Exhibit 4(b)25
THIS WARRANT AND ANY SECURITIES THAT
MAY BE ISSUED UPON EXERCISE THEREOF) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION (OTHER THAN
PURSUANT TO RULE 144(k), PROVIDED THAT THE COMPANY HAS RECEIVED CUSTOMARY REPRESENTATIONS
CERTIFYING AS TO THE AVAILABILITY OF SUCH RULE 144(k)), UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE
REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.
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| Warrant no. 10 |
Number of Shares: 9,313,293 |
| June 4, 2007 |
(subject to adjustment) |
WARRANT TO PURCHASE
ORDINARY SHARES
OF
LUMENIS LTD.
FOR VALUE RECEIVED, OFER HI-TECH
INVESTMENTS LTD. (together with its successors, transferees and assigns, the
“Holder”) is entitled to purchase subject to the provisions of this
Warrant (this “Warrant”) from Lumenis Ltd., an Israeli company
(“Company”), during the term of this Warrant, at a purchase price per
share equal to $1.1794 (as adjusted from time to time pursuant to the terms of this
Warrant), 9,313,293 Ordinary Shares, par value NIS 0.1 per share, of the Company
(the “Company Shares”) (as adjusted from time to time pursuant to the
terms of this Warrant). The shares purchasable upon exercise of this Warrant and the
purchase price per share, as adjusted from time to time pursuant to the terms of this
Warrant, shall be referred to herein as the “Warrant Shares” and the
“Exercise Price”, respectively.
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1.1. |
Manner
of Exercise. This Warrant may be exercised, in whole or in part,
on one or more occasions during its term. The Warrant may be
exercised by the surrender of this Warrant, together with the Notice
of Exercise in the form attached hereto, duly completed and executed
by the Holder, at the principal office of the Company or at such
other office or agency as the Company may designate, accompanied by
payment in full of the aggregate Exercise Price payable in respect of
the Warrant Shares purchasable upon such exercise. The Exercise Price
may be paid by cash, check, wire transfer or by the cancellation of
debt owed by the Company to the Holder. |
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1.2. |
Effective
Time of Exercise. Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on
the day on which this Warrant shall have been surrendered to the
Company as provided in Section 1.1 above. At such time, the person(s)
in whose name(s) any certificates representing the Warrant Shares
shall be issuable upon exercise as provided in Section 1.4 below
shall be deemed to have become the holder of record of such Warrant
Shares represented by such certificates. |
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1.3.1. |
In
lieu of exercising this Warrant in the manner provided in Section 1.1 above,
the Holder may elect to receive shares equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company or at such other
office or agency as the Company may designate, together with the
Notice of Exercise in the form attached hereto, duly completed and
executed by the Holder, in which event the Company shall issue to the
Holder the number of Warrant Shares computed using the following
formula: |
X = Y * (A – B)
A
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Where: |
X = |
the number of Warrant Shares to be issued to the Holder. |
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Y = |
the number of Warrant Shares, as adjusted to the date of such calculation, underlying the
portion of the Warrant being exercised. |
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A= |
the
Fair Market Value (as defined below) of one Warrant Share. |
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B = |
the Exercise Price, as adjusted to the date of such calculation. |
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1.3.2. |
For
purposes of this Section 1.3, the “Fair Market Value” of a
Warrant Share on the date of calculation shall mean: |
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1.3.2.1. |
If
the Company Shares are listed on a national securities exchange or are quoted
on the National Association of Securities Dealers, Inc. Automated
Quotation/National Market System (NASDAQ/NMS), then the Fair Market Value
shall be the average closing or last sale price, respectively, reported
for the five (5) trading days prior to the exercise date. |
- 2 -
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1.3.2.2. |
If
the Company Shares are not listed on a national securities exchange or quoted
on NASDAQ/NMS, but are traded in any over-the-counter market, then the
Fair Market Value shall be the last sale price of the Company Shares
reported for the five (5) trading days immediately preceding the exercise
date, and if no such sale price is reported, the average of the closing
bid and asked prices as reported for the five (5) trading days prior to
the exercise date. If the Company Shares are not publicly traded, then the
Fair Market Value shall be the fair market value of a Company Share as
determined by an Appointed Expert (as defined in that certain Purchase
Agreement, dated September 30, 2006 among the Company, the Holder and the
other parties named therein (the “Purchase Agreement”)), unless
the Company is at such time subject to a Liquidity Event (as defined
below), in which case the Fair Market Value shall be deemed to be the
value of the consideration per share received by the holders of such
shares pursuant to such event. In the event that the Special Committee (as
