-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
GIVEN IMAGING LTD.
(an Israeli company)
2,505,000 Ordinary Shares
PURCHASE AGREEMENT
Dated: June [ ], 2004
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
GIVEN IMAGING LTD.
(an Israeli company)
2,505,000 Ordinary Shares
(Par Value NIS 0.05 Per Share)
PURCHASE AGREEMENT
June [ ], 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Citigroup Global Markets Inc.
CIBC World Markets Corp.
▇▇▇▇▇ Fargo Securities, LLC
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Given Imaging Ltd., an Israel company (the "Company"), and the persons
listed in Schedule B hereto (the "Selling Shareholders"), confirm their
respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Citigroup Global Markets Inc.
("Citigroup") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇, Citigroup, CIBC World Markets Corp. and ▇▇▇▇▇ Fargo Securities, LLC are
acting as representatives (in such capacity, the "Representatives"), with
respect to (i) the sale by the Company and the Selling Shareholders, acting
severally and not jointly, and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of Ordinary Shares, par
value NIS 0.05 per share (the "Ordinary Shares"), of the Company set forth in
Schedules A and B hereto and (ii) the grant by the Selling Shareholders to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 375,750 additional Ordinary
Shares to cover overallotments, if any. The aforesaid 2,505,000 Ordinary Shares
(the "Initial Securities") to be purchased by the Underwriters and all or any
part of the 375,750 Ordinary Shares subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities."
The Company and the Selling Shareholders understand that the Underwriters
propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-3 (No. 333-115823), including
the related preliminary prospectus or prospectuses, covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act").
Promptly after execution and delivery of this Agreement, the Company will
prepare and file
a prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations. The information included in such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits and any schedules thereto, at the time it
became effective, and including documents incorporated by reference therein
pursuant to Item 6 of Form F-3 under the 1933 Act at such time and the Rule 430A
Information, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to Item 6 of Form F-3 under
the 1933 Act at the time of the execution of this Agreement is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form F-3 under the 1933 Act. Each of the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied
2
and will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto).
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and at
the Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
U.S. generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting schedules,
if any, included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or
3
in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its share
capital.
(vi) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation under the laws of the State of
Israel and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation and, to the extent
applicable, in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are the subsidiaries
listed on Exhibit 8.1 to the Company's annual report on Form 20-F for the
year ended December 31, 2003. Each Subsidiary that constitutes a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X is
listed on Schedule E hereto.
(viii) Capitalization. The authorized, issued and outstanding share
capital of the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The issued and outstanding share capital,
including the Securities to be purchased by the Underwriters from the
Selling Shareholders, have been duly authorized and validly issued and are
fully paid and non-assessable; provided, however, that in the case of
Securities to be sold by a Selling Shareholder which are to be issued
pursuant to exercise of options ("Future Securities"), such Future
Securities, upon issuance and payment therefor by the relevant Selling
Shareholder, will be duly authorized, and validly issued and fully paid and
non-assessable; none of the outstanding share capital, including the
Securities to be purchased by the Underwriters from the Selling
Shareholders, was issued in violation of the preemptive or other similar
rights of any securityholder of the Company. The issued and outstanding
share capital of the Company has been issued in compliance, in all material
respects, with all Israeli and U.S. federal and state securities laws
(including without limitation, applicable Israeli Securities laws). Except
as set forth in the Prospectus, no options, warrants or other rights to
purchase, agreements or other
4
obligations to issue, or rights to convert any obligations into or exchange
any securities for, shares of capital stock of, or ownership interests in,
the Company are outstanding.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company; all corporate action
required by the laws of the State of Israel and the memorandum or articles
of association of the Company to be taken by the Company for the due and
proper authorization, issuance, offering, sale and delivery of the
Securities has been validly and sufficiently taken and the filing of the
Registration Statement and the Prospectus with the Commission has been duly
authorized by and on behalf of the Company.
(x) Authorization and Description of Securities. The Securities to be
purchased by the Underwriters from the Company have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and non-assessable; the Ordinary Shares conform in all material
respects to all statements relating thereto contained in the Prospectus and
such description conforms in all material respects to the rights set forth
in the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company. The Securities being
sold by the Selling Shareholders are duly listed, admitted and authorized
for trading on the Tel Aviv Stock Exchange and the Securities being sold
hereunder by the Company are duly listed, admitted and authorized for
trading, subject to official notice of issuance, on the Tel Aviv Stock
Exchange. The Company is not required to publish a prospectus in Israel
under the laws of the State of Israel in connection with the offer or sale
of the Securities.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its Memorandum of Association, Articles
of Association, charter or by-laws or other governing document, as
applicable, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them are bound, or to
which any of the property or assets of the Company or any subsidiary is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, and the sales of the Securities by the
Selling Shareholders do not and will not, in each case, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the Memorandum or Articles of
Association of the Company or the charter or by-laws or other governing
document, as applicable, of any subsidiary or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
5
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(xii) Labor. The Company is in compliance, in all material respects,
with the labor and employment laws and collective bargaining agreements
applicable to its employees in Israel. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, would result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, would not reasonably be expected to result in a Material Adverse
Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
Subsidiaries own, possess or license, or can acquire or license on
reasonable terms, any and all rights to patents, patent applications,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems, procedures
or inventions), trademarks, service marks, trade names or any other
intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them. To the Company's knowledge, all
trade secrets, know how, technical processes and procedures which have not
been patented or otherwise published, developed by and belonging to the
Company (or any of its Subsidiaries) and which are material to the business
of the Company (or any of its Subsidiaries) as presently conducted have
been kept confidential. To the Company's knowledge, neither the Company nor
any of its Subsidiaries is currently infringing or has infringed any
Intellectual Property of any third party. The Company is not aware of any
infringement of rights of any third party with respect to any Intellectual
Property used in the Company's business as currently conducted and which
the Company believes to be valid and, except as disclosed in the
Prospectus, neither the Company nor any of its Subsidiaries has received
any notice of any infringement of, or is otherwise aware of any conflict
with asserted rights of any third party with respect to any Intellectual
Property used in the Company's business as currently conducted, except for
such infringements or conflicts which (if the subject of any unfavorable
decision, ruling or finding), singly or in the aggregate, would not result
in a Material Adverse Effect. Except as disclosed in the Prospectus, the
Company is not aware of any facts or circumstances which would render any
Intellectual Property owned or used by the Company invalid or
6
inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect. To the Company's
knowledge, neither the Company nor any of its Subsidiaries is using or has
used any confidential information, trade secrets, or computer software (not
licensed to the Company) of any former employer of any of its past or
present employees in violation of any law or agreement.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(xvii) Absence of Manipulation. Neither the Company, any Subsidiary of
the Company, nor to the Company's knowledge, any affiliate of the Company,
has taken, nor will the Company, any Subsidiary or, to the Company's
knowledge, any affiliate of the Company take, directly or indirectly, any
action which is designed to or which has constituted or which would be
expected to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(xviii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure so to possess would not, singly or in the aggregate, result in a
Material Adverse Effect; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xix) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of
its subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one enterprise,
and under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or
any subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
7
(xx) Insurance. The Company and each of its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its Subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Company or any of its Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor any
such Subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such Subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that has not had and would not have, individually or in the aggregate, a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus.
(xxi) Investment Company Act. The Company is not required, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be required, to register as an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the best of the
Company's Knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that would reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxiii) Registration Rights. Other than rights that have been
effectively waived, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement by the Company under the 1933 Act.
