EXHIBIT 1
TAG ALONG AGREEMENT
THIS TAG ALONG AGREEMENT (this "AGREEMENT") is entered into as of the 28
day of June, 2009, by and among LM Partners L.P. ("LM" or the "SHAREHOLDER") and
Bank Hapoalim B.M. (the "BANK).
WHEREAS, the Shareholder is a holder of Shares and Convertible Securities
(as such terms are defined below) of Lumenis Ltd. (the "COMPANY"); and
WHEREAS, the Bank holds warrants to acquire Shares of the Company numbered
5 and 6 respectively (the "BANK WARRANT").
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. As used in this Agreement, the following capitalized terms
shall have the following respective meanings:
1.1. "AFFILIATE" shall mean, with respect to any person, mean any
company which controls, is controlled by, or under common control with,
such person; "control" and "holding" shall bear the meanings assigned to
such term in Section 1 of the Securities Law, 1968;
1.2. "CONVERTIBLE SECURITIES" means any securities convertible into,
or exercisable for, Shares, subject to Clause 2.10;
1.3. "PERMITTED TRANSFEREE" shall mean (i) any entity which
beneficially or legally controls, is controlled by, or is under common
control with the Promoter in each case, either directly or indirectly; (ii)
spouse (or widow or widower), parents, siblings, lineal descendant of such
persons or their spouse, including step and adopted children, and their
respective spouses; (iii) a transferee by operation of law, including the
laws of descent and distribution; (iv) an Affiliate of a person or of a
Permitted Transferee of such person pursuant to the other subsections
hereof; (v) as to any Person which holds any securities or interests in a
trust - the beneficiary or beneficiaries of such trust, or a trustee
holding for the benefit of such Person (or the persons listed in Subsection
(ii) above), or a successor trustee; or (vi) as to any person which is a
general or limited partnership: any of its current or retired partners or
members; any person (and its respective current or retired partners or
members) managed or co-managed by the same management company or the same
managing general partner; any person (and its respective current or retired
partners or members) managed by an entity which controls, is controlled by,
or is under common control with, (A) such management company or managing
general partner (B) any entity managed by, or directly or in directly
controlled by, or is under common control with any of the persons listed in
Subsection (i) and (ii) above.
1.4. "PROMOTER" shall mean Harel Beit On, Avi Zeevi and Xxxxxx Xxxxxx.
1.5. "SHARES" shall means the ordinary shares of the Company (and any
shares of capital stock substituted for the ordinary shares as a result of
any stock split, stock dividend or similar recapitalization events),
subject to Clause 2.10.
1.6. "including" and "includes" means including, without limiting the
generality of any description preceding such terms;
1.7. a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) or two or more of the aforegoing; and
1.8. The preamble to this Agreement constitutes an integral part
thereof.
2. TAG ALONG
2.1. The Shareholder may not sell Shares in one or a series of related
transactions to any person without first complying with the provisions of
this clause 2, and subject to its terms.
2.2. The Shareholder shall give written notice (the "OFFER NOTICE") to
the Bank of such intended sale. The Offer Notice shall specify the identity
of the proposed purchaser (the "THIRD PARTY PURCHASER"), the purchase price
(the "PURCHASE PRICE"), including the purchase price per Share (the "PER
SHARE PRICE") and other terms and conditions of payment, the proposed date
of sale, the number of Shares proposed to be purchased by the Third Party
Purchaser (the "OFFERED SHARES") and the number of Shares and Convertible
Securities owned by the Shareholder.
2.3. The Bank shall be entitled, by written notice given to the
Shareholder within 14 (fourteen) days of receipt of the Offer Notice, to
join the sale to such Third Party Purchaser (the "EXERCISE NOTICE") in an
amount of Shares of up to the Bank's Pro-Rata Portion (as defined below),
as the Bank shall specify in the Exercise Notice, on terms and conditions
no less favorable to the Bank than those under which the Shareholder's
Offered Share are sold.
