EXHIBIT 10.14
GIVEN IMAGING LTD.
ORDINARY SHARE PURCHASE AGREEMENT
THIS ORDINARY SHARE PURCHASE AGREEMENT (the "AGREEMENT") is made and
entered into as of the 21st day of August, 2001 by and among Given Imaging Ltd.
(the "COMPANY"), a company incorporated under the laws of the State of Israel,
and PW Juniper Crossover Fund, LLC (the "Purchaser").
WHEREAS, the Purchaser desires to purchase a number of ordinary shares of
the Company (the "ORDINARY SHARES") from the Company to be calculated in the
manner set forth below, subject to and in accordance with, the terms and
conditions set forth herein; and
WHEREAS, the Company proposes to file a registration statement with the
U.S. Securities and Exchange Commission (the "SEC") for the purpose of
conducting an initial public offering (the "IPO") of Ordinary Shares.
In consideration of the premises and mutual covenants contained in this
Agreement, the parties hereto hereby agree as follows:
1. DEFINITIONS. When used in this Agreement, the following terms shall
have the meanings specified below:
"BUSINESS DAY" means any day, other than a Friday, Saturday or
Sunday or a day on which banks located in New York, New York or Israel shall be
authorized or required by law to close.
"PER SHARE PURCHASE PRICE" means the gross public offering price per
share of the Company's Ordinary Shares to be offered to the public in the IPO
prior to any public trading.
"PURCHASE PRICE" means six million dollars ($6,000,000) to be paid
by the Purchaser to the Company in the manner set forth herein.
"PURCHASED SHARES" means the number of Ordinary Shares that is equal
to the largest whole number obtained when the Purchase Price is divided by the
Per Share Purchase Price.
"REGISTRATION STATEMENT" means the final, effective version of the
Company's registration statement on Form F-1 relating to the IPO.
2. PURCHASE AND SALE OF ORDINARY SHARES.
2.1. SALE AND ISSUANCE OF ORDINARY SHARES. Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase, and the Company
agrees to issue and sell, at the Closing (as defined below) the Purchased
Shares, in consideration for the Purchase Price. The Purchased Shares shall have
the rights, preferences, privileges and restrictions set forth in the form of
amended Articles of Association of the Company to be
adopted immediately prior to the closing of the IPO. Notwithstanding anything
herein to the contrary, the Company shall not be obligated to sell the Purchased
Shares to the Purchaser at the Closing unless the Purchaser purchases all of the
Purchased Shares in accordance with terms of this Agreement. The purchase and
sale of the Purchased Shares is intended to be a private placement and not a
public offering nor part of a public offering.
2.2. CLOSING; DELIVERY. The purchase and sale of the Purchased
Shares (the "CLOSING") shall take place at the offices of Zellermayer, Pelossof
& Co., ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Israel on the fifth
(5th) Business Day following the closing date of the IPO or, if later, upon
satisfaction or waiver by the Company and the Purchaser of each of the
conditions set forth in Sections 5 and 6 (the "CLOSING DATE"). At the Closing,
the following transactions shall occur, which transactions shall be deemed to
take place simultaneously and none of them shall be completed or deemed to be
completed until all shall have occurred:
(a) The Company shall deliver to the Purchaser an officer's
certificate, signed by the Chief Financial Officer of the Company in the form
attached as EXHIBIT A hereto (the "OFFICER'S CERTIFICATE") certifying the number
of shares to be issued to the Purchaser at the Closing.
(b) The Company shall deliver to the Purchaser a certified copy of a
resolution of the Board of Directors of the Company issuing and allotting the
Purchased Shares to the Purchaser.
(c) The Company shall register the Purchaser in its register of
shareholders as the owner of the Purchased Shares and shall instruct the stock
transfer agent of the Ordinary Shares to issue to the Purchaser a validly
executed share certificate representing the Purchased Shares promptly following
the Closing.
(d) The Company shall deliver to the Purchaser a duly executed
certificate of confirmation from the Secretary of the Company certifying that
the Purchaser has been duly registered in the shareholders' register of the
Company as the owner of the Purchased Shares.
(e) In consideration for the issuance and sale of the Purchased
Shares, the Purchaser shall transfer to the Company the Purchase Price by wire
transfer in immediately available funds to the Company's bank account at Bank
Leumi, Branch 876, Account No. 121300/63 (or to such other account as the
Company shall designate in writing to the Purchaser no less than three (3)
Business Days prior to the Closing Date).
