Exhibit 2.1
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "AGREEMENT") is hereby entered into
this 23 day of September 2005 (the "EFFECTIVE DATE") by and between BIOPAD LTD.
an Israeli private company No. 00-000000-0, with offices at 12 Tfutsot Israel,
Givatayim (the "COMPANY") and SYNOVA PRE-NATAL HEALTHCARE, INC. with offices at
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 0000, Xxxxx, Xxxxxxxxxxxx 00000 (the
"PURCHASER" and collectively, the Purchaser with the Company, the "PARTIES").
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company to raise capital by means of the
issuance of the Company's Ordinary Shares, par value NIS 1.0 per share, of the
Company (the "ORDINARY SHARES"), constituting immediately following their
issuance to the Purchaser 25% of the issued and outstanding share capital of the
Company on an as converted and fully diluted basis on the terms and conditions
more fully set forth in this Agreement; and
WHEREAS, the Purchaser desire to purchase, and the Company desires to
issue and sell, Ordinary Shares, under the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the Parties hereby agree as follows:
1. ISSUANCE AND PURCHASE OF THE ORDINARY SHARES.
Subject to the terms and conditions hereof, the Company shall issue and
allot to the Purchaser, and the Purchaser shall purchase from the
Company, an aggregate amount of 350 Ordinary Shares (the "SHARES"), in
consideration for the aggregate amount of US$ 2,630,000 (the "PURCHASE
PRICE"), and constituting 25% of the issued and outstanding shares of
the Company on a fully diluted basis (after giving effect to the
conversion and exercise of all convertible securities, options and
warrants as well as all other rights of any kind to acquire shares of
the Company), except the Pool (as defined below) and after giving
effect to all anti dilution rights and adjustments that may be
activated as a result of the transactions contemplated herein) and
having the rights, preferences and privileges set forth in the Amended
and Restated Articles of Association of the Company (the "AMENDED
ARTICLES") in the form that is attached hereto as SCHEDULE 1.
2. PAYMENT OF THE PURCHASE PRICE
2.1 The Purchaser shall pay to the Company the Purchase Price as
follows:
2.1.1 The amount of US $250,000 - On the Effective Date and
upon the Company's delivery of the documents as set
forth and required by Section 3.3., constituting the
good faith payment of $10,000 pursuant to the Side
Letter date September 6, 2005 among the Parties
hereto and the cash payment of $240,000 on the
Effective Date.
2.1.2 The amount of US $500,000 - On November 15, 2005,
subject to the provisions specified in Section 6.2.2.
2.1.3 The amount of US $500,000 - On March 1, 2006, subject
to the provisions specified in Section 7.
2.1.4 The amount of US $1,380,000 - On August 25, 2006,
subject to the provisions specified in Section 7.
2.2 All the payments shall be paid and transferred by way of a
bank transfer to the Company's account, as instructed by the
Company or by such other form of payment as agreed in writing
between the Parties.
3. ADDITIONAL AGREEMENTS AND DOCUMENTS
3.1 Simultaneously with the signature of this Agreement, the
parties hereto shall execute the Shareholders' Agreement by
and among the Company, the Original Shareholders as such is
set forth and defined therein and the Purchaser (the
"SHAREHOLDERS' AGREEMENT").
3.2 It is specifically clarified and agreed that if this Agreement
shall be terminated, the Shareholders' Agreement and the
Distribution Agreement dated September 6, 2005 between the
Company and the Purchaser (the "DISTRIBUTION AGREEMENT") shall
each be terminated automatically.
3.3 Upon the signature of this Agreement the Company shall deliver
to the Purchaser the following documents:
3.3.1 Copy of a resolution of the Company's Board of
Directors approving the signature and execution of
this Agreement, the Shareholders' Agreement and the
Distribution Agreement (collectively, the
"TRANSACTION AGREEMENTS") and empowering Hanoch
Kaftzan to sign all the Transaction Agreements in the
name and on behalf of the Company.
3.3.2 Waiver of the Original Shareholders (as defined in
the Shareholder's Agreement) of their pre-emptive
right in respect of the issue of the Shares to the
Purchaser under this Agreement.
3.3.3 An Opinion of Shiboleth, Yisraeli, Roberts, Xxxxxx &
Co., counsel to the Company, in the form attached
hereto as SCHEDULE 3.3.3.
3.3.4 A Letter Agreement in substantially the same form
that is attached hereto and set forth on SCHEDULE
3.3.4 for the benefit of the Company with each
individual that is so identified on such Schedule.
3.4 Upon the signature of this Agreement the Purchaser shall
deliver to the Company the following documents:
3.4.1 Copy of a resolution of the Purchaser's Board of
Directors approving the signature of Transaction
Agreements and empowering Xxxxxxx X. Xxxx to sign the
Transaction Agreements in the name and on behalf of
the Purchaser.
