Registration Rights’ Agreement
Exhibit
4.23
Registration Rights’ Agreement
This Registration Rights’ Agreement (this “Agreement”) is entered into as of the 5
day of December, 2006, by and among LUMENIS LTD., a company incorporated under the laws of the
State of Israel Yokneam Industrial Park, P.O.B. 240, Yokneam 00000, Xxxxxx (the “Company”), the
entities and individuals whose name and address is listed on Schedule 1 attached hereto
(each an “Investor” and collectively, the “Investors”) and Bank Hapoalim B.M. (the “Bank”, and
collectively with the Investors, the “Holders”).
Whereas, the Holders are holders of the Ordinary Shares, par value NIS 0.1 each, of
the Company (“Ordinary Shares”) and/or of options and/or warrants convertible or exercisable to
Ordinary Shares;
Whereas, the parties wish to set provisions governing the registration of the
Company’s Ordinary Shares held by the Holders or issued upon conversion or exercise of options or
warrants to purchase Ordinary Shares, in accordance with the terms set forth herein.
Now, Therefore, in consideration of the mutual agreements, covenants and other
promises set forth herein, the mutual benefits to be gained by the performance thereof, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged
and accepted, the parties hereby agree as follows:
1.
Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement (as defined below) will have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following capitalized terms shall
have the following respective meanings:
1.1. “Bank Option Agreement” shall mean the Warrant to Purchase Ordinary Shares of the Company
granted by the Company to the Bank, dated as of the Closing of the Purchase Agreement, as may be
amended from time to time.
1.2. “Board” means the Board of Directors of the Company.
1.3. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
1.4. “Form F-1” means such form (or Form S-1, as the case may be) under the Securities Act as
in effect on the date hereof or any successor or similar registration form under the Securities Act
subsequently adopted by the SEC.
1.5. “Form F-2” means such form (or Form S-2, as the case may be) under the Securities Act as
in effect on the date hereof or any successor or similar registration form under the Securities Act
subsequently adopted by the SEC.
1.6. “Form F-3” means such form (or Form S-3, as the case may be) under the Securities Act as
in effect on the date hereof or any successor or similar registration form under the Securities Act
subsequently adopted by the SEC, which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
1.7. “Holder(s)” means as set forth in the preamble to this Agreement and any of their
respective successors, transferees and assigns (in accordance with Section 10 of this Agreement),
so long as they own of record Registrable Securities, provided, however, that the
definition of Holders
- 2 -
shall not include persons who have acquired Ordinary Shares sold pursuant to the Purchase
Agreement in the open market or pursuant to a registration statement.
1.8. “Original Registrable Securities” means the Registrable Securities, excluding any
Registrable Securities that cease to be Registrable Securities due to their subsequent resale
pursuant to an effective registration under the Securities Act or in the open market pursuant to
Rule 144..
1.9. “Prospectus” means the prospectus included in a Shelf Registration Statement, as amended
or supplemented by any prospectus supplement and by all other amendments thereto and all material
incorporated by reference in such prospectus.
1.10. “Purchase Agreement” means that certain Purchase Agreement, dated September 30, 2006 by
and among the Company and the Investors signatory thereto.
1.11. “Register,” “registered,” and “registration” refer to a registration effected by
preparing and filing a registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement or document.
1.12. “Registrable Securities” means (i) in case of the Investors, any Ordinary Shares
purchased by or issued to the Investors pursuant to the Purchase Agreement (including Ordinary
Shares issued or issuable upon exercise or conversion of securities, including warrants,
convertible into or exercisable for Ordinary Shares as well as any Ordinary Shares issued or
issuable as indemnity and/or pursuant to adjustment provisions under the Purchase Agreement), (ii)
in case of the Bank, Ordinary Shares issued or issuable upon exercise of the option granted under
the Bank Option Agreement, and (iii) in each of clauses (i) or (ii), together with any and all
securities issued or issuable with respect to the securities described in clauses (i) and (ii)
above, respectively, upon any stock split, stock dividend or the like, or into which such Ordinary
Shares have been or may be converted to or exchanged into in connection with any merger,
consolidation, reclassification, recapitalization or similar event; in each case, until their
effective registration under the Securities Act and their resale in accordance with the
registration statement in which such Registrable Securities are included or until their sale in the
open market pursuant to Rule 144.
1.13. “SEC” means the United States Securities and Exchange Commission.
1.14. “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
2.
Demand Registration.
2.1. Request for Registration. Subject to the conditions of this Section 2, at any
time after the earlier of April 30, 2007 and the registration of the Company’s Ordinary Shares
under Section 12(g) of the Exchange Act, if the Company shall receive a written request from
Holders owning a majority of the then outstanding Registrable Securities (the “Initiating Holders”)
that the Company file a registration statement on Form F-1 or such other long form or short form
registration statement, including Forms F-2 and F-3, then the Company shall, within thirty (30)
days of the delivery of such written request by the Initiating Holders, give written notice of such
request to all Holders, and subject to the limitations of this Section 2, use its best efforts to
effect, as promptly as reasonably possible, the registration under the Securities Act of the
Registrable Securities that the Holders as are specified in the Initiating Holders’ request,
together with the Registrable Securities of any Holder(s) joining in such request as are specified
in a written request received by the Company within the above 30-day period.
