Exhibit 10.3
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement"), dated as of February 6, 2003 is
made and entered into by and between LUMENIS LTD. (formerly ESC MEDICAL SYSTEMS
LTD.) a company incorporated under the laws of the State of Israel ("LUMENIS"),
and BANK HAPOALIM B.M., an Israeli banking corporation (the "Bank").
RECITALS
WHEREAS, LUMENIS has requested, and may request from time to time after the
date hereof, the Bank to make loans and other extensions of credit to LUMENIS
and/or to one or more subsidiaries of LUMENIS (collectively, the "Loans"); and
WHEREAS, LUMENIS has agreed to execute and deliver this Agreement to the
Bank;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, LUMENIS and the Bank hereby agree as follows:
1. Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
"Closing Price" means, as of any day, the last traded price regular way
reported on the NASDAQ National Market System for a share of LUMENIS Stock on
such day.
"LUMENIS' Stock" means the ordinary shares, par value NIS 0.1 per share,
issued by LUMENIS.
"Governmental Authority" shall mean any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision.
"Lien" shall mean, with respect to any Person, any mortgage, lien, pledge,
hypothecation, charge, security interest or other encumbrance, or any interest
or title of any vendor, lessor, lender or other secured party to or of such
Person under any conditional sale or other title retention agreement or a
capital lease, upon or with respect to any property or asset of such Person
(including without limitation in the case of shares of stock, shareholder
agreements, voting trust agreements and all similar arrangements).
"Person" shall mean any individual or general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
estate, business trust, co-operative, association, unincorporated organization,
Governmental Authority or other entity, and where the context so admits, the
legal representatives, successors in interest and permitted assigns of such
Person.
"Public Offering" means any public offering pursuant to an effective
registration statement under the United States Securities Act of 1933, as
amended, or any other securities law of any other jurisdiction, covering the
offering and sale of shares of LUMENIS Stock for the account of LUMENIS (other
than a registration statement effected solely to implement an employee benefit
plan, a transaction in which Rule 145 of the United States Securities and
Exchange Commission is applicable or any other form or type of registration in
which LUMENIS Stock cannot be included pursuant to United States Securities and
Exchange Commission rules and practice).
2. Grant of Option. Upon the terms and subject to the conditions set forth
herein, LUMENIS hereby grants to the Bank or to any of its subsidiaries (the
Bank or any such subsidiary, the "Optionee"), the irrevocable right and option
(the "Option") to purchase from LUMENIS up to 275,000 shares of LUMENIS Stock
(the "Option Shares"), at a price per share equal to the Purchase Price (as
defined below). The decision to elect to exercise the Option shall be in the
sole discretion of the Optionee, and the Optionee shall incur no liability
whatsoever to any Person for any failure to exercise the Option.
3. Purchase Price. The purchase price (the "Purchase Price") for the Option
Shares shall be the closing or last sale price, respectively, reported on
February 5, 2003 which is $1.17 per Option Share, subject as set forth herein.
Notwithstanding the foregoing, if LUMENIS undergoes a Public Offering at any
time during the Exercise Period (as defined below), the Purchase Price for the
Option Shares exercised and acquired in such Public Offering shall be at a price
per Option Share equal to the lower of (i) eighty-five percent (85%) of the
price per share paid by the purchasers of the LUMENIS Stock in such Public
Offering, or (ii) the Closing Price, reported on February 5, 2003 which is $1.17
(subject to adjustment).
4. Exercise Period. Subject to Paragraph 7, this Option may be exercised,
in part or in whole, during the period beginning on the date of this Option and
ending on the fifth anniversary of the date hereof (the "Exercise Period").
Without derogating from Paragraph 7 below, at the end of the Exercise Period,
the Option shall expire with respect to any Option Shares not then exercised and
acquired.