3.4.2 An Opinion of Blank Rome LLP, counsel to the
Purchaser, in the form attached hereto as SCHEDULE
3.4.2.
4. THE POOL
4.1 It is agreed between the parties hereto that after the
execution of this Agreement, the Board of Directors of the
Company shall adopt a Stock Option Plan for employees,
executives, directors, consultants and service providers of
the Company of up to 10% of the issued and outstanding shares
of the Company, after the issuance of the Shares, according to
terms and conditions to be decided by the Board of Directors
of the Company (the "POOL"); provided, however, that any
options granted from the Pool shall (i) not have an exercise
price that is
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less than (a) US$ 625 per Share for the persons specified in
SCHEDULE 4.1, attached hereto, and (b) for such persons that
are not so listed on SCHEDULE 4.1 its fair market value at the
time of its related grant; and (ii) vest over a four year
period from the date of its related grant.
4.2 It is specifically clarified and agreed that the Purchaser
together with the Original Shareholders shall be equally
diluted in case options so granted and exercised from the
Pool.
5. PRE-CONDITIONS TO THE CLOSING
5.1 The Purchaser has informed the Company that the purchase of
the Shares and the payment of the Purchase Price, as specified
in Sections 2.1.3-2.1.5, are subject to the Purchaser
successfully raising the capital.
5.2 If such capital raise shall fail, then the following terms and
conditions shall apply:
5.2.1 The Purchaser shall have the right either to have the
Closing and pay the Purchase Price from other sources
or to terminate this Agreement.
5.2.2 If the Purchaser shall terminate this Agreement in
accordance with Section 5.2.1 (i) the Company shall
have the option, until November 30, 2006, either to
repay the amount of US $250,000, paid by the
Purchaser according to Sections 2.1, or to issue and
allot to the Purchaser respective portion of the
shares with respect to the abovementioned amount; and
(ii) all the Transaction Agreements shall be
terminated.
6. THE CLOSING
6.1 The Closing shall take place on November 15, 2005 at the
offices of Blank Rome LLP or at such other time and place as
the parties shall agree in writing (the "CLOSING").
6.2 At the Closing the Purchaser shall:
6.2.1 Execute the Escrow Agreement in such form that is
agreed to by the Parties hereto on or before November
15, 2005 (the "ESCROW AGREEMENT"), as shall be
drafted upon the principles specified in Section 7
hereinafter.
6.2.2 Pay to the Company the amount of US$ 500,000, against
delivery to the Purchaser of a statement signed by
the General Manager (the "XXXXXX") of the Company and
the Chief Executive Officer of the Purchaser
declaring that the Company has reached Milestone 1 as
specified in SCHEDULE 7.4.1 attached hereto; provided
that if the Company has not reached Milestone 1 by
the Closing, the Purchaser shall have the right to
extend the due date of Milestone 1 to an extended
date or dates (as many times as it so such chooses)
in its sole and absolute discretion and in accordance
with such the Purchaser shall only be required to so
transfer the dollar amount specified in this Section
6.2.2 at the extended date or dates upon its receipt
of the related statement so referenced above in this
Section.
6.2.3 Deposit the amount of US $1,880,000 in the Escrow
Account.
6.2.4 Deliver to the Company a copy of the resolution of
the Board of Directors of the Purchaser approving the
signature and execution of the Escrow Agreement and
empowering Xxxxxxx X. Xxxx to sign in the name and on
behalf of the Purchaser on the Escrow Agreement.
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6.2.5 Provide the Company with an Opinion of Blank Rome
LLP, the counsel to the Purchaser, in the form
attached hereto as SCHEDULE 6.2.5.
6.3 At the Closing the Company shall:
6.3.1 Execute the Escrow Agreement.
6.3.2 Deliver to the Purchaser a copy of resolution of the
Board of Directors of the Company:
(i) approving the signature and execution of the
Escrow Agreement and empowering Hanoch
Kaftzan to sign in the name and on behalf of
the Company on the Escrow Agreement.
(ii) To issue and allot to the Purchaser 100
ordinary shares of the Company, a respective
portion of the Shares to the amount of US
$750,000 that was paid by the Purchaser.
(iii) To register the said shares in the Company
Shares Register and to report to the
Registrar of Companies the allotment to the
Purchaser.
6.3.3 Deliver to the Purchaser a copy of a resolution of
the Original Shareholder, signed by all the Original
Shareholders:
(i) Approving the Amended Articles, in the
English language.
(ii) Appointing Xxxxxxx X. Xxxx or such other
person that the Purchaser may designate as
a Director of the Company, as a Synova
Director in accordance with the
Shareholders' Agreement.