- 3 -
2.2. Underwritten Offering.
2.2.1. If the Initiating Holders intend to distribute the Registrable Securities covered by
their request by means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2 or any request pursuant to Section 4 and the Company
shall include such information in the written notice referred to in Section 2.1 or Section 4.1,
as applicable. In such event, the right of any Holder to include its Registrable Securities in
such registration shall be conditioned upon such Holder’s participation in such underwriting and
the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such underwriting shall enter
into an underwriting agreement in customary form with underwriter(s) designated for such
underwriting as the lead or managing underwriter(s) by the Initiating Holders.
2.2.2. Notwithstanding any other provision of this Section 2 or Section 4, if the
underwriter advises the Company that marketing factors require a limitation of the number of
Registrable Securities to be underwritten then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of
shares that may be included in the underwriting shall be allocated to the Holders of such
Registrable Securities so requesting to be registered on a pro rata basis, based on the number of
Registrable Securities then held by all such Holders; provided, however, that the number of
Registrable Securities to be included in such underwriting and registration shall not be reduced
unless all other securities of the Company are first entirely excluded from the underwriting and
registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
2.3. Exclusions. The Company shall not be required to effect a registration pursuant
to this Section 2 (without limiting any other provisions of this Section 2 to that effect):
2.3.1. After the Company has effected two (2) registrations pursuant to this Section 2, and
such registrations have been declared or ordered effective;
2.3.2. During the period starting with the date of filing of, and ending on the date one
hundred eighty (180) days following the effective date of a registration statement pertaining to
the Company’s securities (but other than registration relating solely to employee benefit plans on
Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely
to a SEC Rule 145 transaction on Form F-4 or similar forms that may be promulgated in the future);
provided that the Company makes reasonable good faith efforts to cause such registration statement
to become effective;
2.3.3. If within ten (10) days of receipt of a written request from Initiating Holders
pursuant to Section 2.1, the Company gives notice to the Holders of the Company’s good faith
intention to file a registration statement for a public offering for a sale of the Company’s shares
for its own account within forty five (45) days, provided that the Company actually files such
registration statement within such forty five (45) days and makes reasonable good faith efforts to
cause such registration statement to become effective;
2.3.4. For a Holder if a registration statement filed pursuant to either of Sections 3 or 4
herein is then effective and is available to such Holder for the resale of Registrable Securities
and effective for the disposition of Registrable Securities proposed to be effected by them
pursuant to this Section 2; provided, however, that such exclusion shall not apply to a
Holder if such Holder is not permitted or is otherwise not able to utilize the registration
statement filed pursuant to Sections 3 or 4 herein for the intended manner of distribution; or
2.3.5. If the Company shall furnish to Holders requesting a registration statement pursuant to
this Section 2, an officer’s a certificate signed by order of the Board stating that in the good
faith judgment of the Board, it would be seriously detrimental to the Company and its
- 4 -
shareholders for such registration statement to be effected at such time, in which event the
Company shall have the right to defer such filing for a period of not more than sixty (60) days
after receipt of the request of the Initiating Holders; provided that such right to delay a request
shall be exercised by the Company not more than once in any twelve (12) month period.
3.
Piggyback Registrations.
3.1. Notice of Registration. The Company shall notify all Holders of Registrable
Securities in writing at least twenty (20) days prior to the filing of any registration statement
under the Securities Act for purposes of an offering of securities of the Company (including, but
not limited to, registration statements relating to the initial offering or secondary offerings of
securities of the Company, but other than registration relating solely to employee benefit plans on
Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely
to a SEC Rule 145 transaction on Form F-4 or similar forms that may be promulgated in the future)
and will afford each such Holder requesting to be included in such registration, in accordance with
this Section 3.1, an opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it shall, within
fourteen (14) days after delivery of the above-described notice by the Company, so notify the
Company in writing specifying the number of Registrable Shares requested to be included. If a
Holder decides not to include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein. The number of occurrences of the registration pursuant to
this Section 3 shall be unlimited.
3.2. Underwritten Offering.
3.2.1. If the registration statement under which the Company gives notice under this Section
3 is for an underwritten offering, the Company shall so advise the Holders of Registrable
Securities as part of its notice made pursuant to Section 3.1. In such event, the right of any
such Holder to be included in a registration pursuant to this Section 3 shall be conditioned upon
such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such underwriting by the
Company. If any Holder disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the underwriter, delivered no later than
five (5) business days after the date on which the material terms of such underwriting are agreed
upon and made known to the Holder in writing.
