CREDIT AGREEMENT
Exhibit
1
THIS
CREDIT AGREEMENT (this “Agreement”),
dated
as of March 25, 2008 (the “Initial
Closing Date”),
is
entered into by and among Modigene Inc., a Nevada corporation (“Borrower”
or
the
“Company”),
and
The Frost Group, LLC, a Florida limited liability company (the “Frost
Group”).
WHEREAS,
the
Company desires to obtain a $10,000,000 (the “Available
Amount”)
line
of credit to Borrower for general business purposes (the “Line
of Credit”),
and the
Frost Group is willing to make available to the Company the Line of Credit,
all
on the terms and conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the covenants, promises and representations set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby expressly and mutually acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE
I
Section
1.1. The
Line of Credit.
From
time to time prior to the Maturity Date (as defined in the Note (as hereafter
defined)), subject to the provisions below, the Frost Group shall make Advances
(as hereafter defined) to Borrower, which Borrower shall pay and may reborrow,
so long as the aggregate amount of Advances outstanding at any one time shall
not exceed the Available Amount.
Section
1.2. Note.
The
indebtedness of Borrower to the Frost Group will be evidenced by a note
and
security agreement in substantially the form of Exhibit
A
(the
“Note”).
The
original principal amount of the Note will be $10,000,000; provided,
however,
that
notwithstanding the face amount of the Note, Borrower’s liability under the Note
shall be limited at all times to its actual indebtedness, principal, interest,
fees, charges, expenses and reasonable attorneys’ fees and costs owing by
Borrower to the Frost Group (or any permitted assignee) pursuant to or evidenced
by the Note or this Agreement, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, including
Lender’s Expenses (collectively, the “Obligations”),
in
each case as then outstanding hereunder and under the Note. As used herein,
“Lender’s
Expenses”
means
all reasonable attorneys’ fees, costs and expenses incurred in amending,
enforcing or defending the Note (including fees and expenses of appeal or
review), including the exercise of any rights or remedies afforded under the
Note or under applicable law, whether or not suit is brought, whether before
or
after bankruptcy or insolvency, including without limitation all fees and costs
incurred by the Frost Group in connection with the Frost Group’s enforcement of
its rights in a bankruptcy or insolvency proceeding filed by or against Borrower
or its property.
Section
1.3. Use
of
Proceeds.
Funds
advanced under the Line of Credit shall be used for working capital or general
corporate purposes of Borrower, as approved by the Company’s Board of
Directors.
Section
1.4. Payment
of Outstanding Amount.
The
aggregate Obligations outstanding on the Maturity Date shall be due and payable
in arrears on the Maturity Date in accordance with the terms of the
Note.
Section
1.5. Interest.
Interest on the outstanding principal amount of the Line of Credit shall accrue
at a rate equal to ten percent (10%) per
annum, compounded quarterly (the “Interest
Rate”),
and
shall be payable on the last day of each calendar month until the repayment
in
full of all Obligations, the termination of this Agreement and cancellation
of
the Note.
Section
1.6. Default
Rate.
Upon
the Maturity Date, whether by acceleration, demand or otherwise, and at the
Frost Group’s option upon the occurrence of any Event of Default (as defined in
the Note) and during the continuance thereof, the Note shall bear interest
at a
rate that shall be five
percent (5.0%) in excess of the Interest Rate but not more than the maximum
rate
allowed by law (the “Default
Rate”).
The
Default Rate shall continue to apply whether or not judgment shall be entered
on
the Note. The Default Rate is imposed as liquidated damages for the purpose
of
defraying the Frost Group’s expenses incident to the handling of delinquent
payments, but are in addition to, and not in lieu of, the Frost Group’s exercise
of any rights and remedies hereunder or under applicable law, and any fees
and
expenses of any agents or attorneys which the Frost Group may employ. In
addition, the Default Rate reflects the increased credit risk to the Frost
Group
of carrying a loan that is in default. Borrower agrees that the Default Rate
is
a reasonable forecast of just compensation for anticipated and actual harm
incurred by the Frost Group, and that the actual harm incurred by the Frost
Group cannot be estimated with certainty and without difficulty.
Section
1.7. Advances.
Borrower shall give the Frost Group prior written notice not later than 3:00
p.m., Eastern Time, on the third business day prior to the date of any advance
of credit pursuant to the Line of Credit hereunder (an “Advance”).
Any
such notice shall be in the form of the Borrowing Notice set forth as
Exhibit
B
(the
“Borrowing
Notice”),
shall
be certified by the president of Borrower, and shall set forth the aggregate
amount of the requested Advance.
Upon
receiving a request for an Advance to which Borrower is entitled hereunder
and
under the Note, and provided there is no Event of Default, the Frost Group
shall
make available to Borrower the amount of the requested Advance by wire transfer
of immediately available funds to a bank account designated by Borrower on
the
third business day after receipt of such Borrowing Notice.
Section
1.8. Prepayment.
Borrower may prepay the outstanding Obligations under the Line of Credit at
any
time without premium or penalty. Prepayments of all or any portion of the
Obligations shall not reduce the Available Amount, and funds may be reborrowed
hereunder up to the Available Amount, subject to the provision hereof and the
Note.
Section
1.9. Payment
Application.