6.3.4 Deliver to the Purchaser a certificate of the CEO of
Company, dated as of the Closing, confirming (a) the
truth and correctness of all of the representations
and warranties of Company contained herein as of the
Closing and as of all times between the date hereof
and the Closing, and (b) that all agreements and
covenants of Company specified herein have been
complied with.
6.3.5 Provide the Purchaser with an opinion of Shiboleth,
Yisraeli, Roberts, Xxxxxx & Co., the Counsels of the
Company, regarding the abovementioned resolution
substantially in the form of SCHEDULE 3.3.3.
6.3.6 To issue to the Purchaser a Certificate evidencing
its ownership of 100 ordinary shares of the Company.
6.3.7 Deliver to the Purchaser employment and consultant
agreements with all of the Company's Key Employees
and consultants.
6.4 All actions at the Closing as abovementioned shall take place
simultaneously.
7. ESCROW AGREEMENT
The Escrow Agreement shall be based on the following principles:
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7.1 The Escrow Agent shall jointly be law firms of Blank Rome LLP
and Shiboleth, Yisraeli, Roberts, Xxxxxx & Co. (collectively,
the "ESCROW AGENT") and Blank Rome LLP shall be the
administrative agent on behalf of the Escrow Agent.
7.2 The Escrow Account shall be on the name and shall be managed
and operated by the Escrow Agent.
7.3 The Escrow Agent shall invest the amount deposited in the
Escrow Account in an interest bearing investment as instructed
by the Parties.
7.4 The Escrow Agent shall be irrevocably instructed to transfer
to the Company:
7.4.1 The amount of US $500,000 on March 1, 2006, against
delivery to the Escrow Agent of: (i) a statement
signed by Xxxxxx of the Company and the Chief
Executive Officer of the Purchaser, declaring that
the Company has reached Milestone 2 as specified in
SCHEDULE 7.4.1, (ii) a copy of resolution of the
Board of Directors of the Company to issue and allot
to the Purchaser 67 Ordinary Shares and to register
it in the name of the Purchaser in the Company Share
Register and to report to the Registrar of Companies,
and (iii) a certificate of the Xxxxxx of Company,
dated March 1, 2006, confirming the truth and
correctness of all of the representations and
warranties of Company contained herein as of the
March 1, 2006.
7.4.2 The amount of US $1,380,000 on August 25, 2006
against delivery to the Escrow Agent of: (i) a
statement signed by the Xxxxxx of the Company and the
CEO of the Purchaser declaring that the Company has
reached Milestone 3 as specified in SCHEDULE 7.4.1;
and (ii) a copy of resolution of the Board of
Directors of the Company to issue and allot to the
Purchaser 183 Ordinary Shares and to register it in
the name of the Purchaser in the Company Share
Register and to report to the Registrar of Companies,
and (iii) a certificate of the Xxxxxx of Company,
dated August 25, 2006, confirming the truth and
correctness of all of the representations and
warranties of Company contained herein as of the
August 25, 2006.
7.4.3 In case the Company does not reach the related
Milestone as such is stated in Sections 7.4.1, and/or
7.4.2 above at the corresponding Milestone completion
date as stated therein, the related date shall be
automatically extended for 30 days, and the Escrow
Agent shall, upon its receipt of the related
statement, resolutions and certificates so referenced
in each such Section, transfer the amounts specified
in the corresponding above at the extended date.
7.4.4 Without derogating from the provisions of Section
7.4.3 above, the Purchaser shall have the right to
extend the dates of any Milestone as stated in
Section 7.4.1 and/or 7.4.2 above to an extended date
or dates (as many times as it so chooses) as shall be
decided by the Purchaser and in such event the Escrow
Agent shall, upon receipt of the related statement,
resolutions and certificates so referenced in each
such Section, transfer the amount specified in
Section 7.4.1 and 7.4.2 at the extended dates as such
may be set forth by the Purchaser in accordance with
this Section 7.4.4.
7.4.5 If the Company shall not meet the extended milestone
as specified in Section 7.4.3 or in Section 7.4.4
above, at the Purchasers request the Escrow Agent
shall return and transfer to the Purchaser the amount
then deposited in the Escrow Account.
7.4.6 Upon the completion of any Milestone as stated in
Section 7.4.1 and/or 7.4.2 above, the Company shall
issue to the Purchaser a Certificate evidencing the
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Purchasers ownership of such Shares that it is
entitled to receive with respect to a given
Milestone.
