SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Tower Semiconductor Ltd.
(Exact Name of Registrant as Specified in Its Charter)
Israel
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification No.)
Ramat Gavriel Industrial Park
Migdal Haemek, Israel 23105
(Address of Principal Executive Offices)
Employee Share Option Plan 2004
(Full Title of Plan)
Tower Semiconductor USA
4300 Stevens Creek Blvd., Suite 175
San Jose, California 95129
Tel: 408-551-6500
Facsimile: 408-551-6509
(Name, address and telephone number of agent for service)
Copies of all Correspondence to:
DAVID H. SCHAPIRO, ESQ. SHELDON KRAUSE, ESQ.
Yigal Arnon & Co. Ehrenreich Eilenberg & Krause LLP
1 Azrieli Center 11 East 44th Street
Tel Aviv, 67021 Israel New York, NY 10017
Tel: 972-3-608-7856 Tel: 212-986-9700
CALCULATION OF REGISTRATION FEE
-------------------------------- --------------------- ------------- ---------------------- ----------------
Title of Securities to be Amount to be Proposed Proposed Maximum Amount of
Registered Registered Maximum Aggregate Offering Registration
-------------------------- ---------------- Offering Price(1) Fee
Price Per --------------- ------------------
Share(1)
-------------------------------- --------------------- ------------- ---------------------- ----------------
Ordinary Shares, par 2,071,578 (2)(3) $5.29 $10,958,648 $1388.46
value NIS 1.00 per share
("Ordinary Shares")
(relating to 2004 Plan)
-------------------------------- --------------------- ------------- ---------------------- ----------------
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(1) Calculated solely for the purpose of determining the registration fee
based upon the assumed offering prices of the shares determined pursuant
to Rule 457(h) under the Securities Act of 1933, based upon the weighted
average per share exercise price of the options assumed by the Registrant.
With respect to 323,500 shares purchasable upon exercise of outstanding
options granted to date under the Registrant's Employee Share Option Plan
2004, the Proposed Maximum Offering Price Per Share is $ 6.35, the
weighted average exercise price per share of such options. With respect to
the shares that may be issued pursuant to options which may be granted in
the future pursuant to such Plan, the Proposed Maximum Offering Price Per
Share is $5.09, which represents the average of the high and low sales
prices of the Ordinary Shares as quoted through the Nasdaq National Market
on July 20, 2004.
(2) Represents shares that may be issued pursuant to options which have been
or may be granted pursuant to the Registrant's Employee Share Option Plan
2004.
(3) This Registration Statement also registers an indeterminate number of
Ordinary Shares which may become issuable pursuant to the anti-dilution
provisions of the plans and options to which this Registration Statement
relates.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission, this
Registration Statement omits the information specified in Part I of Form S-8.
THE COMPANY HAS APPLIED TO THE SECURITIES AUTHORITY OF THE STATE OF ISRAEL FOR
AN EXEMPTION FROM THE OBLIGATION TO PUBLISH THIS PROSPECTUS IN THE MANNER
REQUIRED PURSUANT TO THE PREVAILING LAWS OF THE STATE OF ISRAEL. NOTHING IN SUCH
EXEMPTION OF THE SECURITIES AUTHORITY OF THE STATE OF ISRAEL, IF RECEIVED, SHALL
BE CONSTRUED AS AUTHENTICATING THE MATTERS CONTAINED IN THIS PROSPECTUS OR AS AN
APPROVAL OF THEIR RELIABILITY OR ADEQUACY OR AS AN EXPRESSION OF OPINION AS TO
THE QUALITY OF THE SECURITIES OFFERED HEREBY.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Registrant, Tower Semiconductor Ltd., a company
organized under the laws of the State of Israel (the "Company"), pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this registration statement:
o Annual Report on Form 20-F for the year ended December 31, 2003 (filed on
March 2, 2004).
o Report on Form 6-K dated March 2004 (filed on March 16, 2004).
o Report on Form 6-K dated April 2004 (filed on April 30, 2004).
o Report on Form 6-K dated June 2004 (filed on June 28, 2004).
o Report on Form 6-K dated July 2004 No.1 (filed on July 13, 2004).
o Report on Form 6-K dated July 2004 No.2 (filed on July 22, 2004).
o The description of the Company's Ordinary Shares which is contained in its
Registration Statement on Form 8-A declared effective on October 25, 1994.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares offered hereby have
been sold or which deregisters all then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Israeli Companies Law, or the Companies Law, 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;
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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 duty of loyalty 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;
3. indemnify an office holder of the company for:
(a) 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; and
(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 the
company 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.
