Exhibit 10.8
- EXECUTION COPY -
OPTION AMENDMENT AGREEMENT
This Option Amendment Agreement (the "AGREEMENT") is made and
entered into on the 9th day of August, 2000, by and among:
(i) GIVEN IMAGING LTD.
A private company, incorporated under the laws of the State of
Israel, with its principal office at Building 0, Xxx Xxxxxxxxxx
Xxxx, X.X.Xxx 000, Xxxxxxx 00000, XXXXXX (hereinafter, the
"COMPANY");
(ii) DISCOUNT INVESTMENT CORPORATION LTD.
A public company, incorporated under the laws of the State of
Israel, with its principal office at 14 Beit Xxxxxxxx Xxxx,
X.X.Xxx 0000, Xxx-Xxxx 00000, XXXXXX (hereinafter, "DIC");
(iii) PEC ISRAEL ECONOMIC CORPORATION
A wholly owned subsidiary of DIC (hereinafter, "PEC");
(iv) ELRON ELECTRONIC INDUSTRIES LTD.
A public company, incorporated under the laws of the State of
Israel, with its principal office at Advanced Technology Center,
X.X. Xxx 0000, Xxxxx, 00000 XXXXXX (hereinafter, "ELRON");
(v) THERMOTREX CORPORATION,
A Delaware corporation, with its principal office at 81 Xxxxx
Street, Waltham, MA, U.S.A., ("TTC"); and
(vi) TRIMARAN INVESTMENT TRUST, a Liechtenstein corporation, with its
principal office at 00 Xxxxxxx Xx'xxxx Xxxxxx, Xxx-Xxxx 00000
XXXXXX (hereinafter, "TRIMARAN");
Each of DIC, PEC, Elron, TTC and Trimaran will be referred to as a
"SHAREHOLDER", and collectively, the "SHAREHOLDERS"; and each of the
Shareholders and the Company will be referred to as a "PARTY", and
collectively, the "PARTIES".
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W I T N E S S E T H
WHEREAS, the Company has entered into the following agreements:
(i) a Share Purchase and Option Agreement, dated April 15, 1998 with TTC (the
"TTC AGREEMENT"), (ii) a Share Purchase and Option Agreement, dated May 4, 1998
with DIC, PEC and Elron (collectively, the "DEP SHAREHOLDERS") (the "DEP
AGREEMENT"), and (iii) an agreement letter, dated March 16, 1999 with Trimaran
(the "TRIMARAN AGREEMENT");
WHEREAS, the Company granted TTC under Section 2.01(b) of the TTC
Agreement an option to purchase a number of Ordinary Shares of the Company, par
value NIS 0.01 per share ("ORDINARY SHARES"), in a number equivalent to five
percent (5%) of the total number of issued and outstanding Ordinary Shares of
the Company, immediately after the issue of such additional Ordinary Shares
(hereinafter, the "TTC OPTION");
WHEREAS, the Company granted the DEP Shareholders under Section 1
of the DEP Agreement an option under the same terms as the TTC Option, allocated
in equal shares among them (the "DEP OPTIONS");
WHEREAS, the Company granted Trimaran under Section 2.3 of the
Trimaran Agreement an option to purchase a number of Ordinary Shares in a number
equivalent to one and one tenth of a percent (1.1%) of the total number of
issued and outstanding Ordinary Shares of the Company, immediately after the
issue of such additional Ordinary Shares (the "TRIMARAN OPTION", and together
with the TTC Option and the DEP Options, the "OPTIONS"); and
WHEREAS, in order to facilitate an investment in the Company
through a private placement lead by OrbiMed Advisors LLC, under the principle
terms set forth in a draft Term Sheet, a copy of which has been provided to the
Shareholders (the "Term Sheet"), the Company and the Shareholders wish to amend
the terms of the Options in a manner that each Option shall be exercisable into
a fixed number of Ordinary Shares;
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENT OF OPTIONS.