3.2.2. Notwithstanding any other provision of this Agreement, if the underwriter determines in
good faith that marketing factors require a limitation of the number of shares (including
Registrable Securities) to be underwritten, the number of shares that may be included in the
underwriting shall be allocated, first, to the Company; second, to the Holders pro-rata, based on
the total number of Registrable Securities then held by the Holders requesting to be included in
such registration; and third, to any shareholder of the Company (other than a Holder) pro-rata,
based on the total number of shares then held by such shareholder requesting to be included in such
registration; provided however, that the number of Registrable Securities to be included in such
underwriting and registration shall not be below twenty five percent (25%) of the total amount of
shares included in such registration. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
3.3. Right to Terminate Registration. The Company shall have the right to terminate
or withdraw any registration initiated by it under this Section 3 prior to the effectiveness of
such
- 5 -
registration, whether or not any Holder has elected to include securities in such
registration. The registration expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 6 hereof.
4.
Shelf Registration Statement.
4.1. Subject to the conditions of this Section 4, at any time after the earlier of April 30,
2007 and the registration of the Company’s Ordinary Shares under Section 12(g) of the Exchange Act,
if the Company shall receive a written request(s) from any Holder(s), holding, in the aggregate,
not less than 10% of the Original Registrable Securities (subject the last sentence of this Section
4.1), that the Company file a registration statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to
time by the Holders thereof of all of the relevant Registrable Securities (the “Shelf Registration
Statement”), then the Company shall, within thirty (30) days of the delivery thereof, give written
notice of such request to all Holders, which may elect to join in such request, as specified in a
written request given within fifteen (15) days after delivery of the Company’s written notice. The
Shelf Registration Statement shall be on Form F-3 or another appropriate registration statement
permitting registration of such Registrable Securities for resale by the Holders in accordance with
the methods of distribution elected by them and set forth in such Shelf Registration Statement.
The Company shall use its reasonable efforts to cause the Shelf Registration Statement to be
declared effective under the Securities Act within 3 months after the Holders’ initial request in
accordance with this Section and to keep such Shelf Registration Statement continuously effective
under the Securities Act until the earlier of (i) two years following the date such registration
was declared effective and (ii) the disposition of all Registrable Securities included in such
Shelf Registration Statement. As long as the Bank holds at least 75% of the Original Registrable
Securities held by the Bank, the Bank shall have the right, alone, to require a Shelf Registration
Statement under this Section 4.1, at the earlier of (a) three (3) years after the date hereof, and
(b) 30 days after one registration statement is effected under Sections 2 or 4 hereunder, or is
effected under Section 3, provided Registrable Securities are actually included in such
registration, and, in each case, is declared effective.
4.2. Exclusions. The Company shall not be required to effect a registration pursuant
to this Section 4 (without limiting any other provisions of this Section 4 to that effect):
4.2.1. After the Company has effected six (6) registration statements pursuant to this Section
4, and such registration statements have been declared or ordered effective;
4.2.2. If Form F-3 is not available for such offering by the Holders, or
4.2.3. If within ten (10) days of receipt of a written request from any Holder or Holders
pursuant to this Section 4, the Company gives notice to such Holder or Holders of the Company’s
good faith intention to file a registration statement for a public offering within thirty (30)
days, provided that the Company actually files such registration statement within such thirty (30)
days and makes reasonable good faith efforts to cause such registration statement to become
effective;
4.2.4. If the Company shall furnish to the Holders requesting a registration statement
pursuant to this Section 2, an officer’s certificate signed by order of the Board stating that in
the good faith judgment of the Board, it would be seriously detrimental to the Company and its
shareholders for such Shelf Registration Statement to be effected at such time, in which event the
Company shall have the right to defer the filing of the Shelf Registration Statement for a period
of not more than sixty (60) days after receipt of the request of the Holder or Holders under this
Section 4; provided, that such right to delay a request shall be exercised by the Company not more
than once in any twelve (12) month period, or
- 6 -
4.2.5. In any particular jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in effecting such registration,
qualification or compliance.
4.3. Suspension.
4.3.1. In addition to any suspension rights under subsection 4.3.2 below, upon the happening
of any pending corporate development, public filing with the SEC or similar event, that, in the
judgment of the Company’s Board, renders it advisable to suspend the use of the Prospectus or upon
the request by an underwriter in connection with an underwritten public offering of the Company’s
securities, the Company may, on not more than two (2) occasions within a twelve-month period, for
not more than thirty (30) days on each such occasion, suspend use of the Prospectus, on written
notice to each Holder (which notice will not disclose the content of any material non-public
information and will indicate the date of the beginning and end of the intended period of
suspension, if known), in which case each Holder shall discontinue disposition of Registrable
Securities covered by the registration statement or Prospectus until copies of a supplemented or
amended Prospectus are distributed to the Holders or until the Holders are advised in writing by
the Company that sales of Registrable Securities under the applicable Prospectus may be resumed and
have received copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in any such Prospectus. The suspension and notice thereof described in
this Section 4.3 shall be held by each Holder in strictest confidence and shall not be disclosed
by such Holder.
