FORM OF INDEMNIFICATION AGREEMENT
Exhibit
4.6
Annex 3
This Indemnification Agreement (this “Agreement”) is effective as of by and between
Lumenis Ltd., a company incorporated under the laws of the State of Israel, with it principal
offices at New Industrial Park, X.X. Xxx 000 Xxxxxxx, 00000 (the “Company”), and the individual set
forth on the signature page to this Agreement (“Indemnitee”), residing at the address set forth
beneath Indemnitee signature to this Agreement
Whereas, the Company and Indemnitee recognize the difficulty in obtaining full and adequate
liability insurance for directors, officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the coverage of such
insurance;
Whereas, the Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, agents and fiduciaries to
expensive litigation risks at the same time as the availability and coverage of liability insurance
have been severely limited;
Whereas, the Company desires to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and, in part, in order to induce Indemnitee to continue to
provide services to the Company, wishes to provide for the indemnification and advancement of
expense to Indemnitee, to exempt Indemnitee from liability to the Company, and agree to procure
reasonable insurance coverage, all of the foregoing to the maximum extent permitted by law; and
Whereas, in view of the considerations set forth above, the Company desires that Indemnitee shall
be indemnified and exempted by the Company, and enjoy appropriate insurance coverage, all as set
forth herein.
Now, Therefore, the Company and Indemnitee hereby agree as follows:
1. Indemnification
1.1. Indemnification of Liabilities and Expenses. The Company shall indemnify
Indemnitee to the fullest extent permitted by law and subject to the limitations set forth
in paragraph 1.2, with respect to the following liabilities and expenses imposed on or
incurred by the Indemnitee due to an act or omission by the Indemnitee in his capacity as a
director, officer, employee, agent or fiduciary of the Company, or any subsidiary thereof
(regardless whether it is a subsidiary of the Company at the date hereof), or as a
director, officer, employee, agent or fiduciary of another corporation, collaboration,
partnership, joint venture, trust or other enterprise, serving at the request of the
Company (the “Corporate Capacity”): (i) any financial obligation imposed on Indemnitee in
favor of another person by, or expended by Indemnitee as a result of, a court judgment,
including a settlement or an arbitrator’s award approved by court, by reason of or arising
in connection with any Indemnifiable Event (as defined below); (ii) any and all reasonable
litigation expenses (including attorneys’ fees) and all other costs, expenses and
obligations (collectively, “Expenses”) incurred by Indemnitee or charged to Indemnitee by
court in connection with a proceeding instituted against Indemnitee by the Company or on
its behalf or by another person, or in any criminal proceedings in which Indemnitee is
acquitted, or in any criminal proceedings of a crime which does not require proof of mens
rea (criminal intent) in which Indemnitee is convicted; and (iii) all Expenses expended by
Indemnitee due to an investigation or a proceeding instituted against
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Indemnitee by an
authority qualified to conduct such investigation or proceeding, where such investigation
or proceeding is concluded without the filing of an indictment (as defined in the Israeli
Companies Law-1999 (the “Companies Law”)) against Indemnitee and without any financial
obligation imposed on Indemnitee in lieu of criminal proceedings (as defined in the
Companies Law), or that is concluded without Indemnitee’s indictment but with a financial
obligation imposed on Indemnitee in lieu of criminal proceedings with respect to a crime
that does not require proof of mens rea (criminal intent). The Expenses herein shall
include, except to the extent not permitted under the Companies Law, all interest,
assessments and other charges paid or payable in connection with or in respect of such
Expenses. Such payments of Expenses shall be made by the Company as soon as practicable
but in any event no later than five (5) days after written demand by Indemnitee therefor is
presented to the Company.
1.2. Indemnifiable Event; Limit Amounts. For the purpose of this Agreement, an
“Indemnifiable Event” shall mean any event or occurrence falling all or in part within any
one or more of the categories set forth in Exhibit A to this Agreement.