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, provided such undertaking is limited to types of occurrences,
which, in the opinion of the company's board of directors, are, at the
time of the undertaking, foreseeable and to an amount the board of
directors has determined is reasonable in the circumstances.
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:
o a breach of his duty of loyalty, except to the extent described above;
o 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;
o an act or omission done with the intent to unlawfully realize personal
gain; or
o 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.
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Our Articles of Association have been amended to allow for
indemnification of, and procurement of insurance coverage for our officers
and directors to the maximum extent provided for by the Companies Law.
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
approved the indemnification of our office holders up to 25% of our then
current fully paid up equity (in addition to any amounts paid under an
insurance coverage) with respect to each case of indemnification
(including all matters connected therewith), by authorizing and empowering
us to enter into Exemption and Indemnification Agreements with our office
holders. We have never had the occasion to indemnify any of our office
holders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.2. Articles of Association of the Registrant (incorporated by
reference to Exhibit 1.1 to the Registrant's Annual Report on
Form 20-F for the year ended December 31, 2000) and Amendment to
the Articles of Association of the Registrant (approved by
shareholders on December 7, 2003) filed herewith
4.3. Employee Share Option Plan 2004
4.4. Form of Grant Letter to Israeli Employees
4.5. Form of Grant Letter to U.S. Employees
5.1. Opinion of Yigal Arnon & Co.
15.1. Awareness letter of Brightman Almagor & Co.
23.1. Consent of Yigal Arnon & Co. (included in the opinion filed as
Exhibit 5.1)
23.2. Consent of Brightman Almagor & Co.
24.1. Power of Attorney (included on signature page)
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) 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 by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the 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 therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and Exchange Act of 1934) that is incorporated by reference in
the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar 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 the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of 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 S-8, and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Migdal Haemek, Israel, on the 21st day of July, 2004.
Tower Semiconductor Ltd.
By: /s/Carmel Vernia
--------------------------------------
Carmel Vernia
Chairman of the Board of Directors and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
respective capacities and on the respective dates indicated. Each person whose
signature appears below hereby authorizes Carmel Vernia with full power of
substitution, to execute in the name and on behalf of such person any amendment
or any post-effective amendment to this Registration Statement and to file the
same, with exhibits thereto, and other documents in connection therewith, making
such changes in this Registration Statement as the Registrant deems appropriate,
and appoints Carmel Vernia, with full power of substitution, attorney-in-fact to
sign any amendment and any post-effective amendment to this Registration
Statement and to file the same, with exhibits thereto, and other documents in
connection therewith.
/s/ Carmel Vernia
-----------------
Carmel Vernia, Chairman and Chief Executive Officer
July 21, 2004
/s/ Amir Harel
--------------
Amir Harel, Vice President and Chief Financial Officer (principal financial and
accounting officer) July 21, 2004
/s/ Idan Ofer
-------------
Idan Ofer, Director
July 21, 2004
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--------------------------
Ehud Hillman, Director
July 21, 2004
/s/ Eli Harari
--------------
Eli Harari, Director
July 21, 2004
--------------------------
Miin Wu, Director
July 21, 2004
/s/ N.D. Reddy
--------------
N.D. Reddy, Director
July 21, 2004
--------------------------
Zehava Simon, Director
July 21, 2004
/s/ Hans Rohrer
---------------
Hans Rohrer, Director
July 21, 2004
AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Tower Semiconductor USA
/s/ Doron Simon
---------------
Doron Simon
President
July 21, 2004
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Exhibit Index
Exhibit No. Exhibit
4.2 Amendment to the Articles of Association of the Registrant
(approved by shareholders on December 7, 2003)
4.3 Employee Share Option Plan 2004
4.4 Form of Grant Letter to Israeli Employees
4.5 Form of Grant Letter to U.S. Employees
5.1 Opinion of Yigal Arnon & Co.
15.1 Awareness letter of Brightman Almagor & Co.
23.1 Consent of Yigal Arnon & Co. (included in the opinion filed as
Exhibit 5.1)
23.2 Consent of Brightman Almagor & Co.
24.1 Power of Attorney (included on signature page)