Exhibit 4. 19
STRICTLY PRIVATE
AND CONFIDENTIAL
AGREEMENT
This Agreement
(“Agreement”) is entered into and signed as of November 21, 2011, by and between Can-Xxxx Biopharma Ltd., an
Israeli corporation, of 00 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx (“Can-Xxxx”), for the first part; and Denali
Concrete Management, Inc., a Nevada corporation, of 000 X. Xxx Xxxx, Xxxxx 000 Xxxxxx Xxxx, XX 00000 (“Denali”),
for the second part. Can-Xxxx and Denali may be referred to herein individually as a “Party” or collectively as the
“Parties”.
WHEREAS,
Can-Xxxx desires to grant to Denali a worldwide exclusive license over its therapeutic drug CF 101 for the field of ophthalmic
diseases (the “Field”) in exchange for the issuance
to Can-Xxxx of shares and warrants of Denali representing approx. 86.7% of the issued share capital of Denali (the “Transaction”);
and
WHEREAS, the Board of Directors
of each of Can-Xxxx and Denali has determined that it is desirable to effect the Transactions.
NOW THEREFORE,
in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the Parties agree as follows
1. Grant
of License. Subject to the terms and conditions contained herein, Can-Xxxx shall xxxxx to a newly incorporated Israeli
subsidiary of Can-Xxxx (the “Sub”) an
exclusive license to CF-101 for the Field (the “License”),
in exchange for the issuance to Can-xxxx of 1,000 ordinary shares, nominal value NIS 0.01 each of the Sub, representing 100%
of the issued and outstanding share capital of the Sub. The License shall be granted pursuant to a mutually agreed upon
license agreement (the “License Agreement”), which
shall include customary provisions as are typically included in such license agreements, including timetables for the
development and commercialization for CF 101 in the field, and shall be signed and executed by the relevant parties at the
Closing (as defined below).
2. Recapitalization.
Prior to the Closing and as a condition thereto, Denali shall perform a recapitalization of its share capital so that of the
11,370,430 Common Stock, par value US$0.001 each (the “Common Stock”) issued
and outstanding as of the date hereof, 7,750,000 shall be repurchased by Denali and returned to treasury and 1,920,000 shall
be issued to certain investors in exchange for an investment to be used in order to pay for all the liabilities of
Denali prior to the Closing, so that immediately prior to the Closing the authorized share capital of Denali shall
consist of 1,000,000 shares of Preferred Stock, none of which shall be issued and outstanding, and 50,000,000 shares of
Common Stock, of which 5,540,430 shall be issued and outstanding (the “Recapitalization”).
3. Transfer
of Sub to Denali. At Closing, Can-Xxxx shall transfer 1,000 ordinary shares of the Sub (representing 100% of the outstanding
interests in the Sub) to Denali, free and clear of all liens and encumbrances, pursuant to such stock transfer and conveyance instruments
as shall be reasonable and customary for similar transfers.
4. Issuance
of Shares and Warrants to Can-Xxxx. In consideration for the grant of the License to the Sub and the transfer of all (100%)
of the issued shares of the Sub to Denali, Denali shall issue to Can-Xxxx thirty-six million (36,000,000) shares of Common Stock
of Denali, representing 86.7% of the issued and outstanding share capital (on a fully diluted basis) as of the Closing (the “Transaction
Shares”). The capitalization table of Denali immediately
prior to and after the Closing shall be set out herein as Exhibit A.
5. Financing.
Concurrently with the Closing and as a condition thereto or prior thereto, Denali shall raise not less than US$6.2 Million from
investors through a private placement, of which US$3.8 Million shall be in cash (of which US$500,000 will be invested by Can-Xxxx
prior to the grant of the License) and US$2.4 Million will be in ordinary shares of Can-Xxxx, whose value at the date of their
issuance to Denali shall be equal to US$2.4 Million, all for the issuance to the investors and Can-Xxxx of 5,445,086 Common Stock
of Denali at a price per share of US$1.144 per each such share, and an aggregate valuation, pre private placement, of US$50 Million.
For each two (2) shares of Denali purchased in the Financing, each investor (including Can-Xxxx) will be issued, post Closing
and conditional on the increase of the share capital of Denali, if increased, one (1) warrant valid for a period of 5 years from
the closing of the Financing, to acquire one (1) share of Denali for an exercise price of $1.72, which is 50% higher than the
price per share in the Financing ($1.144). Denali further agreed to apply a full-ratchet anti-dilution protective provisions for
the benefit of the investors in the Financing (including Can-Xxxx) in the event that Denali enters into another financing during
the 12 months following the closing of the Financing at a price which is lower than $1.144 per common stock of Denali. In connection
with the Financing Denali expects to pay cash commissions to third parties in the amount of approximately $330,000 (the “Fundraising”).