7.5 The profits (interest) accumulated in the Escrow Account shall
belong to the Purchaser and will be transferred by the Escrow
Agent to the Purchaser simultaneously with the transfer of the
abovementioned amounts to the Purchaser.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth on
the Schedule of Exceptions attached hereto as SCHEDULE 8, the Company
hereby represents and warrants to the Purchaser that the statements
contained in this Section 8 are true, complete and correct as of the
date of the Effective Date, the Closing and the Company satisfying each
milestone so referenced in Section 7.4 hereof, and acknowledges that
the Purchaser is entering into this Agreement in reliance thereon, as
follows:
8.1 ORGANIZATION.
8.1.1 The Company is duly organized and validly existing
under the laws of the State of Israel. The Company
has all requisite power and authority to execute and
deliver this Agreement, the Shareholders' Agreement,
the Escrow Agreement and the other agreements,
certificates or other instruments contemplated hereby
or thereby, which are ancillary hereto or thereto
(collectively, the "TRANSACTION DOCUMENTS"), and to
consummate the transactions contemplated hereby and
thereby. The Articles of Association of the Company
(the "ARTICLES OF ASSOCIATION") as in effect prior to
the Closing are attached hereto as SCHEDULE 8.1.1.
The Company has all requisite corporate power and
authority to own, lease and operate its properties
and to conduct its business as heretofore conducted
and has not taken any action or failed to take any
action, which action or failure would preclude or
prevent the Company from conducting its business
after the signature of this Agreement in
substantially the manner heretofore conducted. The
Company is duly qualified to do business and in good
standing (in jurisdictions in which such term is
applicable) in each jurisdiction in which the Company
currently conducts business.
8.1.2 The minute books of the Company which have been
provided to the Purchaser contain accurate and
complete copies of the minutes of every meeting of
the Company's shareholders and Board of Directors
(and any committee thereof). No resolutions have been
passed, enacted, consented to or adopted by the
directors (or any committee thereof) or shareholders
of the Company, except for those contained in such
minute books. The corporate records of the Company
have been maintained in accordance with all
applicable statutory requirements and are complete
and accurate in all respects.
8.2 SHARE CAPITAL.
8.2.1 The registered share capital of the Company as of the
date of this Agreement is one hundred thousand New
Israeli Shekels (NIS 100,000) divided into 100,000
Ordinary Shares, par value of NIS 1.0 each, of the
Company.
8.2.2 Since its date of incorporation, there has been no
declaration or payment by the Company of dividends,
or any distribution of any assets of any kind to any
of its shareholders in redemption of or as the
purchase price for any of the Company's securities.
8.2.3 The shareholders of record and holders of
subscriptions, warrants, options, convertible
securities and other rights (contingent or others) to
purchase or
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otherwise acquire equity securities of the Company,
immediately prior to the date of this Agreement, are
as set forth in SCHEDULE 8.2.3 attached hereto (the
"CAPITALIZATION TABLE").
8.2.4 Except for the transactions contemplated by this
Agreement and except as described in the
Capitalization Table, there are no other share
capital, convertible securities or outstanding or
committed warrants, options or other rights to
subscribe for, purchase or acquire from the Company
any share capital of the Company; there are no
contracts or binding commitments providing for the
issuance of, or the granting of rights to acquire,
any share capital of the Company or under which the
Company is, or may become, obligated to issue any of
its securities.
8.2.5 All issued and outstanding share capital of the
Company has been duly authorized and is validly
issued and outstanding and fully paid and
non-assessable. The Shares, when issued and sold in
accordance with this Agreement (i) will be duly
authorized, validly issued, fully paid,
non-assessable and free of any preemptive rights;
(ii) will have the rights, preferences, privileges
and restrictions set forth in the Amended Articles;
(iii) will be free and clear of any liens, claims,
encumbrances or third party rights of any kind
(except as specified in the Transaction Documents and
in the Amended Articles) and duly registered in the
name the Purchaser in the Company's share register.
8.2.6 Except as set forth in the Transaction Documents and
the Amended Articles, there are no voting or other
agreements with respect to the share capital of the
Company or any agreement relating to the issuance,
sale, redemption, transfer or other disposition of
the share capital of the Company to which the Company
is a party, or of which the Company has knowledge of.
8.3 DIRECTORS, OFFICERS. The directors and officers of the Company
are as listed SCHEDULE 8.3 attached hereto. Except as set
forth in the Transaction Documents and the Amended Articles,
the Company has no agreement, obligation or commitment with
respect to the election of any individual or individuals to
the Board of Directors of the Company and there is no voting
agreement or other arrangement among the Company's
shareholders regarding such elections.
8.4 AUTHORIZATION; APPROVALS. All corporate action on the part of
the Company necessary for the authorization, execution,
delivery, and performance of all its obligations under this
Agreement has been (or will be) taken prior to the Closing.