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants the following to the Purchaser:
3.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
company duly organized, validly existing and in good standing under the laws of
the State of Israel. The Company has the requisite corporate power and authority
to carry on its business as now conducted and as presently proposed to be
conducted, to execute and deliver this
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Agreement, to issue and sell the Purchased Shares, and to carry out the
provisions of this Agreement.
3.2. AUTHORIZATION. The Company has taken all corporate action
necessary for the authorization, execution and delivery of this Agreement, and
all corporate action necessary for the performance of all obligations of the
Company hereunder and the authorization, issuance, sale, and delivery of the
Purchased Shares has been taken or will be taken prior to the Closing. This
Agreement constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors' rights generally, or (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
3.3. VALID ISSUANCE OF ORDINARY SHARES. The Purchased Shares, when
issued, sold and delivered in accordance with the terms hereof in consideration
for the Purchase Price, will be (a) duly and validly issued, fully paid and
non-assessable, and (b) free and clear of any pledges, encumbrances, attachments
or other third party rights and of restrictions on transfer other than
restrictions on transfer under applicable securities laws.
3.4. DISCLOSURE. The Registration Statement will not, as of the date
and the time as of which the Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission (the "EFFECTIVE DATE"), 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, in light of the circumstances under which they
were made, not misleading.
3.5. ACCOUNTANTS AND FINANCIAL STATEMENTS. As of the Effective Date,
the consolidated financial statements (including all related notes and
schedules) of the Company and its subsidiaries contained in the Registration
Statement fairly present in all material respects the financial position and
results of operations of the Company and its subsidiaries at the respective
dates and for the respective periods to which they apply. Such financial
statements have been prepared in accordance with generally accepted accounting
principles of the United States consistently applied throughout the periods
involved.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Company that:
4.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation. The Purchaser has the requisite
corporate power and authority to carry on its business as now conducted and as
presently proposed to be conducted, to execute and deliver this Agreement and to
carry out the provisions of this Agreement.
4.2. AUTHORIZATION. The Purchaser has taken all corporate action
necessary for the authorization, execution and delivery of this Agreement, and
all corporate action necessary for the performance of all obligations of the
Purchaser hereunder has been taken or will be taken
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prior to the Closing. This Agreement constitutes a valid and legally binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, or (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
4.3. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Purchaser is acquiring
the Purchased Shares for its own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, nor with the
present intention of distributing or selling the same. The Purchaser has no
present or contemplated agreement, undertaking, arrangement, obligation or
commitment providing for the disposition thereof.
4.4. DISCLOSURE OF INFORMATION. Without derogating from the
representations of the Company in Section 3: (i) the Purchaser has received all
information required which it deems relevant for the purpose of its investment,
(ii) the Purchaser has been given the opportunity to ask questions of, and
receive answers from, the Company concerning the Company and other matter
pertaining to this investment and the business, prospects and financial
condition of the Company and to obtain additional information concerning the
Company and the Purchased Shares (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense), (iii)
the Purchaser is aware that the Company is a development stage company which has
not yet commenced commercial sales of its product and that there can be no
assurance that the Company will achieve its business or technological
objectives, that the Purchaser's investment in the Company involves a high
degree of risk, and (iv) the Purchaser acknowledges that it can economically
sustain the loss of its investment in the Purchased Shares.
4.5. RESTRICTED SECURITIES. The Purchaser understands that the
Purchased Shares have not been registered under the U.S. Securities Act of 1933,
as amended (the "SECURITIES ACT"), by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Purchaser's representations as expressed herein. The Purchaser understands that
the Purchased Shares are "restricted securities" under applicable U.S. federal
and state securities laws and that, pursuant to these laws, must be held by the
Purchaser indefinitely unless they are registered with the Securities and
Exchange Commission and qualified by state authorities, or an exemption from
such registration and qualification requirements is available. The Purchaser
further acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Purchased
Shares, and on requirements relating to the Company which are outside of the
Purchaser's control, and which the Company is under no obligation and may not be
able to satisfy.
4.6. QUALIFIED INSTITUTIONAL BUYER. The Purchaser is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
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4.7. LEGENDS. The Purchaser understands that the Purchased Shares
will bear the following legend and any legend required by state securities laws:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
other securities laws. These securities have been acquired for
investment and not with a view to distribution or resale. Such
securities may not be offered for sale, sold, delivered after sale,
transferred, pledged or hypothecated in the absence of an effective
registration statement covering such securities under the Securities
Act of 1933 and any other applicable securities laws, unless the
holder shall have obtained an opinion of counsel reasonably
satisfactory to the corporation that such registration is not
required."