The proceeds of the Fundraising shall be used to continue the clinical development of CFIOI in the Field, it being understood
that additional future financing will probably be required to complete such clinical development. The investors will invest in
the Fundraising through a mutually agreed upon subscription agreement which shall include customary terms and conditions for such
transactions, which shall include that upon the Closing the investment amount placed in escrow prior to the Closing shall be released
to Denali immediately after the Closing upon issuance of the investment shares (the “Investment Shares”)
to such investors (the “Subscription Agreement”).
For avoidance of doubt, if the valuation of the Fundraising won’t be approved by Can-Xxxx, at its sole discretion,
then the Agreement will expire and cease to have any legal effect.
6. Service
Agreement. Concurrently with the Closing, Can-Xxxx shall enter into a service agreement with Denali or its affiliate for the
management of all activities relating to pre-clinical and clinical studies performed for the development of the ophthalmic indications
in the Field, including pre-clinical studies, drug manufacturing and supply, QT study in human beings, payments to consultants
such as Xx. Xxxx Xxxxx and Xx. Xxxx Xxxxxxxxx for their role involved in the on-going clinical trials and all activities need
to be conducted in order to launch CF 101 to the market for the ophthalmic indications (the “Service Agreement”).
The terms of the Service Agreement shall set out that Can-Xxxx shall invoice Denali for such services to be provided by
Can-Xxxx at a rate of cost of such services + 15% (not including VAT, if applicable), and shall “pass through” any
direct payments for intellectual property maintenance made to third parties. Furthermore, the Service Agreement shall include
additional compensation for the services being performed under the Service Agreement in the form of a royalty to be paid to Can-Xxxx
from any and all proceeds received by the Sub, Denali or any of its affiliates in relation to CF 101 in the Field, of 2.5% of
any such proceeds (the “Royalty”). In addition,
the Service Agreement shall contain customary provisions as typically set out in similar agreements. Denali will undertake to
be obligated to all current ongoing ophthalmic clinical trials’ agreements signed by Can Xxxx, and will pay all payments
according to those agreements from the date of the Closing onwards. Denali shall also undertake to pay all other costs related
to the ophthalmic indications such as IP maintenance, regulatory activities etc. Can-Xxxx will have the right, at any time until
the expiry of 5 years from the Closing, to convert the Royalty into an additional 2,160,102 shares of Common Stock of Denali,
which shall be equal to 5% of the issued and outstanding share capital (on a fully diluted as converted basis) as of the Closing
(the “Warrants”). The exercise price of the Warrants shall be as follows: (a) in the event that within 12 months
of the Closing, Denali or its affiliates complete any transaction which has a “bio-dollar” value of more than US$100
Million, then the exercise price shall be the par value of the shares of Common Stock, and (b) at any other time, then exercise
price for ALL the Warrants shall be US$2.5 Million (which represents an assumed valuation as of the Closing of US$50 Million).
Additional terms and conditions of the Warrants shall include anti-dilution, cashless exercise and other customary terms and conditions
which shall be set out in a mutually agreed upon Warrant agreement (the “Warrant Agreement”).
7. Closing.
The Parties contemplate that a closing will take place as soon as practical following the execution and delivery of this
Agreement, but no later than November 22, 2011 (the “Closing”), at
which all of the following shall occur concurrently: (a) CanFite shall grant the License to the Sub, (b) all of
the Sub’s shares shall be transferred to Denali, (c) Denali shall issue to Can-Xxxx 36,000,000 shares of Common Stock
representing 86.7% of the issued and outstanding share capital of Denali, (d) Denali shall issue to Can-Xxxx the Warrant, (e)
Subscription Agreements in relation to not less than US$6.2 Million (including by way of receipt of Ordinary Shares of
Can-Xxxx valued at US$2.4 Million) will have been signed and executed by investors with the respective investment amount
placed in escrow to be released immediately following the Closing, and (f) all other Transaction Agreements shall be signed,
executed and delivered by the parties thereto. “Transaction Agreements” shall mean this Agreement, the
License Agreement, the Warrant Agreement, the Subscription Agreements, the Service Agreement and any additional agreements,
documents or instruments required to complete the Transactions.
