Exhibit 10.9
- EXECUTION COPY -
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PREFERRED SHARE PURCHASE AGREEMENT
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GIVEN IMAGING LTD.
Up to US$25,050,000 of Series A Convertible Preferred Shares
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Dated as of September 15, 2000
EXHIBITS
EXHIBIT A Purchasers
EXHIBIT A-1 Company's Account
EXHIBIT B Amended and Restated Articles of Association
EXHIBIT C Form of Opinion of Company Counsel
EXHIBIT D Form of Investor Rights Agreement
EXHIBIT E Form of Extension to Employment Agreement of Xx. Xxxxxxx X. Xxxxx
EXHIBIT F Form of Irrevocable Proxy
EXHIBIT G Form of Undertaking Under the R&D Law
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SCHEDULES
SCHEDULE 2.6 Burdensome and Conflicting Agreements
SCHEDULE 2.7 Material Agreements
SCHEDULE 2.12 Title to Assets
SCHEDULE 2.13 Intellectual Property Rights
SCHEDULE 2.15 Capitalization
SCHEDULE 2.16 Listed Liabilities
SCHEDULE 2.20 Brokers
SCHEDULE 2.21 Transactions with Affiliates
SCHEDULE 2.22 Employees
SCHEDULE 3.3 Non US Person
SCHEDULE 3.9 Israeli Securities Law
SCHEDULE 4.2(iii) Names of Proxies
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- EXECUTION COPY -
PREFERRED SHARE PURCHASE AGREEMENT
THIS PREFERRED SHARES PURCHASE AGREEMENT (this "Agreement") is
made as of September ___, 2000 by and among Given Imaging Ltd., a corporation
organized under the laws of Israel (the "Company"), the Lead Purchasers and the
Persons listed on EXHIBIT A hereto who may become party to this Agreement by
executing and delivering a counterpart signature page hereof no later than
October 8, 2000 (individually, a "Purchaser" and collectively, the
"Purchasers").
WHEREAS, the Company desires to issue and sell to the
Purchasers and the Purchasers desire to acquire on the terms and subject to the
conditions set forth in this Agreement up to an aggregate amount of up to
11,911,557 shares of the Company's Series A Convertible Preferred Shares, par
value New Israeli Shekel ("NIS") 0.01 per share (the "Series A Preferred
Shares").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, the parties hereto agree as
follows:
ARTICLE 1.
PURCHASE AND SALE OF SERIES A PREFERRED SHARES
1.1. AUTHORIZATION OF SERIES A PREFERRED SHARES. The Company has, or
before the Closing (as hereinafter defined) will have, authorized the issuance
and sale of up to 11,911,557 (Eleven Million Nine Hundred and Eleven Thousand
Five Hundred and Fifty-Seven) shares (the "Shares") of its Series A Preferred
Shares, par value NIS 0.01 per share, having the rights, restrictions,
privileges and preferences as set forth in the Memorandum and the Amended and
Restated Articles of Association attached to this Agreement as EXHIBIT B (the
"AMENDED ARTICLES") (not including additional 3,138,876 shares of its Series A
Preferred Shares which the Company has or will have authorized for issuance and
sale pursuant to the Bridge Finance Agreements and 142,653 shares of its Series
A Preferred Shares issuable to Xxxxxx Brothers).
1.2. CLOSING. Subject to the terms and conditions set forth in this
Agreement, and in reliance on the representations and warranties set forth in
this Agreement, the Company agrees to issue and sell to the Purchasers at the
Closing (as hereinafter defined) and the Purchasers, severally but not jointly,
agree to purchase from the Company, that number of Shares set forth opposite
their respective names on EXHIBIT A under the caption "Number of Series A
Shares" at a purchase price per Share of Two Dollars and Ten and Three
One-Hundredths Cents (US$2.103). The total purchase price of the Shares being
acquired by each Purchaser is set forth opposite such Purchaser's name on
EXHIBIT A. The closing of the purchase and sale of the Shares with any one or
more Purchasers, (each such closing being referred to as a "Closing" and the
date thereof, the "Closing Date") shall take place at the offices of Zellermayer
& Pelossof, Advocates, 00 Xxxxx Xxxxxxxx Xxxx., Xxx Xxxx at such time and date
to be agreed between the Company and such Purchaser(s), but in any event all
Closings for the purchase and sale of all Shares shall take place
and be consummated not later than 16:00 (Israel time) on October 8, 2000 or at
such time and date thereafter as the Purchasers and the Company may agree. At
each Closing, the Company will deliver to the Purchaser(s) with whom such
Closing is performed: (i) certificates for the number of Shares being purchased
by such Purchaser registered in such Purchaser's name; and (ii) a copy of a
resolution by the Company's Board of Directors issuing the Shares; and (iii) a
certificate of the Secretary of the Company certifying that such Purchaser has
been inscribed in the Shareholders Register of the Company as the owner of the
Shares purchased thereby hereunder, and a copy of the Company's complete
Registry of Shareholders, in accordance with the provisions of the Israeli
Companies Law, 1999, dated as of immediately subsequent to the last Closing,
will be delivered to Israeli counsel to the Lead Purchaser no later than ten
(10) days thereafter; and (iv) form of reports of the issue of the Shares to the
Israeli Registrar of Companies (the "Registrar"); all against payment in full by
way of a net transfer of immediately available funds to the account of the
Company identified in Exhibit A-1 or any other bank account which the Company
shall specify to the Purchasers in writing (the "Company's Account") by wire
transfer, in the amount equal to the purchase price set forth opposite each such
Purchaser's name on EXHIBIT A.
1.3. USE OF PROCEEDS. The Company agrees to use the net proceeds
from the sale of the Shares solely: (i) for working capital; and (ii) as
otherwise approved by the Company's Board of Directors.
ARTICLE 2.
THE COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce the Purchasers to enter into this Agreement
and to consummate the transactions contemplated hereby, the Company represents
and warrants as of the date hereof and (except as may be qualified by the
Officer's Certificate to be delivered under Section 4.1(ii) below, provided that
any material qualifications therein shall permit the Purchasers not to close) as
of the Closing as follows:
2.1 INCORPORATION, STANDING AND QUALIFICATION OF THE COMPANY. The
Company is a corporation duly incorporated and validly existing under the laws
of its jurisdiction of organization. The Company has requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted and as proposed to be conducted. The Company is not
qualified as a foreign corporation and in good standing in any other
jurisdiction. .
2.2 SUBSIDIARIES. Except for Given Imaging Inc., a Delaware corporation
and a wholly owned Subsidiary of the Company (the "Given Sub"), the Company does
not (i) own of record or beneficially, directly or indirectly, (A) any shares of
capital shares of any other corporation or (B) any participating interest in any
partnership, joint venture or other non-corporate business enterprise (other
than collaborative research, joint development, sponsored research and similar
arrangements), or (ii) control, directly or indirectly, any other entity. The
Given Sub is a corporation duly incorporated and validly existing under the laws
of its jurisdiction of organization. The Given Sub has requisite power and
authority to own, lease and
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operate its properties and to carry on its business as now being conducted and
as proposed to be conducted. The Given Sub is qualified as a foreign corporation
and in good standing in the State of Georgia, and the nature of the Given Sub's
business and the ownership or lease of its property do not require it to become
qualified as a foreign corporation in any other state or jurisdiction.
2.3 CORPORATE POWER AND AUTHORITY. The Company has the requisite power
and authority to execute and deliver this Agreement, the Shares, and the other
agreements and certificates contemplated hereby to which it is a party,
including the Investor Rights Agreement (collectively, the "Related
Agreements"), to perform its obligations hereunder and thereunder and to engage
in the transactions contemplated hereby and thereby. The Company has taken, or
prior to the Closing shall have taken, all requisite corporate action to
authorize the execution, delivery and performance of this Agreement, and the
Related Agreements and the issuance of the Shares. This Agreement is, and upon
the execution and delivery thereof, the Shares and each of the Related
Agreements will be, legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to laws of general
application from time to time in effect that have an effect on creditors' rights
and the exercise of judicial discretion in accordance with general equitable and
public policy principles.
2.4 MEMORANDUM AND ARTICLES OF ASSOCIATION; CONSTITUTIVE DOCUMENTS OF
GIVEN SUB. The Company has made available to the Lead Purchaser or its counsel
true, correct and complete copies of its Memorandum and Amended Articles and the
Certificate of Incorporation and By-Laws of the Given Sub, each as in effect on
the Closing Date. Prior to the Closing, the Company shall have properly filed
the Amended Articles to permit the Company to fulfill its obligations under this
Agreement and the Related Agreements.
2.5 LITIGATION; COMPLIANCE WITH LAWS; BANKRUPTCY.
(a) LITIGATION. There is no action, suit, claim, litigation,
proceeding, investigation, arbitration or governmental inquiry, at law or in
equity, or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, within or
without the USA or arbitration involving private parties (collectively, a
"Proceeding") pending or, to the best knowledge of the Company, threatened
against the Company or the Given Sub or affecting any of their respective
properties or assets , or, to the knowledge of the Company, against any officer,
employee or holder of any of the capital shares of the Company affecting the
Company or its business, nor, to the best knowledge of the Company, has there
occurred any event nor does there exist any condition on the basis of which it
is reasonably likely that any such Proceeding might properly be instituted, in
each case which, if adversely determined, could reasonably be expected to have a
material adverse effect on the business, results of operations or financial
condition of the Company. There are no Proceedings pending or, to the Company's
knowledge, threatened (or any basis therefor known to the Company) which might
call into question the validity of this Agreement, any of the Shares, any of the
Related Agreements or any action taken or to be taken pursuant hereto or
thereto. There is no Proceeding by the Company pending or threatened against
others (other than a claim by the Company against a past supplier for payment of
approximately $12,500).