5. Adjustment of Purchase Price and Number of Option Shares. The number and
kind of securities purchasable initially upon the exercise of this Option and
the Purchase Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Adjustment for Share Splits and Combinations. If LUMENIS at any
time or from time to time effects a subdivision of the outstanding shares
of LUMENIS Stock, the number of shares of LUMENIS Stock issuable upon
exercise of this Option immediately before the subdivision shall be
proportionately increased, and conversely, if LUMENIS at any time or from
time to time combines the outstanding shares of LUMENIS Stock, the number
of shares of LUMENIS Stock issuable upon exercise of this Option
immediately before the combination shall be proportionately decreased. Any
adjustment under this Paragraph 5(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event
LUMENIS at any time, or from time to time makes or fixes a record date for
the determination of holders of shares of LUMENIS Stock entitled to receive
a dividend or other distribution payable in additional shares of LUMENIS
Stock, then and in each such event the number of shares of LUMENIS Stock
issuable upon exercise of this Option shall be increased as of the time of
such issuance or, in the event such a record date is fixed, as of the close
of business on such record date, by multiplying the number of shares of
LUMENIS Stock issuable upon exercise of this Option by a fraction: (i) the
numerator of which shall be the total number of shares of LUMENIS Stock
issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date plus the number of shares of
LUMENIS Stock issuable in payment of such dividend or distribution, and
(ii) the denominator of which is the total number of shares of LUMENIS
Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date; provided, however, that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed thereof, the number of
shares of LUMENIS Stock issuable upon exercise of this Option shall be
recomputed accordingly as of the close of business on such record date and
thereafter the number of shares of LUMENIS Stock issuable upon exercise of
this Option shall be adjusted pursuant to this Paragraph 5(b) as of the
time of actual payment of such dividends or distributions.
(c) Adjustments for Other Dividends and Distributions. In the event
LUMENIS at any time or from time to time makes or fixes a record date for
the determination of holders of shares of LUMENIS Stock entitled to receive
a dividend or other distribution payable in securities of LUMENIS other
than shares of LUMENIS Stock, then in each such event provision shall be
made so that the Optionee shall receive upon exercise of this Option, in
addition to the number of shares of LUMENIS Stock receivable thereupon, the
amount of securities of LUMENIS that the Optionee would have received had
this Option been exercised for shares of LUMENIS Stock immediately prior to
such event (or the record date for such event) and had the Optionee
thereafter, during the period from the date of such event to and including
the date of exercise, retained such securities receivable by it as
aforesaid during such period, subject to all other adjustments called for
during such period under this Paragraph 5 and LUMENIS' Articles of
Association with respect to the rights of the Optionee.
(d) Adjustment for Reclassification, Exchange and Substitution. If the
shares of LUMENIS Stock issuable upon the exercise of this Option are
changed into the same or a different number of shares of any class or
classes of shares, whether by recapitalization, reclassification or
otherwise (other than a subdivision or combination of shares or shares
dividend or a reorganization, merger, consolidation or sale of assets,
provided for elsewhere in this Paragraph), then and in any such event the
Optionee shall have the right thereafter to exercise this Option into the
kind and amount of shares and other securities receivable upon such
recapitalization, reclassification or other change, by holders of the
number of shares of LUMENIS Stock for which this Option might have been
exercised immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein and under
LUMENIS' Articles of Association.
(e) Reorganization, Mergers, Consolidations or Sales of Assets. If at
any time from time to time there is a capital reorganization of the shares
of LUMENIS Stock (other than a recapitalization, subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this
Paragraph) or a merger or consolidation of LUMENIS with or into another
corporation, or the sale of all or substantially all of LUMENIS' properties
and assets to any other Person, then, as a part of such reorganization,
merger, consolidation or sale, provision shall be made so that the Optionee
shall thereafter be entitled to receive upon exercise of this Option, the
number of shares or other securities or property of LUMENIS, or of the
successor corporation resulting from such merger or consolidation or sale,
to which a holder of shares of LUMENIS Stock deliverable upon conversion
would have been entitled on such capital reorganization, merger,
consolidation or sale. In any such case (except to the extent any cash or
property is received in such transaction), appropriate adjustment shall be
made in the application of the provisions of this subparagraph and LUMENIS'
Articles of Association with respect to the rights of the Optionee after
the reorganization, merger, consolidation or sale to the end that the
provisions of this subparagraph and LUMENIS' Articles of Association
(including adjustment of the number of shares of LUMENIS Stock issuable
upon exercise of this Option) shall be applicable after that event and be
as nearly equivalent to the provisions hereof as may be practicable.