Indemnification pursuant to paragraph 1.1(i) with respect to each such Indemnifiable Event
described in Exhibit A is limited in amount to the amounts specified opposite its
description (the “Limit Amount”). Each such Limit Amount shall be subject to continuing
review and consideration by the Company, and may be increased, but never decreased, if the
Board of Directors, with the prior approval of the Audit Committee of the Company,
determines that such Limit Amount is not reasonable in the circumstances, including if it
is less than the financial obligation or Expenses which can be expected to be incurred by
Indemnitee in connection with the corresponding Indemnifiable Event. The Indemnification
provided herein shall not be subject to the foregoing limits, if and to the extent such
limits are no longer required by Israeli law. If the Limit Amount is insufficient to cover
all amounts to which Indemnitee and all persons whom the Company has agreed to indemnify
for the matters and in the circumstances described herein, then such amount shall be
allocated to such persons pro rata according to the percentage of their culpability, as
finally determined by a court in the relevant claim, or, absent such determination or in
the event such persons are parties to different claims, in equal amounts.
1.3. Reviewing Party. Notwithstanding the foregoing: (i) the obligations of
the Company under Section 1.1 shall be subject to the condition that the Reviewing Party
(as described in Section 9.4 hereof) shall not have determined (in a written opinion, in
any case in which the Independent Legal Counsel referred to in Section 1.4 hereof is
involved) that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) the obligation of the Company to make an advance payment of Expenses to Indemnitee
pursuant to Section 2.1 (an “Expense Advance”) shall be subject to the condition that if,
when and to the extent that the Reviewing Party determines that Indemnitee should not be
permitted to be so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such-amounts
theretofore paid; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that Indemnitee would
not be permitted to be indemnified under applicable law shall not be binding and Indemnitee
shall not be required to reimburse the Company for any Expense Advance until a final
judicial determination is made with respect thereto as to which all rights of appeal
therefrom have been exhausted or lapsed. Indemnitee’s obligation to reimburse the Company
for any Expense Advance shall be unsecured and no interest shall be charged thereon. If
there has not been a Change in Control (as defined in Section 9.3 hereto) following the
date hereof, the Reviewing
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Xxxxx shall be selected by the Board of Directors, and if there
has been such a Change in Control (other than a Change in Control which has been approved
by a majority of the Company’s Board of Directors who were directors immediately prior to
such Change in Control), the Reviewing Party shall be the Independent legal Counsel
referred to in Section 9.4 hereof. If there has been no determination by the Reviewing
Party or if the Reviewing Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have
the right to commence litigation seeking
an initial determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, including the legal or factual basis therefor; and
the Company hereby consents to service of process and to appear in any such proceeding.
1.4. Change in Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved by a
majority of the Company’s Board of Directors who were directors immediately prior to such
Change in Control) then with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnification rights, payments of Expense and Expense Advances
under this Agreement or any other agreement or under the Company’s Memorandum or Articles
of Association as now or hereinafter in effect, the Company shall seek legal advice only
from Independent Legal Counsel (as defined in Section 9.4 hereof selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld or delayed).
Such counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified
under applicable law and the Company agrees to abide by such opinion. The Company agrees
to pay the reasonable fees of the Independent legal Counsel referred to above and to fully
indemnify such counsel against any and all expenses (including attorney’s fees), claims,
liabilities and damages arising out of or relating to this Agreement of its engagement
pursuant hereto.