(xxiv) No Taxation. Assuming the Underwriters are not otherwise
subject to Israeli taxation by the conduct of their business activities,
the sale and delivery to the Underwriters of the Securities as contemplated
in this Agreement and the sale and delivery of the Securities by the
Underwriters to subsequent purchasers as contemplated in this Agreement,
are not subject to any tax imposed by Israel or any political subdivision
thereof or any stamp or other issuance or
8
transfer tax, duty, capital gain tax or withholding tax imposed by federal
law, the laws of any state, or any political subdivision thereof, or any
taxing authority in any jurisdiction, except for (i) the Israeli stamp
taxes applicable to the issuance of the Securities to be sold by the
Company under this Agreement (which will be paid by the Company at the
Closing Time, or immediately after the Closing Time, to the extent required
by, and in accordance with, Israeli law) and (ii) any New York State stock
transfer tax payable upon the sale and delivery of the Securities by the
Selling Shareholders to the Underwriters (which will be paid by the
applicable Selling Shareholder at the Closing Time, or immediately after
the Closing Time, to the extent required by, and in accordance with, New
York State law).
(xxv) Internal Accounting Controls. The Company and each of its
subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxvi) Sarbanes Oxley Compliance. There is and has been no failure on
the part of the Company and any of the Company's directors or officers, in
their capacities as such, to comply with any provision of the Sarbanes
Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith.
(xxvii) Foreign Corrupt Practices Act Compliance. Neither the Company
nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent or employee of the Company or any of its
subsidiaries is aware of any action taken or has taken any action, directly
or indirectly for or on behalf of the Company or any Subsidiary, that would
result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder ("FCPA"),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any "foreign official" (as such term is
defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA
and the Company and its subsidiaries have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(xxviii) Currency and Foreign Transactions Reporting Act Compliance.
The operations of the Company and its subsidiaries are and have been
conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the "Money Laundering Laws") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company,
threatened that could have a Material Adverse Effect.
9
(xxix) Foreign Assets Control Compliance. Neither the Company nor any
of its subsidiaries nor, to the knowledge of the Company, any director,
officer, agent or employee of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC") in
connection with his or her actions for or on behalf of the Company; and the
Company will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(xxx) Passive Foreign Investment Company Status. The Company was not
in the taxable year ended December 31, 2003, and does not believe that,
upon consummation of the transactions contemplated hereby and the
application of the proceeds as described in the Registration Statement
under the caption "Use of Proceeds," it will become, a passive foreign
investment company as defined in Section 1296 of the Internal Revenue Code
of 1986, as amended.
(xxxi) Approved Enterprise Status. Except as described in the
Prospectus, the Company is in compliance with all conditions and
requirements stipulated by the instruments of approval entitling it or any
of its operations to the status of "Approved Enterprise" under Israeli law
and by Israeli laws and regulations relating to such Approved Enterprise
status, except such non-compliance as would not have a Material Adverse
Effect. All information supplied by the Company with respect to such
applications was true, correct and complete in all material respects when
supplied to the appropriate authorities.
(xxxii) Absence of Legal Process Immunity. Neither the Company nor any
of its subsidiaries nor any of its or their properties or assets has any
immunity from the jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) under the laws of the State of
Israel.
(xxxiii) Office of Chief Scientist. The Company has satisfied and will
continue to satisfy all conditions and requirements of the instruments of
approval granted to it by the Office of Chief Scientist of the Israeli
Ministry of Industry and trade (the "Office of the Chief Scientist") and
any applicable laws and regulations, including the Law for the
Encouragement of Industrial Research and Development, 1984, with respect to
any research and development grants given to it by such office, and is in
full compliance with the repayment of all royalties, interest and penalties
due under such laws and regulations. All information supplied by the
Company with respect to such applications was true, correct and complete in
all material respects when supplied to the appropriate authorities.
(xxxiv) Industrial Company Status. The Company believes that it
qualified for 2003 as an "Industrial Company" within the definition of the
Law for the Encouragement of Industry (Taxes), 1969; and absent a change in
such law, the Company intends to continue to so qualify for 2004.
(xxxv) Agent for Service of Process. The Company has validly and
irrevocably appointed Given Imaging, Inc. as its authorized agent for
service of process pursuant to this Agreement and in connection with the
Registration Statement.
(xxxvi) Enforceability of Judgments. A final and conclusive judgment
against the Company for a definitive sum of money entered by any court in
the United States would be
10
enforced by Israeli courts according to the rules and subject to the
limitations relating to Enforceability of Civil Liabilities, as described
in the Prospectus.
(xxxvii) Israeli Securities Law Compliance. For a period of twelve
months prior to and including the Closing Date, the Company has not offered
or sold any of its securities in Israel, except for (i) options issued to
its employees and directors in Israel and (ii) any of the Securities that
may be offered in Israel, in each case which issuance of options or
offering of Securities was made in compliance with the requirements set
forth in the Israeli Securities Law 5728-1968 and the regulations
promulgated thereunder.
(xxxviii) Absence of Canadian Reporting Obligations. The Company is
not a reporting issuer in any province or territory of Canada.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time, and, if the Selling
Shareholder is selling Option Securities on a Date of Delivery, as of each such
Date of Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. To the best knowledge of such Selling
Shareholder (other than ▇▇▇▇▇ Krupik ("Krupik"), ▇▇▇▇▇▇-Armament
Development Authority Ltd. ("▇▇▇▇▇▇") and UBS Juniper Crossover Fund LLC
("UBS"), the representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; such Selling Shareholder (other
than Krupik, ▇▇▇▇▇▇ and UBS) has reviewed and is familiar with the
Registration Statement and the Prospectus and neither the Prospectus nor
any amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. No Selling Shareholder is prompted to sell the
Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any Subsidiary of the Company which
is not set forth in the Prospectus.
(ii) Good Standing of the Selling Shareholder, Each Selling
Shareholder that is a corporation has been duly organized and is validly
existing as a corporation and, to the extent applicable, in good standing
under the laws of its jurisdiction of organization and has corporate power
and authority to enter into and perform its obligations under this
Agreement.
(iii) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by or on behalf of such Selling
Shareholder.
(iv) Authorization of Power of Attorney and Custody Agreement. The
Power of Attorney and Custody Agreement, in the form heretofore furnished
to the Representatives (the "Power of Attorney and Custody Agreement"), has
been duly authorized, executed and delivered by such Selling Shareholder
and is the valid and binding agreement of such Selling Shareholder.
(v) Noncontravention. The execution and delivery of this Agreement and
the Power of Attorney and Custody Agreement and the sale and delivery of
the Securities to be sold by such Selling Shareholder and the consummation
of the transactions contemplated herein and compliance by such Selling
Shareholder with its obligations hereunder do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Selling Shareholder or any property or assets of such
Selling Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or
11
credit agreement, note, license, lease or other agreement or instrument to
which such Selling Shareholder is a party or by which such Selling
Shareholder is bound, or to which any of the property or assets of such
Selling Shareholder is subject (it being understood that the foregoing does
not apply to capital gains tax which the Selling Shareholder may be subject
to as a result of the sale of the Securities hereunder), nor will such
action result in any violation of the provisions of the Memorandum,
Articles of Association, charter or by-laws or other organizational
instrument of such Selling Shareholder, if applicable, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Selling Shareholder or any of its properties.
(vi) Certificates Suitable for Transfer. The Securities to be sold by
such Selling Shareholder pursuant to this Agreement are (or in the case of
Future Securities, will be prior to the Closing Time) certificated
securities in registered form and are not (or in the case of Future
Securities, will not be prior to the Closing Time) held in any securities
account or by or through any securities intermediary within the meaning of
the Uniform Commercial Code as in effect in the State of New York (the
"UCC"). Certificates for all of the Securities to be sold by such Selling
Shareholder pursuant to this Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, have been (or in the case
of Future Securities, will be prior to the Closing Time) placed in custody
with American Stock Transfer & Trust Company (the "Custodian") with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(vii) Valid Title. Such Selling Shareholder has, and at the Closing
Time will have, valid title to the Securities to be sold by such Selling
Shareholder free and clear of all security interests, claims, liens,
equities or other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement
and the Power of Attorney and Custody Agreement and to sell, transfer and
deliver the Securities to be sold by such Selling Shareholder.