1.1 THE TTC OPTION. The terms of the TTC Option are hereby
amended as follows: The TTC Option shall be exercisable into 1,250,001 Ordinary
Shares (instead of the "Second Option Shares" as defined in the TTC Agreement),
at an exercise price of US$ 1.80 per share, or US$ 2,250,000 in the aggregate.
All other terms and provisions of such Options shall not be affected by virtue
of the foregoing amendment.
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1.2 THE DEP OPTIONS. The terms of the DEP Options are hereby
amended as follows: The option granted to EACH DEP Shareholder shall be
exercisable by such DEP Shareholder into 416,667 Ordinary Shares, at an exercise
price of US$ 1.80 per share, or US$ 750,000 in the aggregate (and collectively
for all DEP Shareholders, into 1,250,001 Ordinary Shares, for an aggregate
purchase price of $2,250,000). All other terms and provisions of the DEP Options
shall not be affected by virtue of the foregoing amendment.
1.3 THE TRIMARAN OPTION. The terms of the Trimaran Option are
hereby amended as follows: The Trimaran Option shall be exercisable into 275,000
Ordinary Shares (instead of the "Option Shares" as defined in the Trimaran
Agreement), at an exercise price of US$ 1.80 per share, or US$ 495,000 in the
aggregate. All other terms and provisions of the Trimaran Option shall not be
affected by virtue of the foregoing amendment.
1.4 ADJUSTMENTS TO EXERCISE PRICE. In the event that during
the term of the Options the Company shall issue any securities, or options,
warrants or other rights exercisable to, convertible into or otherwise to
acquire securities of the Company (other than incentive options to employees,
directors and consultants granted under a Board-approved plan), at a price per
share which is less than US$ 1.80, then the exercise price per share of the
Options shall adjust downward to the new price (and the number of Ordinary
Shares will adjust upward accordingly, so as to maintain the same aggregate
purchase price).
2. REGISTRATION RIGHTS. As contemplated by the Term Sheet,
existing shareholders of the Company shall be granted a total of 3 demand,
unlimited S-3 and piggyback registration rights, on similar terms as the holders
of Preferred Shares, subject to certain priority to the Preferred Shareholders,
as provided in the Term Sheet. The Company hereby agrees with each Shareholder,
to make such Shareholder party to the definitive agreement which shall
incorporate such registration rights, to the effect that the Shareholders,
together with other existing shareholders, will be entitled to benefit from such
rights.
3. EFFECTIVENESS. This Agreement shall become binding upon the
Parties only when it has been executed by all Parties. Sections 1 and 2 hereof
shall be conditioned upon the closing of the private placement contemplated by
the Term Sheet.
4. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all such
counterparts together shall be deemed one and the same instrument.
5. AMENDMENTS AND WAIVERS. This Agreement may not be amended
except by an instrument in writing signed by all Parties. Any waiver by a Party
of any of its rights hereunder shall be valid only if set forth in an instrument
in writing signed by or on behalf of such Party, and no such waiver shall
constitute a waiver of any other rights hereunder.
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IN WITNESS WHEREOF, the parties have caused this Option Amendment
Agreement to be duly executed and delivered upon the date first above written.
GIVEN IMAGING LTD. ELRON ELECTRONIC INDUSTRIES LTD.
By: /s/ Xxxxxxx Xxxxx Xxxxxx Xxxxx By: /s/ [ILLEGIBLE]
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Name: Xxxxxxx Xxxxx Xxxxxx Xxxxx Name:
Title: President & CEO Director Title:
DISCOUNT INVESTMENT THERMOTREX CORPORATION
CORPORATION LTD.
By: /s/ [ILLEGIBLE] By: /s/ Xxxxx X. XxXxxxx
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Name: Name: Xxxxx X. XxXxxxx
Title: Title: V.P. Bus. Development
PEC ISRAEL ECONOMIC CORPORATION TRIMARAN INVESTMENT TRUST
By: /s/ [ILLEGIBLE] By: /s/ Xxxxxxx Xxxx
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Name: Name: Xxxxxxx Xxxx
Title: Title: Managing Director
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