Any and
all payments on account of the Obligations will be applied first to accrued
and
unpaid interest and second to outstanding principal and other sums due
hereunder. If Borrower makes a payment or payments and such payment or payments,
or any part thereof, are subsequently invalidated, declared to be fraudulent
or
preferential, set aside or are required to be repaid to a trustee, receiver,
or
any other person under any bankruptcy act, state, provincial or federal law,
common law or equitable cause, then to the extent of such payment or payments,
the Obligations or part thereof hereunder intended to be satisfied shall be
revived and continued in full force and effect as if said payment or payments
had not been made.
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Section
1.10. Conditions
to First Advance.
The
obligation of the Frost Group to make the first Advance shall be subject to
the
Frost Group’s receipt of the following documents, each in form and substance
reasonably satisfactory to the Frost Group:
(a) This
Agreement.
This
Agreement duly executed by Borrower.
(b) Secured
Promissory Note.
The
Note duly executed by Borrower.
(c) Borrowing
Notice.
A
completed Borrowing Notice required under Section 1.7 hereof.
(d) Borrower
Secretary’s Certificate.
The
duly authorized Secretary of Borrower shall have delivered a certified copy
of
Borrower’s Certificate of Incorporation, and a certificate as to its Bylaws and
resolutions adopted by its board of directors authorizing this Agreement and
the
transactions contemplated hereby.
(e) Third-Party
Consents.
Borrower shall have procured all of the third-party consents specified in the
schedules to the Stock Purchase Agreement which are required to be procured
by
Borrower before it can incur the indebtedness evidenced by the Note and
otherwise commit itself to its obligations hereunder.
(f) Warrant
Certificate.
A
Warrant Certificate duly executed by Borrower representing the Warrants issuable
upon the first Advance in accordance with Section 1.12 below.
(g) Other
Documents.
Such
additional documents as the Frost Group reasonably may request.
Section
1.11. Subsequent
Advances.
The
obligation of the Frost Group to make additional Advances shall be subject
to
the Frost Group’s receipt of a completed Borrowing Notice and such additional
documents as the Frost Group reasonably may request and the absence of any
Event
of Default.
Section
1.12. Warrants.
In
consideration of the extension of credit hereunder, upon the first Advance,
Borrower will grant to the Frost Group Warrants (the“Warrants”),
which
warrants will be issued substantially in the form attached hereto as
Exhibit C
(the
“Warrant
Certificate”),
with
an exercise price equal to $0.99 per share and will provide such parties the
right to buy One Million Five Hundred Thousand (1,500,000) shares of Common
Stock (as hereafter defined).
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ARTICLE
II
Section
2.1. Initial
Closing.
The
closing of this Agreement (the “Initial
Closing”)
shall
take place at the offices of The Frost Group, in Miami, Florida, or at such
other location(s) as the parties may agree commencing at 2:00 p.m. local time
on
the Closing Date (as defined in the Stock Purchase Agreement (as hereafter
defined)). At the Initial Closing:
(a) Borrower
shall deliver to the Frost Group a fully executed copy of this Agreement, the
Note and the other documents described in Section 1.10.
(b) The
Frost
Group shall deliver to Borrower a fully executed copy of this
Agreement.
Section
2.2. Subsequent
Closings.
The
closing of any subsequent advance under this Agreement shall take place at
the
offices of The Frost Group, in Miami, Florida, or at such other location(s)
as
the parties may agree commencing at 2:00 p.m. local time on the date set forth
in the Borrowing Notice. At each such subsequent closing, the Frost Group shall
have timely received a completed Borrowing Notice and such additional documents
as the Frost Group reasonably may request.
ARTICLE
III
Borrower
represents and warrants to the Frost Group as of the date of this Agreement
as
follows:
Section
3.1. Organization.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada, and duly authorized to carry on
the
business presently conducted by it. The Company is qualified to do business
in
every other jurisdiction in which the nature of its business or location of
its
properties requires such qualification, except where the failure to so qualify
could not reasonably be expected to have a material adverse effect upon the
business, operations, assets, liabilities or condition (financial or otherwise)
of the Company taken as a whole (“Material
Adverse Effect”).
The
copies of the Company’s articles of incorporation and by-laws, which have been
furnished to the Frost Group are correct and complete and reflect all amendments
made thereto at any time prior to the date of this Agreement. The Company has
one wholly-owned subsidiary, Modigene Inc., a Delaware corporation
(“Modigene
DE”),
and
Modigene DE has one wholly-owned subsidiary, Modigene Ltd., an Israeli
corporation (“Modigene
Ltd.”).
Section
3.2. Capitalization.
(a) As
of the
date of this Agreement, the authorized capital stock of the Company consists
of:
(i) Three
Hundred Million (300,000,000) shares of common stock, $0.0001 par value per
share (“Common
Stock”),
of
which Thirty-five Million, Five Hundred Forty-nine Thousand and Twenty-eight
(35,549,028) shares are issued and outstanding; and
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(ii) Ten
Million (10,000,000) shares of preferred stock, $0.0001 par value per share
(“Preferred
Stock”),
Eight
Hundred Thousand (800,000) of which have been designated Series A Preferred
Stock (the “Series
A Preferred”),
all
of which are issued and outstanding.