(b) COMPLIANCE WITH LAWS. Each of the Company and the Given
Sub has
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complied with, and is not in violation of or in default (with due notice or
lapse of time or both) on their side with respect to, all laws, governmental
rules, governmental regulations, governmental orders, judgments, decrees, writs,
injunctions and awards of any arbitration, court or governmental authority,
including the approvals issued to the Company by the Israeli Chief Scientist and
the Israeli Investment Center, applicable to it and its business, operations,
properties, assets, products and services, the violation of which would have a
material adverse impact on the Company or the Given Sub, and each of the Company
and the Given Sub has all necessary permits, licenses and other authorizations
required to conduct its business as currently conducted, the absence of which
would have a material adverse impact on the Company or the Given Sub. Subject to
obtaining relevant Governmental approvals from the U.S. Food and Drug
Administration, there is no existing law, governmental rule, governmental
regulation or governmental order applicable to or binding upon the Company or
the Given Sub, and the Company is not aware of any proposed law, governmental
rule, governmental regulation or governmental order, whether Federal or state,
domestic or foreign, which would prohibit or materially restrict the Company or
the Given Sub from, or otherwise materially adversely affect the Company or the
Given Sub in, conducting its business in any jurisdiction in which it is now
conducting business or has proposed to conduct business.
(c) BANKRUPTCY. Neither the Company nor the Given Sub has
admitted in writing its inability to pay its debts generally as they become due,
filed or consented to the filing against it of a petition in bankruptcy or a
petition to take advantage of any insolvency act, made an assignment for the
benefit of creditors, consented to the appointment of a receiver for itself or
for the whole or any substantial part of its property, or had a petition in
bankruptcy filed against it, been adjudicated a bankrupt, or filed a petition or
answer seeking reorganization or arrangement under the Federal bankruptcy laws
or any other law or statute of the United States of America or any other
jurisdiction, domestic or foreign.
2.6 BURDENSOME AND CONFLICTING AGREEMENTS; VIOLATIONS OF
PROVISIONS OF CONSTITUTIVE DOCUMENTS. Except as disclosed in SCHEDULE 2.6
hereto, neither the Company nor the Given Sub is bound by any agreement or
instrument or subject to any Memorandum or Articles of Association or other
corporate restriction which materially and adversely affects the business,
properties, operations, condition, prospects or affairs, financial or otherwise,
of the Company or the Given Sub. Neither the Company nor the Given Sub is in
violation or default (with due notice or lapse of time or both) of its
Memorandum and Articles of Association, Certificate of Incorporation, By-laws or
other corporate restriction, or of any agreement or instrument to which it is a
party or by which it or any of its assets is bound, except for violations or
defaults of any agreement or instrument other than the Memorandum and Articles
of Association, Certificate of Incorporation or By-laws, which, individually or
in the aggregate, would not materially adversely affect the business,
properties, operations or condition, financial or otherwise, of the Company.
Neither the authorization, execution, delivery and performance of this Agreement
or the Related Agreements, nor the sale, issuance and delivery of the Shares,
nor the consummation of the transactions herein and therein contemplated, nor
the fulfillment of or compliance with the terms hereof and thereof, require the
consent under or will conflict with or result in a breach or default (with due
notice or lapse of time or both) of any of the terms of the Memorandum and
Articles of Association, Certificate of Incorporation or By-laws, or of any
statute, law, rule or regulation, or of any judgment, decree, writ, injunction,
order or award of any arbitrator, court or governmental authority, or of any
material agreement or instrument, which is
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applicable to the Company or the Given Sub or by which the Company, the Given
Sub or any of their respective material assets is bound, or constitute a default
(with due notice or lapse of time or both) thereunder, or result in the creation
or imposition of any Lien upon any of the assets of the Company or the Given
Sub.
2.7 MATERIAL AGREEMENTS. Except as set forth in SCHEDULE 2.7,
neither the Company nor the Given Sub is a party to any material written or oral
contract, instrument, agreement, commitment, obligation, plan or arrangement, or
any other material agreement (the "Material Agreements"). Each of the Material
Agreements is in full force and effect with no default (without regard to notice
or lapse of time or both) by the Company, the Given Sub, or, to the knowledge of
the Company (without special inquiry), by any other party thereto. There is no
anticipated or, to the Company's best knowledge, threatened default or material
failure of performance or observance of any obligations or conditions contained
in the Material Agreements by the Company, the Given Sub, or, to the knowledge
of the Company (without special inquiry), by any other party thereto, and none
of the foregoing parties nor the Company nor the Given Sub has provided any
notice of default or of its intention to terminate these agreements.
2.8 GOVERNMENTAL APPROVALS. Subject to the accuracy of the
representations and warranties of the Purchasers set forth in Article 3, no
registration or filing with, or consent or approval of or other action by, any
Federal, state or other governmental agency or instrumentality, domestic or
foreign, under laws and regulations thereof as now in effect, is or will be
necessary for the valid execution, delivery and performance by the Company of
this Agreement, or any of the Related Agreements, the issuance, sale and
delivery of the Shares and the Conversion Shares and which have not yet been
obtained, other than filings required pursuant to applicable state securities
laws and blue sky laws, and other than with respect to the Investor Rights
Agreement, the registration of the shares covered thereby with the Commission
and filings pursuant to state securities laws, and any other registration or
filing, or consent or approval or other action as a result of or associated with
any purchase or sale of securities in accordance therewith.
2.9 TAX RETURNS AND PAYMENTS. Each of the Company and the
Given Sub has accurately, in all material respects, prepared and timely filed
all required tax returns and reports (other than those not required to be filed
by applicable law or regulation) and has paid, or adequately provided for the
payment of, all taxes, assessments and other governmental charges imposed upon
it or upon any of its assets, income or franchises, other than any such charges
that are currently payable without penalty or interest, including, without
limitation, all taxes which the Company or the Given Sub is obligated to
withhold from amounts owing to employees, creditors and third parties. Adequate
reserves have been established for all taxes accrued but not yet payable. The
Federal income tax returns of the Company has never been audited by the Internal
Revenue Service or other taxing authority, domestic or foreign. No deficiency
assessment with respect to or proposed adjustment of the Company's Federal,
state, county or local taxes, domestic or foreign, is pending or, to the
Company's best knowledge, threatened. There is no tax lien, whether imposed by
any Federal, state, county or local taxing authority, domestic or foreign,
outstanding against the assets, properties or business of the Company.
2.10 ISSUANCE TAXES. All taxes imposed by law in connection
with the issuance,
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sale and delivery of the Shares have been fully paid by the Company, or will
have been paid by the Company within 14 days of the Closing, and all laws
imposing such taxes have been fully complied with.
2.11 ERISA. Except as set forth on SCHEDULE 2.11 hereto,
neither the Company nor the Given Sub makes any contributions to any employee
pension benefit plans for its employees subject to the Employee Retirement
Income Security Act of 1974, as amended, or any foreign equivalent thereof.
2.12 TITLE TO ASSETS. Each of the Company and the Given Sub
has good and merchantable title to all of its assets free of any Liens except
mechanics liens not material to the Company or any property to which such liens
relate or liens for current taxes not yet due and payable. Each of the Company
and the Given Sub enjoys peaceful and undisturbed possession under all leases
(both capital and operating leases) under which it is operating, and all said
leases are valid and subsisting and in full force and effect. Neither the
Company nor the Given Sub owns any real property.
2.13 INTELLECTUAL PROPERTY RIGHTS. The Company is the
exclusive owner of all rights, titles and interests in its Intellectual Property
Rights as purported to be owned by the Company, and such Intellectual Property
Rights as set forth on SCHEDULE 2.13 are valid and in full force and in effect.
The Company owns or has a valid right to use the Intellectual Property Rights
being used to conduct its business as now conducted. A complete list of patents,
applications, trademarks, licenses, contract rights and registrations of such
Intellectual Property Rights is attached hereto as SCHEDULE 2.13. To the
Company's best knowledge, the conduct of the Company's business as now operated
does not infringe upon the Intellectual Property Rights of others. Except as
specified on SCHEDULE 2.13A, the Company has no obligation to compensate any
Person for the use of any such Intellectual Property Rights and the Company has
not granted to or assigned to any Person any license or other right to use any
of the Intellectual Property Rights of the Company or otherwise licensed from
others the Intellectual Property Rights of third parties, whether requiring the
payment of royalties or not.
The Company has taken, where and to the extent it deemed
appropriate, all reasonable measures (as customary for a start-up company) to
protect and preserve the security, confidentiality and value of its Intellectual
Property Rights, including its trade secrets and other confidential information.
All employees and consultants of the Company who are engaged in the Company's
research and development, have executed confidentiality and con-competition
undertakings. To the Company's best knowledge, none of the trade secrets and
other confidential information of the Company has been used, divulged or
appropriated by the Company, its officers or employees for the benefit of any
Person other than the Company or otherwise to the detriment of the Company,
except for under confidentiality agreements. Neither the Company nor, to the
best knowledge of the Company, any of its officers, employees or consultants has
received notice of, and there are no claims pending or, to the Company's best
knowledge, threatened that the Intellectual Property Rights owned by the Company
or the use or ownership thereof by the Company infringes, violates or conflicts
with any such right of any third party or are invalid or unenforceable.
