Exhibit 10.2
PLEDGE AGREEMENT
PLEDGE AGREEMENT made as of, June 1, 2002 by and between LUMENIS LTD. (the
"Pledgee") and its officer SAGI AVI XXXXXX (the "Pledgor") (the "Agreement"),
W I T N E S S E T H :
WHEREAS, Pledgee guaranteed a loan of $2,000,000 (Two Million US dollars)
made to Pledgor by Signature Bank (respectively the "Loan" and the "Bank"), as
evidenced by a Loan Agreement dated May 21, 2001, in connection with the
relocation of the Pledgor to the US and the Pledgor's acquisition of his
residential premises situated in New York, NY and has delivered to the Bank its
guarantee in the form of a Standby Letter of Credit, attached hereto as Exhibit
A (the "Guarantee");
WHEREAS, Pledgee conditioned the extension of the Guarantee on the pledge
by Pledgor to Pledgee of certain shares of stock of Pledgee as security for
amounts payable pursuant to the Guarantee;
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as hereinafter set forth:
SECTION 1. Definitions.
(a) "Pledged Stock" shall mean the shares described in Schedule 1
hereto, together with all certificates, options, rights, or other
distributions issued as an addition to, in substitution or in exchange for,
or on account of, any such shares, and all proceeds of all of the
foregoing, now or hereafter owned or acquired by the Pledgor, including,
without limitation, all dividend thereon or distribution in respect
thereof.
(b) "Indebtedness" shall mean such obligations as Pledgor shall have
to Pledgee for all amounts paid or payable pursuant to the Guarantee.
SECTION 2. Pledge.
(a) As security for the prompt satisfaction of the Indebtedness, the
Pledgor hereby pledges and delivers as security to the Pledgee the Pledged
Stock with attendant stock powers endorsed in blank (with signature
guaranteed) and grants the Pledgee a first priority lien thereon and
security interest therein.
(b) Upon the occurrence of any event as a result of which any amount
is paid pursuant to the Guarantee ("Guarantee Payment Event"), which amount
shall not have been returned to Pledgee within 15 business days, the
Pledgee may, without demand of performance or other demand, advertisement,
or notice of any kind to or upon the Pledgor or any other person (all of
which are hereby expressly waived by the Pledgor) forthwith realize upon
the Pledged Stock or any part thereof, and may forthwith (i) retain
the Pledged Stock for its own account or (ii) subject to compliance with
applicable securities laws, sell or otherwise dispose of and deliver the
Pledged Stock or any part thereof or interest therein, or agree to do so,
in one or more parcels at public or private sale or sales, at such prices
and on such terms as it may deem best, for cash or on credit, or for future
delivery without assumption of any credit risk, with the right to the
Pledgee or any purchaser to purchase upon any such sale the whole or any
part of the Pledged Stock free of any right or equity of redemption in the
Pledgor, which right or equity is hereby expressly waived and released; and
apply such Pledged Stock or the proceeds of any such sale to make itself
whole for amounts paid pursuant to the Guarantee and all costs and expenses
(including reasonable counsel fees) incurred in any such realization upon
the Pledged Stock.
Notwithstanding anything to the contrary it is hereby agreed that in the
event (1) Pledgee terminates Pledgor's employment for any reason or (2) a Change
in Control event (as such term is defined in the Article VI of the Pledgee's
2000 Share Option Plan) occurs, the Pledged Stock shall serve as the only
recourse available to the Pledgee to compensate it for any losses or liability
it incurs as a result of the Guarantee and the Pledgee shall have no or recourse
to any of the other assets or interests of the Pledgor.
SECTION 3. Representations of Pledgor.
The Pledgor represents and warrants that:
(a) He is the legal and beneficial owner of all of the Pledged Stock;
(b) all of the shares of the Pledged Stock are owned by the Pledgor
free and clear of any pledge, mortgage, hypothecation, lien, charge,
encumbrance, or security interest in such shares or the proceeds thereof
except such as are granted hereunder;
(c) the execution and delivery of this Agreement, and the performance
of its terms, will not violate or constitute a default under any agreement,
indenture, or other instrument, license, judgment, decree, order, law,
statute, ordinance, or other governmental rule or regulation applicable to
the Pledgor or any of his property; and
(d) upon delivery of the Pledged Stock to the Pledgee or his agent and
the continued possession thereof, this Agreement shall create a valid first
priority lien upon, and perfected security interest in, the Pledged Stock
and the proceeds thereof, subject to no prior security interest, lien,
charge, encumbrance, or agreement purporting to grant to any third party a
security interest in the property or assets of the Pledgor which would
include the Pledged Stock.