defined in the Purchase Agreement) or the Holder object to the
determination of the Appointed Expert, within 15 days after receipt of the
Appointed Expert’s determination, the matter shall be referred to
arbitration to be conducted in accordance with Section 19 hereof. |
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1.3.2.3. |
If
the exercise is in connection with a public offering of the Company Shares
pursuant to an effective registration statement under the Securities Act
of 1933, as amended (the “Securities Act”), or the
equivalent actions under the laws of another jurisdiction, then the fair
market value shall be the initial “Price to Public” per share
specified in the final prospectus with respect to the offering, before
deduction of discounts, commissions or expenses. |
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1.4. |
Delivery
to Holder. As soon as practicable after the exercise of this Warrant
in whole or in part, and in any event within ten (10) days thereafter, the
Company at its expense will cause to be issued in the name of, and delivered
to, the Holder, or as such Holder may direct: |
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1.4.1. |
a
certificate(s) for the number of Warrant Shares to which such Holder shall be
entitled, and |
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1.4.2. |
in
case such exercise is in part only, a new warrant(s) (dated the date hereof)
of like tenor, calling in the aggregate on the face(s) thereof for the
number of Warrant Shares equal to the number of such shares called for on
the face of this Warrant minus the number of such shares purchased
by the Holder upon such exercise as provided in Sections 1.1 or 1.3 above. |
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1.5. |
Conditional
Exercise. In case of an exercise made in connection with a public
offering of the Company Shares pursuant to an effective registration
statement under the Securities Act or the equivalent actions under the
laws of another jurisdiction, or a Liquidity Event (as defined below),
such exercise may be made conditional upon the closing of such offering or
event. |
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For
purposes of this Warrant, the term “Liquidity Event” shall mean: (i) a
sale of all or substantially all of the Company’s assets; (ii) a sale of all or
substantially all of the Company’s issued and outstanding shares, such that following
the transaction more than fifty percent (50%) of the Company’s issued shares are held
by persons who, prior to the said transaction, held less than fifty percent (50%) of the
Company’s issued shares; or (iii) a merger or consolidation of the Company with or
into another corporation, such that following the transaction more than fifty percent
(50%) of the surviving entity’s issued shares are held by persons who, prior to the
said transaction, held less than fifty percent (50%) of the Company’s issued shares. |
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The
number and kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows: |
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2.1. |
Purchase
Agreement Adjustments. |
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2.1.1. |
At
any time following the date hereof, if and whenever additional Company Shares
are to be issued to the Original Holder (as define below) pursuant to
Article X of the Purchase Agreement, (each such event, the “Trigger
Issuance”), then in each such case the then-existing
Exercise Price shall automatically be reduced, as of the close of
business on the effective date of the Trigger Issuance, to a price,
rounded to 4 decimal points, calculated as follows: |
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(capitalized
terms used but not otherwise defined herein shall have the meaning ascribed to them in
the Purchase Agreement) |
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110%
multiplied by a fraction: (i) the numerator of which equals to the aggregate amount
of the purchase price paid by the Original Holder at the Closing; and (ii) the denominator
of which equals to the number of Purchased Shares actually issued to the Original Holder
at the Closing plus any and all additional Company Shares that were or should have
been previously issued to the Original Holder pursuant to Article X of the Purchase
Agreement less any Redeemable A Shares, Redeemable B Shares and/or
Redeemable C Shares that were initially issued to the Original Holder and were actually
redeemed by the Company in accordance with the provisions of the Purchase Agreement. |
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provided,
however, that in no event shall the Exercise Price after giving effect to such Trigger
Issuance be greater than the Exercise Price in effect prior to such Trigger Issuance. |
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2.1.2. |
At
any time following the date hereof, if and whenever any Additional Warrants
(as defined in the Purchase Agreement) are exercised, in whole or in
part, by the Original Holder thereof pursuant to their terms (each
such event, the “Exercise Event”), then in each such
case the following adjustment shall occur: |
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The
number of Warrant Shares shall automatically be increased, as of the close of business on
the effective date of the Exercise Event, by an additional number of Warrant Shares,