(viii) Delivery of Securities. Upon payment of the purchase price for
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement, delivery of such Securities, as directed by the Underwriters, to
Cede & Co. ("Cede") or such other nominee as may be designated by The
Depository Trust Company ("DTC"), registration of such Securities in the
name of Cede or such other nominee, and the crediting of such Securities on
the books of DTC to securities accounts of the Underwriters (assuming that
neither DTC nor any such Underwriter has notice of any "adverse claim,"
within the meaning of Section 8-105 of the New York Uniform Commercial Code
(the "UCC"), to such Securities), (A) DTC shall be a "protected purchaser,"
within the meaning of Section 8-303 of the UCC, of such Securities and will
acquire its interest in the Securities (including, without limitation, all
rights that such Selling Shareholder had or has the power to transfer in
such Securities) free and clear of any adverse claim within the meaning of
Section 8-102 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of such
Securities and (C) no action (whether framed in conversion, replevin,
constructive trust, equitable lien, or other theory) based on any "adverse
claim," within the meaning of Section 8-102 of the UCC, to such Securities
may be asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, such Selling Shareholder
may assume that when such payment, delivery and crediting occur, (x) such
Securities will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company's share registry in
accordance with its Memorandum and Articles of Association and applicable
law, (y) DTC will be registered as a
12
"clearing corporation," within the meaning of Section 8-102 of the UCC, and
(z) appropriate entries to the accounts of the several Underwriters on the
records of DTC will have been made pursuant to the UCC.
(ix) Absence of Manipulation. Such Selling Shareholder has not taken,
and will not take, directly or indirectly, any action which is designed to
or which has constituted or would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(x) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as may have previously been made or obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xi) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, such Selling Shareholder will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of, directly or indirectly,
any of its Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or file, or cause to be
filed, any registration statement under the 1933 Act with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Ordinary Shares, whether any
such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Ordinary Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Securities to be
sold hereunder.
(xii) No Association with NASD. Neither such Selling Shareholder nor
any of such affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or is a person associated with (within the meaning of Article I (dd)
of the By-laws of the National Association of Securities Dealers, Inc. (the
"NASD")), any member firm of the NASD (except that UBS Juniper Crossover
Fund LLC is an affiliate of UBS Securities, Inc.).
(xiii) Agent for Service of Process. Each Selling Shareholder has
validly appointed Given Imaging, Inc. as its authorized agent for service
of process pursuant to this Agreement and in connection with the
Registration Statement.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholders as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be deemed a representation and warranty by
such Selling Shareholder to the Underwriters as to the matters covered thereby.
13
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, agree to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company and each Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial Securities set forth in Schedule B opposite the name of
the Company or such Selling Shareholder, as the case may be, which the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representatives in
their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholders, acting severally and not jointly, hereby grant
an option to the Underwriters, severally and not jointly, to purchase up to an
additional 375,750 Ordinary Shares, as set forth in Schedule B, at the price per
share set forth in Schedule C, less an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial Securities
but not payable on the Option Securities. The option hereby granted will expire
30 days after the date hereof and may be exercised in whole or in part from time
to time only for the purpose of covering overallotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup to the Selling Shareholders setting forth
the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase from each Selling Shareholder that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup in their discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Weil,
Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company and
the Selling Shareholders, at 10:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Company and the Selling
Shareholders (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company and the Selling Shareholders, on each Date of Delivery as
specified in the notice from the Representatives to the Company and the Selling
Shareholders.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to
14
each Selling Shareholder's Power of Attorney and Custody Agreement, as the case
may be, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will
15
also deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered or will deliver to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject, and
provided further that in connection therewith, the Company shall not be required
to offer the Securities to the public in any jurisdiction outside of the United
States or to prepare a separate disclosure document other than the Registration
Statement or the Prospectus or such supplementary disclosure document as may be
reasonably required for use with the Prospectus to form any Canadian offering
memorandum that may be delivered in connection with the distribution of the
Securities.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
16
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(i) Listing. The Company will use its commercially reasonable best efforts
to effect and maintain the quotation of the Securities on the Nasdaq National
Market.
(j) Restriction on Sale of Securities. During a period of 90 days from the
date of the Prospectus, the Company will not, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Ordinary Shares, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Ordinary Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any Ordinary Shares issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any Ordinary Shares reserved for issuance or issued or options to purchase
Ordinary Shares granted pursuant to existing employee benefit plans of the
Company referred to in the Prospectus, (D) any Ordinary Shares issued pursuant
to any non-employee director stock plan or dividend reinvestment plan or (E) the
filing of a registration statement on Form S-8 relating to the registration of
up to 1,000,000 Ordinary Shares pursuant to an existing stock option plan
referred to in the Prospectus.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the rules and regulations
of the Commission thereunder.
(l) Securities Laws Compliance. The Company will comply with all applicable
securities and other applicable laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and will use its best efforts to cause the
Company's directors and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its and the Selling Shareholders' obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors and the fees and disbursements of one U.S.
counsel and one local counsel for all of the Selling Shareholders, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of
17
each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the Securities,
including without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of aircraft and other transportation chartered in connection with the road
show and (x) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the NASD of the terms of the sale of the Securities, (xi) the fees and expenses,
if any, incurred in connection with the inclusion of the Securities in the
Nasdaq National Market and the Tel Aviv Stock Exchange and (xii) any stamp
duties, if any, payable upon the issuance of the Securities.
(b) Expenses of the Selling Shareholders. The Selling Shareholders, jointly
and severally, will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (ii) except as provided in paragraph
(a)(iv) above, the fees and disbursements of their respective counsel and other
advisors.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a) or
Section 11 hereof, the Company and the Selling Shareholders shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not affect
any agreement that the Company and the Selling Shareholders may make for the
sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) Opinions of Counsel for the Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of (a) Zellermayer Pelossof & Co., Advocates, White & Case LLP, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P. and Eitan, Pearl, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇, counsel for the Company
and (b) White & Case LLP, counsel for Given Imaging GmbH, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the
18
other Underwriters to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinions of Counsel for the Selling Shareholders. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of (i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP, U.S. counsel for the Selling
Shareholders, and (ii)(A) Zellermayer Pelossof & Co., Advocates, Israeli counsel
to the Selling Shareholders (other than ▇▇▇▇▇▇ and UBS), and (B) ▇▇▇ ▇▇▇▇▇▇,
Adv., Israeli counsel to ▇▇▇▇▇▇, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit B hereto and
to such further effect as the Representatives may reasonably request.
(d) Opinions of Counsel for the Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Gross, Kleinhendler, Hodak, Halevy, ▇▇▇▇▇▇▇▇▇ & Co. and Weil, Gotshal &
▇▇▇▇▇▇ LLP, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters with respect to the
issuance and sale of the Securities, the Registration Statement, the Prospectus
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters, provided
that such counsel has given reasonable notice of such request for documents in
light of the nature and source of the documents.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, contemplated by the
Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Shareholder contained in
Section 1(b) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied with all agreements and all conditions on its part to
be performed under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from KPMG Somech ▇▇▇▇▇▇▇,
independent accountants, a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from KPMG Somech ▇▇▇▇▇▇▇, independent accountants, a letter, dated
as of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this Section,
19
except that the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the Tel Aviv Stock Exchange, subject only to official
notice of issuance.
(j) No Objection. The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule D hereto.
(l) Maintenance of Rating. Since the execution of this Agreement, there
shall not have been any decrease in the rating of any of the Company's
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice given of
any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(m) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Selling Shareholders contained herein and the statements
in any certificates furnished by the Company, any subsidiary of the Company and
the Selling Shareholders hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated such
Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinions of Counsel for the Company. The favorable opinion of
Zellermayer Pelossof & Co., Advocates, White & Case LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P. and Eitan, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇, counsel for the Company and
(b) White & Case LLP, counsel for Given Imaging GmbH, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinions required by Section 5(b)
hereof.
(iv) Opinions of Counsel for the Selling Shareholders. The favorable
opinion of (i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP, U.S. counsel for the Selling
Shareholders, and (ii)(A) Zellermayer Pelossof & Co., Advocates, Israeli
counsel to the Selling Shareholders (other than ▇▇▇▇▇▇ and UBS), and (B)
▇▇▇ ▇▇▇▇▇▇, Adv., Israeli counsel to ▇▇▇▇▇▇, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(c)
hereof.