(b) As
of the
date of this Agreement, the Company has reserved:
(i) the
Series A Preferred for issuance pursuant to that certain Series A Preferred
Stock Purchase Agreement between Frost Gamma Investments Trust, Xxxx Xxxxx,
Xxxxxxxx Xxxxxxxx and Xxxxxx X. Xxxxx (collectively, “Purchasers”)
and
the Company (the “Stock
Purchase Agreement”);
(ii) sufficient
shares of Common Stock for issuance upon conversion of the Series A Preferred;
(iii) One
Million Nine Hundred Forty-nine Thousand Six Hundred Seventy-Five (1,949,675)
shares of Common Stock issuable to employees, consultants and directors upon
the
exercise of options (“Options”)
to
purchase Common Stock originally granted pursuant to the Modigene Inc. Stock
Incentive Plan as adopted by Modigene DE on December 15, 2005 (the “2005
Stock Plan”)
and
assumed by the Company, all of which Options have been granted as of the date
of
this Agreement;
(iv) Three
Million (3,000,000) shares of Common Stock issuable to employees, consultants
and directors upon the exercise of Options to Purchase Common Stock granted
pursuant to the Modigene Inc. Equity Incentive Plan (the “2007
Stock Plan”),
of
which Options to purchase an aggregate of Two Million Five Hundred and Ninety
Thousand (2,590,000) shares of Common Stock have been granted as of the date
of
this Agreement; and
(v) Three
Million Four Hundred Ninety-Five Thousand Four Hundred and Twelve (3,495,412)
shares of Common Stock issuable upon the exercise of warrants that are issued
and outstanding as of the date of this Agreement.
(vi) One
Million Five Hundred Thousand (1,500,000) shares of Common Stock issuable upon
the exercise of the maximum number of Warrants issuable pursuant to the terms
of
Section 1.12 and the Note.
(c) Except
as
set forth in this Section
3.2 and
in any registration statements, reports, schedules, forms, statements and other
documents (including exhibits and all other information incorporated by
reference) required to be filed by the Company under the Securities Exchange
Act
of 1934, as amended (the “Exchange
Act”)
since
May 9, 2007 (the foregoing materials, together with any other materials filed
by
the Company under the Exchange Act, whether or not required, being collectively
referred to herein as the “SEC
Reports”),
there
are no outstanding options, warrants, agreements, conversion rights, preemptive
rights, or other rights issued by the Company which may permit or require any
individual, corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
Governmental Authority (as defined below), or other entity of any kind
(“Person”),
now
or in the future to subscribe for, purchase or otherwise acquire any other
securities of the Company.
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Section
3.3. Authorization
and
Enforceability. The
Company has all necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement
by the Company, the performance of its obligations hereunder, and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all requisite corporate action on the part of the
Company.
This
Agreement has been duly executed and delivered by the Company, and (assuming
due
authorization, execution and delivery by the Frost Group) constitutes a
legal,
valid and binding obligation of the Company, enforceable against the Company
in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or
similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies or by other
equitable principles of general application.
The
Warrants, when and if issued pursuant to the terms of the Note, have been duly
issued and authorized and any share of Common Stock issued upon the exercise
thereof according to their respective terms, as applicable, will be duly and
validly issued, fully paid and non-assessable, free and clear of all Liens
and
shall not be subject to preemptive or similar rights of
stockholders.
Section
3.4. No
Conflict.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not
and
will not (i) conflict with or violate any provisions of its articles
of incorporation or by-laws, (ii) conflict with, or constitute a default
(or an event which
with notice or lapse of time or both would become a default) under, or give to
any other Person any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company
is
a party, or by which any property or asset of the Company is bound, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any Governmental Authority to which
the Company is subject, or by which any property or asset of the Company is
bound, except in the case of each of clauses (ii) and (iii), such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as could not reasonably be expected to have, individually or in the aggregate,
a
Material Adverse Effect.
Section
3.5. Consents
and Approvals.
Except
as set forth on Schedule 3.5,
and
such other consents, authorizations, filings, approvals, notifications and
registrations which, if not obtained or made, could not reasonably be expected
to have a Material Adverse Effect, the execution, delivery and performance
of
this Agreement by the Company does not require any consent, authorization,
filing with, approval, notification or registration to or with any Person by
the
Company.
Section
3.6. Financial
Information.
Each
of
the financial statements of the Company set forth in the SEC Reports
(collectively, the “Financial
Statements”)
is
accurate and complete in all material respects and is consistent with the books
and records of the Company. Such financial statements present
fairly in all material respects the financial condition and results of
operations of the Company as of the dates thereof or for the periods covered
thereby.
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Section
3.7. Absence
of Changes.
Except
as set forth in Schedule 3.7
or as
otherwise expressly provided by this Agreement and the Stock Purchase Agreement
or the SEC Reports, since December 31, 2007, there has not been:
(a) any
declaration, setting aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, any of the capital stock
of
the Company, or any purchase, redemption or other acquisition by the Company
of
any of the Company’s capital stock or any other securities of the Company, or
any issuance of any options, warrants, calls or rights to acquire any such
shares or other securities, except for the issuance of shares pursuant to the
exercise of Options;
(b) any
split, combination or reclassification of any of the capital stock of the
Company;
(c) any
material change or alteration in the policy of the Company relating to the
granting of stock options to its employees, directors and
consultants;
(d) any
purchase or sale or other disposition, or any agreement or other legally binding
arrangement for the purchase, sale or other disposition, of any of the material
properties or assets of the Company, other than in the ordinary course of
business;
(e) any
change by the Company in its accounting methods, principles or
practices;
(f) any
damage, destruction or loss, not covered by insurance, which could reasonably
be
expected to have a Material Adverse Effect; or
(g) any
agreement or understanding whether in writing or otherwise, by the Company
to
take any of the actions specified in subparagraphs (a) through (e)
above.