1.5. Mandatory Payment of Expenses. Notwithstanding any other prevision of
this Agreement other than Section 8 hereof, to the extent that Indemnitee has been
successful on the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit, proceeding, inquiry or
investigation referred to in Section 1.1 hereof or in the defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against all financial obligations and
Expenses incurred by Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure
2.1. Advancement of Expenses. The Company shall advance all Expenses incurred
by Indemnitee. The advances to be made hereunder shall be paid by the Company to Indemnitee
as soon as practicable, but in any event no later than five (5) days after written demand
by Indemnitee therefor to the Company. As part of the aforementioned undertaking, the
Company will make available to Indemnitee any security or guarantee that Indemnitee may be
required to post in accordance with an interim decision given by a court or an arbitrator,
including for the purpose of substituting liens imposed on Indemnitee’s assets. In the
event that Indemnitee is indemnified and paid for any sums in accordance with this
Agreement in connection with a legal proceeding, and later it becomes clear that Indemnitee
was not entitled to such payments, the Expense Advances will be repaid by Indemnitee and
such advances will be deemed as a loan given to Indemnitee by the Company subject to as low
as permissible an interest rate as specified in section 3(9) of the Income Tax
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Ordinance
[New Version], 1961, or any other legislation replacing it, which is not considered a
taxable benefit.
2.2. Notice; Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to Indemnitee’s right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any claim made against Indemnitee for which
Indemnification will or could be sought under this Agreement, provided, however, that any
failure to provide such notice shall not affect Indemnitee’s rights to indemnification
hereunder unless and to the extent such failure to provide notice materially and adversely
prejudices the Company’s right to defend against such action. Notice to the Company shall
be directed to the Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the Company shall designate in
writing to Indemnitee), or if the Indemnitee is then the Chief Executive Officer of the
Company, such notice shall be directed to the Chairman of the Company’s Board of Directors,
at the same address. In
addition, Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s power.
2.3. No Presumptions; Burden of Proof. For purposes of this Agreement, the
termination of any claim by judgment, order, settlement (whether without court approval) or
conviction, or upon a plea of guilty, shall not create a presumption that Indemnitee did
not meet any particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular belief, nor an
actual determination by the Reviewing Party that Indemnitee has not met such standard of
conduct or did not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense against Indemnitee’s claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any particular
belief. In connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder, the burden of proof shall
be on the Company to establish that Indemnitee is not so entitled.
2.4. Notice to Insurers. If, at the time of the receipt by the Company of a
notice of a claim pursuant to Section 2(b) hereof, the Company has liability insurance in
effect which may cover such claim, the Company shall give prompt notice of the commencement
of such claim to the insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such
action, suit, proceeding, inquiry or investigation in accordance with the terms of such
policies.
2.5. Selection of Counsel. In the event that (1) the Company shall be
obligated to indemnify the Indemnitee and/or pay the Expenses of any claim, and (2) (if
applicable) the Company shall have confirmed to Indemnitee in writing that the
indemnification in question will not exceed the Limit Amount in respect of such claim, and
(3) the proceedings have not been initiated against the Indemnitee by the Company or on its
behalf; then the Company shall be entitled to assume the defense of such claim with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election to do so after delivery of such
written confirmation and such notice,
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approval of such counsel by Indemnitee and the
retention of such counsel by the Company, and the Company will not be liable to Indemnitee
under this Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same claim; provided, that: (i) Indemnitee shall have the right to employ
Indemnitee’s counsel in any such claim at Indemnitee’s expense, and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the Company, or (B)
Indemnitee shall have reasonably concluded that a potential conflict of interest between
the Company and Indemnitee may arise in the conduct of any such defense, or (C) the Company
shall fail to assume the defense of such claim in a timely manner, or does not continue to
retain such counsel to defend such claim, or (D) the Company refers the conduct of defense
to an attorney who is not, upon reasonable grounds, acceptable to the Indemnitee, then, in
each such case, the fees and expenses of Indemnitee’s counsel shall be at the expense of
the Company. The Company shall and shall cause the counsel retained by it to take all
necessary steps to bring the claim to a close and will keep the Indemnitee informed of key
steps in the process. The counsel retained by the Company to conduct the defense pursuant
to this Section shall be bound by a fiduciary duty to the Indemnitee and to the Company.