2.14 PROPRIETARY INFORMATION OF THIRD PARTIES. No third party
has claimed or
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notified the Company of its intention to claim that any Person employed or
retained by the Company has (a) violated or may be violating any of the terms or
conditions of his or her employment, non-competition, nondisclosure or
inventions agreement with such third party, (b) disclosed or may be disclosing
or utilized or may be utilizing any trade secret or proprietary information or
documentation of such third party or (c) interfered or may be interfering in the
employment relationship between such third party and any of its present or
former employees. No third party has requested information from the Company
which suggests that such a claim might be contemplated. The Company in not aware
of any Person employed by it, which has employed or proposes to employ any trade
secret or any information or documentation proprietary to any former employer,
or of any Person employed by the Company which has violated any confidential
relationship which such Person may have had with any third party, in connection
with the development, manufacture or sale of any product or proposed product or
the development or sale of any service or proposed service of the Company. To
the Company's knowledge, none of the execution or delivery of this Agreement or
any of the Related Agreements, or the carrying on of the business of the Company
as officers, employees or agents by any officer, director or key employee of the
Company, or the conduct or proposed conduct of the business of the Company, will
conflict with or result in a breach of the terms, conditions or provisions of or
constitute a default under any non-competition, non-disclosure or inventions
agreement under which any such Person is obligated.
2.15 CAPITALIZATION; STATUS OF CAPITAL SHARE. The Company has,
or immediately prior to the Closing will have, a total authorized share capital
consisting of NIS 750,000, divided into (i) 40,000,000 Ordinary Shares,
(ii)8,000,000 Ordinary A Shares and (iii) 27,000,000 Series A Convertible
Preferred Shares, all such shares having par value of NIS 0.01 per share.
Immediately prior to the Closing, the issued and outstanding share capital of
the Company shall consist of 14,673,650 Ordinary Shares, no Ordinary A Shares
NIS 0.01 par value each, and no shares of Series A Convertible Preferred Shares.
All the outstanding shares of the Company have been duly authorized, are validly
issued and are fully paid and non-assessable and no personal liability will
attach to the ownership thereof. A complete list of the share capital of the
Company which has been previously issued and the names in which such share is
registered on the Company's Shareholders Register is set forth in SCHEDULE 2.15.
As of immediately prior to the Closing, the designations, powers, preferences,
rights, qualifications, limitations and restrictions in respect of the
authorized share capital of the Company will be as set forth in the Amended
Articles, and, all such designations, powers, preferences, rights,
qualifications, limitations and restrictions will be valid, binding and
enforceable and in accordance with all applicable laws. The Shares, when issued
and delivered in accordance with the terms hereof, and the Ordinary Shares
resulting from the conversion of the Shares (as adjusted from time to time in
accordance the Amended Articles, the "Conversion Shares"), when issued will be
duly authorized, validly issued, fully paid and non-assessable and no personal
liability will attach to the ownership thereof and will be free and clear of all
Liens or restrictions imposed by or through the Company except as set forth in
this Agreement, the Related Agreements and the Amended Articles. The Conversion
Shares have been duly reserved for issuance.
Except for the Shares and as set forth on SCHEDULE 2.15 or
contemplated by this Agreement, the Related Agreements or the Amended Articles,
there are no subscriptions, options, warrants or other rights (contingent or
otherwise) to purchase or otherwise acquire shares or other securities of the
Company authorized, issued or outstanding, nor is the Company
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obligated in any other manner to issue shares, subscriptions, warrants, options,
convertible securities, or other such rights or to distribute to holders of any
of its equity securities any evidence of Indebtedness or asset. As of the date
hereof,3,944,540 Ordinary A Shares are authorized for issuance pursuant to the
Company's Share Option Plans (the "Share Plans"), of which options to
purchase2,438,880 shares have been granted and are outstanding on the date
hereof. Except as set forth in SCHEDULE 2.15, or contemplated by this Agreement,
the Related Agreements or the Amended Articles, (i) there are no restrictions on
the transfer of shares of shares or other securities of the Company other than
those imposed by relevant securities laws, domestic or foreign, and (ii) there
are no agreements, understandings, proxies, trusts or other collaborative
arrangements to which the Company is a party concerning the voting, pledge or
purchase and sale of shares or other securities of the Company. Except as set
forth in SCHEDULE 2.15, the Amended articles or the Related Agreements, no
holder of any security of the Company is entitled to preemptive, first refusal
or similar statutory or contractual rights relating to the issuance of shares or
other securities, either arising pursuant to any agreement or instrument to
which the Company is a party, or which are otherwise binding upon the Company,
or to the best of the Company's knowledge, to which any other Person is a party.
Except as provided for in the Amended Articles or as set forth in the attached
SCHEDULE 2.15, the Company has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any of its equity securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof. The offer and sale of all shares and other securities of the
Company issued before the Closing, assuming the truth and accuracy of the
representations and warranties made by the purchasers of such shares and other
securities, complied with or were exempt from all applicable US Federal and
state, and Israeli, securities laws.
2.16 FINANCIAL STATEMENTS. Prior to the Closing, the Company
has made available to the Lead Purchaser or its counsel the Company's audited
financial statements for the years ended December 31, 1998 and 1999 (the
"Audited Financial Statements") and its unaudited balance sheet as of June 30,
2000 (the "June Financial Statement" and, together with the Audited Financial
Statements, the "Financial Statements"). The Audited Financial Statements have
been prepared in accordance with U.S. generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods indicated. The
Financial Statements fairly present, in all material aspects and in accordance
with GAAP, the financial condition and operating results of the Company as of
the dates, and for the periods, indicated therein, subject to normal year-end
audit adjustments with respect to the June Financial Statement which the Company
does not expect to be material. Except as set forth in the June Financial
Statement or SCHEDULE 2.16 hereto, the Company has no material liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to the date of last set of Financial Statements
delivered to the Purchasers and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in the Financial Statements,
which, in both cases, individually or in the aggregate are not material to the
financial condition or operating results of the Company (hereafter referred to
as the "Listed Liabilities").
2.17 SECURITIES LAWS. Assuming the truth and correctness of
the Purchaser's representations and warranties in this Agreement, the Company
has complied and will comply with all applicable US Federal and state and
Israeli securities laws in connection with the offer, issuance and sale of the
Shares hereunder. Neither the Company nor anyone authorized to act on
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its behalf has or will sell, offer to sell or solicit offers to buy the Shares,
or solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations relating thereto with, any Person, so as to bring
the issuance and sale of the Shares under the registration provisions of the
Securities Act and applicable state securities laws (including, without
limitation, any offer, other issuance or sale of any security of the Company
under circumstances that might require the integration of the offering of such
security with the offering of the Shares under the Securities Act or the rules
and regulations thereunder).
2.18 INSURANCE. The Company carries insurance with financially
sound and reputable insurance companies or associations, in such amounts and
covering such risks as are adequate and customary for the type and scope of its
property and business.
2.19 REGISTRATION RIGHTS. Other than pursuant to the terms of
the Investor Rights Agreement, no Person has demand or other rights to cause the
Company to file any registration statement under the Securities Act relating to
any securities of the Company or any right to participate in any such
registration.
2.20 NO BROKER. Except as set forth in SCHEDULE 2.20, the
Company has no contract, arrangement or understanding with any broker, finder,
agent, financial advisor or other intermediary with respect to the transactions
contemplated by this Agreement, and no person or entity acting on behalf of the
Company has or will have, as a result of the transactions contemplated by this
Agreement, any right, interest or valid claim against or upon the Company or the
Purchasers for any commission, fee or other compensation as a finder or broker
because of any act or omission by the Company or the Purchasers or by any agent
of the Company or the Purchasers.
2.21 TRANSACTIONS WITH AFFILIATES. Except as set forth in
SCHEDULE 2.21, neither the Company, nor to the Company's knowledge, any of the
customers and suppliers of the Company, is a party to or bound by any agreement,
other than in connection with an investment or equity rights in the Company,
with any Affiliate of the Company. All of the agreements identified on SCHEDULE
2.21 hereto were entered into by the Company in good faith and are on terms no
less favorable to the Company than those which the Company could have obtained
from non-Affiliates.
2.22 EMPLOYEES. Set forth in SCHEDULE 2.22 is a list of the
names of all employees of the Company who are "Office Holders" (as defined in
the Israeli Companies Law, 1999), together with the title or job classification
of each such person. Except as set forth in SCHEDULE 2.22, none of such persons
(except for the CEO, pursuant to the amendment to his employment agreement
referred to in Section 4.1(viii) (the "CEO Agreement")) has an employment
agreement or understanding, whether oral or written, with the Company which is
not terminable on notice by the Company without cost or other liability to the
Company (except for through the applicable notice period). Except as set forth
in SCHEDULE 2.22, no key employee of the Company has advised the Company (orally
or in writing) that he or she intends to terminate employment with the Company.
The Company has generally complied in all material respects with all applicable
laws, domestic and foreign, relating to the employment of labor, including
provisions relating to wages, hours, equal opportunity, collective bargaining
and the payment of Social Security and other taxes.
9
2.23 LABOR RELATIONS. No labor union or any representative
thereof has made any attempt to organize or represent employees of the Company.