8. Conditions
to Closing. The obligations of each Party hereto to satisfy its obligations hereunder at the Closing are subject to the fulfillment
on or prior to the Closing of each of the following conditions; provided, that a Party may not assert a failure of a condition
hereunder where such failure is due to own failure to perform:
| (iii) | Transfer
of Sub. All the outstanding interests in
the Sub shall have been duly transferred and
conveyed to Denali; |
| (iv) | Service Agreement. The Service Agreement shall
have been duly executed by Denali (or a designated affiliate) and Can-Xxxx; |
| (v) | Subscription Agreements. The Subscription Agreements
shall have been duly executed by investors representing subscriptions of not less than US$6.2 million(including by way of receipt
of Ordinary Shares of Can-Xxxx valued at US$2.4 Million) and the funds therefore of not less than US$3.8 Million are held in escrow
pending the Closing; |
| (vi) | Tax Ruling. The receipt of a signed and executed
tax ruling from the Israeli Tax Authorities to the grant of the License by Can-Xxxx to the Sub. |
| (vii) | Legal Opinion.
Can-Xxxx shall have received the legal opinion
of Denali’s legal counsel acceptable
to Can-Xxxx, in the form set out in Exhibit
B attached hereto; |
| (viii) | Representations and Warranties. The representations
and warranties made by each of the Parties herein shall be true and correct in all material respects as of the date hereof and
as of the Closing with the same effect as if the representations and warranties were made as of the date hereof and as of the
Closing; |
| (ix) | Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by either Party on or prior to the Closing shall have been performed or complied with
in all material respects; |
| (x) | Satisfactory Completion of Due Diligence. Can-Xxxx
shall have completed its legal, accounting and business due diligence and the results thereof shall be satisfactory to Can-xxxx
in its sole and absolute discretion and Denali will have completed its legal, accounting and business due diligence of the Sub
and the results thereof shall be satisfactory to Denali in its sole and absolute discretion. |
| (xi) | SEC Reports. Denali shall have filed all reports
and other documents required to be filed by it under the U.S. federal securities laws through the Closing. |
| (xii) | OTCBB Quotation. Denali shall have maintained
its status as a company whose common stock is quoted on the Over-the-Counter Bulletin Board and no reason shall exist as to why
such status shall not continue immediately following the Closing. |
| (xiii) | No Suspensions of Trading in Denali Stock; Quotation.
Trading in Denali’s Common Stock shall not have been suspended by federal regulators or any trading market at any time since the
date of execution of this Agreement, and the Denali Common Stock shall have been at all times since such date quoted for trading
on a trading market. |
| (xiv) | Secretary’s Certificate. Denali shall have delivered
to Can-Xxxx a certificate, signed by its Secretary or other authorized officer, certifying that the attached copies of the Denali
Articles of Incorporation, bylaws and resolutions of its board of directors approving this Agreement, the other Transaction Agreements
and the transactions contemplated hereby and thereby are all true, complete and correct and remain in full force and effect. |
| (xv) | Good Standing Certificate. Denali shall have delivered
to Can-Xxxx a certificate of good standing of Denali dated within two (2) business days of Closing issued by the Secretary of
State of Nevada. |
| (xvi) | Resignations. Denali shall have delivered to Can-Xxxx
letters of resignation from all officers of Denali, effective upon the Closing, and from all directors of Denali, effective [ ]. |
| (xvii) | No Injunctions. No statute, rule, regulation,
order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or is pending by or
before any governmental authority of competent jurisdiction which in any material respect restricts, prohibits or threatens to
restrict or prohibit the consummation of any of the transactions contemplated by the Transaction Agreements; and |
| (xviii) | No MAE. As of the Closing, there shall have been
no material adverse effect with respect to Denali or the Sub since the date hereof. |
With respect to the closing conditions
listed in (vii), (viii), (ix) and (x) above, the Parties shall deliver at the Closing an executed officer’s certificate to such
effect.
9. Representations
and Warranties of Denali. Denali hereby makes the following representations and warranties as of the date hereof and as of
the Closing to Can-Xxxx:
(a) Organization
and Qualification. Denali is an entity duly organized, validly existing and in good standing under the laws of the State of
Nevada, with the requisite corporate power and authority to own and use its properties and assets and to carry on its business
as currently conducted. Denali is not in violation of any of the provisions of its Articles of Incorporation, bylaws, or other
organizational documents. Denali does not have any wholly or partially owned subsidiaries and does not own any economic, voting
or management interests in any other entity or person. Denali has no operating business activities and has no assets or properties.