Each of the Transaction Documents will be at or prior to the
Closing duly and validly executed and delivered by the Company
and (assuming the due authorization, execution and delivery by
the Purchaser), when executed and delivered by or on behalf of
the Company, shall constitute the valid and legally binding
obligations of the Company, legally enforceable against the
Company in accordance with its terms. No consent, approval,
order, license, permit, action by, or authorization of or
designation, declaration, or filing with any governmental
authority or any other person or entity on the part of the
Company is required that has not been, or will not have been,
obtained by the Company prior to the Closing in connection
with the valid execution, delivery and performance of this
Agreement and the other Transaction Documents.
8.5 SUBSIDIARIES. The Company has no subsidiaries and does not
own, directly or indirectly, any shares of capital stock or
other security of any other entity or any other investment in
any other entity.
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8.6 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
default neither: (a) under its Articles of Association or
other formation documents or governing instrument (the
"GOVERNING INSTRUMENTS"); nor (b) under any material note,
indenture, mortgage, lease, agreement, contract, purchase
order or other instrument, document or agreement to which the
Company is a party or by which it or any of its property is
bound or affected (the "AGREEMENTS"); nor (c) with respect to
any law, statute, ordinance, regulation, order, writ,
injunction, decree, or judgment of any court or any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (the "LAWS AND
REGULATIONS"), which default, in any such case described
above, would materially adversely affect or in the future is
reasonably likely to materially adversely affect the Company's
business, condition (financial or otherwise), affairs,
operations or assets.
8.7 NO BREACH. Neither the execution and delivery of any of the
Transaction Documents nor the consummation of the transactions
contemplated hereby and thereby nor compliance by the Company
with the terms and provisions hereof and thereof will conflict
with, or result in a material breach or violation of, any of
the terms, conditions or provisions of the Governing
Instruments, Agreements or Laws and Regulations. Such
execution, delivery, consummation and compliance will not: (a)
give to others any rights, including rights of termination,
cancellation or acceleration, in or with respect to any
agreement, contract or commitment referred to in this
paragraph or to any other agreement which any of the
properties of the Company are subject, or will result in the
creation of any encumbrance, charge or lien on such
properties; or (b) otherwise require the consent or approval
of any person, which consent or approval has not heretofore
been obtained.
8.8 OWNERSHIP OF ASSETS. Full and accurate details of the
Company's tangible properties and assets are contained in
SCHEDULE 8.8 attached hereto. The Company has good and
marketable title to, or holds interests as lessee under leases
in full force and effect all of the properties and assets used
in connection with its business or otherwise owned or leased
by it, and such properties or assets are not subject to any
mortgage or other liens. The Company does not own any real
property.
8.9 INTELLECTUAL PROPERTY AND OTHER INTANGIBLE ASSETS.
8.9.1 The Company owns or has the right to use, free and
clear of all liens and restrictions, all patents,
trademarks, service marks, trade names and
copyrights, and applications, licenses and rights
with respect to the foregoing, and all trade secrets,
including know-how, inventions, designs, processes,
works of authorship, computer programs and technical
data and information to be used by the Company in
connection with its business or research or
development as now conducted and as proposed to be
conducted [to be checked] (the "INTELLECTUAL
PROPERTY"). SCHEDULE 8.9.1 attached hereto sets forth
all the Intellectual Property, including the
Company's patents and patent applications and
including further the Intellectual Property that was
assigned to it by the Founders.
8.9.2 To the Company's best knowledge, information and
belief, the Intellectual Property and the Company's
conduct of its business as now conducted and as
proposed to be conducted is not infringing upon or
violating any intellectual property right of others,
including, without limitation, with respect to any
Company employees' or consultants' (including the
Founders) past and present employers, and no party is
infringing upon or violating any Intellectual
Property rights of the Company.
8.9.3 There are no outstanding options, licenses or
agreements of any kind relating to the foregoing, nor
is the Company bound by or a party to any options,
licenses or
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agreements of any kind with respect to the
Intellectual Property of any other person or entity.
8.9.4 The Company is not obligated or under any liability
whatsoever to make any payments by way of royalties,
fees or otherwise to any owner or licensee of, or
other claimant to, any patent, trademark, service
xxxx, trade name, copyright or other intangible
asset, with respect to the use thereof or in
connection with the conduct of the Company's business
as now conducted and as proposed to be conducted.
8.9.5 The Company has not received any communications
alleging that the Intellectual Property has violated,
or the Company's conduct of its business as now
conducted and as proposed to be conducted would
violate, any of the patents, trademarks, service
marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or
entity, nor is the Company aware of any basis for
such allegation.
8.9.6 Any and all Intellectual Property of any kind which
has been developed, is currently being developed, or
will be developed in the future, by any employee or
consultant of the Company (i) which relates to the
Company's business or research or development, (ii)
which is developed in whole or in part on the
Company's time or with the use of any of the
Company's equipment, supplies, facilities or trade
secret information, or (iii) which results directly
or indirectly from any work performed by the
employees or consultants for the Company, is and
shall be the sole property of the Company. The
Company has taken security measures to protect the
secrecy and confidentiality of all the Intellectual
Property, which measures are reasonable and customary
in the industry in which the Company operates.