20
(v) Opinions of Counsel for the Underwriters. The favorable opinion of
Gross Kleinhandler, Hodak, Halevy, ▇▇▇▇▇▇▇▇▇ & Co. and Weil, Gotshal &
▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(vi) Bring-down Comfort Letter. A letter from KPMG Somech ▇▇▇▇▇▇▇,
independent accountants, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in the same
form and substance as the letter furnished to the Representatives pursuant
to Section 5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(o) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company and the Selling
Shareholders at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7, 8, 12, 14, 15 and 16 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, as such term is defined in Rule
501(b) under the 1933 Act (each, an "Affiliate"), its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
21
of any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject to
Section 6(e) below) any such settlement is effected with the written
consent of the Company in the case of this paragraph (a) and the written
consent of the relevant Selling Shareholders in the case of paragraph (b)
below;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
Citigroup), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) and (b) with respect to any untrue statement or omission
of material fact made in any preliminary prospectus, the indemnity provided in
this Section 6(a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such loss, claim, damage or liability purchased the
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs where it shall be determined by a court of
competent jurisdiction by final and non-appealable judgment that (i) delivery of
the Prospectus was required under the Act, (ii) the Company had previously
furnished copies of the Prospectus to the Representatives in sufficient quantity
and in sufficient time to enable the Representatives to satisfy their delivery
obligations under the Act, (iii) the untrue statement or omission of a material
fact contained in the preliminary prospectus was corrected in the Prospectus and
(iv) such loss, claim, damage or liability results solely from the fact that
there was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter, its Affiliates and selling agents
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in
the manner set forth in clauses (a)(i), (ii) and (iii) above provided, however,
that the indemnification obligations of Krupik, ▇▇▇▇▇▇ and UBS (each, a "Limited
Indemnity Selling Shareholder") under this Section 6 shall only apply with
respect to information relating to such Limited Indemnity Selling Shareholder
furnished in writing by or on behalf of such Limited Indemnity Selling
Shareholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. The
Underwriters acknowledge and agree that the statements relating to each such
Limited Indemnity Selling Shareholder under the caption "Principal and Selling
Shareholders" in the Prospectus constitute the only information furnished in
writing by or on behalf of such Limited Indemnity Selling Shareholder expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Shareholder and each person, if any, who controls any Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage
22
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
Citigroup, and, in the case of parties indemnified pursuant to Section 6(c)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
(g) The liability of each Selling Shareholder pursuant to Sections 6(b) and
7, shall not exceed the total net proceeds from the offering of the Securities
received by such Selling Shareholder (before deducting expenses); provided that
such limitation shall not apply in the event of a commission of fraud hereunder
on the part of such Selling Shareholder.
23
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholders and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Shareholders on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Shareholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
24
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company or such Selling Shareholder,
as the case may be. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors, any person controlling the Company
or any person controlling any Selling Shareholder and (ii) delivery of and
payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States or
(v) if a banking moratorium has been declared by either Federal, New York or
Israeli authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7, 8, 12, 14, 15 and 16 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts
25
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(i) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the (i) Representatives or (ii) the Company and any
Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Default by one or more of the Selling Shareholders or the
Company. (a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of Securities to be sold by them
hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company and the
non-defaulting Selling Shareholders, either (i) terminate this Agreement without
any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7, 8, 12, 14, 15 and 16 shall remain in full
force and effect or (ii) elect to purchase the Securities which the
non-defaulting Selling Shareholders and the Company have agreed to sell
hereunder. No action taken pursuant to this Section 11 shall relieve any Selling
Shareholder so defaulting from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the Representatives, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(b) If the Company shall fail at Closing Time or at the Date of
Delivery to sell the number of Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any nondefaulting party; provided, however, that the provisions of Sections
1, 4, 6, 7, 8, 12, 14, 15 and 16 shall remain in full force and effect. No
action taken pursuant to this Section shall relieve the Company from liability,
if any, in respect of such default.
26
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at 4 World Financial
Center, New York, New York 10080, attention of ▇▇▇ Thong (fax: (▇▇▇) ▇▇▇-▇▇▇▇);
notices to the Company shall be directed to it at ▇▇ ▇▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, attention of President and Chief Executive Officer (fax: (011)
▇▇▇-▇-▇▇▇-▇▇▇▇)); and notices to the Selling Shareholders shall be directed to
[ ], attention of [ ] (fax: ).
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Shareholders
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Selling Shareholders
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 16. Consent to Jurisdiction. Each party irrevocably agrees that
any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America located in the
City of New York or the courts of the State of New York in each case located in
the Borough of Manhattan in the City of New York (collectively, the "Specified
Courts"), and irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a "Related Judgment"), as to which such jurisdiction is non-exclusive) of
such courts in any such suit, action or proceeding. The parties further agree
that service of process, summons, notice or document by mail to such party's
address set forth above shall be effective service of process for any lawsuit,
action or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such lawsuit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Each party not located in the
United States hereby irrevocably appoints Given Imaging, Inc., which currently
maintains an office at Oakbrook Technology Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, as its agent to receive
service of process or other legal summons for purposes of any such action or
proceeding that may be instituted in any state or federal court in the City and
State of New York.
SECTION 17. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
27
SECTION 18. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
GIVEN IMAGING LTD.
By
---------------------------------------
Title:
GIVEN IMAGING, INC.
(solely in respect of Section 16 hereof)
By
---------------------------------------
Name
Title:
RDC ▇▇▇▇▇▇ DEVELOPMENT CORPORATION LTD.
UBS JUNIPER CROSSOVER FUND LLC
▇▇▇▇▇▇-ARMAMENT DEVELOPMENT AUTHORITY LTD.
▇▇▇▇▇▇ KRUPIK
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇ MEGIDDO
By
---------------------------------------
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇
as Attorney in Fact for the Selling Shareholders
29
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
CIBC WORLD MARKETS CORP.
▇▇▇▇▇ FARGO SECURITIES, LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED]
By
--------------------------------------------------------
Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By
--------------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
30
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ [ ]
Incorporated.....................................................
Citigroup Global Markets Inc. .................................................. [ ]
CIBC World Markets Corp. ....................................................... [ ]
▇▇▇▇▇ Fargo Securities, LLC..................................................... [ ]
---------
Total.................................................................. 2,505,000
=========
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
Given Imaging Ltd. 1,500,000 --
RDC ▇▇▇▇▇▇ Development Corporation Ltd. 220,001 79,999
UBS Juniper Crossover Fund LLC 124,667 45,333
▇▇▇▇▇▇-Armament Development Authority Ltd. 513,335 186,665
▇▇▇▇▇▇ Krupik 110,000 40,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 36,997* 13,453
▇▇. ▇▇▇▇▇ Megiddo -- 10,300*
--------- -------
Total..................................... 2,505,000 375,750
----------------
* Represents Future Securities
Sch B-1
SCHEDULE C
GIVEN IMAGING LTD.
2,505,000 Ordinary Shares
(Par Value NIS 0.05 Per Share)
1. The initial public offering price per share for the Securities, determined
as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $[ ], being an amount equal to the initial public offering
price set forth above less $[ ] per share; provided that the purchase price per
share for any Option Securities purchased upon the exercise of the overallotment
option described in Section 2(b) shall be reduced by an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities.
Sch C-1
SCHEDULE D
List of persons and entities subject to lock-up
Discount Investment Corporation Ltd.
RDC ▇▇▇▇▇▇ Development Corporation Ltd.
Elron Electronics Industries Ltd.
▇▇▇▇▇▇-Armament Development Corporation Ltd.
OrbiMed Advisors LLC
OrbiMed Capital LLC
OrbiMed Advisors Inc.