(b) Authorization;
Enforcement. Denali has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by each of the Transaction Agreements and otherwise to carry out its obligations thereunder. The execution and delivery of each
of the Transaction Agreements to which it is a party by Denali and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of Denali and no further action is required by Denali, its board
of directors or its shareholders in connection therewith. Each Transaction Agreement to which Denali is a party has been (or, if
executed after the date hereof, upon delivery will be) duly executed by Denali and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of Denali enforceable against Denali in accordance with its terms except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
(c)
No Conflicts. The execution, delivery and performance of the
Transaction Agreements to which it is a party by Denali and the consummation by Denali of the transactions contemplated
thereby do not and will not (i) conflict with or violate any provision of Denali’s Articles of Incorporation, bylaws or
other organizational documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement or other understanding to which Denali is a party, or (iii)
result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which Denali is subject (including U.S. federal and state securities laws and regulations).
(d) Filings,
Consents and Approvals. Denali is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other U.S. federal, state, local or other governmental authority or other
person in connection with the execution, delivery and performance by Denali of the Transaction Agreements, other than (i) the
filing with the United States Securities and Exchange Commission (the “Commission”)
of a current report on Form 8-K setting out the details of the Transactions hereunder, and (ii) such as have already been
obtained or such exemptive filings as are required to be made under applicable state and federal securities laws.
(e) Capitalization.
As of immediately prior to the Closing, the authorized capital stock of Denali consisted of 50,000,000 shares of Common Stock and
I ,000,000 shares of Preferred Stock . Of the authorized share capital, as of the Closing none of the Preferred Stock shall be
issued and outstanding, and 5,540,430 shares of Common Stock shall be issued and outstanding. All of such outstanding shares of
Common Stock are, and all of the Transaction Shares and Investment Shares, when issued pursuant to the Transaction Documents, will
be, duly authorized, validly issued, fully paid and nonassessable, and free and clear of all liens, and all such shares of Common
Stock were, and the Transaction Shares and Investment Shares will be, issued in material compliance with all applicable U.S. federal
and state securities laws, including available exemptions therefrom, and none of such issuances were, and the issuance of the Transaction
Shares and Investment Shares will not be, made in violation of any pre-emptive or other rights. The issuance of the Transaction
Shares and Investment Shares will not trigger any anti-dilution rights of any existing securities of Denali. Except as set forth
herein, as of the Closing, there will be no rights, subscriptions, warrants, options, conversion rights, or agreements of any kind
outstanding to purchase from Denali, or otherwise require Denali to issue, any shares of capital stock of Denali or securities
or obligations of any kind convertible into or exchangeable for any shares of capital stock of Denali.
(f) Reports
and Financial Statements. Denali has filed all reports required to be filed by it under the United States Securities Exchange
Act of 1934, as amended (the “Exchange Act”),
and the rules of the Commission promulgated thereunder, on a timely basis or has received a valid extension of such
time of filing and has filed any such reports prior to the expiration of any such extension (as such documents have since the
time of their filing been amended or supplemented, and together with all reports, documents and information filed on or after
the date first written above through the date of Closing with the Commission, including all information incorporated therein by
reference, collectively, the “SEC Reports”). The
SEC Reports (a) complied and will comply as to form in all material respects with the requirements of the Exchange Act, and (b)
did not, at the time of their filing, contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements included in the SEC Reports comply in all material respects with the applicable
accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing.
The financial statements included in the SEC Reports have been prepared in accordance with generally accepted accounting principles
in the United States applied on a consistent basis(“GAAP”), and fairly represent the financial position of
Denali and as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal, year-end audit adjustments and the omission of certain footnotes. Except as set forth
in the SEC Reports, Denali has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by GAAP to be set forth on a balance sheet of Denali or in the notes thereto. There are no financial or contractual obligations
and liabilities (including any obligations to issue capital stock or other securities) due after the date hereof. As of the Closing,
all liabilities of Denali shall have been paid off and shall in no event remain liabilities of Denali or Can-Xxxx following the
Closing.
(g)
No Material Change. Since January I, 2011, and except as disclosed in
its SEC Reports, (i) Denali has not incurred any liabilities or obligations, indirect, or contingent, or entered into any
oral or written agreement or other transaction which exceeds US$2,000; (ii) Denali has not sustained any loss or
interference; (iii) Denali has not paid or declared any dividends or other distributions with respect to its capital stock,
or redeemed or purchased or otherwise acquired any of its stock and Denali is not in default in the payment of principal or
interest on any outstanding debt obligations, except s set forth herein; (iv) Denali has not initiated any compensation
arrangement or agreement with any employee or executive officer; (v) Denali has not entered into any contract; (vi) there has
not been any change in the capital stock of Denali; and (vii) there has not been any other event which has caused, or is
likely to cause, a material adverse effect.