8.9.7 To the Company's knowledge, the Company's employees
or consultants are not obligated under any contract
(including licenses, covenants or commitments of any
nature) or other agreement, or subject to any
judgment, decree or order of any court or
administrative agency, that would interfere with the
use of such employee's or consultant's best efforts
to promote the interests of the Company or that would
conflict with the Company's business as now conducted
and as proposed to be conducted. To the Company's
knowledge, neither the execution nor delivery of this
Agreement, nor the carrying on of the Company's
business by the employees or consultants of the
Company, nor the conduct of the Company's business as
proposed to be conducted, will conflict with or
result in a breach of the terms, conditions or
provisions of, or constitute a default under, any
contract, covenant or instrument under which such
employee or consultant was or is now obligated. To
the Company's knowledge, it is not, and will not
become, necessary to utilize any inventions of the
Company's employees or consultants (or people the
Company currently intends to hire) made prior to
their employment by the Company other than those that
have been validly assigned to the Company.
8.9.8 LITIGATION. No action, proceeding or governmental
inquiry or investigation is pending nor to the
Company's best knowledge, threatened against the
Company or any of the Company's officers, directors
or employees (in their capacity as such) or any of
the Company's properties before any court,
arbitration board or tribunal or administrative or
other governmental agency, nor is the Company aware
that there is any basis for the foregoing. There is
no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends
to initiate.
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8.9.9 Taxes. The Company has not been required to file any
tax returns or tax reports to date. There is no
pending dispute or review with any taxing authority
relating to any tax matter of the Company.
8.9.10 BROKERS. No agent, broker, investment banker, person
or firm acting in a similar capacity on behalf of or
under the authority of the Company is or will be
entitled to any broker's or finder's fee or any other
commission or similar fee, directly or indirectly, on
account of any action taken by the Company in
connection with any of the transactions contemplated
under this Agreement.
8.9.11 FINANCIAL CONDITION. The liabilities of the Company
were incurred in the ordinary course of the Company's
business. Since the Company's incorporation, the
Company has been operated in the ordinary course of
business, and other than as set forth in SCHEDULE
8.9.11 attached hereto, there has not been:
8.9.11.1 any damage, destruction or loss, whether or
not covered by insurance, materially and
adversely affecting the assets, properties,
conditions (financial or otherwise),
operating results or business of the
Company;
8.9.11.2 any waiver by the Company of a valuable
right or of a material debt owed to it;
8.9.11.3 any satisfaction or discharge of any
material lien, material claim or material
encumbrance or payment of any material
obligation by the Company;
8.9.11.4 any loans received by the Company, or made
by the Company (including loans to its
employees, officers, or directors, other
than travel advances made in the ordinary
course of business);
8.9.11.5 any sale, transfer or lease of, except in
the ordinary course of business, or mortgage
or pledge of imposition of lien on, any of
the Company's assets; or
Since the Company's incorporation:
8.9.11.6 the Company has not entered into any
transaction in excess of $5,000 per
transaction or greater than $15,000 in the
aggregate as to both; all except for any
transactions entered into in the ordinary
course of business;
8.9.11.7 The Company has no debt or liability of any
nature whatsoever, fixed or variable or
contingent, except as shown on SCHEDULE
8.9.11 attached hereto.
8.9.11.8 Except as shown on SCHEDULE 8.9.11 attached
hereto, there are no material outstanding
debts owed to the Company, and no bad or
doubtful debts appear on the Company's books
as of the date hereof.
8.9.12 CONTRACTS. SCHEDULE 8.9.12 attached hereto contains a
true and complete list of all material contracts and
agreements to which the Company is a party or by
which its property is bound. Each of such contracts
and agreements is in full force and effect, and
neither the Company nor to the knowledge of the
Company any other party
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thereto is in breach thereof. True and correct copies
of all such contracts have been delivered to the
Purchaser.
8.9.13 EMPLOYEES.
8.9.13.1 SCHEDULE 8.9.13.1 attached hereto lists all
employees and consultants of the Company.
All employees of the Company have signed
non-competition, assignment of invention and
confidentiality undertakings toward the
Company. True and correct copies of such
agreements have been delivered to the
Purchaser.
8.9.13.2 Except as set forth on SCHEDULE 8.9.13.1
attached hereto, the Company has no
employment or consulting contracts, deferred
compensation agreements or bonus, incentive,
profit-sharing, or pension plans currently
in force and effect, or any understanding
with respect to any of the foregoing.