4.8. BROKERAGE COMMISSIONS. No broker's commissions were, or will be
required to be, paid by the Purchaser in connection with this transaction.
5. PURCHASER CLOSING CONDITIONS. The obligation of the Purchaser to
purchase the Purchased Shares shall be subject to the satisfaction or waiver of
the following conditions precedent on or prior to the Closing Date:
5.1. TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date.
5.2. APPROVALS. The execution and the delivery of this Agreement and
the consummation of the transactions contemplated hereby shall have been
approved by the following regulatory authorities: (i) the Investment Center of
the Israeli Ministry of Industry and Trade (the "INVESTMENT CENTER"), and (ii)
the Office of the Chief Scientist of the Israeli Ministry of Industry and Trade
(the "OFFICE OF THE CHIEF SCIENTIST").
5.3. CLOSING OF THE IPO. The closing of the IPO of the Ordinary
Shares shall have occurred.
5.4. DELIVERY OF DOCUMENTS. All documents to be delivered by the
Company pursuant to Section 2.2 shall have been delivered.
6. COMPANY CLOSING CONDITIONS. The obligation of the Company to sell
the Purchased Shares at the Closing shall be subject to the satisfaction or
waiver of the following conditions precedent on or prior to the Closing Date:
6.1. TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Purchaser contained in this Agreement shall be true and
correct in all material
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respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
6.2. APPROVALS. The execution and the delivery of this Agreement
and the consummation of the transactions contemplated hereby shall have been
approved by the following regulatory authorities: (i) the Investment Center, and
(ii) the Office of the Chief Scientist.
6.3. OFFICE OF THE CHIEF SCIENTIST UNDERTAKING. The Purchaser shall
have delivered to the Company an undertaking addressed to the Office of Chief
Scientist, in a form and of substance customarily acceptable by the Office of
the Chief Scientist, undertaking to comply with the Research and Development
Law.
6.4. CLOSING OF THE IPO. The closing of the IPO of the Ordinary
Shares shall have occurred.
7. COVENANTS OF THE PURCHASER
7.1. LOCK-UP. Concurrent with the signing of the this Agreement,
the Purchaser shall sign an undertaking addressed to ▇▇▇▇▇▇ Brothers Inc. in the
form set forth in EXHIBIT B.
7.2. OFFICE OF THE CHIEF SCIENTIST. The Purchaser shall deliver to
the Company an undertaking addressed to the Office of Chief Scientist, in a form
and of substance customarily acceptable by the Office of the Chief Scientist,
undertaking to comply with the Research and Development Law.
7.3. LEGAL OBLIGATIONS. Immediately after the Closing, the Purchaser
undertakes to file all the necessary documents and reports required to be filed
by the Purchaser by any relevant authority in Israel, the United States or
elsewhere, and to abide by all the appropriate rules, regulations and laws
applying to a non-Israeli equity holder, including, without limitation, any
undertakings required by the Office of Chief Scientist and timely filing of a
Schedule 13D under the Securities and Exchange Act of 1934, as amended,
reporting the acquisition of securities of a public company with the SEC.
8. INDEMNIFICATION.
8.1. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify,
defend and hold harmless the Purchaser and its officers, directors, partners,
members, employees and agents and each other person which controls (with the
meaning of the Securities Act) the Purchaser or any of its partners or members
(each, a "PURCHASER INDEMNITEE") against all liability, loss or damage, together
with all reasonable costs and expenses related thereto (including legal and
accounting fees and expenses as incurred), arising from the failure of any
representation or warranty of the Company contained in Section 3; provided,
however, that the Company shall not be liable to any Purchaser Indemnitee for
any loss or damage to the extent that it arises out of or is based the failure
of a representation or warranty which occurs in reliance upon and in
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conformity with information furnished by a Purchaser Indemnitee. Notwithstanding
the foregoing, the aggregate amount that may be recovered from the Company by a
Purchaser Indemnitee under this Section 8.1 shall be limited to the Purchase
Price plus a return thereon at the rate of 8% per annum compounded quarterly.
8.2. INDEMNIFICATION BY THE PURCHASER. The Purchaser shall
indemnify, defend and hold harmless the Company and its officers, directors,
partners, members, employees and agents and each other person which controls
(with the meaning of the Securities Act) the Purchaser or any of its partners or
members (each, a "COMPANY INDEMNITEE") against all liability, loss or damage,
together with all reasonable costs and expenses related thereto (including legal
and accounting fees and expenses as incurred), arising from the failure of any
representation or warranty of the Purchaser contained in Section 4.