(h) Litigation.
There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending against or, to the knowledge of Denali, threatened against Denali. Denali is not subject
to any order, writ, judgment, injunction, decree or award of any court or any governmental authority.
(i) Compliance.
Denali has not been advised, nor does Denali have reason to believe, that it is not conducting its business in compliance with
all applicable laws, rules and regulations of the jurisdictions in which it is conducting its business.
(j) Material
Agreements. All material agreements (“Material Agreements”) to which Denali is a party are included as
part of or specifically identified in the SEC Reports to the extent required by the rules and regulations of the Commission as
in effect at the time of filing. Except for the Material Agreements, Denali has no contracts. Neither Denali nor, to Denali’s
knowledge, any other party to the Material Agreements, is in breach of or default under any of such contracts.
(k) Taxes.
Except as disclosed in the SEC Reports, Denali has filed all necessary federal, state and foreign income and franchise tax returns
and has paid or accrued all taxes shown as due thereon, and Denali has no knowledge of a tax deficiency which has been or might
be asserted or threatened against it.
(I) Conformity
of Descriptions. The Transaction Shares and the Investment Shares, when issued, will conform in all material respects to the
descriptions of Denali’s Common Stock contained in Denali’s SEC Reports and other filings with the Commission.
(m) Statements
True and Correct. No representation, warranty, statement, certificate, instrument, or other writing furnished or to be furnished
by Denali to Can-Xxxx or its representatives pursuant to this Agreement, or any other Transaction Agreement contains or will contain
any untrue statement of material fact or will omit to state a material fact necessary to make the statements therein not misleading.
(n) Investment
Company. Denali is not, and is not an affiliate of, an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
(o)
Xxxxxxxx-Xxxxx; Internal Accounting Controls. Denali is in material
compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it as of the date hereof.
Denali has disclosure controls and procedures (as defined in Rule 13a-14 under the Exchange Act) that are designed to ensure
that material information relating to Denali is made known to Denali’s principal executive officer and Denali’s
principal financial officer or persons performing similar functions.
(p)
Disclosure. All disclosure provided to Can-Xxxx regarding Denali, its
business and the transactions contemplated hereby, including the Transaction Agreements and the Exhibits to this
Agreement, furnished by or on behalf of Denali with respect to the representations and warranties made herein are true and
correct with respect to such representations and warranties and do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. Denali acknowledges and agrees that Can-Xxxx makes or has made no representations or
warranties with respect to the transaction contemplated hereby other than those specifically set forth in Section 9
hereof.
10. Representations
and Warranties of Can-Xxxx. Can-Xxxx and the Sub, jointly, hereby make the following representations and warranties as of the
date hereof and as of the Closing to Denali:
(a) Organization
and Qualification. Can-Xxxx and the Sub are entities duly organized, validly existing and in good standing under the laws of
the State of Israel, with the requisite corporate or other power and authority to own and use their properties and assets and to
carry on their business as currently conducted. Neither Can-Xxxx nor the Sub are in violation of any of the provisions of their
Articles of Organization or other organizational documents.
(b) Authorization;
Enforcement. Can-Xxxx and the Sub have the requisite corporate or other power and authority to enter into and to consummate
the transactions contemplated by each of the Transaction Agreements to which they are a party and otherwise to carry out their
respective obligations thereunder. The execution and delivery of each of the Transaction Agreements to which they are a party by
Can-Xxxx or the Sub and the consummation by them of the transactions contemplated thereby have been duly authorized by all necessary
action on the part of Can-Xxxx or the Sub and no further action is required by Can-Xxxx or the Sub, their board of directors, managers
or their shareholders in connection therewith. Each Transaction Agreement has been (or, if executed after the date hereof, upon
delivery will be) duly executed by Can-File and, when delivered in accordance with the terms hereof, will constitute the valid
and binding obligation of Can-Xxxx enforceable against Can-Xxxx in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies.
(c) No
Conflicts. The execution, delivery and performance of the Transaction Agreements by Can-Xxxx and the Sub and the consummation
by Can-Xxxx and the Sub of the transactions contemplated thereby do not and will not (i) conflict with or violate any provision
of Can-Xxxx or the Sub’s Articles of Association or other organizational documents, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement or other understanding
to which Can-Xxxx or the Sub is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which Can-Xxxx or the Sub is subject (including U.S. federal
and state securities laws and regulations).
