EXHIBIT 1
VOTING AND OPTION AGREEMENT
This VOTING AND OPTION AGREEMENT ("AGREEMENT") is made as of the 31 day of
August 2007 by and between Mr. Eli Azur and Mirkaei Tikshoret ("OPTION HOLDER"),
who is the registered owner of approximately 3,679,966 of the issued and
outstanding share capital of Lumenis Ltd., a company incorporated under the laws
of the State of Israel (the "COMPANY") and OFER HI-TECH INVESTMENT LTD. ("OHT"),
who is the registered owner of approximately of 52,546,995 of the issued and
outstanding share capital of the Company. Each of the Option Holder, and OHT
shall be referred to as a "PARTY" and collectively: "PARTIES".
WHEREAS, each of OHT and the Option Holder hereby represents and warrants
that it the registered holders and the beneficial owner of the number of shares
listed opposite its name in the first paragraph of this Agreement; and
WHEREAS, OHT represents and warrants that it has purchased its shares in
the Company pursuant to that certain Share Purchase Agreement by and among
itself, X.X Partners and the Company dated September 30, 2006 (the "SPA"), and
in accordance with the terms of the SPA in certain events it may be entitled to
receive, from the Company, additional shares (the "ADJUSTMENT SHARES"); and
WHEREAS, the Option Holder has agreed that all of its voting rights in
respect of the Company shall be exercised in accordance with the instructions of
OHT, with the explicit understanding that such an agreement will prevent it from
voting against certain actions that may be beneficial to OHT, including, without
limitation, with respect to the issuance of the Adjustment Shares; and;
WHEREAS, OHT, in consideration for the Voting Agreement set forth herein,
has agreed to provide the Option Holder the Option (defined below) to purchase
from OHT certain Ordinary Shares of the Company; and
WHEREAS, the Parties agreed to provide to the Company and any regulatory
agency (including without limitation any Security and Exchange Commission) all
of the information regarding this Agreement which is required to be disclosed
under any applicable law or regulation;
NOW, THEREFORE, in consideration of their premises and the mutual covenants
herein contained, the Parties hereto hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION. In this Agreement, the following
expressions shall have the following respective meanings:
1.1. "ARTICLES OF ASSOCIATION" - means the Company's Articles of
Association as may be amended from time to time.
1.2. "BUSINESS DAY" - means, with respect to a Party, a day upon which
banks are open for business in Israel of receipt of any notice by such
Party.
1.3. "M&A TRANSACTION" - shall mean the merger of the Company with or
into another corporation, the sale of all, or substantially all of the
shares of the Company, any transaction which will result in a change of
control of the Company (e.g. a party acquiring the majority of the issued
and outstanding share capital of the Company or the power to nominate the
majority of the Board members of the Company or the right to vote the
majority of the shares of the Company), or the sale of all, or
substantially all of the Company's assets, or the sale of any division of
Company for consideration of at least $30,000,000.
1.4. "OHT TRANSFER" - shall mean the sale, assignment, transfer, or
disposal of all of OHT's Shares to any third party.
1.5. "ORDINARY SHARES" - shall mean the Company's Ordinary Shares par
value of NIS 0.01.
1.6. "PO" - Any public offering of the Company's securities either by
OHT or by the Company under any applicable law or regulation;
1.7. "PARTY'S SHARES" - shall mean, with respect to each Party, the
Ordinary Shares held by such Party as of the date hereof, all shares,
options, warrants or rights to purchase shares or other securities
convertible into shares hereafter issued by the Company to such Party,
whether directly or indirectly through any other party, or hereafter
purchased by such Party, whether directly or indirectly, from any party,
all non-cash dividends and other property at any time received or otherwise
distributed on, in respect of or in exchange for any or all of the
aforesaid shares, all rights or securities hereafter issued in substitution
for, with respect to or otherwise in connection with, any of the aforesaid
shares, including without limitation any bonus shares, and all certificates
and instruments representing or evidencing such securities.
2. VOTING POWERS
2.1. With respect to a Meeting, the Option Holder hereby agrees and
undertakes to vote all of such Party's Shares in favor of or against any
resolution proposed to be adopted at any meeting of the Company's
shareholders, or at any meeting of holders of any class of shares in the
Company, and any postponements or adjournments of either of them
(collectively, "MEETINGS"), in the manner voted by OHT at such meeting; the
Option Holder shall attend (either in person or by a duly appointed
representative or proxy) any such Meeting, and shall, on a show of hands,
vote in favor of or against such resolution, as set forth above, and, on a
poll, cast all votes attached to such Party's Shares in favor of or against
such resolution, as directed above. If requested by OHT, Option Holder
shall attend (either in person or by a duly appointed representative or
proxy) any such Meeting, and shall, on a show of hands, vote in favor of or
against such resolution, as so directed, and, on a poll, cast all votes
attached to such Party's Shares in favor of or against such resolution, as
so directed.
2.2. With respect to a Resolution, the Option Holder hereby agrees and
undertakes to: (i) vote such Party's Shares in the manner voted by OHT; and
(ii) coordinate with OHT and to execute, within two (2) Business Days after
the receipt of any resolution in writing without a meeting of the Company's
shareholders or of the holders of any class of shares of the Company
("RESOLUTIONS"), all of such Party's Shares, in favor of or against, any
Resolution proposed to be adopted, in the manner elected by OHT and in
accordance with OHT's instructions.
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2.3. For the avoidance of doubt, the Option Holder shall have the
obligation to vote in accordance with OHT instructions, even if the vote,
or action, of the Option Holder is not required in order to achieve the
outcome desired by OHT (that is, that the relevant resolution be passed or
not be passed, as the case may be irrespective to the Option Holder's
compliance with the terms of this Agreement).