There are no unfair labor practice charges, pending trials with respect to
unfair labor practice charges, pending grievance proceedings or adverse
decisions of any labor relations board against the Company or relating to the
Company's employees or consultants. The Company is not in violation in any
material respect of any applicable statute, law or regulation relating to
occupational safety and health. Furthermore, to the best knowledge of the
Company, relations with employees and consultants of the Company are good and
has no reason to believe that any labor difficulties will arise in the
foreseeable future.
2.24 ASSUMPTIONS OR GUARANTIES OF INDEBTEDNESS OF OTHER
PERSONS. The Company has not assumed, Guaranteed, endorsed or otherwise become
directly or contingently liable on (including, without limitation, liability by
way of agreement, contingent or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in any debtor or otherwise to
assure any creditor against loss) any material amount Indebtedness of any other
Person.
2.25 LOANS AND ADVANCES. Other than pursuant to the CEO
Agreement, the Company has not made any material amount loan or advance to any
Person , nor is the Company obligated or committed to make any such material
amount loan or advance.
2.26 DISCLOSURE. Neither this Agreement, nor any other
agreement, document, certificate or written or oral statement furnished or made
to any Purchaser or its counsel by the Company or on behalf of the Company by
any of its officers or agents in connection with the transactions contemplated
hereby, including, without limitation, the Listed Liabilities or the Private
Placement Memorandum dated April 2000 relating to this investment (the "PPM"),
considered in the aggregate, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, and subject to the limitations and risk factors identified therein,
not misleading; provided, however, that the PPM contains assumptions and
forecasts, some of which based upon sources of information as for the
reliability of which the Company can not be responsible, which there can be no
assurance that they will materialize.
2.27 BOOKS AND RECORDS. The books of account, ledgers, order
books, records and documents of the Company are maintained in accordance with
all applicable legal requirements and GAAP, and are accurate and complete in all
material aspects in accordance with such requirements and principles.
2.28 FOREIGN CORRUPT PRACTICES ACT. The Company is not
engaged, nor has any officer, director, employee or agent of the Company
engaged, in any act or practice which would constitute a violation of the
Foreign Corrupt Practices Act of 1977, or any rules or regulations promulgated
thereunder. There is not now, and there never has been, any employment by the
Company of any governmental or political official in any country in the world.
2.29 U.S. REAL PROPERTY HOLDING CORPORATION. The Company is
not a "United States real property holding corporation", as defined in Section
897(c)(2) of the U.S. Internal
10
Revenue Code and Section 1.897-2(b) of the Regulations promulgated by the
Internal Revenue Service.
2.30 ENVIRONMENTAL MATTERS.
(a) The Company and Given Sub are in compliance with all
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any Applicable Environmental
Laws, or in any plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder. For purposes of this Agreement, the
term "Applicable Environmental Laws" shall mean Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 ET. SEQ.
("CERCLA"); Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 ET.
SEQ. ("RCRA"); Federal Water Pollution Control Act, 33 U.S.C. 1251 ET. SEQ.; and
Clean Air Act, 42 U.S.C. 7401 ET. SEQ. and any similar provisions of state or
local law, domestic or foreign, in any jurisdictions where the properties of the
Company are located, and the regulations thereunder, and any other local, state
and or federal laws or regulations, domestic or foreign, relating to the
protection of human health or the environment.
2.31 ABSENCE OF CERTAIN DEVELOPMENTS. Except as provided in
any disclosure schedule or exhibit attached hereto, since the date of its last
Audited Financial Statements, the Company has not:
(a) issued any share, bonds or other corporate
securities or any rights, options or warrants with
respect thereto;
(b) borrowed any amount or incurred or become subject
to any liabilities (absolute or contingent) except
current liabilities incurred in the ordinary
course of business;
(c) discharged or satisfied any Lien or encumbrance or
paid any obligation or liability (absolute or
contingent), other than current liabilities paid
in the ordinary course of business;
(d) declared or made any payment or distribution of
cash or other property to shareholders with
respect to its shares, or purchased or redeemed,
or made any agreements to purchase or redeem, any
shares of its shares;
(e) mortgaged or pledged any of its assets, tangible
or intangible, or subjected them to any Liens,
except Liens for current property taxes not yet
due and payable;
(f) sold, assigned or transferred any other material
tangible assets, or cancelled any debts or claims;
(g) sold, assigned or transferred any patents, patent
rights, trademarks, trade names, copyrights, trade
secrets or other intangible
11
assets or other Intellectual Property Rights, or
disclosed any material proprietary or confidential
information to any Person not associated with the
Company, unless such Person, prior to such
disclosure executed and delivered a non-disclosure
agreement in favor of the Company;
(h) suffered any substantial casualty losses or waived
any rights of material value, whether or not in
the ordinary course of business or covered by
insurance, or otherwise suffered any material
adverse effect to its assets, business, prospects
or financial condition;
(i) suffered any labor trouble, or any event or
condition of any character, materially adversely
affecting the business or plans of the Company; or
(j) entered into any other transaction other than in
the ordinary course of business, or entered into
any other material transaction, whether or not in
the ordinary course of business.
ARTICLE 3.
THE PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser severally, but not jointly, represents and
warrants to the Company solely as to itself as follows:
3.1 INVESTMENT REPRESENTATIONS. The Purchaser's present
intention is to acquire the Shares to be acquired by it for its own account and
the Shares are being and will be acquired by it for the purpose of investment
and not with a view to distribution or resale thereof. The acquisition by the
Purchaser of the Shares acquired by it shall constitute a confirmation of this
representation by such Purchaser. The Purchaser further represents that it
understands and agrees that, except as otherwise provided in the Related
Agreements, all certificates evidencing any of the Shares or Conversion Shares,
whether upon initial issuance or upon any transfer thereof, shall bear a legend,
prominently stamped or printed thereon, reading substantially as follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 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."
12
3.2 ACCESS TO INFORMATION. The Purchaser acknowledges that
such Purchaser, during the course of this transaction and prior to the purchase
of any Shares, has had the opportunity to ask questions of and receive answers
from representatives of the Company concerning the terms and conditions of the
offering of the Shares, and has obtained all information, documents, records and
books relative to the Company, its business, and an investment in the Company,
as requested by or on behalf of such Purchaser. Each Purchaser hereby agrees
that, except for such representations and warranties contained in this
Agreement, the Company provides no other warranty with respect to the Company
and the securities sold hereunder, whether express, implied, statutory or
otherwise.
3.3 ACCREDITED INVESTOR STATUS. The Purchaser is an
"accredited investor" as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act; or, if such Purchaser is listed under
SCHEDULE 3.3 hereto, that such Purchaser complies with the "Non U.S. Person
Status", as specified below, and the Company may rely upon such Purchaser's
representation for the purposes of complying with applicable securities laws.
The Purchaser's address set forth on EXHIBIT A represents the Purchaser's true
and correct state of domicile, upon which the Company may rely for the purposes
of complying with applicable Blue Sky or other securities laws.
"Non U.S. Person Status" means that such Purchaser is not a
U.S. person, as defined in Regulation S promulgated under the Securities Act
("Regulation S"), and is not purchasing the Shares for the account or benefit of
any U.S. person. The offer and sale of the Shares to the Purchaser is being made
in an "offshore transaction" as defined in Regulation S, and the Purchaser
acknowledges that neither the Company nor any affiliate, agent or person acting
on behalf of the foregoing has made any direct selling efforts, within the
meaning of Regulation S, in the United States in connection with the offer or
sale of the Shares.
3.4 TRANSFER RESTRICTIONS IMPOSED BY SECURITIES LAWS. The
Purchaser understands that none of the Shares and Conversion Shares have been
registered under the Securities Act or any other applicable securities laws,
and, therefore, cannot be resold unless they are subsequently registered under
the Securities Act and other applicable securities laws or unless an exemption
from such registration is available. The Purchaser understands that the issuance
of the Shares and the Conversion Shares has not been registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the Purchaser's investment intent and the
accuracy of the Purchaser's representations herein. The Purchaser agrees not to
resell or otherwise dispose of all or any part of the Shares purchased by it or
the Conversion Shares, except as permitted by law, including, without
limitation, any regulations under the Securities Act and other applicable
securities laws. Purchaser acknowledges that the Company does not have any
present intention and is under no obligation to register the Shares or
Conversion Shares under the Securities Act and other applicable securities laws,
except as provided in the Related Agreements.
3.5 SOPHISTICATED PURCHASERS. Each of the Purchasers is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments of the type contemplated by this
Agreement and the Related Agreements, and has such knowledge and experience in
financial and business matters that he is capable of evaluating
13
the merits and risks of his investment hereunder. Such Purchaser is aware that
the Company is a private company and therefore no market for the Shares issuable
thereunder exists, and that there can be no assurance that such market will
exist in the future, that the investment in the Company involves a high degree
of risk, and that it can sustain the loss of its entire investment hereunder.
3.6 BUSINESS OF THE COMPANY. Without affecting the
representations and warranties and indemnification obligations of the Company
under this Agreement, the Purchaser agrees and acknowledges that the business of
the Company (the "Business"), as described in the PPM which has been delivered
to the Purchasers, including the financial projection and other information
contained therein, are accepted by such Purchaser, and reflect the Company's
best assumptions, for which the Company has subjective basis only. Such
Purchaser is aware that each of the Company and Given Sub is a high-tech
"start-up" company, that there can be no assurance that the Company will achieve
its business or technological goals or projections.