rounded to the nearest whole number, calculated as follows: |
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The
product of: (i) the number of Warrant Shares (as adjusted from time to time) purchasable
upon exercise of this Warrant immediately prior to the Exercise Event; multiplied
by (ii) the aggregate exercise price paid for the exercise of the Additional Warrants
by the Original Holder in such exercise divided by the aggregate amount of the
purchase price paid at the Closing by the Original Holder. |
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provided,
however, that in no event shall the number of Warrant Shares after giving effect to
such Trigger Issuance be less than the number of Warrant Shares in effect prior to such
Trigger Issuance. |
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2.1.3. |
The
“Original Holder” shall mean the Holder, and if the Holder
is a successor, transferee, assignee or designee, then the Investor to
which this Warrant was issued at Closing and any of its successors,
transferees, assignees or designees (including the Holder). |
- 5 -
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2.2. |
Stock
Splits, Dividends and Combinations. If the outstanding Company Shares
shall be subdivided into a greater number of shares or a dividend or other
distribution payable in additional shares shall be paid in respect of
Common Shares, the Exercise Price in effect immediately prior to such
subdivision or at the record date of such dividend shall simultaneously
with the effectiveness of such subdivision or immediately after the record
date of such dividend be proportionately reduced. If outstanding Company
Shares shall be combined into a smaller number of shares, the Exercise
Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination be
proportionately increased. When any adjustment is required to be made in
the Exercise Price, the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing (i)
an amount equal to the number of shares issuable upon the exercise of this
Warrant immediately prior to such adjustment, multiplied by the Exercise Price in
effect immediately prior to such adjustment, by (ii) the Exercise Price in
effect immediately after such adjustment. |
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2.3. |
Reclassification,
Etc. In case of any reclassification or change of the outstanding
securities of the Company or of any reorganization of the Company (or any
other corporation the stock or securities of which are at the time
receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change, reorganization, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such
holder would have been entitled upon such consummation if such holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in Section 2; and in each such case, the terms of
this Section 2 shall be applicable to the shares of stock or other
securities properly receivable upon the exercise of this Warrant after
such consummation. |
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2.4. |
Other
Transactions. In the event that the Company shall issue shares to its
shareholders as a result of a split-off, spin-off or the like, then the
Company shall only complete such issuance or other action if, as part
thereof, allowance is made to protect the economic interest of the Holder
either by increasing the number of Warrant Shares or by procuring that the
Holder shall be entitled, on economically proportionate terms, to acquire
additional shares of the spun-off or split-off entities. Upon each
adjustment in the number or kind of Warrant Shares purchasable hereunder,
the Exercise Price shall be proportionately increased or decreased, as the
case may be, in a manner that is the inverse of the manner in which the
number of Warrant Shares purchasable hereunder shall be adjusted. |
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2.5. |
Notice
of Adjustments. Whenever the Exercise Price or the number of Warrant
Shares purchasable hereunder shall be adjusted pursuant to this Section 2,
the Company shall prepare a certificate signed by an executive officer of the
Company setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, the Exercise Price and the number of Warrant
Shares purchasable hereunder after giving effect to such adjustment, and
shall cause copies of such certificate to be delivered to the Holder. |
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2.6. |
Subsequent
Issuances and Rights. Other than Company Shares issued pursuant to the
Purchase Agreement, the Company shall not issue or grant any shares,
securities or rights of any kind conferring upon or granting to the holder
thereof any rights that are derived, arising from or triggered by, or
whose terms shall be modified, accelerated or give rise to any benefits or
privileges as a result of, the implementation of the adjustment provision
contained in Section 2.1 hereof. |
| 3. |
Investment
Representations. |
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3.1. |
The
Holder is knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in shares
representing an investment decision like that involved in the purchase of
this Warrant and the Warrant Shares (the “Purchased Securities”),
without limitation of the representations and warranties included herein
and in the Purchase Agreement. |
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3.2. |
The
Holder is acquiring the Purchased Securities in the ordinary course of its