Section
3.8. Employment
Contracts.
The
SEC
Reports contain an accurate description in all material respects of all
employment and consulting agreements with the Company’s executive
officers.
Section
3.9. Sales
Representatives, Dealers and Distributors.
Except
as set forth in Schedule 3.9,
the
Company is not a party to any contract or agreement with any Person under which
such other Person is a sales agent, representative, dealer or distributor of
any
of the products or services of the Company which by its terms cannot be
terminated on less than ninety (90) days prior notice without requiring an
additional payment as a result of termination.
Section
3.10. Brokers.
No
broker, finder or investment bank is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the
Company.
Section
3.11. Litigation.
There
is
no action, suit, notice of violation, proceeding or investigation pending or,
to
the knowledge of the Company, threatened against the Company before or by any
United States federal, state or local or any foreign government, governmental,
regulatory or administrative authority, agency or commission, or any court,
tribunal, or judicial or arbitral body (“Governmental
Authority”).
As of
the date hereof, the Company is not subject to any outstanding governmental
order which has not been disclosed to the Frost Group.
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Section
3.12. Title
to Properties.
Except
as set forth on Schedule
3.12,
the
Company has good and marketable title, free and clear of all Liens, to its
respective personal property and assets (other than the real property and Leases
which are addressed in Section 3.26)
shown
on the most recent balance sheet included in the Financial Statements (the
“Recent
Balance Sheet”)
or
acquired after the date of the Recent Balance Sheet, except for (i) assets
that have been disposed of since the date of the Recent Balance
Sheet in
the
ordinary course of business, and (ii) Liens reflected in the Recent Balance
Sheet.
For
purposes of this Agreement, “Lien”
means
any encumbrance, hypothecation, infringement, lien, mortgage, pledge,
restriction, security interest, title retention or other security arrangement,
or any other adverse right or interest, charge or claim of a similar nature
of
or on any asset, property or property interest; provided,
however,
that
such term shall not include (a) liens for Taxes or assessments which are not
delinquent or being contested in good faith and for which adequate reserves
have
been established on the Recent Balance Sheet; (b) mechanics’, warehousemen’s,
materialmen’s, contractors’, workmen’s, repairmen’s and carriers’ liens, and
other similar liens arising or incurred in the ordinary course of business;
(c)
the rights of third-party suppliers or other vendors having possession of
manufacturing equipment; (d) rights of lessees, licensees and other third
parties having a right to possess or use assets in the ordinary course of
business; (e) rights of lessors, licensors and other third parties in property
owned by them which is leased to another Person or which another Person has
a
right to use or possess; (f) with respect to real property, easements,
rights-of-way, restrictions, minor defects, encroachments or irregularities
in
title and other similar charges or encumbrances not interfering in any material
respect with the use of such real property in the ordinary course of business;
(g) liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation
of
goods in the ordinary course of business; and (h) liens for water and sewer
charges.
Section
3.13. Personal
Property Leases.
Except
as set forth in Schedule 3.13,
all of
the personal property leased to the Company
is subject to leases which, to the knowledge of the Company, are valid and
in
full force and effect, and to the knowledge of the Company no event has occurred
which, with notice or lapse of time or both, would constitute a material default
under any of these leases.
Section
3.14. Intentionally
Omitted.
Section
3.15. Intentionally
Omitted.
Section
3.16. Contracts.
(a) The
SEC
Reports contain an accurate list of all material contracts, agreements and
arrangements to which the Company is a party and required to be disclosed
therein (“Material
Contracts”).
(b) Other
than as set forth on Schedule 3.16,
the
Company is not in violation or in default of, in any material respect, or has
failed to perform any material obligation under, any Material Contract, and
nothing has occurred that with lapse of time or the giving of notice or both
would constitute a material breach or default of a Material Contract by the
Company.
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(c) The
Company has no powers of attorney outstanding (other than those issued in the
ordinary course of business with respect to tax matters and securities
filings).
Section
3.17. Permits.
All
material permits, authorizations, variances, notices, approvals, registrations,
certificates of completion or legal status, certificates of occupancy, orders
or
other approvals or licenses granted by any Governmental Authority (“Permits”)
required as of the date hereof for the Company to
conduct its business as currently conducted have been issued to the Company
and
are in effect. There
are
no material defaults existing under such Permits and the
Company
has not received any notice and the Company has no knowledge that the issuer
of
any such Permit intends to suspend,
withdraw, limit in any form or terminate any such Permit.
Section
3.18. Intentionally
Omitted.
Section
3.19. Environmental
Matters. To
the
knowledge of the Company, and except as set forth in Schedule 3.19:
(a) the
properties, facilities and assets owned and leased by the Company, respectively,
and the operations conducted thereon by
the
Company and the use, maintenance, or operation of such properties, facilities
and assets:
(i) have
been
and are in compliance in all material respects with any applicable federal,
state, local or foreign laws, regulations and ordinances concerning health
and
safety, pollution or protection of the environment, including by way of
illustration and not by way of limitation, if applicable, the Clean Air Act,
42
U.S.C. § 7401
et seq.
the
Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251 et seq.
(the
“Clean
Water Act”);
the
Resource Conservation and Recovery Act of 1976, as amended,
42 U.S.C. § 6901 et seq.
(“RCRA”);
the
Comprehensive Environmental Response Compensation and Liability Act of 1980,
as
amended, 42 U.S.C.