The Company shall have the right to conduct such defense as it sees fit in its sole
discretion, including the right to settle or compromise any claim or to consent to the
entry of any judgment against Indemnitee without the consent of the Indemnitee, provided
that, the amount of such settlement, compromise or judgment does not exceed the Limit
Amount (if applicable) and is otherwise fully indemnifiable pursuant to this
Agreement and/or applicable law, and any such settlement, compromise or judgment
includes (i) a complete release discharge of indemnity, and (ii) does not contain any
admittance of wrong doing by Indemnitee, and (iii) is monetary only. In the case of
criminal proceedings the Company and/or the counsel retained by it will not have the right
to plead guilty in your name or to agree to a plea-bargain in Indemnitee’s name, without
Indemnitee’s prior consent.
Notwithstanding anything to the contrary, if the Company fails to comply with any of
its obligations under this Agreement or in the event that the Company or any other person
takes any action to declare this Agreement void or unenforceable, or institutes any action,
suit or proceeding to deny or to recover from Indemnitee the benefits intended to be
provided to Indemnitee hereunder or under any other agreement or insurance policy or under
the Company’s Memorandum or Articles of Association now or hereafter in effect relating to
indemnification, release, exemption or insurance of Indemnitee by reason of his Corporate
Capacity, except with respect to such actions, suits or proceedings brought by the Company
that are resolved in favor of the Company, then Indemnitee shall have the right to retain
counsel of his choice, and reasonably acceptable to the Company and at the expense of the
Company, to represent Indemnitee in connection with any such matter.
3. Additional Indemnification Rights; Non-exclusivity
3.1. Scope. In the event of any change after the date of this Agreement of any
applicable law, statute or rule which expands the right of a corporation of the Company’s
state of incorporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits afforded by such change. In the event of any
change in any applicable law, statute or rule which narrows the right of a corporation of
the Company’s country or state of incorporation to indemnify a member of its board of
directors or an officer, employee, agent or fiduciary, such change, to the extent not
otherwise required by such law, statute of rule to be applied to this Agreement, shall have
no effect on this Agreement or the parties’ rights and obligations hereunder except as set
forth in Section 8.1 hereof.
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3.2. Non-exclusivity. The indemnification provided by this Agreement shall be
in addition to any rights to which Indemnitee may be entitled under the Company’s
Memorandum and Articles of Association, as may from time to time be amended or replaced,
any agreement, any vote of shareholders or disinterested directors, the laws of the
Company’s state of incorporation, or otherwise. The indemnification provided under this
Agreement shall continue as to Indemnitee for any action Indemnitee took or did not take
while serving in an indemnified capacity even though Indemnitee may have ceased to serve in
such capacity.
4. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy, the
Articles or Memorandum of Association or otherwise) of the amounts otherwise indemnifiable
hereunder, except for the difference, if any, between the amounts received by the
Indemnitee as aforesaid and the total obligations, liabilities and/or Expenses incurred by
Indemnitee in connection with such claim. Any amount received from D&O Insurance (as
defined below) shall not be deducted from the Limit Amount hereunder.
5. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the obligations,
liabilities and/or Expenses incurred in connection with any claim, but not, however, for
all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such obligations, liabilities and/or Expenses to which Indemnitee is
entitled.
6. Liability Insurance. As long as the Indemnitee continues to serve in a Corporate
Capacity and thereafter as long as the Indemnitee may be subject to any possible
proceedings, the Company shall procure and maintain directors’ and officers’ liability
insurance to the fullest extent permitted by law providing liability insurance for
directors, officers, employees, agents or fiduciaries of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other entity which
such person serves at the request of the Company (“D&O Insurance”), in such amount (per
claim and per period) as the Company shall deem appropriate and Indemnitee shall be covered
by such policy(ies) in accordance with its terms to the maximum extent of the coverage
available for any such director, officer, employee, agent or fiduciaries thereunder;
provided, that, the Company shall have no obligation to obtain or maintain D&O Insurance if
the Company determines in good faith that such insurance is not reasonably available, the
premium costs for such insurance are disproportionate to the amount of coverage provided,
the coverage provided by such insurance is so limited by exclusions that it provides an
insufficient benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company; and provided further, that the Company shall not terminate any
existing insurance coverage without notifying the Indemnitee of its intention to do so at
least ninety (90) days prior to the effective date of such termination (for this purpose
the non-renewal of such coverage shall be deemed as termination thereof and the effective
date of such termination shall then be the expiration date of the existing coverage).