SECTION 4. Covenants of Pledgor.
(a) The Pledgor hereby covenants that, so long as the Guarantee is in
effect, he will not sell, convey, or otherwise dispose of any of the
Pledged Stock or any interest therein or create, incur, or permit to exist
any pledge, mortgage, hypothecation,
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lien, charge, encumbrance, or security interest in, or with respect to, any
of the Pledged Stock or the proceeds thereof except such as are granted
hereby; and
(b) The Pledgor hereby warrants and covenants that he will, at his own
expense, defend the Pledgee's right, title, and security interest in and to
the Pledged Stock against the claims of any person.
SECTION 5. Delivery of Notices.
The Pledgor shall promptly deliver to the Pledgee all written notices and
will promptly give the Pledgee written notice of any other notices received by
Pledgor with respect to the Pledged Stock.
SECTION 6. Further Action.
The Pledgor shall at any time, and from time to time, upon the written
request of Pledgee, execute and deliver such further documents and do such
further acts and things as the Pledgee may reasonably request to effect the
purposes of this Agreement, including, without limitation, delivering to the
Pledgee upon the occurrence of a Guarantee Payment Event irrevocable proxies
with respect to the Pledged Stock in form satisfactory to the Pledgee. Until
receipt thereof, this Agreement shall constitute the Pledgor's proxy to the
Pledgee or its nominee to vote all shares of the Pledged Stock then registered
in the Pledgor's name subsequent to the occurrence of a Guarantee Payment Event.
Such power of attorney granted hereby is coupled with an interest and is
irrevocable. Prior to any Guarantee Payment Event, the Pledgor shall have the
right to vote the Pledged Shares and the right to all cash dividends on and
distributions in respect of the Pledged Shares.
SECTION 7. Expenses of Enforcement; Termination of Pledge.
(a) Upon demand, the Pledgor will pay to the Pledgee the amount of any
and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the
Pledgee may incur in connection with the enforcement of this Agreement.
(b) Upon the earlier of (i) termination of the Guarantee, and (ii) the
satisfaction in full of all of the Indebtedness and the satisfaction of all
additional costs and expenses of the Pledgee as provided herein, this
Agreement shall terminate, and the Pledgee shall deliver to the Pledgor, at
the Pledgor's expense, such of the Pledged Stock as shall not have been
sold or otherwise disposed of pursuant to this Agreement.
SECTION 8. Governing Law.
This Agreement and all transactions pursuant thereto shall be governed by
and construed in accordance with the laws of the State of New York.
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SECTION 9. Notices.
Any notice, payment, demand or other communication required or permitted to
be given by any provision of this Agreement shall be deemed to have been
delivered and given for all purposes (a) if delivered personally to the party or
to an officer of the party to whom the same is directed, or (b) if delivered by
telecopy or facsimile to the party with acknowledgment of good transmission, or
(c) whether or not the same is actually received, if sent by overnight carrier
or registered or certified mail, return receipt requested, postage and charges
prepaid addressed as follows: if to the Pledgor, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
USA, telecopier number: 0-000-000-0000 or to such other address or telecopier
number as the Pledgor may from time to time specify by written notice to
Pledgee; and if to Pledgee, at Pledgee's address Yokneam Industrial Center, P.O.
240, Yokneam Israel or telecopier number 972-4-9599-060, or to such other
address or telecopier number as the Pledgee may from time to time specify by
written notice to the Pledgor; shall be deemed to be effective as of the date so
delivered if delivered personally (which shall include delivery by overnight
courier or by telecopy or facsimile), or as of the third business day after the
date on which the same was deposited in a regularly maintained receptacle for
the deposit of United States mail, addressed and sent as aforesaid.
SECTION 10. Miscellaneous.
(a) Beyond the exercise of reasonable care to assure the safe custody
of the Pledged Stock while held hereunder, the Pledgee shall have no duty
or liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Stock upon surrendering it or tendering
surrender of it to the Pledgor.