§ 9601 et seq.
(“CERCLA”);
the
Toxic Substances Xxxxxxx Xxx, 00 X.X.X. §0000 et seq.;
the Oil
Pollution Act of 1990, 33 U.S.C. §2701 et seq.;
the
Emergency Planning and Community Right- to-Know Act, 42 U.S.C. § 11001
et seq.;
the
Pollution Prevention Act of 1990, 42 U.S.C. § 1301 et seq.;
the
Federal Hazardous Materials Transportation Law, 49 U.S.C. §5101 et seq.;
and the
Safe Drinking Water Act, 42 U.S.C. §§ 300(f) through 300(j); the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
(including any
amendments or extensions thereof, and rules, regulations,
standards
or guidelines pursuant to any
of
the foregoing) (each hereinafter an “Environmental
Law”);
and
(ii) are
not
subject to any existing,
pending or threatened, investigation, inquiry or proceeding by any Governmental
Authority
for any material liability (absolute, contingent or otherwise) or obligations
under any Environmental
Law.
(b) no
toxic,
hazardous or noxious substance, material or waste, the treatment, handling,
storage, transportation or Release (as defined below) of which is regulated
by
any Governmental Authority, including, but not limited to, petroleum or
constituents thereof, asbestos or any asbestos-containing material of any kind
or character which is now or may become friable and polychlorinated biphenyls,
or any other materials or substances designated as “hazardous substances”
pursuant to Section 311 of the Clean Water Act, defined as “hazardous
waste” pursuant to Section 1004 of RCRA, or defined as “hazardous
substances” pursuant to Section 101 of CERCLA (“Hazardous
Substances”)
have
been disposed of or otherwise Released by the Company except
in
compliance in all material respects with Environmental Laws and in a
manner
which
has
not and is not reasonably likely to give rise to any material liability
(absolute, contingent or otherwise) under
Environmental Law;
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(c) the
Company has
no
material liability (absolute, contingent
or otherwise) in connection with any
Release of any Hazardous Substances into the environment or arising under
Environmental Law;
(d) (i)
no
request for information or notice of any liability, potential liability or
obligation under any violation of any Environmental Law has been received by
the
Company, and (ii) the Company has not been named as a “potentially responsible
party” or received a request for information in connection with any litigation,
investigation or similar matter arising under Environmental Laws.
The
term “Released”
hereunder means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the
environment of Hazardous Substances (including without limitation, the
abandonment or disposal of barrels, containers or other receptacles containing
any Hazardous Substances).
Section
3.20. Intellectual
Property.
(a) The
Company owns or licenses or, to the knowledge of the Company, otherwise
possesses legally enforceable rights to use, all patents, trademarks, trade
names, service marks, copyrights, and any applications therefor, technology,
know-how, trade secrets, ideas, algorithms, processes, computer software
programs or applications, and tangible or intangible proprietary information
or
material (collectively the “Intellectual
Property”)
that
are used by the Company in and are material to its business as currently
conducted.
(b) Except
as
set forth in Schedule
3.20,
to the
knowledge of the Company, all grants, registrations and applications for
Intellectual Property owned by the Company that are used in and are material
to
the conduct of its business as currently conducted (i) are valid,
subsisting, in proper form and enforceable, and have been duly maintained,
including the submission of all necessary filings and fees in accordance with
the legal and administrative requirements of the appropriate jurisdictions,
and
(ii) have not lapsed, expired or been abandoned, and no application or
registration therefor is the subject of any legal or administrative proceeding
before any Governmental Authority in any jurisdiction.
(c) To
the
knowledge of the Company, the Intellectual Property owned by the Company is
not
being infringed by any third party. To the knowledge of the Company, the conduct
of its business as currently conducted does not conflict with or infringe in
any
way on any proprietary right of any third party. There is no claim, suit, action
or proceeding pending or, to the knowledge of the Company, threatened against
the Company (i) alleging any such conflict or infringement with any third
party’s proprietary rights, or (ii) challenging the ownership, use,
validity or enforceability of the Intellectual Property.
-
10 -
(d) To
the
knowledge of the Company, the Company is not, nor will it be as a result of
the
execution and delivery of this Agreement or the performance of its obligations
under this Agreement, in breach of any license, sublicense or other agreement
relating to the Intellectual Property.
Section
3.21. Tax
Matters.
Except
as set forth in Schedule 3.21:
(a) The
Company has timely filed with the Internal Revenue Service and any other
domestic or foreign Governmental Authority responsible for the administration
of
any Taxes (“Tax
Authority”),
as
appropriate, all material returns, declarations, reports, claims for refund,
or
information returns or statements relating to Taxes, including any schedule
or
attachment thereto, and including any amendments thereof (“Tax
Returns”)
that
it was required to file, and such Tax Returns are true, correct and complete
in
all material respects. All material federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Code
§59A), customs duties, capital stock, franchise, profits, withholding, social
security, unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not (“Taxes”)
due
and owing by the Company have
been
paid.
(b) The
Company has not been, and is not now subject to, any audits with regard to
any
Taxes or Tax Returns of the Company and there are no outstanding deficiencies
or
assessments asserted in writing by any Tax Authority.
(c) There
are
no outstanding agreements, consents or waivers extending the statutory period
of
limitations applicable to the assessment of any Taxes or deficiencies against
the Company, and the Company is not a party to any agreement providing for
the
allocation or sharing of Taxes.