(f) Other Transactions. In the event that LUMENIS shall issue shares
to its shareholders as a result of a split-off, spin-off or the like, then
LUMENIS shall complete such issuance or other action if, as part thereof,
allowance is made to protect the economic interest of the Optionee either
by increasing the number of Option Shares and/or by reducing
proportionately the Purchase Price of the Option Shares and/or by procuring
that the Optionee shall be entitled, on economically proportionate terms,
to acquire additional shares of the spun-off or split-off entities.
(g) Notice of Capital Changes. If at any time LUMENIS shall offer for
subscription pro rata to the holders of shares of LUMENIS Stock any
additional shares of any class, other rights or any equity security of any
kind, or there shall be any capital reorganization or reclassification of
the capital shares of LUMENIS Stock or the consolidation or merger of
LUMENIS with, or sale of all or substantially all of its assets to another
company or there shall be a voluntary or involuntary dissolution,
liquidation or winding up of LUMENIS, or other transaction described in
this Paragraph 5, then, in any one or more of said cases, LUMENIS shall
give the Optionee, by registered or certified mail, postage prepaid, a
written notice containing a brief description of the proposed action and
stating the date on which (i) a record is to be taken for the purpose of
such subscription or other rights, or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up is to take place, as the case may be. Such notice shall also
specify the date as of which the holders of record of shares of LUMENIS
Stock shall participate in such subscription rights, or shall be entitled
to exchange their shares of LUMENIS Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, as the case may be.
Such written notice shall be given at least fourteen (14) days prior to the
action in question, and not less than fourteen (14) days prior to the
record date in respect thereto.
(h) Adjustment of Purchase Price. Upon each adjustment in the number
of shares of LUMENIS Stock purchasable hereunder, the purchase price per
share 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 shares
of LUMENIS Stock purchasable hereunder shall be adjusted. In the event that
LUMENIS shall hereafter issue any additional shares of LUMENIS Stock or any
securities convertible into or exchangeable for LUMENIS Stock or any
warrants, options or other rights to acquire shares of LUMENIS Stock or
such convertible securities, pursuant to Paragraph 5(c) hereof, then the
Purchase Price for the Option Shares purchasable hereunder shall, at the
sole option of the Optionee and in lieu of any adjustment pursuant to such
Paragraph, be reduced by an amount equal to the Fair Market Value of such
stock, securities, warrants, options or rights as of the date of such
initial issuance thereof, without giving effect to any withholding or other
taxes, charges, imposts or duties. In the event that LUMENIS shall
hereafter pays any dividend or makes any distribution payable in additional
shares of LUMENIS Stock pursuant to Paragraph 5(b) hereof, then the
Purchase Price for the Option Shares purchasable hereunder shall, at the
sole option of the Optionee and in lieu of any adjustment in the number of
Option Shares purchasable hereunder pursuant to such Paragraph, be reduced
by an amount equal to the amount of all such payments and dividends,
without giving effect to any withholding or other taxes, charges, imposts
or duties.
(i) Notice of Adjustments. Whenever the Purchase Price or the number
of shares of LUMENIS Stock purchasable hereunder shall be adjusted pursuant
to Paragraph 5 hereof, LUMENIS shall prepare a certificate signed by the
chief financial officer of LUMENIS setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated, and the Purchase Price and the number
of shares of LUMENIS Stock purchasable hereunder after giving effect to
such adjustment, and shall cause copies of such certificate to be mailed
(by first class mail, postage prepaid) to the Optionee.
(j) Adjustment Proportionate; Rounding Upward. Any adjustment under
this Paragraph 5 in the number of Option Shares shall apply proportionately
to only the unexercised portion of the Option. If fractions of a share
would result from any such adjustment, the aggregate shares adjustment
shall be revised to the next higher whole number of shares.