UBS Juniper Crossover Fund LLC
▇▇▇▇▇ Krupik
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Gorbstein
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ Megiddo
Chen Barir
▇▇▇▇ ▇▇▇▇▇▇▇▇
Sch D-1
Exhibit A
FORM OF OPINIONS OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
Form of Opinion of
Zellermayer, Pelossof & Co., Advocates
1. The Company has been duly incorporated and is validly existing as a
company under the laws of the State of Israel.
2. The Company has the corporate power and authority to own, lease and
operate its properties, as the case may be, and to conduct its business as
described in the Prospectus.
3. Ordinary Shares:
(a) The Company has the authorized capitalization as set forth in the
Prospectus and all of the issued and outstanding shares of the Company,
including the Securities to be purchased by the Underwriters from the Selling
Shareholders, have been duly authorized and validly issued, are fully paid and
non-assessable and conform in all material respects to the description thereof
contained in the Prospectus.
(b) The rights attached to the Ordinary Shares of the Company conform
in all material respects to the description thereof contained in the Prospectus.
The Securities are duly and validly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreement, and when the Securities are
issued and delivered by the Company pursuant to the Purchase Agreement against
payment therefor as contemplated by the Purchase Agreement, such Securities will
be fully paid and non-assessable, and, to our knowledge, free and clear of all
liens, encumbrances, preemptive rights and other claims under the Articles of
Association of the Company or other instruments to which the Company is party or
under the laws of the State of Israel.
(c) No further approval or authority of the shareholders or the board
of directors of the Company is required for the issuance and sale of the
Securities as contemplated by the Purchase Agreement.
(d) There are no preemptive or other rights of any securityholder of
the Company to subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any of the Securities pursuant to the Company's memorandum or
articles of association or, to our knowledge, any agreement or other instrument
to which the Company is a party or by which it is bound.
(e) The form of certificates used to evidence the Securities complies
with any applicable requirements of the articles of association of the Company
and under all applicable Israeli corporate laws and Tel Aviv Stock Exchange
rules, if any.
(f) Except as described in the Prospectus, to our knowledge, there are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act; and
A-1
neither the filing of the Registration Statement, nor the offering or sale of
the Securities as contemplated by the Purchase Agreement gives rise to any
rights under the laws of the State of Israel (the "Applicable Laws") for or
relating to the registration of any Ordinary Shares or other securities of the
Company.
(g) The Securities being sold under the Purchase Agreement by the
Company are duly listed, admitted and authorized for trading, subject to
official notice of issuance, on the Tel Aviv Stock Exchange.
(h) The Company is not required to publish a prospectus in Israel under
the laws of the State of Israel.
4. The Transaction and the Purchase Agreement:
(a) The Company has full power and authority to enter into and perform
its obligations under the Purchase Agreement under the Applicable Laws, and the
Purchase Agreement has been duly authorized, executed and delivered by the
Company. All corporate action required by the Applicable Laws and the articles
of association of the Company to be taken by the Company for the due and proper
authorization, issuance, offering, sale and delivery of the Securities has been
validly and sufficiently taken.
(b) The filing of the Registration Statement and the Prospectus with
the Securities and Exchange Commission has been duly authorized by and on behalf
of the Company and the Registration Statement has been duly executed pursuant to
such authorization in accordance with the Applicable Laws.
(c) The issuance, delivery and sale to the Underwriters of the
Securities to be issued and sold by the Company to the Underwriters are not
subject to any tax imposed on the Company by any Israeli court or government
agency or body (each a "Governmental Authority"), except the Israeli stamp duty,
if any.
(d) To our knowledge, other than as set forth in the Prospectus, there
is no legal or governmental proceeding pending or threatened in writing to which
the Company is a party or of which any property or assets of the Company is the
subject, which seeks to restrain, enjoin or prevent the execution and delivery
of the Purchase Agreement or the consummation of the transactions contemplated
thereby.
(e) The issue and sale of the Securities being delivered on the
Delivery Date by the Company pursuant to the Purchase Agreement, and the
execution, delivery and compliance by the Company with all of the provisions of
the Purchase Agreement and the consummation of the transactions contemplated
thereby will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a breach of or default under or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary, any contract, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument known
to us to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the articles of association
of the Company or any statute or any order, rule, regulation, judgment, or
decree known to us of any Israeli Governmental Authority having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets; and subject to Underwriters' full compliance with their undertakings in
the Purchase Agreement, no consent, approval, authorization or order of, or
filing or registration with, any such authority is required for the execution,
delivery and performance of the Purchase Agreement by the Company and the
A-2
consummation of the transactions contemplated thereby, except for such consents,
approvals, authorizations, orders, filings or registrations as have been
obtained or made.
(f) The statements in the Registration Statement and the Prospectus,
insofar as statements refer to the Company's articles of association or
resolutions of the shareholders and board of directors of the Company or to
material contracts, indentures, mortgages, loan agreements, notes, leases, plans
pertaining to option arrangements, employment agreements and other agreements,
arrangements or instruments to which the Company is a party, which are governed
by the laws of the State of Israel, are accurate and adequate in all material
respects insofar as such statements refer to statements of the Applicable Laws
or legal conclusions relating to matters of the Applicable Laws except such
statements which relate to intellectual property rights and those relating to
regulatory requirements for the sale or use of any products of the Company.
(g) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Israeli Governmental
Authority is necessary or required in connection with the due authorization,
execution and delivery of the Purchase Agreement or for the offering, issuance,
sale or delivery of the Securities. The registration with the Tel Aviv Stock
Exchange, required for compliance with Israeli securities laws, may be made
following the Closing.
(h) Under the laws of Israel, the submission by the Company to the
jurisdiction of any federal or state court sitting in the county of New York and
the designation of the law of the State of New York to apply to the Purchase
Agreement is binding upon the Company and, if properly brought to the attention
of the court in accordance with the laws of Israel, would be enforceable in any
judicial proceedings in Israel subject to the exercise of judicial discretion or
the existence of special circumstances or considerations, such as differences in
the provision of the statutes of limitation in the two jurisdictions,
reciprocity agreement as to enforceability between the two jurisdictions, or if
enforcement of such submission clause would be contrary to the interest of
justice or the public good;
(i) The appointment of Given Imaging, Inc. as the Company's authorized
agent for service of process pursuant to the Purchase Agreement is valid and
binding in accordance with its terms.
5. The Affairs of the Company:
(a) To our knowledge, except as set forth in the Prospectus, there is
no action, suit, proceeding, inquiry or investigation before any Israeli
Governmental Authority pending or threatened in writing to which the Company or
any of its subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject, which if determined adversely
to the Company or any of its subsidiaries, would have a Material Adverse Effect.
(b) To our knowledge, the Company is not in violation of its articles
or memorandum of association.
(c) To our knowledge, the Company is not in violation in respect of any
of the Applicable Laws known to us to which it or its property or assets are
subject or has failed to obtain or violated any approval of an Israeli
Governmental Authority necessary in the State of Israel to the ownership of its
property or to the conduct of its business as described in the Prospectus,
except for such defaults, violations or failures that, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect and
except in relation to its "Approved Enterprise" status under the Law of the
Encouragement of Capital Investments, 1959.
A-3
(d) To our knowledge, the Company has not received any notice of
proceedings relating to the revocation or modification of any such approval of
an Israeli Governmental Authority that, if determined adversely to the Company,
would individually or in the aggregate have a Material Adverse Effect.