4.3.2. In the event of: (i) any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a registration statement or related prospectus or for
additional information, (ii) the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a registration statement or the
initiation of any proceedings for that purpose, (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, or (iv) any event or circumstance which necessitates the making of
any changes in the registration statement or Prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the registration statement, it will
not contain any untrue statement of a material fact or any omission to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, and that
in the case of the Prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
then the Company shall deliver a certificate in writing to the Holders (the “Suspension Notice”)
to the effect of the foregoing (which notice will not disclose the content of any material
non-public information and will indicate the date of the beginning and end of the intended period
of suspension, if known), and, upon receipt of such Suspension Notice, the Holders will
discontinue disposition of Registrable Securities covered by the registration statement or
Prospectus (a “Suspension”) until the Holders’ receipt of copies of a supplemented or amended
Prospectus prepared and filed by the Company, or until the Holders are advised in writing by the
Company that the current Prospectus may be used, and have received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference in any such
prospectus. In the event of any Suspension, the Company will use its commercially reasonable
efforts to cause the use of the Prospectus so suspended to be resumed as soon as possible after
delivery of a Suspension Notice to the Holders. The Suspension and Suspension Notice described in
this Section 4.3.2 shall be held by each Holder in strictest confidence and shall not be
disclosed by such Holder. If a Holder shall be prohibited from selling Registrable Securities
under the Shelf Registration Statement as a result of a Suspension of more than thirty (30)
consecutive days or sixty (60) days in any 12-month period, then for each day on which a
Suspension is in effect that exceeds the maximum allowed period for a Suspension or Suspensions,
but not including any day on which a Suspension is lifted, the Company shall pay such Holder, as
liquidated damages and not as a penalty, an amount equal to $0.00003 per share included in such
Shelf Registration Statement which has not been sold by such Holder (subject
- 7 -
to adjustment in the event of a stock split, stock dividend, combination and the like) for
each such day, and such payment shall be made no later than the first business day of the calendar
month next succeeding the month in which such day occurs. For purposes of this Section 4.3.2, a
Suspension shall be deemed lifted on the date that notice that the Suspension has been lifted is
delivered to the Holder. Any payments made pursuant to this Section 4.4 shall not preclude the
Holder from pursuing any equitable remedy for such events. Notwithstanding the foregoing
provisions, in no event shall the Company be obligated to pay any liquidated damages pursuant to
this Section 4.3.2 (i) to more than one Holder in respect of the same Registrable Securities for
the same period of time, or (ii) in an aggregate amount greater than 10% of the aggregate amount
invested by the Investors pursuant to the Purchase Agreement. The payment of any liquidated
damages shall be made to the Holder in cash.
4.4. Registrations effected pursuant to this Section 4 shall not be counted as demands for
registration or registrations effected pursuant to Section 2.
5.
Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, without limitation of any other
provision herein, as expeditiously as reasonably possible:
5.1. Prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable best efforts to cause such registration statement to
become effective, and keep such registration statement effective until the earlier of (i) two years
following the date such registration was declared effective and (ii) the disposition of all
Registrable Securities included in such registration statement. In case of a registration
statement pursuant to Section 4 , such registration statement shall include a plan of
distribution in customary form.
5.2. Prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.
5.3. Furnish to the Holders such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the public sale or other disposition of the
Registrable Securities covered by such registration statement.
5.4. Use its reasonable efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such jurisdictions as shall
be reasonably requested by the Holders; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
5.5. Use commercially reasonable efforts to list the Registrable Securities covered by such
registration statement with any securities exchange on which the Ordinary Shares of the Company is
then listed or on the automated quotation system of the National Association of Securities Dealers,
Inc., or if the Company does not have a class of equity securities listed on a national securities
exchange or the automated quotation system of the Pink Sheets LLC, apply for qualification and use
commercially reasonable efforts to qualify the Registrable Securities being registered for
inclusion on such exchange or automated quotation system as is determined by the Company.
5.6. Provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement.
5.7. In the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of
such offering.
- 8 -
5.8. Immediately notify each seller of Registrable Securities covered by such registration
statement and each underwriter under such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the light of the
circumstances then existing. The Company shall prepare and furnish to each such seller a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not
include any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the light of the
circumstances then existing.
