Exhibit 36
ESC MEDICAL SYSTEMS LTD.
OPTION AGREEMENT
Made as of the 30th day of June, 2000
BETWEEN
ESC MEDICAL SYSTEMS LTD., an Israeli company with offices at Yokneam Industrial
Park, P.O. Box 240, Yokneam 20692, Israel (the "Company").
AND
ARIE GENGER, an individual whose address is c/o Trans-Resources, Inc., 375 Park
Avenue, New York, New York 10152 (the "Optionee").
W I T N E S S E T H
WHEREAS, the Company desires to provide the Optionee with incentive compensation
by affording him an opportunity to purchase shares of its Ordinary Shares, par
value NIS 0.10 per share (the "Shares"), as hereinafter provided.
NOW THEREFORE, in consideration of the premises and of the mutual covenants and
agreements hereinafter contained, the parties hereto mutually covenant and agree
as follows:
1. Grant of Option. Further to the approval of the Audit Committee of the
Company on April 28, 2000, the Company hereby grants to the Optionee,
effective immediately (the "Grant Date") an option (the "Option") to
purchase all or any part of an aggregate of 1,000,000 (one million) Shares
(subject to adjustment as provided in Paragraph 8) on the terms and
conditions hereinafter set forth and subject to the Company's 1999 Share
Option Plan (the "1999 SOP") the terms of which are incorporated herein by
reference, unless otherwise stipulated herein. Terms used herein and not
otherwise defined shall have the meaning assigned to them in the 1999 SOP.
2. Purchase Price. The purchase price of the Shares issuable upon exercise of
the Option (the "Option Price") shall be $8.50 (eight U.S. Dollars and
fifty cents) per Share, being the Nasdaq closing price of the Shares on
April 17, 2000, the date the Company agreed to the grant (subject to the
above approval). Payment shall be made by wire transfer or by certified
check in the manner prescribed in Paragraph 9 hereof, or any other manner
acceptable to the Company.
3. Term of Option. The term of the Option shall be for a period of ten (10)
years from the date hereof (the "Termination Date"), subject to earlier
termination as provided in paragraph 7.
4. Vesting Period. The Optionee's rights to purchase the Shares shall be
exercisable immediately with respect to 250,000 (two hundred and fifty
thousand) Shares, and as to
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the remaining shares shall vest in three equal annual installments, each
with respect to 250,000 (two hundred and fifty thousand) Shares occurring
on the 17th day of April of 2001, 2002 and 2003, respectively.
5. Acceleration. Notwithstanding Paragraph 4 herein, the Option shall be fully
exercisable with respect to all shares immediately prior to a Change in
Control in the Company or the termination by the Company of Optionee's
employment with the Company for any reason other than for "cause" (as
defined in the Employment Agreement of Optionee with the Company).
6. Limitations and Restrictions on Options and Ordinary Shares. The Option
shall not be transferable otherwise than by will or the laws of descent and
the Option may be exercised, during the lifetime of the Optionee, only by
him or by his legal representative. More particularly (but without limiting
the generality of the foregoing), the Option may not be assigned,
transferred (except as provided above), pledged or hypothecated in any way,
shall not be assignable by operation of law, and shall not be subject to
execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary
to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without effect)
provided, however, that if the Optionee shall die, his estate, personal
representative, or beneficiary shall have the right to exercise the Option.
Notwithstanding the above, the Optionee may assign this Option, in whole or
in part, by notice to the Company, to an entity of which the Optionee
and/or members of Optionee's immediate family are owners or otherwise
beneficiaries.
7. Termination of Option.
7.1 The Option shall not be exercisable after the Termination Date.
7.2 If the Optionee ceases to be employed by or provide services to the
Company for any cause or reason, then the Option, to the extent that
it shall be exercisable at such time, shall remain exercisable at any
time until the Termination Date, and Optionee's right to exercise the
Option to such extent will not be limited on account of any
circumstances that may be related to the termination of his
employment.
8. Adjustment for Recapitalization, Merger, Etc. (a) The number of Shares
covered by each Option and the Option Price of each Option shall be
appropriately adjusted for any increase or decrease in the number of
outstanding shares of the Company resulting from a stock split or other
subdivision or consolidation of shares or payments of stock dividends or
distributions or other increases or decreases in the number of outstanding
shares effected without receipt of consideration by the Company or in the
event of any other extraordinary transaction. The foregoing adjustments and
the manner of application of the foregoing provisions shall be determined
by the Committee in its sole discretion.