8.9.13.3 The Company has complied with all material
legislative or other material official
provisions relating to employees and with
their terms and conditions of employment and
has made all deductions and payments to the
Income Tax Authorities and the National
Insurance Institute as required by law.
8.9.14 GOVERNMENTAL GRANTS. The Company has not applied for
or received any grant or allowance from any
governmental authority.
8.9.15 INTERESTED PARTY TRANSACTIONS. Except as specified in
SCHEDULE 8.9.15 attached hereto, the Company
represents and warrants that no officer, director,
shareholder of the Company, or any affiliate of any
such person or entity of the Company, has or has had,
either directly or indirectly, (a) an interest in any
person or entity which (i) furnishes or sells
services or products which are furnished or sold or
are proposed to be furnished or sold by the Company,
or (ii) purchases from or sells or furnishes to the
Company any goods or services, or (b) a beneficial
interest in any contract or agreement to which the
Company is a party or by which it may be bound or
affected, except for normal compensation for services
for employees which has been disclosed in writing to
the Purchaser and which have been duly approved by
the Board of Directors and/or the shareholders of the
Company. There are no existing arrangements or
proposed transactions between the Company and any
officer, director, or holder of the capital stock of
the Company, or any affiliate or associate of any
such person. No employee, shareholder, officer, or
director of the Company is indebted to the Company,
nor is the Company indebted (or committed to make
loans or extend or guarantee credit) to any of them.
8.9.16 FULL DISCLOSURE. All facts and information with
regard to the condition and business of the Company
that would reasonably be considered as material for
disclosure to an entity intending to invest in the
shares of the Company have been disclosed to the
Purchaser. Neither this Agreement nor any other
Transaction Document or any certificate made or
delivered in connection herewith or therewith
contains any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements herein or therein not misleading, in view
of the circumstances in which they were made.
8.9.17 EFFECTIVENESS; SURVIVAL; INDEMNIFICATION. In the
event of any material breach or material
misrepresentation of any covenant, warranty or
representation made by the Company under this
Agreement, the Company shall indemnify the Purchaser
and hold it harmless from any and all loss, damage
(including, without limitation, any
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decrease in the value of the Shares), liability and
expense, including reasonable legal fees and costs
(collectively, "LOSSES"), sustained or incurred by
the Purchaser as a result of, or in connection with,
said breach or misrepresentation.
9. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company as follows:
9.1 OREANIZATION. The Purchaser is a Company duly organized and
validly existing under the laws of its state of incorporation.
9.2 AUTHORIZATION; APPROVALS. All corporation action on the part
of the Purchaser necessary for the authorization, execution,
delivery and performance of all of its obligations under the
Transaction Documents have been (or will be) duly taken prior
to the Closing.
9.3 BROKERS. No agent, broker, investment banker, person or firm
acting in a similar capacity on behalf of or under the
authority of the Purchaser is nor will be entitled to any
broker's or finder's fee or any other commission or similar
fee, directly or indirectly, on account of any action taken by
the Purchaser in connection with any of the transactions
contemplated under this Agreement.
9.4 The Purchaser has received all the information it considers
necessary or appropriate for deciding whether to invest in the
Company in accordance with this Agreement. The Purchaser has
had the full opportunity to ask questions and receive answers
from the Company and its representatives and to obtain such
information as it deemed necessary for the purposes of
evaluating its investment.
In making the decision to purchase the Shares and to invest in
the Company, the Investor has relied on its own independent
examination of the Company, including the merits and risks
involved as well as the representations and warranties
contained herein.
10. AFFIRMATIVE COVENANTS.
10.1 Use of PROCEEDS. The Company will use the proceeds of the
issuance and sale of the Shares in accordance with the
Company's budget, attached hereto as SCHEDULE 10.1 (the
"BUDGET") as may be amended from time to time by the Company's
Board of Directors, with the affirmative approval of the
Purchasers. The Budget shall set forth the period of time
during which the Company will use such proceeds, and such
period shall be referred to as the "Pre-SEED PERIOD".
10.2 D&O INSURANCE. Prior to the commercialization of the Licensed
Product (as defined in the Distribution Agreement) the Company
will obtain and maintain effective, a commercially reasonable
amount of directors and officers liability insurance.
10.3 All covenants, agreements, and conditions contained in this
Agreement to be performed or complied with by the Company
prior to any Closing shall be performed or complied with by
the Company prior to the Closing.
11. MISCELLANEOUS.
11.1 NOTICES. All notices hereunder will be in writing, mailed
registered or certified, postage prepaid, addressed to the
Parties at their respective addresses as set out below, or
transmitted by courier, cable, telex or facsimile or other
reliable method of transmission.
If to the Company to the address set forth in the preamble to
this Agreement
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with a copy to:
Shiboleth, Yisraeli, Roberts,
Xxxxxx & Co.
