 8.A. of Form 20-F at the start of any
delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the Registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to
this paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
Registration Statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by item 8.A. of
Form 20-F if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Form F-3.
(c) undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference in the prospectus to
provide such interim financial information.
(d) as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in such Act and will be governed by the
final adjudication of such issue.
(e) undersigned
registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act (“Act”) in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)2 of the
Act.
(f) undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to which the prospectus is sent or given, the
registrant’s latest filing on Form 20-F and any filing on Form 6-K
incorporated by reference into the prospectus.
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form F-2
and has duly caused this Amendment No. 4 to the Registration Statement on Form F-2 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of Migdal
Haemek, Israel, on November 23, 2005.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