3.7 NO BROKER. The Purchaser has no contract, arrangement or
understanding with any broker, finder, agent, financial advisor or other
intermediary with respect to the transactions contemplated by this Agreement,
and no person or entity acting on behalf of the Purchaser has or will have, as a
result of the transactions contemplated by this Agreement, any right, interest
or valid claim against or upon the Company or the Purchasers, or their
respective Affiliates and agents, for any commission, fee or other compensation
as a finder or broker because of any act or omission by the Company or the
Purchasers or by any agent of the Company of the Purchasers.
3.8 NO COMPETITOR PURCHASER. The Purchaser is not currently
involved, whether alone or with others, including as a shareholder (except for
holding a less than 5% interest in a publicly traded entity), director,
employee, agent, consultant, partner, supplier, distributor or otherwise, in any
business which is in direct competition with the gastrointestinal imaging
business of the Company and/or the Given Sub.
3.9 (ISRAELI) SECURITIES LAW. The Purchaser (unless identified
in Schedule 3.9A) is a "venture capital fund" for the purpose of Section
15A(b)(1) of the Israeli Securities Law, 1968. Unless the Purchaser is
identified in SCHEDULE 3.10B, SUCH PURCHASER further acknowledges that neither
the Company nor any affiliate, agent or person acting on behalf of any of the
foregoing has made any offer or selling efforts within the State of Israel with
respect to the offer and sale of the Shares to the Purchaser.
3.10 RULE 144. The Purchaser acknowledges that the Shares and
the underlying Conversion Shares must be held indefinitely unless subsequently
registered under the Securities Act or unless an exemption from such
registration is available. The Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
the shares, the availability of certain public information about the Company,
the resale occurring not less than one year after a party has purchased and paid
for the security to be sold, the sale being effected through a "broker's
transaction" or in a transaction directly with a "market maker," and the number
of shares being sold during any three-month period not exceeding specified
limitations.
14
3.11 AUTHORIZATION. All action on the part of the Purchaser's
partners, board of directors, and stockholders, as applicable, necessary for the
authorization, execution, delivery and performance of this Agreement and the
Related Agreements by the Purchaser, the purchase of and payment for the Shares
and the Conversion Shares and the performance of all of the Purchaser's
obligations under this Agreements and the Related Agreements has been taken or
will be taken prior to the Closing. This Agreement and the Related Agreements,
when executed and delivered by the Purchaser, shall constitute valid and binding
obligations of the Purchaser, enforceable against such Purchaser in accordance
with their respective terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies; provided,
however, that the Purchaser makes no representations as to the enforceability of
the indemnification provisions contained in the Investor Rights Agreement.
ARTICLE 4.
CLOSING CONDITIONS
4.1 CONDITIONS TO THE PURCHASERS' OBLIGATIONS. Each
Purchaser's obligation to purchase and pay for the Shares to be purchased by it
at the Closing is subject to the complete satisfaction by the Company, on or
before such Closing, of the following conditions:
(a) OPINION OF COMPANY'S COUNSEL. The Purchaser shall have
received from Zellermayer & Pelossof, Advocates, counsel
for the Company, an opinion, dated the date of the
Closing Date, in the form set forth in EXHIBIT C hereto
with respect to the Closing.
(b) REPRESENTATIONS AND WARRANTIES; OFFICER'S CERTIFICATE.
The Company's representations and warranties contained
in Article 2 shall be true and correct in all material
aspects on and as of the date of the Closing with the
same effect as if made on and as of the date of the
Closing. All agreements and conditions to be performed
or satisfied by the Company hereunder on or before the
date of the Closing shall have been duly performed or
satisfied. The Company shall have delivered to the
Purchaser a certificate, dated the date of the Closing
and signed by the President or the Chief Financial
Officer of the Company, to such effect (the "Officer's
Certificate").
(c) CONSENTS AND APPROVALS. The Company shall have delivered
to the Purchaser a certificate, dated the date of the
Closing and signed by the President or the Chief
Financial Officer of the Company, listing any consents,
waivers, approvals, authorizations, registrations,
filings and notifications of the character referred to
in Section 2.6or 2.8 which are necessary, that the same
have been obtained or made and are in full force and
effect, or stating that none is necessary.
15
(d) MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY.
The Lead Purchasers or its counsel shall have received a
copy of the Amended Articles, amended as necessary to
permit the Company to fulfill its obligations under this
Agreement.
(e) INVESTOR RIGHTS AGREEMENT. The Purchasers (with whom the
Closing is or was consummated) and the Company and other
shareholders thereto named therein shall have entered
into the Investor Rights Agreement in the form attached
hereto as EXHIBIT D.
(f) SERIES A CONVERTIBLE PREFERRED SHARE. The Purchaser
shall have received a share certificate evidencing its
ownership of the Shares in the amounts set forth in
EXHIBIT A hereof, which Shares have been duly authorized
and issued by the Company.
(g) COMPANY CERTIFIED RESOLUTIONS. The Purchaser shall have
received true copies of the corporate resolutions
adopted by the Board of Directors or the shareholders of
the Company authorizing the execution, delivery and
performance of this Agreement and any other document or
instrument executed in connection therewith, and the
issuance, sale and delivery of the Shares and the
Conversion Shares.
(h) CEO EMPLOYMENT AGREEMENT. Xx. Xxxxxxx X. Xxxxx, the
Company's President and CEO, shall have entered into an
extension of his existing employment agreement with the
Company for a period of 3 years after the Closing in the
form attached hereto as EXHIBIT E.
4.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS. The Company's
obligation to issue the Shares to the Purchasers at the Closing is subject to
the satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Article 3
shall be true, correct and complete in all material
respects on and as of the date of the Closing with the
same force and effect as if they had been made on and as
of the date of the Closing.
(b) PAYMENT OF PURCHASE PRICE. Each Purchaser shall have
delivered to the Company and the Company shall have
received payment in full of the purchase price relating
to the number of Shares to be purchased by such
Purchaser at the Closing.
(c) DELIVERY OF PROXY. Each Purchaser, other than the Lead
Purchaser, Xx. Xxxx X. Xxxxxxxxx and Purchasers who
prior to the Closing therewith have been shareholders of
the Company, shall have executed and delivered to the
Company and irrevocable proxy in the form of EXHIBIT F
hereto, appointing the Person named in SCHEDULE 4.2(iii)
as
16
proxy and agent for such Purchaser.
(d) UNDERTAKING UNDER THE R&D LAW. Each Purchaser shall have
executed and delivered an acknowledgement and
undertaking relating to the applicable provisions of the
Law for Encouragement of Research and Development in the
Industry, 1984, substantially in the form of EXHIBIT G
hereto (or such other form acceptable to the Chief
Scientist).
ARTICLE 5.
INDEMNIFICATION
5.1 COMPANY INDEMNIFICATION. The Company shall indemnify,
defend and hold each Purchaser and its officers, directors, partners, members,
employees and agents and each other Person which controls (within the meaning of
the Securities Act) such Purchaser or any of its partners or members harmless
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, based on, or directly connected with the untruth,
inaccuracy or breach of any representations, warranties or covenants contained
herein or in the Related Agreements. Notwithstanding the foregoing, (i) the
aggregate amount that may be recovered from the Company by any Purchaser or any
of its officers, directors, employees, agents or other controlling Persons under
this Section 5.1 shall be limited to the total purchase price paid hereunder by
such Purchaser for the Series A Preferred Shares plus a return thereon at the
rate of 8% per annum compounded quarterly (excluding claims for fraud or willful
misconduct for which there shall be no cap), and (ii) the Company shall not be
obligated to under this provision until the aggregate claims for indemnity
exceed US$200,000, provided that such amount shall not constitute a deductible
and the indemnification obligation hereunder shall thereafter include all claims
from dollar one.
5.2 PURCHASERS' INDEMNIFICATION. Each of the Purchasers,
severally but not jointly, shall indemnify, defend and hold the Company and its
officers, directors, employees and agents and each other Person which controls
(within the meaning of the Securities Act) the Company harmless 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, relating to, or connected with the untruth, inaccuracy or breach
of any representations or warranties or covenants of such Purchaser contained
herein or in the Related Agreements. Notwithstanding the preceding sentence, (i)
the aggregate amount that may be recovered from any Purchaser by the Company or
any of its officers, directors, employees, agents or other controlling Persons
under this Section 5.2 shall be limited to the total purchase price paid
hereunder by such Purchaser for the Series A Preferred Shares plus a return
thereon at the rate of 8% per annum compounded quarterly (excluding claims for
fraud or willful misconduct for which there shall be no cap), and (ii) no
Purchaser shall be obligated to under this provision until the aggregate claims
for indemnity exceed US$200,000, provided that such amount shall not constitute
a deductible and the indemnification obligation hereunder shall thereafter
include all claims from dollar one.
17
5.3 LIMITATION OF LIABILITY. Except with respect to fraud or
willful misconduct, the aggregate liability of the Company, arising out of or
relating to this Agreement or the Related Agreements or the transactions
contemplated thereby, whether based on contract, warranty, tort, strict
liability or otherwise, including all rights for indemnification hereunder,
shall not exceed, with respect to each Purchaser, the total purchase price paid
hereunder by such Purchaser for the Shares plus a return thereon at the rate of
8% (eight percent) per annum compounded quarterly. Except with respect to fraud
or willful misconduct, the Company and the Purchasers waive any right they may
have to recover any special, exemplary, punitive or consequential damages, or
any damages other than actual damages.