(d) Filings,
Consents and Approvals. Can-Xxxx is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other U.S. federal, state, local or other governmental authority or other
person in connection with the execution, delivery and performance by Can-Xxxx or the Sub of the Transaction Agreements, other than
the filing with the Tel-Aviv Stock Exchange of an immediate report setting out the details of the Transaction hereunder.
(e) Capitalization.
As of immediately prior to the Closing, the authorized capital stock of the Sub consisted (or will consist) of 10,000 Ordinary
Shares, nominal value NIS 0.01 each (the “Ordinary Shares”),
of which 1,000 Ordinary Shares were issued and outstanding and owned by Can-Xxxx. All of such outstanding Ordinary Shares
are, duly authorized, validly issued, fully paid and nonassessable, and free and clear of all liens created by Can-Xxxx or the
Sub. Except as set forth herein, as of the Closing, there will be no rights, subscriptions, warrants, options, conversion rights,
or agreements of any kind outstanding to purchase from the Sub, or otherwise require the Sub to issue, any shares of capital stock
of the Sub or securities or obligations of any kind convertible into or exchangeable for any shares of capital stock of the Sub.
(f) Litigation.
There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending against or, to the knowledge of Can-Xxxx or the Sub, threatened against the Sub. The
Sub is not subject to any order, writ, judgment, injunction, decree or award of any court or any governmental authority.
(g) Compliance.
The Sub has not been advised, nor does the Sub have reason to believe, that it is not conducting its business in compliance with
all applicable laws, rules and regulations of the jurisdictions in which it is conducting its business.
(h) License
Agreement. Can-Xxxx has the full authority and the power to executed the License Agreement in favor of the Sub. The execution
of the License Agreement by Can-Xxxx in favor of the Sub will not violate or breach any other agreement to which Can-Xxxx is a
party.
(i) Taxes.
The Sub has been (or will be) incorporated immediately prior to the Closing and therefore has no tax obligations nor any current
requirement to file any tax returns.
(j) Statements
True and Correct. No representation, warranty, statement, certificate, instrument, or other writing furnished or to be furnished
by Can-Xxxx to Denali or its representatives pursuant to this Agreement, or any other document, agreement, or instrument referred
to herein contains or will contain any untrue statement of material fact or will omit to state a material fact necessary to make
the statements therein not misleading.
11. Pre-Closing
Covenants. Can-Xxxx and Denali hereby agree that the following are pre-Closing obligations to be performed by the parties hereto:
(a) Due
Diligence. Denali will provide full access to Can-Xxxx and its advisors to conduct a reasonable investigation of information
and materials relating to Denali’s financial, business and legal condition and Can-xxxx will provide full access to Denali
and its advisors to conduct a reasonable investigation of information and materials relating to the Sub’s financial, business
and legal condition. The due diligence period shall commence on the full execution of this Agreement by the Parties and shall
terminate when the items listed above have been received and reviewed to the satisfaction of each Party (“Due Diligence
Period”).
(b) Standstill.
From the date on which this Agreement is executed by the Parties through the closing date for the Transaction, but no later than
November 30, 2011, Denali will not explore or pursue other transaction opportunities with any other individual or entity, including,
without limitation (1) solicit, initiate, or encourage the submission of any proposal or offer from any person relating to the
acquisition of any capital stock or other voting securities of Denali or any assets of Denali (including any acquisition structured
as a merger, consolidation, share exchange or other business combination), or (2) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt
by any person to do or seek any of the foregoing, in each case except as may be required on the reasonable advice of outside legal
counsel pursuant to fiduciary duties under applicable law.
(c) Board
Approvals. Consistent with and subject to fiduciary duties imposed on their boards of directors, Denali and Can-Xxxx shall
use commercially reasonable efforts to cause the Transaction Agreements to be approved and ratified by their respective boards
of directors and, if required by law, by their respective stockholders.
12. Post-Closing
Covenants. Can-Xxxx and Denali hereby agree that the following are post-Closing obligations to be performed by the parties
hereto:
(a) Constitution
of the Board of Denali. Immediately following the Closing, Can-Xxxx shall cause the enlargement of the Board of Denali so that
it shall initially consist of 5 directors who shall be appointed by Can-Xxxx, of which 3 shall be current directors of Can-Xxxx
and 2 shall be newly appointed independent directors who have an added value to the positioning of Denali on the US capital markets
and the US biotech market. Xxxx. Xxxxx Xxxxxxx will be appointed as the Chairman of the Board of Denali.
(b) Management.
Denali shall seek to appoint a CEO and a CFO in order to commence the establishment of a management team to lead Denali following
the Closing and during the clinical trials and future capital markets activity in the US.