5.9. Use its reasonable efforts to furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold through underwriters, (i)
an opinion, dated as of such date, of the counsel representing the Company addressed to the
underwriters for the purposes of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, (including that (A) such registration statement
has become effective under the Securities Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, and (B) the registration
statement, the related prospectus and each amendment or supplement thereof comply as to form in all
material respects with the requirements of the Securities Act (except that such counsel need not
express any opinion as to financial statements contained therein)), and (ii) a letter, dated as of
such date, from the independent certified public accountants of the Company, addressed to the
underwriters and to such seller, in form and substance as is customarily given by independent
certified public accountants in an underwritten public offering (including, that they are
independent public accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the period ending no
more than five business days prior to the date of such letter) with respect to such registration as
such underwriters or sellers reasonably may request);
5.10. Use commercially reasonable efforts to cooperate with the sellers in the disposition of
the Registrable Securities covered by such registration statement, including without limitation in
the case of an underwritten offering using commercially reasonable efforts to cause key executives
of the Company and its subsidiaries to participate under the direction of the managing underwriter
in a “road show” scheduled by such managing underwriter in such locations and of such duration as
in the judgment of such managing underwriter are appropriate for such underwritten offering.
5.11. In connection with the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, and before filing any such registration statement
or any other document in connection therewith, give the participating Holders of Registrable
Securities and their underwriters, if any, and their respective counsel and accountants, the
opportunity to (i) review any such registration statement, each prospectus included therein or
filed with the SEC, each amendment thereof or supplement thereto and any related underwriting
agreement, or other document to be filed, and (ii) provide comments to such documents if necessary
to cause the description of such Holders of Registrable Securities to be accurate.
5.12. Otherwise use commercially reasonable efforts to comply with the Securities Act, the
Exchange Act and any other applicable rules and regulations of the SEC, and make available to the
Holders, as soon as reasonably practicable, an earnings statement covering the period of at least
12 months after the effective date of such registration statement, which earnings statement shall
satisfy Section 11(a) of the Securities Act and any applicable regulations thereunder, including
Rule 158.
- 9 -
6.
Expenses of Registration. All registration expenses incurred in
connection with any registration, qualification or compliance pursuant to Sections 2 through 5
herein shall be borne by the Company. Registration expenses shall include all expenses incurred by
the Company or incident to the Company’s performance of or compliance with this Agreement with
respect to any registration in complying with Sections 2, 3 and 4 hereof, including, without
limitation, expenses incurred in connection with the preparation of a prospectus, printing,
registration and filing fees, printing fees and expenses, fees and disbursements of counsel,
accountants and other advisors for the Company, reasonable fees and disbursements of a single
special counsel for the Holders (selected by Holders of the majority of the Registrable Securities
requesting such registration), taxes, fees and expenses (including reasonable counsel fees)
incurred in connection with complying with state securities or “blue sky” laws, fees of the
National Association for Securities Dealers, Inc., fees of transfer agents or registrars and the
expense of any special audits incident to or required by any such registration. Notwithstanding the
foregoing, however, all underwriters’ discounts and commissions in respect of the sale of
Registrable Securities shall be paid by the Holders, pro rata in accordance with the number
of Registrable Securities sold in the offering.
7. Agreement to Furnish Information; Preconditions to Participation in
Underwritten Registrations.
7.1. Each Holder of Registrable Securities shall furnish to the Company such relevant
information regarding such Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
7.2. No Holder of Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (i) agrees to enter into a written underwriting agreement with the
managing underwriter selected in the manner herein provided in such form and containing such
provisions as are customary in the securities business for such an arrangement between such
underwriter and companies of the Company’s size and investment stature, and (ii) provides any
relevant information and completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents required under the terms of such
underwriting arrangements, provided, however, that (i) the representations and
warranties by, and the other agreements on the part of, the Company to and for the benefit of the
underwriters shall also be made to and for the benefit of such Holders of Registrable Securities
and (ii) no such Holder shall be required to make, and the Company shall use reasonable efforts to
ensure that no underwriter requires any Holder to make, any representations and warranties to, or
agreements with, any underwriter in a registration effected pursuant to Sections 2, 3 or 4 other
than customary representations, warranties and agreements relating to such Holder’s title to
Registrable Securities and authority to enter into the underwriting agreement.
8. Indemnification. In the event any Registrable Securities are included
in a registration statement under Sections 2, 3 or 4:
8.1. To the extent permitted by law, the Company will indemnify and hold harmless each Holder,
its affiliates, the partners, officers, directors and shareholders of each Holder, legal counsel
and accountants for each Holder, any underwriter (as defined in the Securities Act) in an
underwritten offering for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a “Violation”) by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
- 10 -
statements therein not misleading, or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities law in connection
with the offering covered by such registration statement; and the Company will pay as incurred to
each such Holder, its affiliates, partners, officers, or directors, any underwriter (as defined in
the Securities Act) in an underwritten offering for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act,
for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however, that the indemnity
agreement contained in this Section 8.1 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any
such case for any such loss, claim, damage, liability or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by such Holder,
partner, officer, director, underwriter or controlling person of such Holder.
