Exhibit 10.7
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of the __ day of
______, 2002, 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 ____________________ ("Indemnitee"),
residing at the address set forth beneath Indemnitee's 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.
a. INDEMNIFICATION OF EXPENSES. The Company shall indemnify Indemnitee to the
fullest extent permitted by law and subject to the limitations set forth in
paragraph 1(b) if Indemnitee was or is or becomes a party to or witness or other
participant in, any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any
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such action, suit, proceeding or alternative dispute resolution mechanism,
whether civil, criminal (unless convicted of committing an offense which
requires proof of criminal thought), administrative, investigative or other
(hereinafter a "Claim") by reason of (or arising in part out of) any
Indemnifiable Event (as defined below) against any and all expenses (including
attorneys' fees and all other costs, expenses and obligations reasonably
incurred in connection with investigating, defending, being a witness or in
participating in (including on appeal), or preparing to defend, be a witness in
or participate in, any such action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgements, and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of such Claim and
any federal, state, local or foreign taxes imposed on the Indemnitee as a result
of the actual or deemed receipt of any payments under this Agreement
(collectively, hereinafter ("Expenses"), including all interest, assessments and
other charges paid or payable in connection with or in respect of such Expenses,
provided that in respect of any specific Indemnifiable Event, the Expenses for
which Indemnitee may be indemnified hereunder will not exceed, individually or
in the aggregate, the Limit Amount (as defined below) applicable to such
Indemnifiable Event. 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.
b. INDEMNIFIABLE EVENT; LIMIT AMOUNTS. For the purpose of this section, 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 and related to the fact that Indemnitee is or was a director, officer,
employee, agent or fiduciary of the Company, or any subsidiary of the Company
(regardless of whether it was a subsidiary of the Company at the time of the
event giving rise to Claim), or is or was serving at the request of the Company
as a director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action or inaction on the part of Indemnitee while serving in such capacity. The
Limit Amount with respect to each such category of events described in Exhibit A
is specified following its description. 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 less then the
Expenses which can be expected to be incurred by Indemnitee in connection with
the corresponding Indemnifiable Event. The Indemnification
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provided herein shall not be subject to the foregoing limits, if and to the
extent such limits are no longer required by Israeli law.
c. REVIEWING PARTY. Notwithstanding the foregoing: (i) the obligations of the
Company under Section 1(a) shall be subject to the condition that the Reviewing
Party (as described in Section 9(e) hereof) shall not have determined (in a
written opinion, in any case in which the Independent Legal Counsel referred to
in Section 1(d) 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(a) (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(c) hereof), the Reviewing Party 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(d) 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. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee.
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d. 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 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 hereafter in effect, the Company
shall seek legal advice only from Independent Legal Counsel (as defined in
Section 9(d) hereof) selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld). 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 or its engagement pursuant hereto.
e. MANDATORY PAYMENT OF EXPENSES. Notwithstanding any other provision 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)(a) hereof or in
the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee in connection therewith.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
a. 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.
b. 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
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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.
c. NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this Agreement, the
termination of any Claim by judgement, order, settlement (whether with or
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.
d. 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.
e. SELECTION OF COUNSEL. In the event the Company shall be obligated hereunder
to pay the Expenses of any Claim, and the Company
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shall have confirmed to Indemnitee in writing that the maximum amount of
Expenses that Indemnitee may incur in connection with the Claim in question will
not exceed the Limit Amount in respect of such Claim, 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, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, 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, (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 not continue to retain such counsel to defend such Claim, then the fees
and expenses of Indemnitee counsel shall be at the expense of 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 any claim against Indemnitee without
the consent of the Indemnitee provided, the amount of such settlement does not
exceed the Limit Amount and any such settlement includes (i) a complete release
and discharge of Indemnitee , and (ii) does not contain any admittance of wrong
doing by Indemnitee, and (iii) is monetary only.
3. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
a. 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 or 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(a) hereof.