6. Method of Exercising Option and Payment of Purchase Price.
The Option may be exercised, in whole or in part on any number of occasions
during the Exercise Period, by the delivery by the Optionee to LUMENIS at its
principal office (or such other office or agency of Lumenis as it may designate
by notice in writing to the Holder at the address of such holder appearing on
the books of Lumenis) of the attached Notice of Exercise, either by mail, fax,
e-mail, or personal delivery, all in accordance with the provisions of Section
16 below, duly signed by a certified signatory of Optionee. The Notice of
Exercise must be accompanied by payment in full of the aggregate Purchase Price
for the Option Shares being purchased upon such exercise. Payment for such
Option Shares shall be made in U.S. dollars by check payable to the order of
LUMENIS or by wire transfer to an account designated by LUMENIS. Payment made
after 14:00 a.m., Israel time, shall be deemed made on the subsequent Business
Day. With respect to each such exercise of this Option, simultaneous with
Optionee's payment of the Purchase Price for the number of Option Shares
indicated in the related Notice of Exercise, LUMENIS shall issue and deliver to
Optionee a certificate or certificates evidencing such Option Shares registered
in the name of Optionee or its designee. Upon receipt by LUMENIS of this Option
at its office in proper form for exercise, Optionee shall be deemed to be the
holder of record of the Option Shares transferable upon such exercise. If this
Option should be exercised in part only, LUMENIS shall concurrently with the
delivery of the certificates for purchased Option Shares, execute and deliver to
the Optionee a new Option, on the same terms and conditions as this Option,
evidencing the rights of the Optionee thereof to purchase the balance of the
Option Shares. Furthermore, Lumenis undertakes to cooperate with Holder in good
faith to effect any exercise of the Option and any permitted Transfer of the
Option and/or the Option Shares.
7. Cashless Exercise.
The Holder may elect to receive, without the payment by the Holder of any
additional consideration, shares equal to the value of this Option or any
portion hereof by the surrender of this Option or such portion to LUMENIS, with
the net issue election notice annexed hereto duly executed, at the office of
LUMENIS. Thereupon, LUMENIS shall issue to the Holder such number of fully paid
Option Shares as is computed using the following formula:
X = Y (A-B)
-----------
A
where X = the number of Option Shares to be issued to the Holder
pursuant to this Section 7.
Y = the number of Option Shares covered by this Option in
respect of which the net issue election is made pursuant to
this Section 7,
A = the fair market value of one Option Share.
The "Fair market value" of an ordinary share shall mean:
I). If LUMENIS' ordinary shares are listed on a national
securities exchange or quoted on the National Association of
Securities Dealers, Inc. Automated Quotation/National Market
System (NASDAQ/NMS), then the closing or last sale price,
respectively, reported for the Exercise Date.
II). If LUMENIS' ordinary shares are not listed on a national
securities exchange or quoted on NASAQ/NMS, but traded in
the over the counter market, then the mean of the closing
bid and asked prices as reported for the exercise date.
III).If LUMENIS' ordinary shares are not publicly traded, then
as determined by an appraiser the identity of whom would be
determined by the parties hereto. The costs and fees of the
appraiser shall be borne solely by LUMENIS.
IV). If the exercise date is the date of closing of a public
offering of LUMENIS' ordinary shares pursuant to an
effective registration statement under the Securities Xxx
0000, as amended, then the public offering price (before
deduction of discounts, commissions or expenses) in such
offering..
B = the Purchase Price in effect under this Option at the time
the net issue election is made pursuant to this Section 7.
For the removal of any doubt, it is agreed that section 5 hereof
shall apply also to cashless exercise.