7. Exemption. To the maximum extent permitted by law, the Company hereby exempts
and releases Indemnitee from any and all liability to the Company related to any breach by
Indemnitee of his of her duty of care to the Company, subject to the provisions of Section
8.1 below and provided that in no event shall Indemnitee be exempted in advance for a
breach of his duty of care to the Company in a distribution (as defined in the Companies
Law).
8. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
8.1. Excluded Acts and Omissions. To the extent it is prohibited under
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applicable law, to indemnify, insure or exempt Indemnitee from or against any liability
arising out of: (i) Indemnitee’s breach of fiduciary duty (other than, in case of insuring
the Indemnity, a breach of fiduciary duty to the Company, provided that the Indemnitee has
acted or omitted to act in good faith and had reasonable ground to believe such action will
not prejudice the Company’s interests), (ii) intentional or reckless beach by Indemnitee of
his or her duty of care to the Company, but other than if done in negligence only, or (iii)
Indemnitee’s action taken with the intention to unduly profit therefrom, and (iv) any fine
or penalty payment to propitiate an offense imposed on Indemnitee.
8.2. Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except: (i) with respect to proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other agreement or insurance policy or
under the Company’s Memorandum or Articles of Association now or hereafter in effect
relating to claims for indemnification, release, exemption or insurance of Indemnitee by
reason of his Corporate Capacity, (ii) in specific cases if the Board of Directors has
approved the initiation or bringing of such suit, or (iii) as otherwise required under the
laws of the Company’s state of incorporation, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment of insurance
recovery, as the case may be; or
8.3. Claims Under Section 16(B). To indemnify Indemnitee for expenses and the
payment of profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or any similar successor statute.
9. Construction of Certain Phrases.
9.1. For purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors,
offices, employees, agents or fiduciaries, so that if Indemnitee is or was serving at the
request of such constituent corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust
or other enterprise, Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as Indemnitee would
have with respect to such constituent corporation if its separate existence had continued.
9.2. For purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; and references to “serving at the request of the Company” shall
include any service as a director, officer, employee, agent or fiduciary of the Company
which imposes duties on, or involves services by, such director, officer, employee, agent
or fiduciary with respect to an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit
plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best
interests of the Company” or that does “not prejudice the Company’s interests” as referred
to in this Agreement.
9.3. For purposes of this Agreement, a “Change in Control” shall be deemed to have
occurred if (i) any “person” (as such term is used in Sections 13(d)
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and 14(d) of the
Exchange Act), other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or indirectly by the
shareholders as a result of a transaction not otherwise constituting a Change of Control,
is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more than 20% of the
total voting power represented by the Company’s then outstanding voting securities, unless
the person has filed a Schedule 13D twenty-four months preceding the date of this
Agreement, (ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by the
Company’s shareholders was applied by a vote of at least two-thirds (2/3) of the directors
then still in office (other than directors whose election was approved in connection with
the settlement of a proxy contest or consent solicitation), cease for any lesson to
constitute a majority thereof or (iii) the Company consummates a merger or consolidation of
the Company with any other corporation other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) a majority of the total voting power represented by the
voting securities of the Company of the surviving entity outstanding immediately after such
merger or consolidation, or (iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the Company of
(in one transaction or a series of transactions) all or substantially all of the Company’s
assets.