(d) The
Company has not filed a consent to the application of Section 341(f) of the
Internal Revenue Code of 1986, as amended through the date hereof, and the
rulings and regulations promulgated thereunder (“Code”).
(e) The
Company is not nor has it been a United States real property holding company
(as
defined in Section 897(c)(2) of the Code) during the applicable period
specified in Section 897(c)(1)(ii) of the Code.
(f) The
unpaid (but not yet due) Taxes of the Company did not, as of the Recent Balance
Sheet, exceed the reserve for tax liability set forth on the face of the Recent
Balance Sheet.
(g) There
are
no Liens for Taxes upon any of the assets of the Company, except for Liens
for
Taxes not yet due and payable (or for Taxes that the Company is contesting
in
good faith through appropriate proceedings) for which adequate reserves have
been established on the Recent Balance Sheet.
-
11 -
Section
3.22. Employment
Matters.
The
Company has not experienced any material strikes, collective labor grievances
or
other collective bargaining disputes in the last five (5) years.
The
Company is not and has not been a party to any collective bargaining agreements.
To the Company’s knowledge, there is no organizational effort presently being
made or threatened by or on behalf of any labor union with respect to employees
of the Company. The Company has complied with all applicable laws relating
to
employment, employment discrimination and employment practices, except where
the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect.
Section
3.23. Employee
Benefit Matters.
(a) Schedule 3.23
lists
all employee benefit plans (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended through the date hereof,
and
the rulings and regulations promulgated thereunder (“ERISA”))
and
all bonus, stock option, stock purchase, profit sharing, savings, disability,
incentive, deferred compensation, retirement, severance or other employee
benefit plans, programs or arrangements, and all employment or compensation
agreements, in each case for the benefit of, or relating to, current employees
and former employees of the Company (collectively, the “Plans”).
(b) With
respect to each Plan, the Company has made available to the Frost Group true
and
complete copies of (i) all plan documents, as in effect on the date hereof,
(ii) the latest Internal Revenue Service determination letter, if
applicable, (iii) the last filed Form 5500, if applicable, and
(iv) summary plan descriptions, if any, and all modifications thereto
communicated to employees.
(c) To
the
knowledge of the Company, all Plans are in compliance in all material respects
with the requirements prescribed by applicable statutes, orders or governmental
rules or regulations currently in effect with respect thereto, and the Company
has performed all material obligations required to be performed by them under,
and are not in any material respect in default under or in violation of, any
of
the Plans.
(d) To
the
knowledge of the Company, neither the Company nor any of its directors,
officers, employees or agents has, with respect to any Plan, engaged in or
been
a party to any “prohibited transaction”, as such term is defined in
Section 4975 of the Code or Section 406 of ERISA, which could result
in the imposition of either a penalty assessed pursuant to Section 502(i)
of ERISA or a Tax imposed by Section 4975 of the Code, in each case
applicable to the Company or any Plan.
(e) There
are
no pending or, to the knowledge of the Company, threatened claims, lawsuits
or
arbitrations (other than routine claims for benefits), relating to any of the
Plans, which have been asserted or instituted against the Company, any Plan
or
the assets of any trust for any Plan. No Plan is a “multiemployer plan” (as
defined in Section 3(37) of ERISA) or is subject to Title IV of ERISA. The
Company has complied in all material respects with the provisions of
Section 4980B of the Code and Part 6 of Title I of ERISA,
if
applicable.
Section
3.24. Insurance.
Set
forth on Schedule 3.24
is a
true and complete list of all
policies of fire, liability, workmen’s compensation and other similar forms of
insurance owned or held by the Company, which policies are in full force and
effect, and no notice of cancellation or termination has been received with
respect to any such policy.
-
12 -
Section
3.25. Compliance
with Laws.
Except
as set forth in Schedule 3.25,
the
Company has complied and remains in compliance with all applicable laws,
regulations and zoning ordinances of any Governmental Authority, except for
those instances of non-compliance that could not reasonably be expected to
have
a Material Adverse Effect, and the
Company has no knowledge of and has not received any notice alleging any such
violation of any such laws, regulations or zoning ordinances.
Section
3.26. Real
Estate.
(a) Owned
Properties.
The
Company does not own any real property.
(b) Leased
Properties.
Schedule 3.26
sets
forth a list of all of the leases and subleases for real property and all
amendments, modifications and supplements thereto, if any (“Leases”),
in
which the Company has a leasehold or subleasehold interest. The Company has
delivered, or caused to be delivered, to the Frost Group true and complete
copies of each of the Leases described in Schedule 3.26.
With
respect to each Lease listed in Schedule 3.26
and
except as set forth in Schedule 3.26,
(i) to the knowledge of the Company, each Lease is legal, valid,
binding, and enforceable, and in full force and effect; (ii) the Company
is not in violation or in default of, in any material respect, or has failed
to
perform any material obligation under, any Lease, and nothing has occurred
that
with lapse of time or the giving of notice or both would constitute a material
breach or default of any Lease by the Company; and (iii) the Company has
not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered
any interest in any Lease.
Section
3.27. Disclosure.
The
Company has provided the Frost Group with all information requested by Frost
Group in connection with its decision to enter into this Agreement. To the
Company’s knowledge, neither this Agreement, the exhibits and schedules hereto
nor any other document delivered by the Company to Frost Group or their
attorneys or agents in connection herewith or therewith or with the transactions
contemplated hereby or thereby, contain any untrue statement of a material
fact
nor, to the best of the Company’s knowledge, omit to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The Company does not represent or warrant that it will achieve
any
financial projections provided to Frost Group.