8.2. To the extent permitted by law, each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration qualifications or compliance is
being effected, indemnify and hold harmless the Company, each of its directors, its officers,
directors and each person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such registration statement or
any of such other Holder’s its affiliates, partners, directors officers or any person who controls
such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other such Holder or controlling person of
such other Holder may become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written information furnished by
such Holder under an instrument duly executed by such Holder and stated to be specifically for use
in connection with such registration; and each such Holder will pay as incurred any legal or other
expenses reasonably incurred by the Company or any such director, officer, controlling person,
underwriter or other Holder, or partner, officer, director or controlling person of such other
Holder in connection with investigating or defending any such loss, claim, damage, liability or
action if it is judicially determined that there was such a Violation; provided, however, that the
indemnity agreement contained in this Section 8.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld; provided further, that in
no event shall any indemnity under this Section 8.2 exceed the net proceeds from the offering
received by such Holder.
8.3. Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this Section 8,
deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of the commencement of
any such action, shall, to the extent materially prejudicial to its ability to defend such action,
relieve such indemnifying party of its liability to the indemnified party under this Section 8,
but the omission so to deliver written notice to
- 11 -
the indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 8.
8.4. If the indemnification provided for in this Section 8 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages
or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the Violation(s) that resulted in
such loss, claim, damage or liability, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be determined by a
court of law by reference to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission; provided, that in
no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering
received by such Holder; and provided further that no party will be liable for contribution with
respect to the settlement of any claim or action effected without its written consent.
8.5. The obligations of the Company and Holders under this Section 8 shall survive completion
of any offering of Registrable Securities in a registration statement and the termination of this
Agreement. No indemnifying party, in the defense of any such claim or litigation, shall, except
with the consent of each indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect to such claim or
litigation.
8.6. The indemnification provisions of this Section 8 shall not be in limitation of any other
indemnification provisions included in any other agreement. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in any underwriting
agreement entered into in connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in such underwriting agreement shall prevail.
9. Lock-Up Agreement.
9.1. Each Holder and the Company hereby agrees that, if so requested by the representative of
the underwriters (the “Managing Underwriter”), such Holder and Company shall not, without the prior
consent of the Managing Underwriter (i) lend, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Registrable
Securities or any securities of the Company (whether such shares or any such securities are then
owned by the Holder, or are thereafter acquired), or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of ownership of
the Registrable Securities, whether any such transaction described in clause (i) or (ii) above is
to be settled by delivery of Registrable Securities or such other securities, in cash or otherwise,
during the period specified by the Managing Underwriter (the “Market Standoff Period”), with such
period not to exceed (a) in the case of the Company’s first underwritten offering of its Ordinary
Shares following the registration of the Company’s Ordinary Shares under Section 12(g) of the
Exchange Act — 180 days following the effective date of such registration statement; or (b) in the
case of a registration statement thereafter — 90 days following the effective date of such
registration statement. Any discretionary waiver or termination of the restrictions contained in
any such agreement by the Company or the underwriter shall first apply to the Holders of
Registrable Securities, which shall have preference over all other holders of the Company’s
securities to register and sell the shares to be registered within such waiver or termination of
restrictions.
- 12 -
9.2. The Company may impose stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of such Market Standoff Period.
9.3. The foregoing provisions of this Section 9 shall not apply to the sale of any shares to
an underwriter pursuant to an underwriting agreement, and shall only be applicable to the Holder if
all officers, directors and shareholders of the Company holding a percentage of the Company’s share
capital as determined by the Managing Underwriter, enter into similar agreements.
9.4. The underwriters in connection with a registration statement so filed are intended to be
third party beneficiaries of this Section 9 and shall have the right, power and authority to
enforce the provisions hereof as though they were a party hereto.
10. Assignment of Registration Rights; Transfer of Registrable
Securities.
10.1. The rights to cause the Company to register Registrable Securities pursuant to this
Agreement may be assigned by a Holder to any transferee or assignee of all or part of the
Registrable Securities held by such Holder, that acquires Registrable Securities (as adjusted for
stock splits, combinations and other recapitalization events); provided, however, (i) the
transferor shall furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights are being assigned,
and (ii) such transferee shall agree to be subject to all provisions and restrictions set forth in
this Agreement.
11. Rule 144 Reporting. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, the Company (at any time after it has
become subject to such reporting requirements) agrees to:
11.1. Make and keep available adequate current public information with respect to the
Company, within the meaning Rule 144(c) under the Securities Act or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of the first
registration statement filed by the Company for an offering of its securities to the general
public.
11.2. Furnish to such Holder forthwith upon request: (i) a written statement by the Company
as to its compliance with the informational requirements of Rule 144(c) under the Securities Act
(or similar rule then in effect), and of the Exchange Act (at any time after it has become subject
to such reporting requirements); (ii) a copy of the most recent annual or quarterly report of the
Company; and (iii) such other reports and documents as a Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing it to sell any such securities without
registration; and
11.3. Comply with all other necessary filings and other requirements so as to enable the
holders of Registrable Securities to sell Registrable Securities under Rule 144 under the
Securities Act (or similar rule then in effect).