(b) If the Company is separated, reorganized, merged or consolidated with
or into another corporation before the Option is exercisable in full, the
Company shall see that the
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rights of Optionee shall not be derogated by such separations,
reorganizations, mergers or consolidations. However, subject to any
applicable law, in the event that in any such transaction the successor
corporation does not agree to assume this Option, or issue a replacement
under substantially equivalent terms, the vesting period defined in Section
4 above shall be accelerated so that the Option shall be immediately vested
and exercisable in full as of the date ten (10) days prior to the effective
date of such transaction.
9. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by written notice of exercise
("Notice of Exercise") in the form prescribed by the Company, to the
Company at its offices at Yokneam Industrial Park, P.O.B. 240, Yokneam
20692, Israel, attention Chief Financial Officer. Such Notice of Exercise
shall be signed by the person or persons so exercising the Option and shall
be accompanied by payment in full of the Option Price for such Shares by
wire transfer or by certified check, or in any other form accepted by the
Company.
Within thirty (30) days of receipt of Notice of Exercise, the Company shall
issue shares, in the name of the person or persons exercising the Option,
and deliver a certificate or certificates to the persons, representing such
shares as soon as practicable after notice and payment shall be received.
Except otherwise provide herein, the Option may not be exercised unless, at
the time the Option is exercised and at all times from the Grant Date, the
Optionee shall then be and shall have been, an employee of the Company.
The Optionee shall be solely liable for all taxes and other fees resulting
from the grant and/or exercise of options granted under this Agreement and
disposition of shares acquired pursuant to the exercise of an Option,
provided, however, that the Company may, in its discretion, require that
the Optionee pay at the time of exercise, such amount as the Company deems
necessary to satisfy its obligation to withhold Israeli or United States
Federal, state, or local income or other taxes incurred by reason of the
exercise or the transfer of Shares thereupon.
In the event the Option shall be exercised by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of
the right of such person or persons to exercise the Option.
The Optionee shall have no rights of a stockholder with respect to Shares
to be acquired by the exercise of the Option until a certificate or
certificates representing such shares are issued to him and such Optionee
becomes the holder of record of such Shares.
By executing this Agreement the Optionee agrees to the terms of any Trust
Agreement to be executed by the Company on behalf of the Optionee under the
terms of the 1999 SOP including customary indemnification and remuneration
provisions.
10. Restrictions on Issuance and delivery of Shares. The exercise of the Option
shall be subject to the condition that if at any time the Company shall
determine in its discretion that the satisfaction of withholding tax or
other withholding liabilities, or that the listing, registration, or
qualification of any shares otherwise deliverable upon such exercise upon
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any securities exchange or under any national, state or federal law, or
that the consent or approval of any regulatory body, is necessary or
desirable as a condition of, or in connection with, such exercise in the
delivery or purchase of shares pursuant thereto, then in any such event,
such exercise shall not be effective unless such withholding, listing,
registration, qualification, consent or approval shall have been effected
or obtained free of any conditions not acceptable to the Company.
11. Restrictions on Transfer of Shares. All certificates representing any
Shares purchased pursuant to this Agreement may bear restrictive legends
restricting the transfer of the shares as shall be specified in the Notice
of Exercise or otherwise required by or necessary in order to comply with
any applicable law.
12. Compliance with the Law. The Company shall pay all stamp duty taxes, if
any, with respect to the issuance of Shares pursuant hereto and all other
fees and expenses necessarily incurred by the Company in connection
therewith, and shall, from time to time, use its best efforts to comply
with all laws and regulations which, in the opinion of counsel for the
Company, shall be applicable thereto.
13. Notices. Each notice relating to this Agreement shall be in writing and
delivered in person or by first class mail; postage prepaid, to the address
as hereinafter provided. Each notice shall be deemed to have been given on
the date it is received. Each notice to the Company shall be addressed to
it at its offices at Yokneam Industrial Park, P.O.B. 240, Yokneam 20692,
Israel, attention Chief Financial Officer. Each notice to the Optionee or
other person or persons then entitled to exercise the Option shall be
addressed to the Optionee of the address specified herein or such other
person or persons at the Optionee's last known address.
14. Interpretation. The interpretation and construction of any terms or
conditions of this Agreement or other matters related thereto by the Board
of Directors or the Committee shall be final and conclusive.
15. Enforceability. This Agreement shall be binding upon the Optionee, his
estate, his personal representatives and beneficiaries.
16. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Israel, subject to the provisions of the Code with
respect to "incentive stock options" (as defined in the 1999 SOP), if
applicable, and subject to the provisions of applicable United States
securities laws with respect to certain terms used herein and with respect
to any disposition of Shares by the Optionee.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand all as of the day and year first
above written.
ESC MEDICAL SYSTEMS LTD. OPTIONEE:
By: /s/ Yacha Sutton /s/ Arie Genger
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Yacha Sutton Arie Genger
President and Chief Executive
Officer
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