00 Xxxxxxxxxx Xxxxxx
Xxx Xxxx 00000
Israel
Attention: Xxxxxx Xxxxxx, Adv.
Fax: 000-0-0000000
If to the Purchaser: to the addresses set forth in Schedule 1
attached hereto.
with a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
X.X.X.
Attention: Xxxx X. Xxxxxx, Esquire
Fax: (000) 000-0000
Notices will be deemed received by the receiving party within
seven (7) days of mailing, if mailed; within three (3) days of
sending, if sent by courier; when actually delivered by hand,
if so delivered, and on the first business day (at the
receiving end) following transmission, if transmitted by
facsimile.
11.2 ASSIGNMENT. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their
respective successors and assigns, provided, however, that
this Agreement and all rights and obligations hereunder may
not be assigned or transferred without the prior written
consent of the other Parties, except a transfer by a Purchaser
to an entity, which controls, is controlled by or is under
common control with the Purchaser.
11.3 GOVERNING LAW; JURISDICTION,. This Agreement will be construed
in accordance with and governed by the laws (but not the
conflict of laws rules) of the State of Israel and the
competent courts of Tel-Aviv-Jaffa, Israel, will have
exclusive jurisdiction with respect to any dispute arising
hereunder. The Parties hereby irrevocably submit to such
jurisdiction.
11.4 ENTIRE AGREEMENT AND AMENDMENT. This Agreement constitutes the
entire agreement between the Parties with respect to the
subject matter hereof and contains all of the promises,
undertakings, and other representations made by the Parties to
each other prior to its execution. This Agreement shall
prevail over any prior agreement, understanding, promise or
undertaking of the Parties with respect to the subject matter
hereof. No amendment to this Agreement will be of any effect
unless executed in writing and signed by all Parties.
11.5 SEVERABILITY. If any provision of this Agreement is held by a
competent court to be invalid or unenforceable under
applicable law, then such a provision shall be excluded from
this Agreement and the remainder of this Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms; provided, however,
that in such an event this Agreement shall be interpreted so
as to give effect, to the greatest extent consistent with and
permitted by applicable law, to the meaning and intention of
the excluded provision as determined by such court of
competent jurisdiction.
11.6 HEADINGS. All section headings herein are inserted for
convenience only and shall not modify or affect the
construction or interpretation of any provision of this
Agreement.
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11.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and
enforceable against the parties actually executing such
counterpart and all of which together shall constitute one and
the same instrument.
11.8 ELECTRONIC DELIVERY OF SIGNATURES. This Agreement may be
executed and delivered by facsimile or other electronic means
and upon such delivery the facsimile or electronically
delivered signature will be deemed to have the same effect as
if the original signature had been delivered to the other
party.
11.9 FURTHER ASSURANCES. The parties hereto agree to use their
respective best efforts to finalize and execute such further
documents and instruments and to take such further actions as
may be reasonably necessary to carry out the transaction
contemplated under this Agreement.
Signature page follows
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IN WITNESS WHEREOF, the parties hereto have executed this Share
Purchase Agreement as of the date first written above.
THE COMPANY:
BIOPAD LTD.
/s/ Hanoch Kaftzan
--------------------------------------------
Name: [STAMP - Biopad Ltd.- Hanoch Kaftzan
-------------------------------------
Title: CEO
-------------------------------------
------------------------------------------------------
THE PURCHASER:
SYNOVA PRE-NATAL HEALTHCARE, INC.
/s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
-------------------------------
Title: CEO
-------------------------------
SCHEDULES TO SHARE PURCHASE AGREEMENT
Pursuant to the Rules of the Securities and Exchange Commission, the following
schedules to the Share Purchase Agreement have been omitted:
Schedule 1 Amended and Restated Articles of Association
Schedule 3.3.3 Matters to be Addressed in Opinion of Counsel to Company
Schedule 3.3.4 Employment Letter
Schedule 3.4.2 Matters to be Addressed in Opinion of Counsel to Purchaser
Schedule 4.1 The Pool
Schedule 6.2.5 Matters to be Addressed in Opinion of Counsel to Purchaser
Schedule 7.4.1 Milestones
Schedule 8 [Blank]
Schedule 8.1.1 Articles of Association
Schedule 8.2.3 BioPad's Capitalization Table
Schedule 8.3 Directors and Officers
Schedule 8.8 Ownership of Assets
Schedule 8.9.1 Intellectual Property -- Patents
Schedule 8.9.11 [Blank]
Schedule 8.9.12 Contracts
Schedule 8.9.13.1 List of Employees and Consulting Contracts
Schedule 8.9.15 Interested Party Transactions
Schedule 10.1 Proposed Estimated Budget Frame Work