business and for its own account for investment only and with no present
intention of distributing any of such Purchased Securities and does not
have any current arrangement or understanding with any other persons
regarding the distribution of such securities (this representation and
warranty not limiting the Holder’s right to sell or distribute in
compliance with the Securities Act and the rules and regulations
thereunder); nothing contained herein shall be deemed a representation or
warranty by the Holder to hold the Purchased Securities for any period of
time; |
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3.3. |
The
Holder will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Purchased Securities, nor will the
Holder engage in any short sale that results in a disposition of any of
the Purchased Securities by the Holder, except in compliance with the
Securities Act and the rules and regulations thereunder and any applicable
state securities laws; and |
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3.4. |
The
Holder is an “accredited investor” within the meaning of Rule
501(a) promulgated under the Securities Act. Neither such inquiries nor
any other due diligence investigation conducted by the Holder shall
modify, limit or otherwise affect the Holder’s right to rely on the
Company’s representations and warranties contained herein or in the
Purchase Agreement. |
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3.5. |
The
Holder understands that its investment in the Purchased Securities involves
a significant degree of risk, including a risk of total loss of Holder’s
investment. The Holder understands that no representation is being made as
to the future value or market price of the Company Shares. The Holder has
the knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the
Purchased Securities and has the ability to bear the economic risks of an
investment in the Purchased Securities. |
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3.6. |
The
Holder understands that, until all of the applicable provisions of Section
3.7 hereof are satisfied, any certificates representing the Purchased
Securities will bear a restrictive legend in substantially the following
form: |
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“THE
SECURITIES EVIDENCED BY THIS CERTIFICATE (AND ANY SECURITIES THAT MAY BE ISSUED UPON
EXERCISE OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE) HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION
EXEMPT FROM REGISTRATION (OTHER THAN PURSUANT TO RULE 144(k), PROVIDED THAT THE COMPANY
HAS RECEIVED CUSTOMARY REPRESENTATIONS CERTIFYING AS TO THE AVAILABILITY OF SUCH RULE
144(k)), UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH
OTHER APPLICABLE LAWS.” |
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3.7. |
Promptly
following the earlier of (i) effectiveness of a registration statement
under the Securities Act with respect to the sale of Purchased Securities
or (ii) Rule 144(k) becoming available, the Company shall (A) deliver to
the transfer agent for the Company Shares (the “Transfer Agent”)
irrevocable instructions that the Transfer Agent shall reissue a
certificate representing the Warrant Shares without legends upon receipt
by such Transfer Agent of: (a) the legended certificates for such Warrant
Shares; and (b) either (1) a customary written representation by the
Holder that Rule 144(k) applies to the Warrant Shares represented thereby
or (2) a written statement by the Company that the Holder may sell the
Warrant Shares represented thereby in accordance with the Plan of
Distribution contained in a registration statement that was declared
effective under the Securities Act (the date on which the Transfer Agent
receives all of the items listed in clauses (a), and (b) above, the “Legend
Removal Date”), and (B) if required by the Transfer Agent, cause
its counsel to deliver to the Transfer Agent one or more opinions to the
effect that the removal of such legends in such circumstances may be
effected under the Securities Act. From and after the Legend Removal Date,
upon the Holder’s written request, the Company shall promptly cause
certificates evidencing the Holder’s Warrant Shares referred to in
such written request to be replaced with certificates which do not bear
such restrictive legends, and Warrant Shares subsequently issued upon due
exercise of the Warrants shall not bear such restrictive legends, provided
the provisions of clauses (a) and (b) above, as applicable, are satisfied
with respect to such Warrant Shares. |
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| 4. |
Exemption
from Registration. The Holder understands that the Purchased
Securities are being offered and sold to it in reliance upon specific
exemptions from the registration requirements of the Securities Act, the
rules and regulations thereunder and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Holder’s
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Holder set forth herein in order
to determine the availability of such exemptions and the eligibility of
the Holder to acquire the Purchased Securities. |
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5.1. |
Subject
to the restrictions on transfer provided herein and subject to Sections
3.6 and 3.7, this Warrant shall be transferable, in whole or in part, at
the discretion of the Holder and the Company shall transfer this Warrant,
in whole or in part, from time to time upon the books to be maintained by