9.4. For purposes of this Agreement, “Independent Legal Counsel” shall mean an
attorney or firm of attorneys, selected in accordance with the provision of Section 1.4
hereof, who shall not have otherwise performed services for the company or Indemnitee
within the last three years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other Indemnitees under similar indemnity
agreements).
9.5. For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate
person or body consisting of a member or members of the Company’s Board of Directors or any
other person or body appointed by the Board of Directors who is not party to the particular
claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
9.6. Words and expressions importing the masculine gender shall include the feminine
gender, and words and expressions importing persons shall include bodies corporate.
10. Required Approvals. If for the validation of any of the undertakings in this
Agreement any act, resolution, approval or other procedure is required, the Company
undertakes to cause them to be done or adopted in a manner which will enable the Company to
fulfill all its undertakings as aforesaid.
11. Post Factum Indemnity. Nothing contained in this Agreement derogates from the
Company’s right to indemnify Indemnitee post factum for any amounts which Indemnitee may be
obligated to pay as set forth in Section 1.1 above without the limitations set forth in
Section 1.2 above.
12. Representations and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
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12.1. Authority. The Company has all necessary power and authority to enter
into, and be bound by the terms of, this Agreement, and the execution, delivery and
performance of the this Agreement have been duly authorized by the Company.
12.2. Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of creditors’ rights
generally or equitable principles.
13. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall constitute an original.
14. Binding Effect; Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise) to all, or substantially all the business and/or assets of the
Company, spouses, heirs, personal and legal representative, executors and administrators.
The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial part, of
the business and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall survive and continue to be in effect for
the benefit of Indemnitee and his spouses, heirs, personal and legal representative,
executors and administrators after the Indemnitee has ceased to serve in a Corporate
Capacity.
15. Attorney’s Fees. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the Company to
enforce or interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be
paid all reasonable expenses incurred by Indemnitee with respect to such action, regardless
of whether Indemnitee is ultimately successful in such action, and shall be entitled to the
advancement of
Expenses with respect to such action, unless as a part of such action, a court of competent
jurisdiction over such action determines that each of the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were frivolous. In
the event of an action instituted by or in the name of the Company under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
paid all Expenses incurred by Indemnitee in defense of such action (including costs and
expenses incurred with respect to Indemnitee’s counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to such action,
unless, as a part of such action, the court having jurisdiction over such action determines
that each of Indemnitee’s material defenses to such action were made in bad faith or were
frivolous.
16. Notice. All notices and other communications required or permitted hereunder
Shall be in writing, shall be effective when given and shall in any event be deemed to be
given: (a) five (5) business days after deposit with the applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand,
(c) one business day after the business day of deposit with Federal Express or similar
overnight courier, freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if delivered by facsimile transmission, with copy by first class
mail, postage prepaid, and shall be addressed if to Indemnitee, at the Indemnitee’s address
as set forth beneath Indemnitee’s signature to this Agreement and if to the Company at the
address of its principal corporate offices or at such other address as such party may
designate by ten days’ advance written notice to the other xxxxx hereto.
- 10 -
17. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Israel for all purposes in
connection with any action or proceeding which arises out of or relates to this Agreement
and agree that any action instituted under this Agreement shall be commenced, prosecuted
and continued only in the competent courts of the Tel-Aviv District which shall be the
exclusive and only proper forum for adjudicating such a claim.
18. Severability. The provisions of this Agreement shall be severable in the event
that any of the provision hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable, to the
fullest extent permitted by law. Furthermore, to the fullest extent possible, the
provisions of this Agreement (including, without limitations, each portion of this
Agreement containing any provision held to be invalid, void or otherwise unenforceable that
is not itself invalid, void or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
19. Choice of law. This Agreement shall be governed by and its provisions construed
and enforced in accordance with the laws of the State of Israel, as applied to contracts
between Israeli residents, entered into and to be performed entirely within the State of
Israel, without regard to the conflict of laws principles thereof or of any other
jurisdiction.
20. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee,
who shall execute all documents required and shall do all acts that may be necessary to
secure such rights and to enable the Company effectively to bring suit to enforce such
lights.
21. Amendment and Termination. Except with respect to changes in the governing law
which expand Indemnitee’s right hereunder as set forth in Section 3.1 and which shall be
automatically, without the requirement to take any action by either of the parties hereto,
be incorporated to this Agreement, no amendment, modification, termination or cancellation
of this Agreement shall be effective unless it is in writing signed by both the parties
hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
22. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and usages all previous written and
oral negotiations, commitments, understandings and agreements relating to the subject
matter hereof between the parties hereto.
[FOR EXISTING D&OS: The indemnification agreement entered into by the Company and the
Indemnitee, in a form as approved in the 2000 annual shareholders meeting (“2000 Indemnity
Agreement”) shall supersede the terms of this Agreement, provided, however that if it shall
be determined that (i) any provision under the 2000 Indemnity Agreement is void or invalid,
the terms of this Agreement in connection with such provision shall supersede, or (ii) the
2000 Indemnity Agreement is invalid, then the terms of this Agreement shall supersede.]
23. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnitee any right to be retained in the employ or otherwise
in the service of the Company or any of its subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement as of the date
first above written
- 11 -
| LUMENIS L TD | ||||
By |
||||
| Address: | New Industrial Park X.X Xxx 000 Xxxxxxx, 00000 Telecopier No.: 00-0000000 |
AGREED TO AND ACCEPTED AS OF THE
DATE FIRST WRITTEN ABOVE:
DATE FIRST WRITTEN ABOVE:
INDEMNITEE:
Printed Name
|
Address:
|
||||
Telecopier No
|
||||
- 12 -
Exhibit A
INDEMNIFIABLE EVENTS AND LIMIT AMOUNTS
| Limit Amount | ||||
| Identifiable Event | (in US$ Million) | |||
1.
|
Any claim or demand made by customers suppliers, contractors or other third parties transacting any form of business with the Company, its subsidiaries or affiliates, in the ordinary course of their respective businesses, relating to the negotiations or performance of such transactions, representations or inducements provided in connection thereto or otherwise. | 50 | ||
2.
|
Any claim or demand made in connection with any transaction not in the ordinary course of business of either the Company, its subsidiaries or affiliates or the party making such claim, including the sale, lease or purchase of any assets or business | 50 | ||
3.
|
Any claim or demand made by employees, consultants, agents or other individuals or entities employed by or providing services to the Company its subsidiaries or affiliates relating to compensation owed to them or damages or liabilities suffered by them in connection with such employment or service. | 50 | ||
4.
|
Any claim or demand made under any securities laws of any jurisdiction and/or any stock exchange rules and regulations of any jurisdiction or by reference thereto, or related in the failure to disclose any information in the manner or time such information is required to be disclosed pursuant to such laws, or related to inadequate or improper disclosure of information to shareholders, or prospective shareholders, or related to the purchasing, holding or disposition of securities of the company or any other investment activity involving or affected by such securities, including any actions relating to an offer or issuance of securities of the Company or of its subsidiaries and/or affiliates to the public by prospectus or privately by private placement, in Israel or abroad, including the details that shall be set forth in the documents in connection with execution thereof and any claims related to the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time. | The higher of (i) 70; and (ii) 50 percent (50%) of outstanding shares multiplied in the last reported share price at its principle exchange prior to the occurrence giving rise to the indemnifiable event, or if not then traded on any exchange, the price per share in the Company’s last round of public or private financing. | ||
5.
|
Any claim or demand made for actual or alleged infringement, misappropriation or misuse of any third party’s intellectual property rights by the Company, its subsidiaries or affiliates, including without limitation confidential information, patents, copyrights, design rights, service marks, trade secrets, copyrights, misappropriation of ideas by the Company, its subsidiaries or affiliates. | 50 | ||
6.