ARTICLE 6.
DEFINITIONS
6.1 DEFINITIONS. Except as otherwise defined in this Agreement
or as the context may otherwise require, the following terms shall have the
respective meanings set forth below whenever used in this Agreement:
"AFFILIATE" shall mean, with respect to any Person, any other
Person controlling, controlled by, or under common control with, such Person.
"AMENDED ARTICLES" shall mean the Amended and Restated
Articles of Association of the Company, attached as EXHIBIT B hereto.
"BRIDGE FINANCE AGREEMENTS" shall mean two Share Purchase
Agreements, both dated as of February 1, 2000, for an aggregate investment in
the Company of $4,950,000.
"BRIDGE PURCHASERS" shall mean the parties to the Bridge
Finance Agreements (other than the Company).
"CLOSING" shall have the meaning assigned to that term in
Section 1.2 of this Agreement.
"CLOSING DATE" shall have the meaning assigned to that term in
Section 1.2 of this Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission
and any successor agency of the Federal government administering the Securities
Act and the Exchange Act, and shall be deemed to include the Israeli equivalent
thereof.
"CONVERSION SHARES" shall have the meaning assigned to that
term in Section 2.15 of this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, and any similar or successor Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
18
"GUARANTEE" shall mean any obligation, contingent or
otherwise, of any Person guaranteeing any Indebtedness of any other Person in
any manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness, or (iii) to maintain working capital, equity
capital or other financial statement condition of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; PROVIDED, HOWEVER, that the
term "Guarantee" shall not include endorsements for collection or deposit, in
either case, in the ordinary course of business.
"INDEBTEDNESS" shall mean, with respect to any Person, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (iii) all
obligations of such Person upon which interest charges are customarily paid
(other than obligations accepted in connection with the purchase by such Person
of products or services in the ordinary course of business), (iv) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person, (v) all obligations of
such Person issued or assumed as the deferred purchase price of property or
services (other than accounts payable to suppliers incurred in the ordinary
course of business and paid when due), (vi) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien or security interest on
property owned or acquired by such Person whether or not the obligations secured
thereby have been assumed, (vii) all obligations of such Person under leases
required to be accounted for as capital leases under generally accepted
accounting principles, and (viii) all Guarantees of such Person.
"INTELLECTUAL PROPERTY RIGHTS" shall mean any and all, whether
domestic or foreign, patents, patent applications, patent rights, trade secrets,
confidential business information, formula, biological or chemical processes,
compounds, cell lines, fungi, yeast, laboratory notebooks, algorithms,
copyrights, mask works, claims of infringement against third parties, licenses,
permits, license rights to or of technologies, contract rights with employees,
consultants or third parties, tradenames, trademarks, trademark applications,
trademark rights, inventions and discoveries.
"INVESTMENT" shall mean, with respect to any Person, any loan,
advance or extension of credit (other than in connection with the sale by such
Person of products or services in the ordinary course of business) by such
Person to, and any Guarantee or other contingent liability with respect to the
capital share. Indebtedness or other obligations of, and any contributions to
the capital of, any other Person, as well as any ownership, purchase or other
acquisition by such Person of any interest in any capital shares or other
securities of any such other Person as well as any transfer or sale (other than
in connection with the sale by such Person of products or services in the
ordinary course of business) of property by such Person to any other Person
other than upon full payment, in cash, of not less than the agreed sale price or
the fair value of such property, whichever is higher.
19
"LEAD PURCHASER" shall mean OrbiMed Advisors LLC, a limited
liability company incorporated under the laws of State of Delaware, and funds
advised or controlled thereby.
"LIEN" shall mean: (i) any interest in property (whether real,
personal or mixed and whether tangible or intangible) which secures an
obligation owed to, or a claim by, a Person other than the owner of such
property, whether such interest is based on the common law, statute or contract,
including, without limitation, any such interest arising from a lease, mortgage,
charge, pledge, security agreement, conditional sale, trust receipt or deposit
in trust, or arising from a consignment of bailment given for security purposes
(other than a trust receipt or deposit given in the ordinary course of business
which does not secure any obligation for borrowed money), (ii) any encumbrance
upon such property which does not secure such an obligation, and (iii) any
exception to or defect in the title to or ownership interest in such property,
including, without limitation, reservations, rights of entry, possibilities of
reverter, encroachments, easements, rights of way, restrictive covenants,
licenses and PROFITS A PRENDRE. For purposes of this Agreement, any Person shall
be deemed to be the owner of the leasehold or other interest in any property
which it has acquired or holds subject to a lease and the owner of any property
which it has acquired or holds subject to a conditional sale agreement or other
similar arrangement pursuant to which title to the property has been retained by
or vested in some other Person for security purposes.
"PERSON" shall include any individual, a corporation, an
association, a partnership, a limited liability company, an unincorporated
business entity, a trust or estate, a government and any agency or political
subdivision thereof, or any other entity.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and any similar or successor Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"SHARE PLANS" shall have the meaning assigned to that term in
Section 2.15 of this Agreement.
"SUBSIDIARY" or "SUBSIDIARIES" shall mean any corporation,
partnership, trust or other entity of which the Company and/or any of its other
Subsidiaries directly or indirectly owns at the time a majority of the
outstanding shares of any class of equity security of such corporation,
partnership, trust or other entity.
6.2 ACCOUNTING PRINCIPLES. The character or amount of any
asset, liability, capital account or reserve and of any item of income or
expense required to be determined pursuant to this Agreement, and any
consolidation or other accounting computation required to be made pursuant to
this Agreement, and the construction of any definition in this Agreement
containing a financial term, shall be determined or made, as the case may be, in
accordance with generally accepted accounting principles, to the extent
applicable, unless such principles are inconsistent with the express
requirements of this Agreement.
ARTICLE 7.
20
MISCELLANEOUS
7.1 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by certified mail, return receipt requested, postage
prepaid.
If to a Purchaser: To its address set forth on EXHIBIT A;
With a copy to: Xxxxxxxx Xxxxx & Deutsch LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Attn: Xxxxx X. Xxxxx, Esq.
x0-000-000-0000 (Telephone)
x0-000-000-0000 (Fax)
Sharir, Shiv, Xxxxxxxx & Co., Law Offices
Top Xxx building
00 Xxxxxxx Xxxxx xxxxxx
Xxx Xxxx 00000
Xxxxxx
Attn: Yoram Shiv, Adv.
Tel: +972 -3-6440105
Fax: x000-0-0000000
If to the Company: Given Imaging Ltd.
0 Xx'Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxx
P.O. Box 258
Yoqneam 00000
Xxxxxx
Attn: Xxxxxxx Xxxxx, President and CEO
000-0-0000000 (Tel)
000-0-000-0000 (Fax)
With copies to: Zellermayer & Pelossof, Advocates
Xxxxxx Xxxxx
00 Xxxx Xxxxx Xxxx.
Xxx-Xxxx 00000
Israel
Attn: Xxxxx Xxxxxx, Adv.
000-0-000-0000 (Tel)
000-0-000-0000 (Fax)
All notices, requests, consents and other communications hereunder shall be
deemed to have
21
been given (i) if by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above, (ii) if made by telecopy or
facsimile transmission, at the time that receipt thereof has been acknowledged
by electronic confirmation or otherwise, (iii) if sent by overnight courier, on
the next business day (or if sent overseas, on the second business day)
following the day such notice is delivered to the courier service, or (iv) if
sent by registered or certified mail, on the 5th business day (or if sent
overseas, on the 10th business day) following the day such mailing is made.
7.2 ENTIRE AGREEMENT. This Agreement, together with the
Exhibits and Schedules hereto, and the other agreements executed and delivered
herewith embody the entire agreement and understanding between the Purchasers
and the Company, and supersede all prior oral or written agreements and
understandings relating to the subject matter hereof, including the Term Sheet
dated August 3, 2000 between the Company and the Lead Purchaser. No statement,
representation, warranty, covenant or agreement of any kind not set forth in
this Agreement, including the Exhibits and Schedules hereto, shall affect, or be
used to interpret, change or restrict, the express terms and provisions of this
Agreement.
7.3 MODIFICATIONS AND AMENDMENTS. This Agreement may not be
changed, modified or discharged orally, nor may any waivers or consents be given
orally hereunder, and every such change, modification, discharge, waiver or
consent shall be in writing and, except as provided in Section 7.4 hereto,
signed by the Person against which enforcement thereof is sought.
7.4 WAIVERS AND CONSENTS. Any waiver or consent hereunder
shall be effective only in the specific instance and for the purpose for which
it was given, and shall not constitute a continuing waiver or consent. Except as
otherwise provided herein, notwithstanding the consummation of the transactions
contemplated hereby, no Purchaser waives or relinquishes any right it may have
or may acquire against the Company or any of its Affiliates or agents in
connection with the acquisition of Series A Preferred Shares by such Purchaser,
or the ownership thereof. All such rights shall remain unimpaired by the
execution of this Agreement and the consummation of the transactions
contemplated hereby. Any waiver or consent which may be required or sought from
the Purchasers will be effective as if granted by all Purchasers if granted by
holders of at least two-thirds (2/3) of the Shares and the Conversion Shares
then outstanding, on an as-converted basis.