(c) Form
8-K. Denali shall file, within four (4) business days of the Closing, a current report on Form 8-K with the Commission disclosing
the terms of this Agreement and other requisite disclosure regarding the Transactions and including the requisite audited consolidated
financial statements and requisite Form 10 disclosure.
(d) Schedule
14f-1. As soon as possible following the Closing, Denali shall prepare and file with the Commission a notice on Schedule 14f-l
in connection with the consummation of the Transaction. Denali shall cause the Schedule 14f-1 to be mailed to stockholders as promptly
as practicable thereafter.
13. Miscellaneous
(a) Expenses.
It is understood that each Party shall pay its respective legal and accounting fees and other expenses incurred in connection
with this Agreement and due diligence activities under Section II (a) above, and in connection with the Transaction.
(b) Announcements.
Except to the extent the Parties believe that they are required by applicable law or regulation to do otherwise, prior to execution
of Transaction Agreements, no Party shall issue any statement or communication to the public regarding the proposed Transaction
without the consent of the other Party, which consent shall not be unreasonably withheld, and each Party shall keep the proposed
Transaction and information obtained from the other Party confidential in accordance with the terms of this paragraph. To the extent
a Party hereto believes it is required by law or regulation to disclose the proposed Transaction, it shall, if possible, immediately
notify the other Party prior to such disclosure and give the other Party an opportunity to review and comment on the proposed disclosure.
(c) Governing
Law, Dispute Resolution, and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflicts of laws principles thereof. All disputes, controversies or claims arising
out of or relating to this Agreement shall in the first instance be the subject of a meeting between a representative of each Party
who has decision-making authority.
(d) Access
to Information and Confidentiality. In connection with the negotiation and preparation of the Transaction Agreements, each
Party will make available to the other, and their respective representatives, all books, records, documents and other information
that may reasonably be requested. Prior to the closing, each Party shall keep confidential any non-public information obtained
from the other Party hereto. In the event of termination of negotiations, each Party will return or cause to be returned to the
other all documents and other material obtained from the other in connection with the Transaction contemplated hereby and will
use all reasonable efforts to keep confidential any such information, unless such information is ascertainable from public or published
information or already known by the receiving Party.
(e) Agreement
Binding. The provisions of this Agreement are intended to be binding on the Parties from the date hereof and shall cease to
be binding on November 30, 2011 if the Closing is not completed by such time (or such other time if mutually extended in writing
by the Parties).
(f) Assignment.
Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part,
by operation of law or otherwise by either of the Parties without the prior written consent of the other Party. Any purported assignment
without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the Parties and their respective successors and assigns.
(g) Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, Can-Xxxx
shall be entitled to specific performance under this Agreement. The Parties agree that monetary damages may not be adequate compensation
for any loss incurred by Can-Xxxx by reason of any breach of obligations described in the foregoing sentence and hereby agrees
to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
(h) Amendment.
This Agreement may only be amended, modified or supplemented pursuant to a written agreement signed by each of the Parties hereto.
(i) Survival
of Representations and Warranties. All covenants, representations and warranties made herein shall survive the making of this
Agreement and shall continue in full force and effect until the Closing, at the end of which period no claim may be made with respect
to any such covenant, representation, or warranty unless such claim shall have been asserted in writing to the indemnifying party
during such period.
(j)
Notices. Any notice, demand, request, waiver or other communication required
or permitted to be given hereunder shall be in writing or electronic format, as applicable, and shall
be effective (i) upon delivery in person (including by reputable express courier service) at the address set forth below; (ii)
upon delivery by facsimile (as verified by a printout showing satisfactory transmission) at the facsimile number designated below
(if sent on a business day during normal business hours where such notice is to be received and if not, on the first business day
following such delivery where such notice is to be received); (iii) by electronic mail (as verified by a printout showing satisfactory
transmission) at the electronic mail address set forth below (if sent on a business day during normal business hours where such
notice is to be received and if not, on the first business day following such delivery where such notice is to be received); or
(iv) upon three business days after mailing with the United States Postal Service if mailed from and to a location within the continental
United States by registered or certified mail, return receipt requested, addressed to the address set forth below. Any party hereto
may from time to time change its physical or electronic address or facsimile number for notices by giving notice of such changed
address or number to the other party hereto in accordance herewith.