6. To the extent that the following statements (i) constitute Israeli
legal matters or (ii) relate to the Company's memorandum or articles of
association or, (iii) in the case of the statements made in Item 8 of the
Registration Statement and in the Prospectus under "Certain Relationships and
Related Party Transactions-Agreements with Directors and Officers-Exculpation,
Insurance and Indemnification," in addition to the foregoing, relate to
directors' and officers' indemnification agreement governed by the Applicable
Laws, such statements have been reviewed by us and fairly reflect the matters
purported to be summarized and are correct in all material respects; (a) in the
Prospectus, these legal matters, or matters relating to the Company's memorandum
or articles of association, that appear under the captions "Risk Factors - Risks
relating to our location in Israel, "Dividend Policy," "Management's Discussion
and Analysis of Financial Condition and Results of Operations-Corporate Tax,"
Management's Discussion and Analysis of Financial Condition and Results of
Operations-Government Programs," "Business-Employees," "Business -Legal
Proceedings," "Management-Board Practices," "Management-Approval of Related
Party Transactions," "Management-Share Ownership," "Certain Relationships and
Related Party Transactions," "Description of Share Capital," "Ordinary Shares
Eligible for Future Sale," "Conditions in Israel," "Taxation and Government
Programs-Israeli Tax Considerations and Government Programs," and
"Enforceability of Civil Liabilities," (b) in the Prospectus, these legal
matters that relate to directors' and officers' indemnification agreements
governed by the Applicable Laws, that appear under the caption "Certain
Relationships and Related Party Transactions-Agreements with Directors and
Officers-Exculpation, Insurance and Indemnification" and (c) these legal matters
or matters that relate to the Company's memorandum or articles of association
that relate to directors' and officers' indemnification, including
indemnification agreements governed by the Applicable Laws, that appear in Item
8 of the Registration Statement. Our opinion filed as Exhibit 8.1 to the
Registration Statement is hereby confirmed, and the Underwriters may rely upon
such opinion as if it were addressed to them.
Representatives of our firm participated in conferences with officers
and other representatives of the Company, representatives of U.S. counsel for
the Company, representatives of the independent public accountants for the
Company, representatives of the Underwriters and representatives of counsel for
the Underwriters, at which conferences the contents of the Registration
Statement and the Prospectus, and any supplements or amendments thereto, and
related matters were discussed and, although we have not verified the accuracy
and completeness of the statements contained in the Registration Statement or
the Prospectus and we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as specified in paragraphs
3(a), 3(b) and 6 above) and our judgments as to materiality are, to the extent
we deem appropriate, based in part upon the views of appropriate officers and
other representatives of the Company and on the basis of the foregoing but
without independent check or verification, no facts have come to our attention
that have caused us to believe that (i) at the time the Registration Statement
became effective, the Registration Statement or any amendment thereto made by
the Company prior to such Delivery Date (other than the financial statements,
financial schedules and other financial and accounting data included therein or
incorporated by reference therein or omitted therefrom, and other than matters
relating to intellectual property laws, and regulatory requirements for the sale
or use of any products of the Company; as to which we express no view) contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading or, (ii) as of its date,
the Prospectus (other than the financial statements, financial schedules and
other financial and accounting data included therein or incorporated by
reference therein or omitted therefrom, and other than matters relating to
intellectual property laws, and regulatory requirements for the sale or use of
any products of the Company; as to which we express no view) contained an untrue
statement of a material
A-4
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (iii) as of the date hereof, the Registration Statement, the
Prospectus and any amendment or supplement made thereto prior to such dates
(other than the financial statements, financial schedules and other financial
and accounting data included therein, and other than matters relating to
intellectual property laws, and regulatory requirements for the sale or use of
any products of the Company; as to which we express no view) contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein (in the case of the Prospectus and any
amendments or supplements thereto, in light of the circumstances in which they
were made) not misleading.
A-5
Form of Opinion of White & Case LLP
1. The U.S. Subsidiary has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the State of
Delaware, is duly qualified to do business and in good standing as a foreign
corporation in the State of Georgia and has all corporate power and authority
necessary to own, lease and operate its properties and conduct its business as
described in the Prospectus.
2. All of the issued and outstanding shares of capital stock of the
U.S. Subsidiary have been duly authorized and validly issued and are fully paid,
non-assessable and are owned directly or indirectly by the Company, to our
knowledge, free and clear of any security interest, mortgage, pledge, lien or
other encumbrance.
3. No consent, approval, authorization or order of, or qualification,
filing or registration with any New York State or Federal governmental agency or
body (or, in the case of the U.S. Subsidiary, any Delaware governmental agency
or body pursuant to the Delaware General Corporation Law) or any New York State
or Federal court is required to be obtained or made by the Company or its
subsidiaries for the issuance and sale of the Initial Securities as contemplated
in the Purchase Agreement, except (i) such as have been obtained or made under
the 1933 Act, (ii) such as may be required under state securities or blue sky
laws or the securities laws of any foreign jurisdiction in connection with the
purchase and distribution of the Initial Securities by the Underwriters in the
manner contemplated in the Purchase Agreement and in the Prospectus (as to which
we express no opinion), and (iii) such as may be required by the National
Association of Securities Dealers, Inc.
4. The statements set forth in the Prospectus under "Risk Factors - If
we are characterized as a passive foreign investment company, our U.S.
shareholders may suffer adverse tax consequences" and "Taxation and Government
Programs - United States Federal Income Taxation," insofar as such statements
constitute a summary of matters of U.S. federal income tax law or legal
conclusions with respect thereto, are accurate in all material respects.
5. The Registration Statement was declared effective by the Commission
under the 1933 Act as of 3:00 pm, Washington, D.C. time, on [ ], 2004 and the
Prospectus was filed with the Commission pursuant to Rule 424(b)(1) on [ ],
2004. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for such purpose have
been instituted or are pending or are contemplated or threatened by the
Commission.
6. The Company is not, nor will become as a result of the consummation
of the transactions contemplated by the Purchase Agreement and the application
of the net proceeds from the sale of the Initial Securities as described in the
Prospectus, an "investment company" as defined in the Investment Company Act of
1940, as amended.
7. To our knowledge, there is no legal or governmental proceeding
pending in any state or Federal court located in the County of New York, State
of New York to which the Company or the U.S. Subsidiary is a party which seeks
to restrain, enjoin or prevent the execution and delivery of the Purchase
Agreement or the consummation of the transactions contemplated thereby.
8. The statements in the Prospectus under caption "Ordinary Shares
Eligible for Future Sale," to the extent that they constitute a summary of U.S.
Federal securities law and legal conclusions with respect thereto, are accurate
in all material respects.
A-6
9. The execution and delivery of the Purchase Agreement by the Company
and the issuance and sale of the Initial Securities by the Company as
contemplated in the Purchase Agreement will not result in a breach or violation
of any of the terms and provisions of the certificate of incorporation or bylaws
of the U.S. Subsidiary, any New York State (or, in the case of the U.S.
Subsidiary, Delaware General Corporation Law) or Federal law, rule or regulation
that in our experience is normally applicable to transactions of the type
contemplated by the Purchase Agreement or, to our knowledge, any order of any
New York State or Federal court or governmental agency or body known to us to
have jurisdiction over the Company or the U.S. Subsidiary (except that we
express no opinion in this paragraph as to Federal or state securities or blue
sky laws).
10. Assuming the validity of such actions under the laws of the State
of Israel, under the laws of the State of New York relating to submission to
jurisdiction, the Company has validly appointed the U.S. Subsidiary as its
authorized agent for service of process pursuant to the Purchase Agreement, and
service of process effected on such agent in the manner set forth in Section 16
of the Purchase Agreement will be effective under the laws of the State of New
York to confer valid personal jurisdiction over the Company.
In the course of preparation by the Company of the Registration
Statement and the Prospectus, we have participated in conferences with officers
and other representatives of the Company, with representatives of Zellermayer,
Pelossof & Co., Advocates, Israeli counsel to the Company, with representatives
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. regulatory counsel to the Company, with
representatives of Eitan ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Zedek, intellectual property
counsel to the Company, with representatives of the independent auditors of the
Company, and with you and your counsel. We did not participate in the
preparation of all of the documents incorporated by reference into the
Registration Statement and the Prospectus or review all of them prior to the
filing thereof with the Commission under the 1934 Act, but we did review them in
connection with our participation in the preparation of the Registration
Statement and the Prospectus. We are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except to the extent
stated in paragraphs 4 and 8 above), and our judgments as to materiality are, to
the extent we deem appropriate, based in part upon the views of appropriate
officers and other representatives of the Company.