7.5 BINDING EFFECT, ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the Company, and the Purchasers and
their respective heirs, successors (including, without limitation, by sale or
transfer of all or substantially all assets, merger or consolidation) and
assigns, except that the Company shall not have the right to delegate its
obligations hereunder or to assign its rights hereunder or any interest herein
except by a consent complying with Section 7.3 above. Any Purchaser not in
breach or default hereunder may prior to the Closing therewith assign all or
part of its rights hereunder and the Related Agreements, with the corresponding
obligations, to one or more of its Permitted Transferees (as defined in the
Amended Articles), by notice to the Company by both Purchaser and assignee
confirming the assignee's assumption of such obligations.
7.6 GOVERNING LAW. This Agreement and the rights and
obligations of the
22
parties hereunder shall be construed in accordance with and governed by the law
of the State of New York, without giving effect to the conflict of law
principles thereof.
7.7 SEVERABILITY. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement shall be unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court deems it
enforceable, and as so limited shall remain in fall force and effect. In the
event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Agreement shall nevertheless
remain in full force and effect.
7.8 INTERPRETATION. The parties hereto acknowledge and agree
that: (i) each party and its counsel, if so represented, reviewed and negotiated
the terms and provisions of this Agreement excluding Schedules and Exhibits and
have contributed to its revision; and (ii) the rule of construction to the
effect that any ambiguities are resolved against the drafting party shall not be
employed in the interpretation of this Agreement.
7.9 HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify or affect the meaning or construction of any of the terms
or provisions hereof.
7.10 NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or
delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall operate as
a waiver of any such right, power or remedy of the party, except as provided in
Section 7.3. No single or partial exercise of any right, power or remedy under
this Agreement by a party hereto, nor any abandonment or discontinuance of steps
to enforce any such right, power or remedy, shall preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand.
7.11 RELIANCE. The parties hereto agree that, notwithstanding
any access to information by any party or any right of a party to this Agreement
to investigate the affairs of any other party to this Agreement, the party
having such access and right to investigate shall have the right to rely fully
upon the representations and warranties of the other party expressly contained
in this Agreement and on the accuracy of any Schedule, Exhibit or other document
attached hereto or referred to herein or delivered by such other party or
pursuant to this Agreement. Each of the Purchasers acknowledges that, based on
information provided by the Company, it has made its own analysis and decisions
regarding the transactions contemplated hereby and that it is not relying on any
of the other Purchasers in executing this Agreement or consummating the
transactions contemplated hereby.
7.12 SURVIVAL. All representations, warranties, covenants and
agreements made by the parties hereto in this Agreement or in any other
agreement (other than the Related
23
Agreements, which shall survive in accordance with their own terms), certificate
or instrument provided for or contemplated hereby shall survive (i) the
execution and delivery hereof, (ii) any investigations made by or on behalf of
the parties and (iii) the Closing and shall remain in full force and effect
thereafter for a period of three years after the Closing (provided that the
representations and warranties contained in (A) Section 2.15 shall survive
indefinitely, and (B) Sections 2.9 and 2.30 shall survive until the expiration
of the applicable statute of limitations). Notwithstanding the preceding
sentence, any representation, warranty, covenant or agreement in respect of
which indemnity may be sought under this Agreement shall survive the time at
which it would otherwise terminate pursuant to the preceding sentence if notice
specifying the inaccuracy or breach thereof giving rise to such right of
indemnity shall have been given to the party against whom such indemnity may be
sought prior to such time, and is reasonably promptly followed by the
appropriate legal action to exercise such right by the party serving such
notice.
7.14 FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of any Purchaser or the Company or as required by
applicable law, the Company and the Purchasers shall execute, file and deliver
with the appropriate authorities such instruments, documents and other writings
(including the Amended Articles) as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this
Agreement.
7.15 COSTS, EXPENSES AND TAXES. Subject to consummation of the
Closing by the Lead Purchaser, the Company agrees to pay at the Closing in
connection with the preparation, execution and delivery of this Agreement, the
legal fees of (i) Xxxxxxxx Xxxxx & Deutsch LLP, special counsel for the
Purchasers, in an amount equal to US$35,000 (which amount may at such counsel's
option be payable in up to 16,643 Shares); (ii) Sharir, Shiv, Xxxxxxxx & Co. Law
Offices, Israeli counsel for the Purchasers, in an amount up to US$11,000; and
(iii) Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, intellectual property counsel for the
Purchasers, in an amount up to US$5,000, plus the reasonable expenses and
disbursements of each of the foregoing not expected to exceed US$5,000
(excluding extraordinary expenses such as any requirement to travel to Israel).
In addition, the Company shall pay any and all stamp, or other similar taxes
payable or determined to be payable in connection with the execution and
delivery of this Agreement, the issuance of the Shares and the other instruments
and documents to be delivered hereunder or thereunder, and agrees to save the
Purchasers harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
If the Closing with the Lead Purchaser is not consummated
after this Agreement has been executed, on account of the Company's failure to
close in breach of this Agreement, the Company shall, without limiting any other
right or remedy of the Purchasers to enforce the provisions of this Agreement,
pay the reasonable out-of-pocket expenses of the Purchasers and their counsel,
not to exceed US$51,000.
7.16 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.17 USE OF DEFINITIONS; GENDER. Any definitions used herein
defined in the plural shall be deemed to include the singular as the context may
require and any definitions used
24
herein defined in the singular shall be deemed to include the plural as the
context may require. Wherever reference is made herein to the male, female or
neuter genders, such reference shall be deemed to include any of the other
genders as the context may require.
7.18 JURISDICTION AND SERVICE OF PROCESS. Any legal action or
proceeding with respect to this Agreement may be brought in the courts of the
State of New York or of the United States of America for the District of New
York. By execution and delivery of this Agreement, each of the parties hereto
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of the parties
hereto irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by certified mail, postage prepaid, to the party at its address set
forth in Section 7.1 hereof.
7.19 PUBLICITY. No party shall issue any press releases or
otherwise make any public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of the other
party, except as may be required by law; provided, that, the Company and the
Lead Purchaser may each issue such press release or public statement, subject to
prior coordination with each other.
Counterpart Signature Pages Begin Next Page
25
IN WITNESS WHEREOF, the parties hereto have executed this
Series A Preferred Share Purchase Agreement or caused this Agreement to be
executed by their duly authorized representatives, as of the date first written
above.
GIVEN IMAGING LTD.
By: /s/ Xxx Xxxx /s/ Xx. Xxxxxxx Xxxxx
--------------------------------------
Xxx Xxxx, Xx. Xxxxxxx X. Xxxxx,
Chairman of President and Chief
The Board Executive Officer
Purchasers Counterpart Signature Pages Begin on Next Page
26
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September ___, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
------------------------------------
Printed Name of Purchaser
------------------------------------
Signature of Purchaser
Investment Amount:
-------------------------
Number of Shares:
-------------------------
By:
----------------------------------------
Title:
-------------------------------------
Address:
-----------------------------------
-----------------------------------------
-----------------------------------------
Date: ______________,2000
Agreed and accepted to as to
________ shares at US$2.103 per share:
GIVEN IMAGING LTD.
By:
-----------------------------------
Name:
Title:
Date: _____________, 2000
27
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
OrbiMed Associates, LLC
------------------------------------
Printed Name of Purchaser
/s/ XXXXXXXX XXXXXXXXXXX
------------------------------------
Signature of Purchaser
Investment Amount: $358,883.24
-------------------------
Number of Shares: 170,653
-------------------------
By: XXXXXXXX XXXXXXXXXXX
----------------------------------------
Title:
-------------------------------------
Address: 000 Xxxxx Xxx.
-----------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------
-----------------------------------------
Date: September 15, 2000
Agreed and accepted to as to
170,653 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx X. Xxx Xxxxx
-----------------------------------
Name: Xxx X. Xxx Xxxxx
Title: CFO
Date: September 15, 2000
28
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
XXXXX XXXXX WW HEALTH SCIENCES
------------------------------------
Printed Name of Purchaser
/s/ XXXXXXXX XXXXXXXXXXX
------------------------------------
Signature of Purchaser
Investment Amount: $1,898,750.22
-------------------------
Number of Shares: 902,877
-------------------------
By: XXXXXXXX XXXXXXXXXXX
----------------------------------------
Title:
-------------------------------------
Address: 000 XXXXX XXX.
-----------------------------------
XXX XXXX, XX 00000
-----------------------------------------
-----------------------------------------
Date: September 15, 2000
Agreed and accepted to as to
902,877 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx X. Xxx Xxxxx
-----------------------------------
Name: Xxx X. Xxx Xxxxx
Title: CFO
Date: September 15, 2000
29
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
FINSBURY WORLDWIDE PHARMACEUTICAL TRUST
---------------------------------------
Printed Name of Purchaser
/s/ XXXXXXXX XXXXXXXXXXX
------------------------------------
Signature of Purchaser
Investment Amount: $1,898,750.22
-------------------------
Number of Shares: 902,877
-------------------------
By: XXXXXXXX XXXXXXXXXXX
----------------------------------------
Title:
-------------------------------------
Address: 000 XXXXX XXX.
-----------------------------------
XXX XXXX, XX 00000
-----------------------------------------
-----------------------------------------
Date: September 15, 2000
Agreed and accepted to as to
902,877 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx X. Xxx Xxxxx
-----------------------------------
Name: Xxx X. Xxx Xxxxx
Title: CFO
Date: September 15, 2000
30
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
CADUCEUS PRIVATE INVESTMENTS, LP
------------------------------------
Printed Name of Purchaser
/s/ XXXXXXXX XXXXXXXXXXX
------------------------------------
Signature of Purchaser
Investment Amount: $9,641,116.74
-------------------------
Number of Shares: 4,584,459
-------------------------
By: XXXXXXXX XXXXXXXXXXX
----------------------------------------
Title:
-------------------------------------
Address: 000 XXXXX XXX.