ARTICLE
IV
The
Frost
Group represents and warrants to Borrower as of the date of this Agreement,
and
as of the date of the issuance of the Warrants, if any, as follows:
Section
4.1. Capacity;
Execution of Agreement.
The
Frost Group has all requisite power, authority, and capacity to enter into
this
Agreement and to perform the transactions and obligations to be performed by
it
hereunder. The execution and delivery of this Agreement, and the performance
by
the Frost Group of the transactions and obligations contemplated hereby have
been duly authorized by all requisite corporate action of the Frost Group.
This
Agreement has been duly executed and delivered by the Frost Group and
constitutes a valid and legally binding agreement of the Frost Group,
enforceable in accordance with its terms, except as enforcement thereof may
be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws, both state and federal, affecting the enforcement of creditors’ rights or
remedies in general from time to time in effect and the exercise by courts
of
equity powers or their application of principles of public
policy.
-
13 -
Section
4.2. Formation
and Standing.
The
Frost Group is a limited liability company duly formed, validly existing and
in
good standing under the laws of the State of Florida. The Frost Group has the
requisite power and authority to own and operate its properties and assets,
and
to carry on its business as currently conducted.
Section
4.3. Power
and Authority.
The
Frost Group has all requisite legal and other power and authority to execute
and
deliver this Agreement and to carry out and perform its other obligations
hereunder.
Section
4.4. Brokers
or Finders.
The
Frost Group has not engaged any brokers, finders or agents, or incurred,
directly or indirectly, any liability for brokerage or finders’ fees or agents’
commissions or any similar charges in connection with this Agreement and the
transactions contemplated hereby.
Section
4.5. Knowledge
of Investment and its Risks.
The
Frost Group has such knowledge and experience in financial and business matters
so as to be capable of evaluating the merits and risks of an investment in
the
Warrants and in the Common Stock underlying the Warrants (the “Underlying
Common Stock”).
The
Frost Group understands that an investment in Borrower represents a high degree
of risk and there is no assurance that the Borrower’s business or operations
will be successful.
Section
4.6. Investment
Intent.
The
Frost Group hereby represents and warrants that (i) the Warrants and the
Underlying Common Stock are being acquired for investment for the Frost Group’s
own account, and not as a nominee or agent and not with a view to the resale
or
distribution of all or any part of the Warrants or the Underlying Common Stock,
and the Frost Group has no present intention of selling, granting any
participation in, or otherwise distributing any of the Warrants and the
Underlying Common Stock within the meaning of the Securities Act of 1933 (as
amended, the “1933
Act”),
(ii)
the Warrants and the Underlying Common Stock are being acquired in the ordinary
course of the Frost Group’s business, and (iii) the Frost Group does not have
any contracts, understandings, agreements, or arrangements, directly or
indirectly, with any person and/or entity to distribute, sell, transfer, or
grant participations to such person and/or entity with respect to, any of the
Warrants and the Underlying Common Stock. The Frost Group is not purchasing
the
Warrants and the Underlying Common Stock as a result of any advertisement,
article, notice or other communication regarding the Warrants and the Underlying
Common Stock published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other general
solicitation or general advertisement.
-
14 -
Section
4.7. Frost
Group Status.
The
Frost Group is an “accredited investor” as that term is defined by Rule 501 of
Regulation D promulgated under the 1933 Act. The Frost Group is not registered
as a broker-dealer under Section 15 of the Exchange Act or an affiliate of
such
broker-dealer.
Section
4.8. Disclosure.
The
Frost Group has reviewed the information provided to the Frost Group by Borrower
in connection with the Frost Group’s decision to purchase the Warrants and the
Underlying Common Stock, including but not limited to, Borrower’s publicly
available filings with the SEC and the information contained therein. Borrower
has provided the Frost Group with all the information that the Frost Group
has
requested in connection with the decision to purchase the Warrants and the
Underlying Common Stock. The Frost Group further represents that the Frost
Group
has had an opportunity to ask questions and receive answers from Borrower
regarding the business, properties, prospects, and financial condition of
Borrower. All such questions have been answered to the full satisfaction of
the
Frost Group. Neither such inquiries nor any other investigation conducted by
or
on behalf of the Frost Group or its representatives or counsel shall modify,
amend, or affect the Frost Group’s right to rely on the truth, accuracy, and
completeness of the disclosure materials and Borrower’s representations and
warranties contained herein.
Section
4.9. No
Registration.
The
Frost Group further understands that (i) neither the offering nor the sale
of the Warrants or the Underlying Common Stock has been registered under the
1933 Act or any applicable state securities laws in reliance upon exemptions
from the registration requirements of such laws, (ii) the Warrants and the
Underlying Common Stock must be held by the Buyer indefinitely unless the sale
or transfer thereof is subsequently registered under the 1933 Act and any
applicable state securities laws, or an exemption from such registration
requirements is available, (iii) Borrower is under no obligation to register
any
of the Warrants or any share of the Underlying Common Stock on the Frost Group’s
behalf or to assist the Frost Group in complying with any exemption from
registration, and (iv) Borrower will rely upon the representations and
warranties made by the Frost Group in this Agreement in order to establish
such
exemptions from the registration requirements of the 1933 Act and any applicable
state securities laws.