Based upon such participation in the preparation of the Registration
Statement and the Prospectus, but without independent check or verification, and
subject to the preceding paragraph and the subsequent and final paragraphs
hereof, (a) it is our opinion that each of the Registration Statement at the
time of effectiveness and the Prospectus as of its date (except for the
financial statements and related schedules and other financial and accounting
data included or incorporated by reference therein or omitted therefrom, as to
which we express no opinion) complies as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations, as applicable,
(b) to our knowledge, there is no contract or other document or legal or
governmental proceeding required by the 1933 Act or the 1933 Act Regulations to
be described or summarized in the Prospectus or, in the case of contracts or
other documents, filed as an exhibit to the Registration Statement that is not
described, summarized or filed as required, (c) nothing has come to our
attention which causes us to believe that, as of its time of effectiveness, the
Registration Statement (other than the financial statements and related
schedules and other financial and accounting data included or incorporated by
reference therein or omitted therefrom, as to which we express no belief)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (d) nothing has come to our attention which causes us to
believe that, as of its date and the date hereof, the Prospectus (other than the
financial statements and related schedules and other financial and accounting
data included or incorporated by reference therein or omitted therefrom, as to
which we express no belief) contained or contains an untrue statement of a
material fact or omitted or omits to state
A-7
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
A-8
Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
Based upon, subject to and limited by the foregoing, we are of the
opinion that the statements in the Prospectus under the captions "Risk Factors
If we are unable to expand reimbursement coverage from third-party healthcare
payors for procedures using the Given System, or if reimbursement is
insufficient to cover the costs of purchasing or using the Given System when
compared to alternative procedures, demand for the Given System may not continue
to grow," "Risk Factors - Changes in healthcare system policies may make it
difficult for physicians, hospitals and other healthcare providers to obtain
full reimbursement for the purchase of, and procedures using, the Given Systems,
which could adversely affect demand for the Given System," "Risk Factors - We
are subject to extensive regulation by FDA which could restrict the sale and
marketing of the Given System and could cause us to incur significant costs,"
"Risk Factors - If we or our distributors do not obtain and maintain the
necessary regulatory approvals in a specific country or region, we will not be
able to sell the Given System in that country or region," "Risk Factors - Our
failure to comply with radio frequency regulations in a specific country or
region could impair our ability to commercially distribute and market the Given
System in that country or region," "Risk Factors - Some of our activities may
subject us to risks under federal and state laws prohibiting "kickbacks" and
false or fraudulent claims," "Business - U.S. Government Regulation," Business
Regulation in Europe," and "Business - Third-Party Reimbursement." insofar as
such statements purport to summarize applicable provisions of the FDC Act and
the regulations promulgated thereunder, the Communications Act and the
regulations promulgated thereunder, the Social Security Act Provisions and the
regulations promulgated thereunder, or CEPT standards are accurate summaries in
all material respects of the provisions purported to be summarized under such
captions in the Prospectus.
A-9
Form of Opinion of
Eitan, Pearl, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇
1. As to the statements in the Registration Statement and any further
amendment thereto made by the Company prior to the Closing Date and in the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Closing Date under the captions "Risk Factors - Because of the
importance of our patent portfolio to our business, we may lose market share to
our competitors if we fail to protect our intellectual property rights," "Risk
Factors - Because the medical device industry is litigious, we are susceptible
to intellectual property suits that could cause us to incur substantial costs or
pay substantial damages or prohibit us from selling our products", "Business -
Strategy - Enhance our intellectual property portfolio," "Business -
Intellectual Property," "Business - Legal Proceedings", insofar as such
statements constitute matters of U.S. or Israeli patent, trademark, copyright or
design laws or legal conclusions with respect thereto, are accurate in all
material respects and complete statements or summaries of the matters set forth
therein.
2. To the best of our knowledge, (i) the Registration Statement and any
further amendment thereto made by the Company prior to the Closing Date, at the
time such Registration Statement or amendment became effective, did not contain
an untrue statement of a material fact with respect to the IP Rights or omit to
state a material fact relating to the IP Rights required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Prospectus and
any further amendment or supplement thereto made by the Company prior to the
Closing Date, as of its date, did not contain an untrue statement of a material
fact with respect to the IP Rights or omit to state a material fact relating to
the IP Rights required to be stated therein or necessary to make the statements
therein not misleading, and (iii) at the Closing Date, the Registration
Statement, the Prospectus and any further amendment or supplement thereto made
by the Company prior to the Closing Date did not contain an untrue statement of
a material fact with respect to the IP Rights or omit to state a material fact
relating to the IP Rights required to be stated therein or necessary to make the
statements therein not misleading.
3. Except to the extent described in the Prospectus, the Company is
listed in the records of the United States Patent and Trademark Office and in
the records of the appropriate foreign offices as the holder or holder of record
of the IP Rights. To the best of our knowledge, except for the four pending
Patent Applications specified in Appendix A, which are jointly owned by the
Company and by Yissum, Research Development Company of the Hebrew University of
Jerusalem, the Company is the sole owner of the IP Rights. To the best of our
knowledge, except as described in the Registration Statement, there is no
pending or threatened action, suit, proceeding or claim challenging the validity
or scope of any of the IP Rights.
4. To the best of our knowledge, the Company has taken such steps as
are required, including the payment of all necessary maintenance fees, to
maintain the enforceability of the IP Rights and to maintain the pendency of the
Patent Applications, Trademark Applications and Design Applications, specified
in Appendix A attached hereto.
A-10
Form of Opinion of White & Case LLP
With Respect to Given Imaging GmbH
1. The Subsidiary is a limited liability company (Gesellschaft mit
beschrankter Haftung) duly organized and validly existing under the laws of
Germany.
2. All of the issued and outstanding shares of the Subsidiary (i) have
been duly authorized and validly issued and are, to the best of our knowledge,
fully paid and (ii) are owned directly by Given Imaging B.V., to our knowledge,
free and clear of any security interest, mortgage, pledge, lien, claim or
equity.
A-11
Exhibit B
FORM OF OPINIONS OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
Form of Opinion of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP
(i) UBS Juniper is a limited liability company validly existing and in
good standing under the laws of the State of Delaware, and has the limited
liability company power and authority to enter into and perform its obligations
under the Agreements.
(ii) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any United States Federal, New
York or, to the extent required under the Limited Liability Company Act of the
State of Delaware, Delaware court or governmental authority or agency (other
than the issuance of the order of the Commission declaring the Registration
Statement effective and such authorizations, approvals or consents as may be
necessary under state securities laws, as to which we express no opinion), is
necessary or required to be obtained by the Selling Shareholders for the
performance by each Selling Shareholder of its obligations under the Purchase
Agreement or in the Custody Agreement and Power of Attorney, or in connection
with the offer, sale or delivery of the Initial Securities.
(iii) The Custody Agreement and Power of Attorney executed by UBS
Juniper has been duly authorized, executed and delivered by UBS Juniper and
constitutes the valid and binding agreement of UBS Juniper, subject to (y)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium,
receivership and other laws affecting creditors' rights generally and (z) public
policy and equitable limitations on the enforceability of the indemnity and
contribution provisions of the Purchase Agreement and the indemnity provisions
of the Custody Agreement and Power of Attorney. Each Custody Agreement and Power
of Attorney executed by the Selling Shareholders other than UBS Juniper,
assuming the due authorization, execution and delivery thereof, constitutes the
valid and binding agreement of such Selling Shareholder, subject to (y)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium,
receivership and other laws affecting creditors' rights generally and (z) public
policy and equitable limitations on the enforceability of the indemnity and
contribution provisions of the Purchase Agreement and the indemnity provisions
of the Custody Agreement and Power of Attorney.
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of UBS Juniper.
(v) The Attorney-in-Fact executed by UBS Juniper has been duly
authorized by UBS Juniper to deliver the Initial Securities on behalf of UBS
Juniper in accordance with the terms of the Purchase Agreement.