Notwithstanding the foregoing, the aggregate amount that may be recovered from
the Purchaser by a Company Indemnitee under this Section 8.2 shall be limited to
the Purchase Price plus a return thereon at the rate of 8% per annum compounded
quarterly.
8.3. LIMITATION ON INDEMNFICATION.
(a) The aggregate liability of (i) the Company, and (ii) the
Purchaser, arising out of, or related to this Agreement or the transactions
contemplated hereby, whether based on contract, warranty, tort, strict liability
or otherwise, including all rights to indemnification hereunder, shall not
exceed the Purchase Price plus a return thereon at the rate of 8% per annum
compounded quarterly.
(b) The obligations to indemnify and hold harmless pursuant to
Sections 8.1 and 8.2 shall survive the consummation of the transactions
contemplated by this Agreement for a period of one (1) year after the discovery
of the failure of the representation or warranty subject to the claim, except
for claims for indemnification asserted prior to the end of such period which
shall survive until the final resolution thereof; provided, however, that in no
event shall the obligations to indemnify and hold harmless pursuant to Sections
8.1 and 8.2 survive after the date that is more than three (3) years after the
Closing Date.
9. TERMINATION.
9.1. TERMINATION BY THE COMPANY. At any time prior to the Closing
Date, the Company shall have the right, in its sole discretion, to terminate
this Agreement without any liability or adverse affect or without it being
considered a breach of this Agreement, if the Company can substantiate by
reasonable proof that applicable governmental authorities may prevent the IPO or
substantially delay the IPO as a result of the transactions contemplated by this
Agreement.
9.2. AUTOMATIC TERMINATION. This Agreement shall terminate with no
further action by any party hereto and the parties hereto shall cease to have
any rights or obligations hereunder on the date that is six (6) months from the
signing of this Agreement in the event that the closing of the IPO of the
Ordinary Shares has not occurred by such date.
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10. MISCELLANEOUS.
10.1. EXPENSES. The Company and the Purchaser shall each bear their
own expenses incurred on their own behalf with respect to this Agreement and the
transactions contemplated hereby.
10.2. STAMP DUTY. The Company shall pay the stamp duty due on the
issuance of the Purchased Shares.
10.3. OTHER ACTS. The Company and the Purchaser will after, as well
as before and upon, the Closing Date, do all acts and things and sign and
execute all documents and deeds required for the purpose of implementing the
terms of this Agreement.
10.4. ASSIGNMENT. None of the rights of obligations under or
pursuant to this Agreement may be assigned or transferred to by the Purchaser or
the Company to any other person without the written consent of the other party
to this Agreement. In the event that such written consent is received, the
assignee shall agree in writing to be bound by all of the terms hereof and the
assignor shall remain liable for any and all of its obligations hereunder.
10.5. ENTIRE AGREEMENT. This Agreement, and the documents referred
to herein constitute the entire agreement between the parties hereto pertaining
to the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
10.6. ORDINARY SHARE NUMBERS. All ordinary share numbers in this
Agreement shall be adjusted to give effect to the stock combination and
distribution of bonus shares which will take place immediately prior to the
closing of the IPO.
10.7. PUBLICITY. The timing and text of any public announcement
regarding the existence and terms of this Agreement shall be agreed between the
parties hereto in their sole discretion and, prior to the date on which brokers
or dealers trading in Ordinary Shares are no longer required to deliver a
prospectus with respect to the Ordinary Shares, shall require the approval of
the lead underwriter of the IPO; provided, however, that the foregoing shall not
be construed as preventing the Company from disclosing the existence and terms
of this Agreement in the Registration Statement or any public filings thereof or
from including this Agreement as an exhibit to the Registration Statement or any
public filings thereof.
10.8. AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only if the same is in writing and signed by the Company and
the Purchaser.
10.9. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
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10.10. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.11. SUCCESSORS AND ASSIGNS; NO THIRD PARTY RIGHTS. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. This Agreement shall not
be construed as granting rights to any third party. In this Agreement, third
party shall mean any person that is not a party to this Agreement.
