EXHIBIT 4
TAG ALONG AGREEMENT
THIS TAG ALONG AGREEMENT (this "AGREEMENT") is entered into as of the 28
day of June, 2009, by and among Ofer Hi-Tech Investments Ltd. ("OFER HI-TECH" 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; (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;
(vii) a transferee of all or substantially all of the Shareholder's portfolio;
(viii) a transferee pursuant to the exercise of pledge granted on the Shares in
favor of Bank Leumi. Without derogating from the aforesaid, any of the following
shall also be treated as a "Permitted Transferee": (1) Ofer Hi-Tech Ltd., Ofer
Hi-Tech Investments Ltd., Ofer (Ships Holding) Ltd., Ofer Holdings Group Ltd.,
Ofer-Or Investments Group Ltd. and its subsidiaries, XXX OR (Communication)
Ltd., Xxxxx Technologies Ltd., Naiot Technological incubator Ltd., Ofer
Management Group Ltd. and Ofer Media Ltd.; (2) each of Xxxxx Xxxx, Xxxx Xxxx,
Xxxx Xxxx and/or Xxxx Xxxxx and their family members, the descendants, ancestors
and spouse of each of the foregoing, and/or any corporate entity or trust which
is controlled by any of the foregoing or of which any of the foregoing is the
main beneficiary(ies).
1.4. "PROMOTER" shall mean Udi Angel.
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 -
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.
2.8. 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 (including, for the avoidance
of doubt, Shares held by the Shareholders and referred to in clause (a) of
footnote 2 of Item 7A in the Company's Annual Report on Form 20-F for the year
ended December 31, 2008); 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.
- 3 -
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.
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.
- 4 -
IN WITNESS WHEREOF, the parties have signed this Tag Along Agreement
effective as of the date first mentioned above.
OFER HI-TECH INVESTMENTS LTD.
/s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title: CEO
---------------------------
BANK HAPOALIM B.M.
/s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
---------------------------
Title: Authorized signatory
---------------------------
/s/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
---------------------------
Title: Authorized signatory
---------------------------
- 5 -
SCHEDULE 1
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):
Xxxxxx, Xxx & 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
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