8. Investment Representation. Optionee, and each of its subsidiaries who is
issued Option Shares pursuant to this Agreement, represent that (i) it is an
"accredited investor," as that term is defined in Rule 501(a) of Regulation D
under the United States Securities Act of 1933, as amended, or any successor
federal statute (the "Securities Act"), and (ii) any and all Option Shares
purchased hereunder shall be acquired for investment only and without a view to
the resale or distribution thereof, except in any case pursuant to the
registration of such Option or Option Shares under the Securities Act or
pursuant to a valid exemption from such registration requirement. If the Option
Shares are not so registered, certificates for the Option Shares shall bear the
legend set forth in Paragraph 12 hereof.
9. Exchange, Transfer, Assignment or Loss of Option.
(a) For purposes of this Agreement, "Transfer", as to this Option, the
Option Shares or any shares of LUMENIS Stock, means any transfer, sale,
exchange, assignment, the creation of any Lien, option or right to
purchase, and any other disposition of any kind, whether voluntary or
involuntary, affecting title to, possession of or voting rights with
respect thereto. Optionee and each of its subsidiaries who is issued Option
Shares pursuant to this Agreement acknowledges that the Option and the
Option Shares issuable upon exercise thereof have not been registered under
the Securities Act, and agree that it will not Transfer any this Option or
the Option Shares except upon the terms and conditions specified herein,
and that it will cause any transferee thereof to agree to take and hold the
same subject to the terms and conditions specified herein, provided that,
Optionee or any holder of the Option Shares may sell Option Shares
purchased upon exercise of this Option in one or more private transactions
not requiring registration under the Securities Act or in one or more
public sales in compliance with Rule 144 under the Securities Act. Prior to
any Transfer of any Option Shares (other than a Transfer among Optionee
and/or any of its affiliates), the holder thereof shall give written notice
to LUMENIS of such holder's intention to effect such Transfer and the
identity of the proposed transferee. Each holder wishing to effect such a
Transfer of the Option Shares shall also furnish to LUMENIS an agreement by
the transferee thereof that it is taking and holding the same subject to
the terms and conditions specified herein and, unless the transferee is an
affiliate of such holder, a written opinion of such holder's counsel, in
form reasonably satisfactory to LUMENIS, to the effect that the proposed
Transfer may be effected without registration under the Securities Act. The
restrictions set forth in Paragraphs 8, 9 and 12 shall terminate and cease
to be effective with respect to any Option Shares that are registered under
the Securities Act or upon receipt by LUMENIS of an opinion of counsel,
reasonably satisfactory to LUMENIS, to the effect that compliance with such
restrictions is not necessary in order to comply with the Securities Act
with respect to the Transfer of the Option Shares.
(b) Subject to the restrictions set forth herein, this Option is
exchangeable, without expense, at the option of the Optionee, upon
presentation and surrender hereof to LUMENIS or at the office of its stock
transfer agent, if any, for other options of different denominations
entitling the holder thereof to purchase in the aggregate the same number
of Option Shares purchasable hereunder; Upon surrender of this Option to
LUMENIS at its principal office or at the office of its stock transfer
agent, if any, with the Assignment Form annexed hereto duly executed and
funds sufficient to pay any transfer tax, LUMENIS shall, without charge,
execute and deliver a new Option in the name of the assignee named in such
instrument of assignment and this Option shall promptly be canceled; The
term "Option" as used herein includes any Options into which this Option
may be divided or exchanged. Upon receipt by LUMENIS of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Option, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Option, if mutilated, LUMENIS will execute and deliver a new Option of like
tenor and date.
10. Representations, Warranties and Covenants of LUMENIS.
(a) LUMENIS hereby represents and warrants to Optionee that:
(i) There has been reserved, and LUMENIS shall at all times keep
reserved so long as the Option remains outstanding, out of its
authorized LUMENIS Stock, such number of shares of LUMENIS Stock as
shall be subject to purchase under the Option, and LUMENIS will supply
every transfer agent for LUMENIS Stock and other securities of LUMENIS
issuable upon exercise of the Option with duly executed stock and
other certificates, as appropriate, for such purpose;
(ii) Upon delivery of, and payment for the Option Shares as
contemplated by this Agreement, the Optionee will acquire duly
authorized, validly issued, fully paid and nonassessable Option
Shares;
11. Legend. Except as provided in Paragraph 9(a) hereof, each stock
certificate evidencing the Option Shares issued to the Optionee or to any other
Person in connection with a transfer pursuant to this Agreement shall include
the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND UNDER SUCH LAWS, OR
UNLESS AN EXEMPTION FROM REGISTRATION AND QUALIFICATION IS AVAILABLE. THE
SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN OPTION
AGREEMENT DATED February 6, 2003 TO WHICH THE ISSUER IS SUBJECT. A COPY OF
SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
ISSUER."