10.12. NOTICES. Any and all notices, requests, demands and other
communications required or otherwise contemplated to be made under this
Agreement shall be in writing and in English and shall be provided by one or
more of the following means and shall be deemed to have been duly given: (i) if
delivered personally, when received; (ii) if transmitted by facsimile, on the
date of transmission with receipt of a transmittal confirmation; or (iii) if by
international courier service, on the fourth (4th) business day following the
date of receipt of deposit with such courier service, or such earlier delivery
date as may be confirmed in writing to the sender by such courier service. All
such notices, requests, demands and other communications shall be sent to the
address or facsimile number as set forth on the signature page hereto.
10.13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. RESOLUTION OF DISPUTES.
11.1. GOVERNING LAW. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New York
excluding the conflict of laws provisions thereof.
11.2. ARBITRATION. All disputes arising out of or in connection with
this Agreement and any other agreement resulting herefrom, including any
question regarding its existence, validity or termination, shall be finally
settled under the International Arbitration Rules of the American Arbitration
Association by three (3) arbitrators in accordance with the said rules. The seat
of arbitration shall be New York, New York. The procedural law of the State of
New York shall apply where the rules are silent. The language to be used in the
arbitration proceeding shall be English. The Company and the Purchaser shall
each nominate one arbitrator for confirmation by the competent authority under
the applicable rules (the "APPOINTING AUTHORITY") within thirty (30) days of the
commencement of the arbitration. Both arbitrators shall agree on the third
arbitrator within thirty (30) days. Should the two arbitrators fail, within the
above time-limit, to reach agreement on the third arbitrator, he or she shall be
appointed by the Appointing Authority.
[Signature pages follow.]
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The parties have executed this Ordinary Share Purchase Agreement as of the
date first written above.
COMPANY:
GIVEN IMAGING LTD.
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
Address: ▇ ▇▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 258
Yoqneam 20692, Israel
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇▇▇-▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇ (▇▇▇-▇) ▇▇▇-▇▇▇▇
With a copy to:
Address: White & Case LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a further copy to:
Address: Zellermayer, Pelossof & Co.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Israel
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇ (▇▇▇-▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇ (▇▇▇-▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO GIVEN IMAGING
ORDINARY SHARE PURCHASE AGREEMENT
PURCHASER:
PW JUNIPER CROSSOVER FUND, LLC
By: PW Juniper Management, LLC, its
managing member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Address: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO GIVEN IMAGING
ORDINARY SHARE PURCHASE AGREEMENT
EXHIBITS
Exhibit A - Form of Officer's Certificate
Exhibit B - Form of Lock-Up Letter Agreement
EXHIBIT A
FORM OF OFFICER'S CERTIFICATE
I, ▇▇▇ ▇▇▇ ▇▇▇▇▇, hereby certify that I am the Vice President and Chief
Financial Officer of Given Imaging Ltd. (the "COMPANY"), and hereby certify
pursuant to Section 2.2(a) of the Ordinary Share Purchase Agreement, dated
August 23, 2001, by and between the Company and PW Juniper Crossover Fund, LLC
(the "AGREEMENT"), as follows:
1. The Per Share Purchase Price (as defined in the Agreement) is $____.
2. The number of the Purchase Shares (as defined in the Agreement)
is __________.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this ___
day of ____________, 2001.
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Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
EXHIBIT B
FORM OF LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST
BOSTON CORPORATION
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
As Representatives of the
several underwriters
c/▇ ▇▇▇▇▇▇ BROTHERS INC.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of ordinary
shares, having a nominal value of NIS 0.01 per share (the "Ordinary Shares"), of
Given Imaging Ltd. (the "Company") and that the Underwriters propose to reoffer
the Shares to the public (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of ▇▇▇▇▇▇
Brothers Inc., on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or
enter into any transaction or device that is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
Ordinary Shares (including, without limitation, Ordinary Shares that may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission and Ordinary Shares
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Ordinary Shares (other than the Shares)
owned by the undersigned on the date of execution of this Lock-Up Letter
Agreement or on the date of the completion of the Offering, or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such Ordinary
Shares, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Ordinary Shares or other securities, in cash or
otherwise, for a period of 180 days after the date of the final prospectus
relating to the Offering.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not intend
to proceed with the Offering, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Shares, we will be released from our obligations under this
Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
rely on this Lock-Up Letter Agreement in proceeding with the Offering.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
the Underwriting Agreement, the terms of which are subject to negotiation
between the Company and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Very truly yours,
IF AN INDIVIDUAL:
------------------------------
Name:
IF ON BEHALF OF A CORPORATION,
PARTNERSHIP, LIMITED LIABILITY
COMPANY, TRUST OR OTHER ENTITY:
------------------------------
[Name of entity]
By:
--------------------------
Name:
Title:
Dated: _______________