the Company for that purpose, upon surrender thereof for transfer
accompanied by appropriate instructions for transfer and such other
documents as may be reasonably required by the Company, including, if
required by the Company, an opinion of its counsel to the effect that such
transfer is exempt from the registration requirements of the Securities
Act, to establish that such transfer is being made in accordance with the
terms hereof, and a new Warrant(s) shall be issued to the transferee(s)
and the surrendered Warrant shall be canceled by the Company. |
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5.2. |
The
Company will maintain a register containing the names and addresses of the
Holder(s) of this Warrant. Until any transfer of this Warrant is made in
the warrant register, the Company may treat the Holder of this Warrant as
the absolute owner hereof for all purposes. Any Holder may change such
Holder’s address as shown on the warrant register by written notice
to the Company requesting such change. |
| 6. |
No
Impairment. The Company will not, by amendment of its charter
documents or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, sale of assets, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder, or impair the economic interest of the Holder, but will at all
times in good faith assist in the carrying out of all the provisions
hereof and in taking of all such actions and making all such adjustments
as may be necessary or appropriate in order to protect the rights and the
economic interests of the Holder against impairment. |
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| 7. |
Termination.
This Warrant and the right to purchase securities upon exercise hereof
shall terminate on 5:00 P.M. Eastern Time on fifth anniversary of the
Closing Date of the Purchase Agreement. |
| 8. |
Notices
of Certain Transactions. In case: |
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8.1. |
the
Company shall take a record of the holders of its Company Shares (or other
shares or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for
or purchase any shares of any class or any other securities, or to receive
any other right, to subscribe for or purchase any shares of any class or
any other securities, or to receive any other right, or |
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8.2. |
of
any capital reorganization of the Company, any reclassification of the share
capital of the Company, any Liquidity Event, or |
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8.3. |
of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, or |
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8.4. |
of
a public offering of the Company Shares pursuant to an effective registration
statement under the Securities Act or the equivalent actions under the
laws of another jurisdiction, |
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then,
and in each such case, the Company will deliver to the Holder a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the estimated effective date on which such reorganization,
reclassification, Liquidity Event, dissolution, liquidation or winding up is to take
place, and the time, if any is to be fixed, as of which the holders of record of Company
Shares (or such other shares or securities at the time deliverable upon such
reorganization, reclassification, Liquidity Event, dissolution, liquidation or winding up)
are to be determined. Such notice shall be delivered ten (10) days prior to the record
date or estimated effective date for the event specified in such notice. |
| 9. |
Reservation
of Shares. The Company will at all times reserve and keep available, solely
for the issuance and delivery upon the exercise of this Warrant, such Warrant
Shares and other shares, securities and property, as from time to time shall be
issuable upon the exercise of this Warrant. |
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10.1. |
The
Company covenants and agrees that the Holder shall be entitled to registration
rights pursuant to the Registration Rights Agreement of even date hereof, in
respect of the Warrant Shares purchasable hereunder (and any shares issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security that is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, such Warrant Shares), and the Warrant
Shares shall be deemed to be Registrable Securities and Original Registrable
Securities thereunder. |
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10.2. |
The
Holder undertakes to be bound by the provisions of Section 9 (Lock-Up
Agreement) of the Registration Rights Agreement of even date hereof, with
respect to prohibitions to offer or sale any Warrant Shares (or any other
shares exchanged therefor), if and to the extent that this Warrant has been
exercised. For the purpose of this sub-section 10.2 the Holder shall be
considered a “Holder”” and the Warrant Shares shall be
considered “Registrable Securities”, all as defined in the
Registration Rights Agreement. |
| 11. |
Replacement
of Warrants. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and (in
the case of loss, theft or destruction) upon delivery of an indemnity agreement
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor, dated as of the date hereof. This Warrant
is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other warrants of different denominations entitling
the holders thereof to purchase in the aggregate the same number of Warrant
Shares purchasable hereunder. |
| 12. |
Notices.