If to Denali at: |
|
|
|
|
Attention: |
|
|
Facsimile No.: |
|
|
Email Address: |
|
|
|
With a copy (which shall not constitute notice) to: |
|
Xxxxxx X. Xxxxx |
|
|
Attorney at Law |
|
|
0000 Xxxxxxx Xxxxxx |
|
|
Xxxxx 000 |
|
|
Xxxxx Xxxxxx, XX 00000 |
|
|
Facsimile No. (000) 000-0000 |
|
|
Email Address: xxx@xxxxxxxx.xx |
|
|
|
lfto Can-Xxxx at: |
|
I 0 Xxxxxxx Xxxxxx, |
|
|
Xxxxxx Xxxxx, Xxxxxx |
|
|
Attention: Xxxx. Xxxxx Xxxxxxx, CEO |
|
|
Facsimile No.: |
|
|
Email Address: xxxxx@xxxxxxx.xxx |
|
|
|
With a copy (which shall not constitute notice) to: |
|
Kantor& Co. |
|
|
00 Xxxx Xxxxxx Xxxxxx, |
|
|
Xxxxx Xxx, Xxxxxx |
|
|
|
|
|
Attention: Xxxxx Xxxxxx, Adv. |
|
|
Facsimile No.: x000-0-0000000 |
|
|
Email Address: xxxxxxx@xxxxxx-xxx.xxx |
|
|
|
With a copy (which shall not constitute notice) to: |
|
Xxxxxxx Procter LLP |
|
|
0000 Xxxxxxxxx Xxxxx |
|
|
Xxxxx 000 |
|
|
Xxx Xxxxx, XX 00000 |
|
|
|
|
|
Attention: Xxxx Xxxxxx |
|
|
Facsimile No.: (000) 000-0000 |
|
|
Email Address: xxxxxxx@xxxxxxxxxxxxxx.xxx |
(k) Waivers.
The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect the
right of such party at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant,
representation or warranty contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances
shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other
condition or breach of any other term, covenant, representation or warranty.
(I) Interpretation.
The headings preceding the text of sections included in this Agreement are for convenience only and shall not be deemed part of
this Agreement or be given any effect in interpreting this Agreement. The use of the masculine, feminine or neuter gender herein
shall not limit any provision of this Agreement. The use of the terms “including” or “include” shall in all
cases herein mean “including, without limitation” or “include, without limitation,” respectively.
(m) Attorneys’ Fees. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing
party or parties will be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding,
in addition to any other relief to which it or they may be entitled.
(n) No
Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and, to the extent provided herein,
their respective directors, officers, employees, agents and representatives, and no provision of this Agreement shall be deemed
to confer upon other third parties any remedy, claim, liability, reimbursement, cause of action or other right.
(o) Further
Assurances. Upon the reasonable request of a Party hereto, the other Party hereto shall, on and after the Closing, execute
and deliver such other documents, releases, assignments and other instruments as may be required to effectuate completely the transactions
contemplated by this Agreement.
(p) Severability.
If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall remain in full force and shall not be affected thereby, and there shall be deemed substituted
for such invalid, illegal or unenforceable provision a valid, legal and enforceable provision as similar as possible to the provision
at issue.
(q) Remedies
Cumulative. The remedies provided in this Agreement shall be cumulative and shall not preclude the assertion or exercise of
any other rights or remedies available by law, in equity or otherwise.
(r) Entire
Understanding. This Agreement sets forth the entire agreement and understanding of the parties hereto and supersedes all prior
agreements, letters of intent or understanding, arrangements and understandings between the parties. This Agreement replaces in
full the Agreement of June 5, 2011 between the parties, as amended.
(s) Exhibits
and Schedules. Each of the exhibits, schedules, or similar attachments referenced in this Agreement is annexed hereto and is
incorporated herein by this reference and expressly made a part hereof.
(t) Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Facsimile transmissions of any signed original document, or transmission of any signed facsimile document,
shall constitute delivery of an executed original. At the request of any of the parties, the parties shall confirm facsimile transmission
signatures by signing and delivering an original document.
SIGNATURE PAGE FOLLOWS
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the Parties
has executed this Agreement on the day and year herein below written.
Can-Xxxx Biopharma Ltd. |
|
Denali Concrete Management, Inc., |
BY: |
Xxxxx Xxxxxxx |
|
Xxxxx Xxxxxxxxx |
|
BY: |
Xxxxxx X. Rule |
TITLE: |
CEO |
|
COO |
|
TITLE: |
President |
DATE: |
Nov. 21, 2011 |
|
|
|
DATE: |
11/21/2011 |
SIGNATURE: |
/s/ Xxxxx Xxxxxxx |
|
/s/ Xxxxx Xxxxxxxxx |
|
SIGNATURE: |
/s/ Xxxxxx X. Rule |