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ii. NONEXCLUSIVITY. 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
Expenses incurred by Indemnitee in connection with such Claim. For the
removal of any doubt, any amount received from D&O Insurance (as
defined below) shall not count against any 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 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 Expenses to
which Indemnitee is entitled.
6. LIABILITY INSURANCE. As long as the Indemnitee continues to serve as a
director, officer, employee, agent or fiduciary of the Company and
thereafter as long as the Indemnitee may be subject to any possible
proceedings, the Company shall procure directors' and officers'
liability insurance to the fullest extent permitted by law ("D&O
Insurance"), in such amount (per claim and per period) as the Company
shall deem appropriate; 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; provided, however, that the Company
shall not terminate any
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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 or her duty of care
to the Company.
8. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement:
a. EXCLUDED ACTS AND OMISSIONS. To indemnify, insure or exempt Indemnitee from
or against any liability arising out of (i) Indemnitee's breach of fiduciary
duty to the Company, unless Indemnitee has acted or omitted to act in good faith
and had reasonable ground to believe such action will not harm the Company's
interests, (ii) intentional or reckless breach by Indemnitee of his or her duty
of care to the Company, or (iii) an action taken with the intention to unduly
profit therefrom and (iv) any fine or penalty payment to propitiate an offense.
b. 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
Indemnifiable Events, (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 or insurance recovery, as the case may be; or
c. 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.
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9. CONSTRUCTION OF CERTAIN PHRASES.
a. 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, officers, 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.
b. 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" as referred to in this Agreement.
c. 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) 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 stockholders 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 stockholders was approved by a vote of at least
two-thirds (2/3) of the
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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 reason 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) at least 51% 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 stockholders 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.
d. 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(d) 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).
e. 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.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
11. 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 of the business and/or assets of
the Company, spouses, heirs, and personal and legal representative.
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
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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 continue in effect with respect to Claims relating to
Indemnifiable Events regardless of whether Indemnitee continues to
serve as a director, officer, employee, agent or fiduciary of the
Company or any other enterprise at the Company's request.
12. 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.
13. 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 party hereto.
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14. 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.
15. 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.
16. 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.
17. 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
rights.
18. AMENDMENT AND TERMINATION. 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.
19. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties hereto and supersedes
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and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof
between the parties hereto.
20. 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.
LUMENIS LTD.
By: ____________________
Address: Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx, 00000
Telecopier No.: 00-0000000
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST WRITTEN ABOVE:
BY: ________________________
NAME: ______________________
Address: ___________________
____________________________
____________________________
Telecopier No. _____________
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Exhibit A
INDEMNIFIABLE EVENTS AND LIMIT AMOUNTS
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Limitation Amount
Indemnifiable 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; 100
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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; 100
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3. Any claim or demand made by employees,
consultants, agents or other individuals or
entities employed by or providing services to
the Company relating to compensation owed to
them or damages or liabilities suffered by
them in connection with such employment or
service; 100
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4. Any claim or demand made under any The higher of (i) 250; and
securities laws or by reference thereto, or (ii) 50 percent (50%) of
related to the failure to disclose any outstanding shares multiplied
information in the manner or time such in the last reported share
information is required to be disclosed price at its principle
pursuant to such laws, or related to exchange prior to the
inadequate or improper disclosure of occurrence giving rise to the
information to stockholders, or prospective indemnifiable event.
stockholders, or related to the purchasing,
holding or disposition of securities of the
Company or any other investment activity
involving or affected by such securities;
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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; 100
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6. 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; 100
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7. Any claim or demand made by any third
party suffering any personal 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; 100
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8. 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. 100
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9. 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; 100
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10. 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, leaking, 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 100
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-15-
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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 the ESC Medical Systems 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.
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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
the failure to comply with any statute, law,
ordinance, rule, regulation, order or decree
of any governmental entity applicable to ESC
Medical Systems Ltd. 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. 100
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12. Any claim or demand, not covered by any
of the categories of events described above,
which, pursuant to any applicable law, a
director or officer of the Company may be
held liable to any government or agency
thereof, or any person or entity, in
connection with actions taken by such
director or officer in such capacity. 100
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