Any notice required or permitted by this Warrant shall be in writing and
shall be deemed sufficient upon receipt, when delivered personally or by
courier, overnight delivery service or confirmed facsimile, or forty-eight (48)
hours after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, addressed (a) if to the
Holder, to the address of the Holder most recently furnished in writing to the
Company and (b) if to the Company, to the address set forth below or
subsequently modified by written notice to the Holder. |
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12.1. |
If
to Holder: |
to the address set forth on the signature page |
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12.2. |
If
to Company: |
Lumenis Ltd.
POB 240
Yokneam, Industrial
Park Israel
Attention:
Chief Executive Officer
Telephone No.:
(972)-(4)-9599356
Facsimile No.: (972)-(4)- 9599360 |
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Each
of the above addressees may change its address for purposes of this Section by giving to
the other addressees notice of such new address in conformance with this paragraph. |
| 13. |
No
Rights as Shareholder. The Holder shall not have any rights as a
shareholder of the Company with regard to the Warrant Shares prior to the
exercise of this Warrant, and then with respect to such Warrant Shares
purchasable upon such exercise. |
| 14. |
No
Fractional Interest. No fractional shares will be issued in connection with
any exercise hereunder, but in lieu of such fractional shares which would
otherwise be issuable the number of shares shall rounded to the nearest whole
number. |
| 15. |
Entire
Agreement. This Warrant constitutes the entire agreement between the
parties hereto with regard to the subject matters hereof, and supercedes any
prior communications, agreements and/or understandings between the parties
hereto with regard to the subject matters hereof. |
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| 16. |
Amendment
or Waiver. This Warrant may be amended only by a written instrument signed
by the Company and the Holder. Any term of this Warrant may be waived only by
an instrument in writing signed by the party against which enforcement of the
waiver is sought. |
| 17. |
Successors.
All the covenants and provisions hereof by or for the benefit of the Holder
shall bind and inure to the benefit of its respective successors and assigns
hereunder. |
| 18. |
Governing
Law; Jurisdiction. This Warrant shall be governed by and construed in
accordance with the laws of the State of Israel, without giving effect to
principles of conflicts of law. The parties hereby submit any dispute arising
under or in relation to this Warrant to the exclusive jurisdiction of the
competent court for the District of Tel Aviv-Jaffa, other than with respect to
the matters set forth in Section 1.3.2.2 which, in accordance with such
Section, are to be referred to arbitration. |
| 19. |
Arbitration
Pursuant to Section 1.3.2.2. |
| |
19.1. |
In
the event a matter is referred to arbitration pursuant to Section 1.3.2.2
hereof, then such arbitration shall be conducted and all decisions and awards
shall be rendered by a single arbitrator (the “Arbitrator”) in
accordance with the rules of the Israeli Arbitration Law – 1968 (the
“Arbitration Law”), which rules and procedures are deemed to
be incorporated by reference into this Section. The arbitration proceedings
shall be conducted in Hebrew in Tel-Aviv, Israel. Any arbitration proceeding
hereunder shall be conducted on a confidential basis. |
| |
19.2. |
The
Arbitrator shall be jointly selected by the Special Committee and the Holder,
or, if such parties do not select the Arbitrator within the ten (10) Business
Days of the delivery of a notice by either party to the other requesting such
selection, then the Arbitrator shall be appointed by the Chairman of the
Israeli Bar Association. |
| |
19.3. |