12. Fractional Interest. No fractional shares will be issued in connection
with any exercise hereunder, but in lieu of such fractional shares LUMENIS shall
round up the number of Option Shares to be issued.
13. No Rights in Option Shares. Optionee shall have none of the rights of a
shareholder with respect to the Option Shares unless and until the Option Shares
are issued to it upon exercise of the Option.
14. Registration Rights. If LUMENIS effects a registration with respect to
the public resale by shareholders of any LUMENIS Stock under the Securities Act,
or any other relevant securities laws of any other jurisdiction, the Optionee
shall have the right to have included in such registered offering the Option
Shares, on a pro rata basis with the other selling shareholders participating in
such registered offering, in proportion to the respective holdings of Optionee
and all such other selling shareholders.
15. Expenses. LUMENIS shall pay Israeli Stamp Duty, if any, on the issue of
the Option Shares, and will notify the Israeli Companies Registrar of such issue
within the time period required by law. The Stamp Duty on this Option, if any,
will be paid in full by LUMENIS.
16. Notices. All notices, requests and other communications to any party
under this Option shall be in writing and shall be given to such party, by mail,
telecopy, telex, personal delivery, fax, e-mail, or other customary means of
delivery, addressed to it as set forth below or such other address or telex
number as such party may in the future specify for such purpose by notice to the
other party. Each such notice, request or communication shall be effective, if
given by telex, fax or e-mail, after the date of dispatch of such communication
is transmitted to the respective number specified below and the appropriate
answerback is received, if given by mail, two days after such communication is
deposited in the United States mails and sent by certified or registered mail,
return receipt requested, with first class postage prepaid, addressed as
aforesaid or if given by fax, e-mail, telecopy personal delivery, on the
Business Day when received at the address specified below. "Business Day" means
- a day on which banks are open for business in New York and in Israel.
Party Address
If to LUMENIS: LUMENIS Ltd.
Yokneam Industrial Park,
P.O.B. 240, Yokneam 20692
Attention: President
Telephone: 00-0000000
Telecopier: 04-9599070
With a copy to: Zellermayer, Pelossof & Co.
Xxxxxxxxxx Xxxxx
00 Xxxxxxx Xxxxxx
Xxx Xxxx 00000
Attention: Revital Kerem, Advocate
Telephone: 00-0000000
Telecopier: 03-6255500
If to the Optionee: Bank Hapoalim B.M.
00 Xxxxxx Xxxxxx Xx
Xxx Xxxx
Attention: Mr. Mr. Ya'akov Elinav
Telephone: 00-0000000
Telecopier: 00-0000000
with a copy to: Xxxx Xxxxxxx
000 Xxxxxxx Xxx., 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Notice to any other Optionee shall be sent to the address indicated on the
applicable Assignment Form.
17. Governing Law/Submission to Jurisdiction.
(a) This Agreement shall be governed by the laws of the State of
Israel. For the purposes of this Agreement LUMENIS hereby irrevocably
submits to the exclusive jurisdiction of the competent courts in Tel-Aviv -
Jaffa, Israel.
(b) LUMENIS agrees that any summons, notice or judgment or other legal
process or document in connection with any proceedings referred to in
sub-clause (a) hereof may be serviced upon by delivering same to LUMENIS at
its address set forth in Paragraph 16 and a copy to Zellermayer, Pelossof &
Co., Advocates, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxx 00000.