(vi) The execution, delivery and performance of the Purchase Agreement
by UBS Juniper and the sale of the Initial Securities by UBS Juniper as
contemplated in the Purchase Agreement will not result in a breach or violation
of any of the terms and provisions of (A) the certificate of formation or
operating agreement of UBS Juniper, (B) any material contract or agreement known
to us to be binding on UBS Juniper, or (C) any New York State, Delaware Limited
Liability Company Act or Federal law, rule or regulation that in our experience
is normally applicable to transactions of the type contemplated by the Purchase
Agreement or, to our knowledge, any order of any New York State or Federal court
or governmental agency or body known to us to have jurisdiction over UBS Juniper
(except that we express
B-1
no opinion in this paragraph as to Federal or state securities or blue sky
laws). The sale of the Initial Securities by the Selling Shareholders other than
UBS Juniper as contemplated in the Purchase Agreement will not result in a
breach or violation of any of the terms and provisions of any New York State
law, rule or regulation that in our experience is normally applicable to
transactions of the type contemplated by the Purchase Agreement (except that we
express no opinion in this paragraph as to Federal or state securities or blue
sky laws).
(vii) Upon the delivery of and payment for the Securities as
contemplated by the Purchase Agreement, each of the Underwriters who has
acquired Securities from the Selling Shareholders in good faith and without
notice of any adverse claim within the meaning of Section 8-102 of the New York
Uniform Commercial Code will acquire such Securities free from any such adverse
claim.
(viii) Each Selling Shareholder not located in the United States has,
assuming due authorization of such appointment by each such Selling Shareholder
that is not an individual, validly appointed Given Imaging, Inc. as its
authorized agent for service of process pursuant to the Purchase Agreement and
in connection with the Registration Statement.
B-2
Form of Opinion of Zellermayer, Pelossof & Co., Advocates for
RDC ▇▇▇▇▇▇ Development Corporation Ltd.
1. The Company is a private company duly incorporated and validly existing
under the laws of the State of Israel, and has the corporate power and
authority to execute, deliver and perform its obligations under the terms
and provisions of the Transaction Documents.
2. The execution and delivery by the Company of the Transaction Documents,
and the sale of the Securities have been duly authorized by all requisite
corporate action on the part of the Company, and the Transaction Documents
have been executed and delivered in the name of the Company by the persons
authorized to do so. The Custody Agreement constitutes the valid and
binding agreement of the Company.
3. The execution and delivery of the Transaction Documents and the
performance by the Company of its obligations thereunder do not (a)
violate any provision of the Company's Memorandum of Association and
Articles of Association, currently in effect; (b) violate or contravene
any Israeli law, statute, rule or regulation applicable to the Company; or
(c) violate or contravene any written order, writ, judgment, decree,
determination or award of any Israeli governmental authority applicable to
the Company, of which we are aware.
4. The Company has the legal right and corporate power to sell, transfer and
deliver such Securities pursuant to the Transaction Documents. To our
knowledge and based on the Secretary Certificate, the Company has valid
title to the Securities, free and clear of all liens and encumbrances.
5. The appointment of Given Imaging, Inc. as the agent to receive service of
process or other legal summons for purpose of any action or proceedings
that may be instituted in any state or federal court in the City and State
of New York under the Purchase Agreement has been duly authorized by all
requisite corporate action on the part of the Company.
6. No filing with, consent or approval of: (i) to our knowledge, any Israeli
court or Israeli governmental authority or agency, or (ii) any third-party
of which we are aware, is required to be obtained by the Company for the
performance by the Company of its obligations under the Transaction
Documents, or in connection with the sale and delivery of the Securities.
B-3
Form of Opinion of Zellermayer, Pelossof & Co., Advocates for the
Selling Shareholders (other than ▇▇▇▇▇▇, RDC ▇▇▇▇▇▇ Development
Corporation Ltd. and UBS)
1. The Custody Agreement constitutes the valid and binding agreement of such
Individual Selling Shareholder.
2. The execution and delivery of the Transaction Documents and the
performance by the said Individual Selling Shareholder of his obligations
thereunder do not (a) violate or contravene any Israeli law, statute, rule
or regulation applicable to such Individual Selling Shareholder; or (b)
violate or contravene any written order, writ, judgment, decree,
determination or award of any Israeli governmental authority applicable to
such Individual Selling Shareholder, of which we are aware.
3. To our knowledge and based on the Individual Selling Shareholder
Certificate, such Individual Selling Shareholder has valid title to the
Securities, free and clear of all liens and encumbrances.
4. No filing with, consent or approval of (i) to our knowledge, any Israeli
court or Israeli governmental authority or agency, or (ii) any third party
of which we are aware, is required to be obtained by such Individual
Selling Shareholder for the performance by such Individual Selling
Shareholder of his or her obligations under the Transaction Documents, or
in connection with the sale and delivery of the Securities. In order for
the Individual Selling Shareholder to comply with applicable Israeli tax
law, distribution of the proceeds to be received by such Individual
Selling Shareholder or on his or her behalf pursuant to the sale of the
Securities, shall be made subject to applicable Israeli tax rulings.
B-1
Form of Opinion of ▇▇▇ ▇▇▇▇▇▇, Adv.
1. The Company is a private company duly incorporated and validly existing
under the laws of the State of Israel, and has the corporate power and
authority to execute, deliver and perform its obligations under the terms
and provisions of the Transaction Documents.
2. The execution and delivery by the Company of the Transaction Documents,
and the sale of the Securities have been duly authorized by all requisite
corporate action on the part of the Company, and the Transaction Documents
have been executed and delivered in the name of the Company by the persons
authorized to do so. The Custody Agreement constitutes the valid and
binding agreement of the Company.
3. The execution and delivery of the Transaction Documents and the
performance by the Company of its obligations thereunder do not (a)
violate any provision of the Company's Memorandum of Association and
Articles of Association, currently in effect; (b) violate or contravene
any Israeli law, statute, rule or regulation applicable to the Company; or
(c) violate or contravene any written order, writ, judgment, decree,
determination or award of any Israeli governmental authority applicable to
the Company, of which we are aware.
4. The Company has the legal right and corporate power to sell, transfer and
deliver such Securities pursuant to the Transaction Documents. To our
knowledge, the Company has valid title to the Securities, free and clear
of all liens and encumbrances.
5. The appointment of Given Imaging, Inc. as the agent to receive service of
process or other legal summons for purpose of any action or proceedings
that may be instituted in any state or federal court in the City and State
of New York under the Purchase Agreement has been duly authorized by all
requisite corporate action on the part of the Company.
6. No filing with, consent or approval of: (i) to our knowledge, any Israeli
court or Israeli governmental authority or agency, or (ii) any third party
of which we are aware, is required to be obtained by the Company for the
performance by the Company of its obligations under the Transaction
Documents, or in connection with the sale and delivery of the Securities.
B-1
Form of lock-up from directors, officers or other shareholders
pursuant to Section 5(k)
Exhibit C
[ ], 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
Citigroup Global Markets Inc.
CIBC World Markets Corp.
▇▇▇▇▇ Fargo Securities, LLC
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by Given Imaging Ltd.
Dear Sirs:
The undersigned, a shareholder [and an officer and/or director] of
Given Imaging Ltd., an Israeli company (the "Company"), understands that ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇"), Citigroup Global Markets Inc. ("Citigroup"), CIBC World Markets Corp.
and ▇▇▇▇▇ Fargo Securities, LLC propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company and the Selling Shareholders providing
for the public offering of shares (the "Securities") of the Company's ordinary
shares, par value NIS 0.05 per share (the "Ordinary Shares"). In recognition of
the benefit that such an offering will confer upon the undersigned as a
shareholder [and an officer and/or director] of the Company, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreement that, during a period of 90 days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Company's Ordinary Shares or
any securities convertible into or exchangeable or exercisable for Ordinary
Shares, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file, or cause to be filed, any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the "Lock-Up Securities") or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Lock-Up Securities,
whether any such swap or transaction is to be settled by delivery of Ordinary
Shares or other securities, in cash or otherwise.
Very truly yours,
Signature:_______________________________
Print Name:______________________________
C-1