All
aspects of the arbitration proceedings, including all preliminary and
post-ruling matters, shall be conducted in accordance with Israeli substantive
laws then in force. The Arbitrator shall be authorized to determine the
procedural and evidentiary rules applicable to the arbitration and shall not be
bound by the rules of procedure or evidence under law. The Arbitrator
shall specify in writing the basis for his decision and the basis of any other
remedy authorized under this Section. The discretion of the Arbitrator to
fashion remedies hereunder shall be no broader than the legal and equitable
remedies available to a court in Israel. |
| |
19.4. |
Each
of the parties to the arbitration proceedings shall pay its own expenses. The
Company and the Holder will share equally the expenses of the arbitration
proceeding, unless otherwise determined by the Arbitrator in his award. |
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| |
19.5. |
The
arbitration proceedings shall not exceed 30 Business Days from the commencement
of the proceedings. The Arbitrator shall provide its decision within 15 days
after the completion of the arbitration proceedings. Any award rendered by the
Arbitrator shall be final, binding and un-appealable, except as provided in the
Arbitration Law and judgment may be entered on any such award by Israeli court
having competent jurisdiction. |
| |
19.6. |
For
the purpose of this Section “Business Day” shall mean each day that
is not a Friday, Saturday or holiday on which banking institutions located in
Tel Aviv, Israel are authorized or obligated by law or executive order to
close. |
| 20. |
Headings.
The headings in this Warrant are for purposes of reference only and shall not
limit or otherwise affect the meaning of any provision of this Warrant. |
| 21. |
Counterparts.
This Warrant may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party, it being understood that all parties need not sign the same
counterpart and that signatures may be provided by facsimile transmission. |
– Signature
page follows –
- 13 -
This WARRANT TO PURCHASE ORDINARY
SHARES OF LUMENIS LTD. is executed as of the date first set forth above.
Acknowledged and Agreed
to:
Ofer Hi-Tech Investments Ltd.
By:
——————————————
Name:
Title:
Address:
Telephone No:
Facsimile No.: |
Xxxxx Xxxx Xxxxx
0xx Xxxxx
00 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx 00000
x000-(0)0-000-0000
x000-(0)0-000-0000 |
|
With
a mandatory copy to: |
Xxxxxx, Xxx & Xxxxxx
Xxxx Xxxxx, 0 Xxxxxxxx Xxxxxx
Xxx-Xxxx 00000 Xxxxxx |
Attention:
Telephone No.:
Facsimile No.: |
Alon Sahar, Advocate
(972)-(3)-692-2861
(972)-(3)-696-6464 |
- 14 -
NOTICE OF EXERCISE
The undersigned, pursuant to the
provisions set forth in the attached WARRANT TO PURCHASE ORDINARY SHARES OF LUMENIS
LTD. hereby irrevocably elects to:
o
purchase ______________ Company Shares
covered by such Warrant and herewith makes payment of $_________, representing the full
purchase price for such shares at the price per share provided for in such Warrant (as
adjusted from time to time pursuant to the terms of this Warrant), or
o
exercise such Warrant for _____________ shares purchasable under the Warrant pursuant to the Net Issue Exercise provisions of
Section 1.3 of such Warrant and tenders the Warrant accordingly.
Please issue a certificate
representing the Warrant Shares in the name of the undersigned or as otherwise indicated
below, and if the number of Warrant Shares shall not be all the Warrant Shares purchasable
upon exercise of the Warrant, that a new Warrant for the balance of the Warrant Shares
purchasable upon exercise of this Warrant be registered in the name of the undersigned or
as otherwise indicated below and delivered to the address stated below:
Name:
Address:
ID or Social Security No.:
——————————————
(Date) |
|
——————————————
(Print Name) |
|
| |
|
——————————————
(Signature) |
|
- 15 -