3. OTHER MATTERS.
If directed by OHT, the Option Holder shall give or withhold its consent or
agreement to any matter which requires its consent or agreement under any of the
provisions of the SPA regarding the issuance of the Adjustment Shares. The
Option Holder shall execute such consent or agreement within two (2) Business
Day after the time of receipt of said request for the consent or agreement in
question. The instructions of OHT to in this Section 3 shall be furnished to the
Option Holder by written notice signed by OHT.
4. OPTION AGREEMET
4.1. In consideration for the Voting Agreement set forth herein, and
subject to the fulfillment of the Option Holder's obligations hereunder,
OHT hereby grants the Option Holder the right and option to purchase all or
part of 2,038,925 Ordinary Shares of the Company owned by OHT, in
consideration for $1.079 per share and a total consideration of $2,200,000
(the "OPTION" and the "OPTION SHARES", respectively). The Option shall be
exercisable at the Expiration Date (defined below).
4.2. Any Option Shares sold in connection with the exercise of the
Option by the Option Holder, are: (i) duly authorized fully paid up and
registered solely on the name of OHT; (ii) shall be transferred to the
Option Holder (following the payment of the purchase price) free and clear
on any lien, pledge or any other security interest; and (iii) may be
transferred to Option Holder free of any rights of third parties, such as
but not limited to any right of first refusal.
5. DURATION OF OBLIGATIONS
5.1. If the Option Holder ceases to be the registered owner of all of
its Shares, the obligations of the Parties hereunder shall immediately
cease and terminate, and this Agreement will be of no force or effect, but
without prejudice to the due performance of all its respective obligations
up to the date of cessation and the remedies of any of the other Parties
hereto in respect of a breach thereof.
5.2. This Agreement shall commence as of the date hereof and shall
terminate upon the earlier of (a) immediately prior to the consummation of
the PO, (b) immediately prior to the closing of an M&A Transaction; (c)
immediately prior to a OHT Transfer; or (d) on August 1, 2010 (the
"EXPIRATION DATE"); whereupon the Option Holder shall be entitled to
exercise the Options, and the obligations and liabilities of Option Holder
and OHT under this Agreement shall forthwith cease and will be of no force
or effect, provided that such termination shall be without prejudice to any
obligations or rights of any of the Parties hereto which have accrued prior
thereto.
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6. REPRESENTATION AND WARRANTIES.
Each Party hereby represents and warrants to the other Party, that the
execution and delivery of this Agreement and the Option granted thereunder will
not: (i) constitute a breach of any law, rule or regulation applicable to such
Party; or (ii) require the consent or agreement of any entity; or (iii) violate
any contract, agreement, arrangement, undertaking, or covenant of such Party; or
(iv) violate or result in a breach of, or constitute a default under any law,
judgment or other restriction of to which such Party is subject.
7. MISCELLANEOUS
7.1. Each of the Parties warrants and undertakes that it is not bound
by any obligation which would or may (at any time while it is a Party to
this Agreement) cause such Party to act in a manner inconsistent with the
provisions of this Agreement, and such party will not, while it is a party
to this Agreement, bind itself to any such obligation.
7.2. This Agreement is binding upon and shall inure to the benefit of
the respective successors and assigns of the Parties hereto. Nothing in
this Agreement, express or implied, is intended to confer upon any party
other than the Parties hereto or their respective successors and assigns,
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
7.3. Any term hereof may be amended or waived only by a written
instrument executed by all Parties. Any amendment or waiver effected in
accordance with this Section 6.3 shall be binding upon each of the Parties
and their respective successors and assigns.
7.4. This Agreement constitutes the full and entire agreement,
covenants, promises and understandings between the Parties hereto with
respect to the subject matter hereof, and supersede any and all prior
agreements, understandings, promises and representations made by all or
some of the Parties (or by either Party to the other), whether written or
oral, concerning the subject matter hereof and the terms applicable hereto.
7.5. Any notice required or permitted by this Agreement shall be in
writing and shall be given in person, by an overnight courier service which
obtains a receipt to evidence delivery, by facsimile transmission (provided
that written confirmation of receipt is provided), or by electronic mail,
addressed as set forth below, or such other address as any party may
designate to the others in accordance with the aforesaid procedure. All
notices and other communications shall be deemed to have been given (i) in
the case of hand delivery to the address shown below, on the next Business
Day after delivery; (ii) in the case of a notice sent by facsimile
transmission to the number, and addressed as, shown below, on the next
Business Day after delivery, if facsimile transmission is confirmed; (iii)
in the case of a notice sent by email to the email address shown below, on
the date of transmission except where a notice is received stating that
such mail has not been successfully delivered.
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7.6. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i)
such provision shall be excluded from this Agreement, (ii) the balance of
the Agreement shall be interpreted as if such provision were so excluded
and (iii) the balance of the Agreement shall be enforceable in accordance
with its terms.
7.7. This Agreement shall be governed by and construed in accordance
with the laws of the State of Israel, without giving effect to any
applicable conflict of law provisions. The parties hereto hereby submit to
the exclusive jurisdiction of the competent courts of Tel Aviv-Jaffa,
Israel.
7.8. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which together shall
constitute one instrument.
7.9. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement.
[SIGNATURES IMMEDIATELY FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
OFER HI-TECH INVESTMENT LTD. XXX AZUR
By: Xxxx Xxxxxxx, CEO
MIRKAEI TIKSHORET LTD.
By: Xxx Azur
[SIGNATURE PAGE TO VOTING AND OPTION AGREEMENT]
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