(b) The rights and remedies provided herein and in all other
agreements, instruments, and documents relating to the Indebtedness are
cumulative and are in addition to, and not exclusive of, any rights or
remedies provided by law, including, without limitation, the rights and
remedies of a secured party under the Uniform Commercial Code.
(c) This Agreement, the Guarantee, the Loan Agreement and all Exhibits
and Schedules attached hereto and thereto, and all agreements and
instruments to be delivered by the parties hereto and thereto, constitute
the entire agreement among the parties hereto pertaining to the subject
matter hereof and thereof and supersede all negotiations, preliminary
agreements and all prior or contemporaneous discussions and understandings
of the parties hereto in connection with the subject matter hereof, whether
oral or written, and except as aforesaid, are intended as a complete and
exclusive statement of the terms of the agreement among the parties.
(d) Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal
representatives, successors, transferees, heirs and permitted assigns.
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(e) Neither this Agreement nor any part hereof may be amended, waived,
changed or in any way modified except in a writing executed by the parties
hereto with the same formality as this Agreement.
(f) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
(g) Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret,
define, or limit the scope, extent, or intent of this Agreement or any
provision hereof, and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Where the context and circumstances so require, the use of the
singular form of a word shall be deemed to include the plural form thereof
(and vice versa) and the masculine gender shall be deemed to include the
feminine and neuter genders thereof (and vice versa).
(i) Every covenant, term, and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or
against any party.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the day and year first above written.
PLEDGOR:
SAGI AVI XXXXXX
/s/ Sagi Avi Xxxxxx
-----------------------------------
PLEDGEE:
LUMENIS LTD.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
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Schedule 1
Pledged Stock
The capital stock issued by Lumenis Ltd. listed below:
One Hundred Forty Nine Thousand Five Hundred (149,500) ordinary shares NIS 0.10
par value per share.
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STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer unto
____________________ ___________________ (____________) issued shares of the
common stock of ____________________ standing in the name of the undersigned on
the books of said company, represented by Certificate No. _____________, and
does hereby irrevocably constitute and appoint ____________________ as agent to
transfer the said shares on the books of said company, with full power of
substitution in the premises.
Dated: ______________
______________________________
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EXHIBIT A
[Bank Hapoalim letterhead]
Deal Number: 700-02-000001-0
Att: Xx. Xxx Xxxxx
Tel: 000-0000
Fax: 000-0000
Attn: Standby L/C Dept.
From: Bank Hapoalim B.M., Foreign Trade Operations Center
Tel Aviv
Our Ref.: 000-00-000000/0
Ref: Standby Letter of Credit No. 000-00-000000/0
We hereby issue our irrevocable standby letter of credit No. 000-00-000000/0 for
up to US$2,000,000 (US Dollars Two Million) in favour of Signature Bank, to
secure general banking facilities by way of loans, overdrafts, credits,
guarantees, indemnities, payment obligations, letters of credit and any other
banking services whatsoever (hereinafter: "General Banking Facilities") granted
or to be granted by Signature Bank to Xxxx X. Xxxxxx.
This standby letter of credit is available to you by sight payment against your
first demand by tested telex/authenticated swift bearing the clause "Claimed
Under Standby Letter of Credit No. 000-00-000000/0" and stating that:
"1. We hereby claim payment of US$__________ under standby letter of
credit No. 000-00-000000/0 issued by Bank Hapoalim B.M., Tel Aviv.
"2. The amount claimed represents sums due, owing and unpaid under
banking facilities granted by us to Xxxx X. Xxxxxx.
"3. We hereby certify that a prior written notice has been sent by us
to Xxxx X. Xxxxxx at least 30 days prior to the date of this demand."
Partial drawings are permitted.
We undertake that your demands by tested telex/authenticated swift made in
compliance with the terms of this standby L/C will be duly honoured if said
demands are received at this office on or before June 1, 2003.
We shall credit your account as instructed in your demand 7 (seven) days after
receipt of your demand in the manner mentioned above.
This standby letter of credit is subject to the uniform customs and practice for
documentary credits (1993 revisions) ICC Publication Nr. 500.
This message is the operative instrument -- No mail confirmation will follow.
Best Regards,
Bank Hapoalim B.M.
Foreign Trade Operations Center
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