2.4. The Bank's pro-rata share shall be the ratio of the number of
Shares held by the Bank (including the number of Shares into which the Bank
Warrant is exercisable) to the sum of (i) the total number of all Shares
held by the Shareholder (including the number of Shares into which the
Convertible Securities held by such Shareholder are exercisable) as of such
date plus (ii) the number of Shares held by the Bank (including the number
of Shares into which the Bank Warrant is exercisable) as of such date (the
"BANK'S PRO-RATA PORTION").
2.5. The Shareholder shall use its reasonable efforts to interest the
Third Party Purchaser in purchasing, in addition to the Offered Shares, the
Shares that the Bank wishes to sell as indicated in its Exercise Notice. If
the Third Party Purchaser does not wish to increase the number of Offered
Shares to be purchased by it, then the number of Offered Shares proposed to
be sold by the Shareholder shall be reduced if and to the extent necessary
to provide for sale by the Bank of the Shares as indicated in its Exercise
Notice. Notwithstanding anything to the contrary, the Shareholder shall be
entitled to consummate the sale of Offered Shares to the Third Party
Purchaser, prior to the expiration of the 14 day period pursuant to Clause
2.3, provided that in such event the Shareholder shall purchase from the
Bank any Shares with respect to which an Exercise Notice has been duly
sent, and on terms no less favorable to the Bank than those pursuant to
which the Offered Shares were sold.
2.6. For the avoidance of doubt, the exercise of the tag along rights
hereunder shall be conditioned upon the Bank exercising such portion of the
Bank Warrant that is subject to the sale of the Shares in the proposed sale
pursuant to this Clause 2.
2.7. To the extent the Bank exercised its right under this Clause 2,
its sale of Shares to the Third Party shall be made on terms and conditions
no less favorable to the Bank than those on which the Shareholders is
selling its Shares, provided however, that the Bank shall not be required
to make any representations or warranties to the Third Party Purchaser
regarding the Company but shall otherwise be deemed to have given such
representations and would be subject to all the provisions of the agreement
as if it made such representations, including for purposes of indemnifying
the Third Party Purchaser in case of breach of representations, pro-rata
with the Shareholder and in an amount not to exceed the amount of
consideration received by the Bank from such Third Party Purchaser.
- 2 -
2.8. For the avoidance of doubt, (a) in the event the transactions
contemplated by an Offer Notice shall not be consummated by the Shareholder
for any reason, the Bank shall not be required to sell any Shares to the
Third Party Purchaser and (b) in the event that the Shareholder proposes to
effect a sale on terms and conditions less favorable than as set forth in
the Offer Notice or in the event that the transaction is not consummated
within 120 (one hundred and twenty) days after the Bank's notification of
its exercise of its rights hereunder or the expiration of the 14 (fourteen)
days period pursuant to Clause 2.3 above, then the Shareholder shall not
proceed with any sale without the Shareholder again complying with the
terms and conditions of this Clause 2.
2.9. Notwithstanding the foregoing, the provisions of this Clause 2
shall not apply to (i) transfer to Permitted Transferees; (ii) sales on a
stock exchange or in open market transactions; (iii) sales pursuant to a
registration statement effected consistent with the Registration Rights'
Agreement between the Company, the Shareholder, the Bank and the other
parties specified therein, dated December 5, 2006, as amended; (iv) sales
pursuant to a tender offer; or (v) sale of Shares not exceeding 5% of the
then issued and outstanding share capital of the Company.
2.10. Any Shares or Convertible Securities (i) acquired in open market
transactions by account managers with discretionary power on behalf of the
Shareholder, without the direct instruction of the Shareholder; or (ii)
held by the Shareholders not for Shareholder's own account; shall not be
deemed to be subject to the provisions of this Agreement (and, for the sake
of clarity, shall not be deemed "Shares" for purposes of clause 2.4 above.
3. REPRESENTATIONS AND WARRANTIES BY THE SHAREHOLDER
The Shareholder represents and warrants that:
3.1. its signature of this Agreement and the performance by it of its
obligations pursuant to this Agreement do not in any way contradict any
rights of third parties, any contracts or agreements to which it is a
party, its Articles of Association or any applicable law;
3.2. the signature of this Agreement and the performance of its
obligations under this Agreement are within its power and authority and
have been duly and validly authorized by all necessary corporate action;
and
3.3. This Agreement has been duly and validly executed by it and
constitutes its valid, legal and binding obligation, enforceable against
the Shareholder in accordance with its terms.