12. Foreign Offerings. The provisions of this Agreement will apply to the
listing and registration of Registrable Securities in foreign jurisdiction or on foreign exchange,
subject to the local laws and regulations of such foreign jurisdiction and foreign exchange.
13. Subsequent Registration Rights. Without the consent of the Holders
of at least sixty percent (60%) of the Registrable Securities then held by Holders, the Company may
not grant, or enter into any other agreement with any holder or prospective holder of any
securities of the Company that would grant such holder, registration rights, except for rights
inferior to, or on a pari passu basis with, those granted hereunder; provided, however that the
Company shall not allow such holder of securities of the Company: (i) to include such securities in
any registration filed under Section 3 hereof, unless under the terms of such agreement, such
holder may include such securities in any such registration
- 13 -
only to the extent that the inclusion of such securities will not reduce the amount of the
Registrable Securities of the Holders that are included; or (ii) to demand registration of their
securities. Notwithstanding the foregoing, commencing 12 months after the date hereof, the Company
may file a registration statement for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 of the Securities Act registering the resale from time to time by the holders
thereof of securities of the Company, provided that such registration statement shall be treated as
giving rise to the rights under Section 3 hereof and shall include all Registrable Securities
requested to be included therein by the Holders thereof. Notwithstanding the foregoing, (a) after
the earlier of (x) five years after the date hereof and (y) such time as the Holders own, in the
aggregate, less than forty five percent (45%) of the Original Registrable Securities, the Company
may grant demand registration rights without the consent of the holders as set forth above,
provided that such demand rights may not be exercised prior to such time that the Company effected
at least one registration under Section 2, and (b) at such time as the Holders own, in the
aggregate, less than twenty five percent (25%) of the Original Registrable Securities, the Company
may grant demand registration rights without the consent of the holders as set forth above.
14. Miscellaneous.
14.1. Entire Agreement. This Agreement constitute the full and entire understanding
and agreement between the parties with regard to the subject matters hereof and supersede all prior
negotiations, agreements and understandings of the parties of any nature, whether oral or written,
relating thereto, including the Option Agreement between Lumenis Ltd. and Bank Hapoalim B.M. dated
April 30, 2001, and the Option Agreement between Lumenis Ltd. and Bank Hapoalim B.M., dated as of
November 19, 2003 which shall terminate and be of no further force and effect.
14.2. Amendment of Registration Rights. Any provision of this Agreement may be amended
and the observance thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and Holders who own at
least sixty percent (60%) of the Registrable Securities then held by Holders, provided however,
that in the event that such amendment adversely modifies the rights of the Bank under this
Agreement in a manner different then the other Holders, then such amendment shall also require the
separate consent of the Bank. Any amendment or waiver effected in accordance with this Section
14.2 shall be binding upon each Holder and the Company. By acceptance of any benefits under this
Agreement, Holders of Registrable Securities hereby agree to be bound by the provisions hereunder.
14.3. Governing Law; Venue. This Agreement shall be governed by and construed under
the laws of the State of Israel, without regard to the conflicts of law principles of such State,
except with respect to matters that are subject to securities laws and regulations, which shall be
governed by the respective laws and regulations. The parties hereto irrevocably submit to the
exclusive jurisdiction of the Courts of the district of Tel Aviv-Jaffa in respect of any dispute or
matter arising out of or connected with this Agreement.
14.4. Successors and Assigns. The provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties
hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of
Registrable Securities from time to time.
14.5. Severability. In the event one or more of the provisions of this Agreement
should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
14.6. Delays or Omissions. It is agreed that no delay or omission to exercise any
right, power, or remedy accruing to any Holder, upon any breach, default or noncompliance of the
Company under this Agreement shall impair any such right, power, or remedy, nor shall it be
construed to be a
- 14 -
waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent, or approval of any kind or character on any Holder’s part of any breach,
default or noncompliance under the Agreement or any waiver on such Holder’s part 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. All remedies, either under this Agreement, by law, or
otherwise afforded to Holders, shall be cumulative and not alternative.
14.7. Aggregation of Shares. All shares of the Company held or acquired by any Holder
and any entity affiliated with Holder, shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement, the applicability of any limitation under this
Agreement, or calculating such Holder’s pro rata share. The term “affiliate” shall have the meaning
assigned to it in Rule 405 under the Securities Act.
14.8. Notices. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (iii) three (3) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (iv) two (2) days after
deposit with an internationally recognized courier, specifying two day delivery, with written
verification of receipt. All communications shall be sent to the party to be notified at the
address as set forth below or at such other address as such party may designate by ten (10) days
advance written notice to the other parties hereto.
14.9. If to the Company: to the address set forth in the preamble to this Agreement.
14.10. If to a Holder: to the address set forth in Schedule 1 attached hereto.
14.11. Counterparts. This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart and that signatures may be provided
by facsimile transmission.