-----------------------------------
XXX XXXX, XX 00000
-----------------------------------------
-----------------------------------------
Date: September 15, 2000
Agreed and accepted to as to
4,584,459 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx X. Xxx Xxxxx
-----------------------------------
Name: Xxx X. Xxx Xxxxx
Title: CFO
Date: September 15, 2000
31
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
AUBER INVESTMENTS LTD
------------------------------------
Printed Name of Purchaser
[ILLEGIBLE]
------------------------------------
Signature of Purchaser
Investment Amount: $1,000,000
-------------------------
Number of Shares: 475,511
-------------------------
By:
----------------------------------------
Title: Assist. Treas.
-------------------------------------
Address: Tropic Isle Bldg
-----------------------------------
ROAD TOWN, TORTOLA BVI
-----------------------------------------
-----------------------------------------
Date: September 15, 2000
Agreed and accepted to as to
475,511 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xx. Xxxxxxx Xxxxx
Title: President & CEO
Date: September 15, 2000
32
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
XXXXXXXX XXXXX & DEUTSCH LLP
------------------------------------
Printed Name of Purchaser
/s/ [ILLEGIBLE] MEMBER
------------------------------------
Signature of Purchaser
Investment Amount: $35,000
-------------------------
Number of Shares: 16,643
-------------------------
By: /s/ [ILLEGIBLE]
----------------------------------------
Title: MEMBER
-------------------------------------
Address: Xxxxxxxx Xxxxx & Deutsch LLP
-----------------------------------
000 Xxxxx Xxxxxx, 00xx Floor
-----------------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------
Date: September 15, 2000
Agreed and accepted to as to
16,643 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xx. Xxxxxxx Xxxxx
Title: President & CEO
Date: September 15, 2000
33
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
RDC - Xxxxxx Development Corporation Ltd.
-----------------------------------------
Printed Name of Purchaser
/s/ Xxxxxx Xxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 6,000,000
-------------------------
Number of Shares: 2,853,067
-------------------------
By:
----------------------------------------
Title:
-------------------------------------
Address: 00 Xxxx Xxxxxxxx Xxxx,
-----------------------------------
Xxx Xxxx 00000,
-----------------------------------------
Israel.
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
2,853,067 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
34
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Discount Investment Corporation Ltd.
------------------------------------
Printed Name of Purchaser
/s/ [ILLEGIBLE] [ILLEGIBLE]
----------------------------------------
DISCOUNT INVESTMENT CORPORATION LTD.
Signature of Purchaser
Investment Amount: US$ 1,821,666
-------------------------
Number of Shares: 866,222
-------------------------
By:
----------------------------------------
Title:
-------------------------------------
Address: 00 Xxxx Xxxxxxxx Xxxx,
-----------------------------------
Xxx Xxxx 00000,
-----------------------------------------
Israel.
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
866,222 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
35
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Elron Electronic Industries Ltd.
------------------------------------
Printed Name of Purchaser
/s/ Xxx Xxxx /s/ Xxxxx Xxxxxx
------------------------------------
ELRON ELECTRONIC INDUSTRIES LTD.
Signature of Purchaser
Investment Amount: US$ 910,834
-------------------------
Number of Shares: 433,112
-------------------------
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------------------
Title: CEO CFO
-------------------------------------
Address: Advanced Technology Center,
Building 3,
-----------------------------------
Haifa,
-----------------------------------------
Israel.
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
433,112 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
36
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxx Xxxxx (Professor)
------------------------------------
Printed Name of Purchaser
/s/ X. Xxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 50,000
-------------------------
Number of Shares: 23,776
-------------------------
By:
----------------------------------------
Title:
-------------------------------------
Address: 8 Ha'Gefen St.
-----------------------------------
Ramat Hasharon, 00000, Xxxxxx
-----------------------------------------
-----------------------------------------
Date: 4.10.2000, 2000
Agreed and accepted to as to
23,776 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
37
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Adiger Technologies Ltd.
------------------------------------
Printed Name of Purchaser
/s/ [ILLEGIBLE]
------------------------------------
Signature of Purchaser
Investment Amount: US$ 500,000
-------------------------
Number of Shares: 237,756
-------------------------
By: /s/ Xxx Xxx-Or /s/ Xxxx Xxxxx
----------------------------------------
Title:
-------------------------------------
Address: X/X Xxxxx & Xx Xxxxxxx,
-----------------------------------
Xxxxxxx Xxxxxx, 00,
-----------------------------------------
Xxx Xxxx, 00000, Xxxxxx
-----------------------------------------
Date: October 8, 2000
Agreed and accepted to as to
237,756 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
38
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxx Xxxxxx
------------------------------------
Printed Name of Purchaser
/s/ [ILLEGIBLE]
------------------------------------
Signature of Purchaser
Investment Amount: US$ 60,000
-------------------------
Number of Shares: 28,531
-------------------------
Address: Xx. 0 Xxxxxxx Xx.
-----------------------------------
Xx'xxxxx Xxxxxx, 00000
-----------------------------------------
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
28,531 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
39
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Securfin S.p.A.
------------------------------------
Printed Name of Purchaser
/s/ [ILLEGIBLE]
------------------------------------
Signature of Purchaser
Investment Amount: US$ 400,000
-------------------------
Number of Shares: 190,204
-------------------------
By: /s/ [ILLEGIBLE]
----------------------------------------
Title: Chairman
-------------------------------------
Address: Xxx Xxxxxx 00
-----------------------------------
00000 Xxxxxx
-----------------------------------------
Xxxxx
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
190,204 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 30, 2000
40
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxx X. Xxxxxxxxx
------------------------------------
Printed Name of Purchaser
/s/ [ILLEGIBLE]
------------------------------------
Signature of Purchaser
Investment Amount: US$ 100,000
-------------------------
Number of Shares: 47,551
-------------------------
Address: 000 Xxxxx Xxxx Xxxx,
-----------------------------------
Xxxxxxxxx, XX 00000
-----------------------------------------
Date: September 22, 2000
Agreed and accepted to as to
47,551 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
41
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxxxx Xxxxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxxxx Xxxxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 60,000
-------------------------
Number of Shares: 28,531
-------------------------
Address: 000 Xxxx 00xx Xx., Xxxxxxxxx 00
-----------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
28,531 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
42
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxxx Xxxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxxx Xxxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 50,000
-------------------------
Number of Shares: 23,776
-------------------------
Address: 4 Xxxxx Court.
-----------------------------------
Xxxxxxx, XX 00000
-----------------------------------------
Date: September 23, 2000
Agreed and accepted to as to
23,776 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
43
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxxx Xxxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxxx Xxxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 40,000
-------------------------
Number of Shares: 19,020
-------------------------
Address: 000 Xxxx 00xx Xxxxxx, Xxxxxxxxx 0X
-----------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------
Date: September 22, 2000
Agreed and accepted to as to
19,020 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: September 26, 2000
44
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxxxxx X. Xxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 15,000
-------------------------
Number of Shares: 7,133
-------------------------
Address: 000 Xxxx 00xx Xx., Apartment 8B
-----------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------
-----------------------------------------
Date: September 22, 2000
Agreed and accepted to as to
7,133 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: September 26, 2000
45
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxxxx X. Xxxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 10,000
-------------------------
Number of Shares: 4,755
-------------------------
Address: 000 Xxxx 00xx Xx., Xxxxxxxxx 00X
-----------------------------------
Xxx Xxxx, XX 00000
-----------------------------------------
-----------------------------------------
Date: September 22, 2000
Agreed and accepted to as to
4,755 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: September 26, 2000
46
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxx Xxxxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxx Xxxxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 100,000
-------------------------
Number of Shares: 47,551
-------------------------
Address: Chelleraech 19,
-----------------------------------
XX - 0000,
-----------------------------------------
Xxxxxxxxxxxx,
-----------------------------------------
Xxxxxxxxxxx.
-----------------------------------------
Date: August 10, 2000
Agreed and accepted to as to
47,551 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 3, 2000
47
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that
certain Preferred Shares Purchase Agreement dated as of September 15, 2000 (the
"Agreement") among Given Imaging Ltd. (the "Company") and others set forth on
the signature pages thereto. From and after the undersigned's execution and
delivery and the Company's acceptance of this Counterpart Signature Page, the
undersigned shall be a party to the Agreement and the Preferred Shares purchased
by the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
Xxxxxx Xxxxxxxx
------------------------------------
Printed Name of Purchaser
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Signature of Purchaser
Investment Amount: US$ 50,000
-------------------------
Number of Shares: 23,776
-------------------------
By: XXXXXX XXXXXXXX
----------------------------------------
Title:
-------------------------------------
Address: Xxx Xxx Xxxxxxx 00,
-----------------------------------
00000 Xxxx,
-----------------------------------------
Xxxxx
-----------------------------------------
Date: October 3, 2000
Agreed and accepted to as to
23,776 shares at US$2.103 per share:
GIVEN IMAGING LTD.
By: /s/ Xxx Xxx Xxxxx
-----------------------------------
Name: Xxx Xxx Xxxxx
Title: CFO
Date: October 30, 2000
48