4. TERM. This Agreement shall terminate on the earlier of: (i) such time as
one or more of the Relevant Shareholders reduce their holdings in the Company's
issued and outstanding share capital, in the aggregate, to less than 47% of the
issued and outstanding share capital; or (ii) June 30, 2014. The "Relevant
Shareholders" shall mean as defined in Amendment no. 2 to the Restructuring
Agreement.
5. MISCELLANEOUS
5.1. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and shall be construed in accordance with Israeli law and the courts of
Tel-Aviv-Jaffa shall have exclusive jurisdiction to hear any matters.
5.2. SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise expressly
limited herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and permitted assigns of the parties hereto.
This Agreement may not be assigned by the Shareholder without the prior
written consent of the Bank.
5.3. ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement
constitutes the full and entire understanding and agreement between the
parties with regard to the subject matter hereof. Any term of this
Agreement may be amended and the observance of any term hereof may be
waived (either prospectively or retroactively and either generally or in a
particular instance) only with the written consent of the parties to this
Agreement.
- 3 -
5.4. NOTICES, ETC. All notices and other communications required or
permitted hereunder to be given to a party to this Agreement shall be in
writing and shall be faxed or mailed by registered or certified mail,
postage prepaid, or otherwise delivered by hand or by messenger, addressed
to such party's address as set forth in SCHEDULE 1 attached hereto, or at
such other address as the party shall have furnished to each other party in
writing in accordance with this provision. Any notice sent in accordance
with this clause 4.4 shall be effective and deemed received: (a) if mailed,
5 (five) business days after mailing; (b) if sent by messenger, upon
delivery; and (c) if sent via facsimile, upon transmission and electronic
confirmation of receipt (and the next business day, if not transmitted on a
business day).
5.5. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to any party upon any breach or default under
this Agreement, shall be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent, or
approval of any kind or character on the part of any party of any breach or
default under this Agreement, or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. Unless
provided otherwise herein, all remedies, either under this Agreement or by
law or otherwise afforded to any of the parties, shall be cumulative and
not alternative.
5.6. SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable under applicable law,
then such provision shall be excluded from this Agreement and the remainder
of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms; provided,
however, that in such event this Agreement shall be interpreted so as to
give effect, to the greatest extent consistent with and permitted by
applicable law, to the meaning and intention of the excluded provision as
determined by such court of competent jurisdiction.
5.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be
deemed an original, and all of which together shall constitute one and the
same instrument.
5.8. HEADINGS. The headings of the clauses and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
5.9. FURTHER ASSURANCES. Each of the parties hereto shall perform such
further acts and execute such further documents as may reasonably be
necessary to carry out and give full effect to the provisions of this
Agreement and the intentions of the parties reflected thereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 4 -
IN WITNESS WHEREOF, the parties have signed this Tag Along Agreement
effective as of the date first mentioned above.
LM PARTNERS L.P.
By: X.X. (GP) L.P., its managing general partner
By: LM (GP) Company Ltd., its general partner
/s/ Harel Beit-On
------------------------------------
Name: HAREL BEIT-ON
-----------------------------
Title: Authorized signatory
-----------------------------
/s/ Xxxxx Xxxxxxx
------------------------------------
Name: XXXXX XXXXXXX
-----------------------------
Title: Authorized signatory
-----------------------------
BANK HAPOALIM B.M.
/s/ Xxxxxx Xxxxx
------------------------------------
Name: XXXXXX XXXXX
-----------------------------
Title: Authorized signatory
-----------------------------
/s/ Xxx Xxxxxxxx
------------------------------------
Name: XXX XXXXXXXX
-----------------------------
Title: Authorized signatory
-----------------------------
SCHEDULE 1
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
BANK HAPOALIM B.M.
00 Xxxxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxxxxxxx
Xxx Xxxx, Xxxxxx
Attention: Xxxxxx Xxxxx
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