|
Actions taken in connection with the intellectual property of the Company and any subsidiary or affiliate, and its protection, including the registration or assertion of rights to intellectual property and the defense of claims relating thereto. | 00 | ||
- 00 -
| Xxxxx Xxxxxx | ||||
| Xxxxxxxxxxxx Event | (in US$ Million) | |||
7.
|
Any claim or demand made by any lenders or other creditors or for moneys borrowed by, or other indebtedness of, the Company, its subsidiaries or affiliates | 50 | ||
8.
|
Any claim or demand made by any third party suffering any personal injury and/or bodily injury or damage to business or personal property through any act or omission attributed to the Company, its subsidiaries or affiliates, or their respective employees, agents or other persons acting or allegedly acting on their behalf | 50 | ||
9.
|
Any claim or demand made directly or indirectly in connection with complete or partial failure, by the Company or any subsidiary or affiliate thereof, or their respective directors, officers and employees, to pay, report, keep applicable records or otherwise, of any foreign, federal, state, county, local, municipal or city taxes or other compulsory payments of any nature whatsoever, including, without limitation, income, sales, use, transfer, excise, value added, registration, severance, stamp, occupation, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll or employee withholding or other withholding, including any interest, penalty or addition thereto, whether disputed or not | 50 | ||
10.
|
Any claim or demand made by purchasers, holders, lessors or other users of products of the Company, or individuals treated with such products, for damages or losses related to such use or treatment | 50 | ||
11.
|
Any administrative, regulatory or judicial actions orders, decrees, suits, demands, demand letters, directives, claims, liens, investigations, proceedings or notices of noncompliance or violation by any governmental entity or other person alleging potential responsibility or liability (including potential responsibility or liability for costs of enforcement investigation, cleanup, governmental response, removal or remediation, for natural resources damages, property damage, personal injuries or penalties or for. contribution, indemnification, cost recovery, compensation or injunctive relief) arising out of, based on or related to (x) the presence of, release, spill, emission, leaning, dumping, pouring, deposit, disposal, discharge, leaching or migration into the environment (each a “Release”) or threatened Release of; or exposure to, any hazardous, toxic, explosive or radioactive substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing material, polychlorinated biphenyls (“PCBs”) or PCB-containing materials or equipment, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any environmental law, at any location, whether or not owned, operated, leased or managed by Lumenis Ltd. or any of its subsidiaries, or (y) circumstances forming the basis of any violation of any environmental law or environmental permit, license, registration or other authorization required under applicable environmental law. | 50 | ||
- 14 -
| Limit Amount | ||||
| Identifiable Event | (in US$ Million) | |||
12.
|
Any administrative, regulatory or judicial actions, orders, decrees, suits, demands, demand letters, directives, claims, liens, investigations, proceedings or notices of noncompliance or violation by any governmental entity or other person alleging the failure to comply with any statute, law, ordinance, rule, regulation, order or decree of any governmental entity applicable to the Company or any of its subsidiaries, or any of their respective businesses or operations, including, without limitation, the rules and regulations imposed or enforced by the United States Food and Drug Administration, or any similar governmental entity, or the terms and conditions of any operating certificate or licensing agreement | 50 | ||
13.
|
Participation and/or non-participation at the Company’s board meetings, bona fide expression of opinion and/or voting and/or abstention from voting at the Company’s board meetings. | 50 | ||
14.
|
Approval of corporate actions including the approval of the acts of the Company’s management, their guidance and their supervision. | 50 | ||
15.
|
Claims of failure to exercise business judgment and a reasonable level of proficiency, expertise and care in regard of the Company’s business. | 50 | ||
16.
|
Resolutions and/or actions relating to a merger of the Company and/or of its subsidiaries and/or affiliates, the issuance of shares or securities exercisable into shares of the Company, changing the share capital of the Company, formation of subsidiaries, reorganization, winding up or sale of all or part of the business, operations or shares the Company. | 50 | ||