14.12. Questionnaire. Each Holder agrees to furnish to the Company a completed
Questionnaire in a customary form (a “Selling Holder Questionnaire”). The Company shall not be
required to include the Registrable Securities of a Holder in a Registration Statement who fails to
furnish to the Company a fully completed Selling Holder Questionnaire at least five business days
prior to the date the Company notifies such Holder that a registration statement is being filed.
- Signature page follows -
- 15 -
In Witness Whereof, the parties have duly signed this Registration Rights’ Agreement
as of the Effective Date.
| The Company: | ||||
| Lumenis Ltd. | ||||
Name: |
||||
Title: |
||||
- 16 -
In Witness Whereof, the parties have duly signed this Registration Rights’ Agreement
as of the Effective Date.
| The Holders: | ||||
| Ofer Hi-Tech Investments Ltd. | ||||
Name: |
||||
Title: |
||||
- 17 -
In Witness Whereof, the parties have duly signed this Registration Rights’ Agreement
as of the Effective Date.
LM Partners L.P.
By: X.X. (GP) L.P., its managing general partner
By: LM (GP) Company Ltd., its general partner
By: LM (GP) Company Ltd., its general partner
Name:
|
||||
Title:
|
Authorized signatory | |||
Name: |
||||
Title:
|
Authorized signatory | |||
- 18 -
In Witness Whereof, the parties have duly signed this Registration Rights’ Agreement
as of the Effective Date.
| Bank Hapoalim B.M. | ||||
Name: |
||||
Title: |
||||
Name: |
||||
Title: |
||||
- 19 -
Schedule 1
Schedule of Investors
| LM Partners L.P. | ||
Address: |
00 Xxxx Xxxx Xxxxxx Xxxxxxxx, Xxxxxx | |
Telephone No: |
x000-(0)0-000-0000 | |
Facsimile No.: |
x000-(0)0-000-0000 | |
| with a mandatory copy to (which shall not constitute notice):
Meitar Liquornik Geva & Leshem Xxxxxxxxx 00 Xxxx Xxxxxx Xxxx Xxxxx Xxx 00000 Israel |
||
Attention: |
Xxx Xxxxxxx, Advocate | |
Telephone No.: |
(972)-(3)-610-3100 | |
Facsimile No.: |
(972)-(3)-6103-111 | |
| Xxxxxx, Fox & Xxxxxx | ||
| Xxxx Xxxxx, 0 Xxxxxxxx Xxxxxx | ||
| Xxx-Xxxx 00000 Xxxxxx | ||
Attention: |
Alon Sahar, Advocate | |
Telephone No.: |
(972)-(3)-692-2861 | |
Facsimile No.: |
(972)-(3)-696-6464 | |
| Ofer Hi-Tech Investments Ltd. | ||
Address: |
Xxxxx Xxxx Xxxxx | |
| 0xx Xxxxx | ||
| 00 Xxxxxxxx Xxxxxx | ||
| Xxx Xxxx , Xxxxxx 00000 | ||
Telephone No: |
x000-(0)0-000-0000 | |
Facsimile No.: |
x000-(0)0-000-0000 | |
| with a mandatory copy to (which shall not constitute notice):
Meitar Liquornik Geva & Leshem Xxxxxxxxx 00 Xxxx Xxxxxx Xxxx Xxxxx Xxx 00000 Israel |
||
Attention: |
Xxx Xxxxxxx, Advocate | |
Telephone No.: |
(972)-(3)-610-3100 | |
Facsimile No.: |
(972)-(3)-6103-111 | |
| Xxxxxx, Fox & Xxxxxx | ||
| Xxxx Xxxxx, 0 Xxxxxxxx Xxxxxx | ||
| Xxx-Xxxx 00000 Xxxxxx | ||
Attention: |
Alon Sahar, Advocate | |
Telephone No.: |
(972)-(3)-692-2861 | |
Facsimile No.: |
(972)-(3)-696-6464 | |
- 20 -
| Bank Hapoalim B.M. | ||
| 00 Xxxxxxxx Xxxxx Xxxxxx | ||
| Xxxxxx Xxxxxxxxxx | ||
Xxx Xxxx, Xxxxxx |
||
Attention: |
Xxx Xxxxxx | |
Telephone No.: |
(972)-(3)-567-4757 | |
Facsimile No.: |
(972)-(3)- 5675699 | |
| with a mandatory copy to (which shall not constitute notice): | ||
| Xxxxx Xxxxx & Xx. | ||
| 0 Xxxxxxx Xxxxxx | ||
| Xxx-Xxxx, 00000 | ||
Telephone No.: |
(972)-(3)-608-7856 | |
Facsimile: |
(972)-(3)-608-7727 | |
Attention: |
Xxxxx X. Xxxxxxxx, Advocate | |