18. Miscellaneous.
(i) This Agreement cannot be changed or terminated orally. This
Agreement contains the entire agreement between the parties relating
to the subject matter hereof. The paragraph headings herein are
intended for reference only and shall not affect the interpretation
hereof. This Agreement may be executed in any number of counterparts
and by telecopier, each of which shall constitute an original, and all
of which taken together shall constitute one and the same agreement.
Except as specifically stated herein as constituting an explicit
waiver or modification of any provision of a loan agreement or other
document evidencing indebtedness owing from LUMENIS to the Optionee,
nothing contained herein shall constitute a waiver or modification by
the Optionee of any of the covenants, representations or agreements
under such loan or other document. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, each of
which shall remain in full force and effect.
19. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns.
20. Availability of Public Information. With a view to making available to
the Optionee and any subsequent holder of the Option Shares the benefits of
certain rules and regulations of the United States Securities Exchange
Commission (the "SEC") (including, without limitation, Rules 144 and 144A under
the Securities Act), which may permit the sale of the Option Shares to the
public or certain other institutions without registration, LUMENIS agrees to
take any and all such actions as may be required of it to make available to the
Optionee and such subsequent holders such benefits, including, without
limitation, to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act or any
successor provision thereto from and after the date LUMENIS first
becomes subject to the provisions of Section 13 or 15(d) of the United
States Securities Exchange Act of 1934, as amended, or any successor
federal statute (the "Exchange Act"); and
(ii) file with the SEC in a timely manner all reports and other
documents required of LUMENIS under the Securities Act and the
Exchange Act from and after the date LUMENIS first becomes subject to
the provisions of Section 13 or 15(d) of the Exchange Act; and
(iii) so long as the Optionee or any affiliate of the Optionee
owns any Option or Option Shares, furnish to the Optionee forthwith
upon request a written statement by LUMENIS as to compliance with the
reporting requirements of Rule 144 or any successor provision thereto,
and of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of LUMENIS filed with the SEC, in
each case from and after the date LUMENIS first becomes subject to the
provisions of Section 13 or 15(d) of the Exchange Act, and such other
reports and documents of LUMENIS and other information in the
possession of or reasonably obtainable by LUMENIS as the Optionee and
its affiliates and subsequent holders of the Option Shares may
reasonably request in availing itself of any rule or regulation of the
SEC allowing the Optionee and its affiliates and subsequent holders of
the Option Shares to sell any such securities without registration.
IN WITNESS WHEREOF, the parties have executed this Option Agreement as of
the day and year first above written.
BANK HAPOALIM B.M.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title:
By: /s/ Liora Ben Ami
-------------------------------
Name: Liora Ben Ami
Title:
LUMENIS LTD.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title:
NOTICE OF EXERCISE
To:
1. The undersigned hereby elects to purchase Option Shares, pursuant
---------
to the terms of the attached Option, and tenders herewith payment of the
purchase price for such shares in full / requests Cashless Exercise of
Option Shares.
-------
2. In exercising this Option, the undersigned hereby confirms and acknowledges
that the Option Shares are being acquired solely for the account of the
undersigned (and not as a nominee for any other party) for investment, and
that the undersigned will not offer, sell or otherwise dispose of any such
Option Shares except under circumstances that will not result in a
violation of the United States Securities Act of 1933, as amended, or any
state securities laws.
3. Please issue a certificate representing said Option Shares in the name of
the undersigned and deliver such certificate to the undersigned.
---------------------- -------------------------
(Date) (Print Name)
-------------------------
(Signature)
ASSIGNMENT FORM
FOR VALUE RECEIVED, hereby sells,
-------------------------------------
assigns and transfers unto
Name
------------------------------------------------------------
(Please typewrite or print in block letters)
Address
---------------------------------------------------------
and the above transferee hereby acquires and assumes the right to purchase
Option Shares represented by this Option to the extent of Option Shares
------
as to which such right is exercisable and agrees to be bound by the terms and
conditions of the Option.
Date
----------------------------- -------------------------------
Transferor Signature
-------------------------------
Transferee Signature