Section
4.10. Transfer
Restrictions.
The
Frost Group will not transfer any of the Warrants unless such transfer is
permitted under the Warrant Certificate and will not transfer any of the
Underlying Common Stock unless such transfer is registered or exempt from
registration under the 1933 Act and such state securities laws, and, if
requested by Borrower in the case of an exempt transaction, the Frost Group
has
furnished an opinion of counsel reasonably satisfactory to Borrower that such
transfer is so exempt. The Frost Group understands and agrees that (i) the
certificates evidencing the Warrants and the Underlying Common Stock will bear
appropriate legends indicating such transfer restrictions placed upon such
securities, (ii) Borrower shall have no obligation to honor transfers of any
of
the Warrants or the Underlying Common Stock in violation of such transfer
restrictions, and (iii) Borrower shall be entitled to instruct any transfer
agent or agents for the securities of Borrower to refuse to honor such
transfers.
Section
4.11. No
Solicitation.
The
Frost Group (i) did not receive or review any advertisement, article, notice
or
other communication published in a newspaper or magazine or similar media or
broadcast over television or radio, whether closed circuit, or generally
available, with respect to the Warrants or the Underlying Common Stock or (ii)
was not solicited by any person, other than by representatives of Borrower,
with
respect to a purchase of the Warrants or the Underlying Common
Stock.
-
15 -
Section
4.12. Principal
Address.
The
Frost Group’s principal executive office is set forth in Section 5.6
below.
ARTICLE
V
(a) The
representations and warranties of Borrower
and the Frost
Group contained
in or made pursuant to this Agreement
will
survive the execution and delivery of this Agreement
and the
Initial Closing, and for an additional 12 months subsequent to the Initial
Closing, and with respect to the representations and warranties of Borrower
only, for the longer of an additional 12 months subsequent to any subsequent
Advance
and the time period during which any Obligations are outstanding, and with
respect to the representations and warranties of the Frost Group, for an
additional 12 months subsequent to any issuance of Warrants.
(b) Borrower
hereby
agrees to indemnify and hold harmless the
Frost
Group and,
as
applicable, its officers, directors, stockholders, agents and representatives
from and against any and all claims, demands, losses, damages, expenses or
liabilities (including reasonable attorneys’ fees) due to or arising out of a
material breach of any representation, warranty or covenant provided, made
or
agreed to by Borrower hereunder or under the Note.
(c) The
Frost
Group hereby
agrees to indemnify and hold harmless Borrower and, as applicable, its officers,
managers, directors, stockholders, members, agents and representatives from
and
against any and all claims, demands, losses, damages, expenses or liabilities
(including reasonable attorneys’ fees) due to or arising out of a material
breach of any representation, warranty or covenant provided, made or agreed
to
by the Frost Group hereunder.
Section
5.2. Successors
and Assigns.
This
Agreement
is
binding upon and inures to the benefit of the parties and their successors
and
assigns. Borrower may not assign this Agreement
or any
rights or obligations hereunder without the prior written consent of the Frost
Group. The
Frost
Group may assign its rights and obligations hereunder to an entity directly
or
indirectly controlled by or under common control with the Frost
Group.
Section
5.3. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one
instrument.
Section
5.4. Facsimile.
A
facsimile copy of an original written signature shall be deemed to have the
same
effect as an original written signature.
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16 -
Section
5.5. Captions
and Headings.
The
captions and headings used in this Agreement
are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
Section
5.6. Notices.
Unless
otherwise provided herein, all notices, requests, waivers and other
communications made pursuant to this Agreement
will be
in writing and will be conclusively deemed to have been duly given (i) when
hand delivered to the other party; (ii) upon receipt, when sent by
facsimile to the number set forth below or email to the address set forth below;
(iii) five business days after deposit in the U.S. mail, postage prepaid
and addressed to the other party at the address set forth below; or
(iv) the next business day after deposit with a national overnight delivery
service, postage prepaid, addressed to the parties as set forth below with
next
business day delivery guaranteed. Each person making a communication hereunder
by facsimile or email will promptly confirm by telephone to the person to whom
such communication was addressed each communication made by it by facsimile
or
email pursuant hereto but the absence of such confirmation will not affect
the
validity of any such communication. A party may change or supplement the
addresses given below, or designate additional addresses for purposes of this
Section 5.6, by giving the other party written notice of the new address in
the
manner set forth above.
If
to
Borrower:
Modigene
Inc.
0
Xxxxx
Xxxxxx
Weizmann
Science Park
Nes-Ziona,
Israel 74170
Attention:
Chief Executive Officer
Phone:
(000) 0 000-0000
Facsimile:
(000) 0 000-0000
with
a
copy to:
Barack
Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000
Xxxx
Xxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxx Xxxx Xxxxx, Esq.
Phone:
000-000-0000
Facsimile:
000-000-0000
If
to the
Frost
Group:
The
Frost
Group, LLC
0000
Xxxxxxxx Xxxx.
00xx
Xxxxx
Xxxxx,
XX
00000
Attention:
Xxxxxx X. Xxxxx
Phone:
000-000-0000
Facsimile:
000-000-0000
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17 -
Section
5.7. Amendments
and Waivers.
Any
term of this Agreement
may be
amended and the observance of any term of this Agreement
may be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of Borrower and the Frost
Group.
Section
5.8. Enforceability;
Severability.
The
parties hereto agree that each provision of this Agreement
will be
interpreted in such a manner as to be effective and valid under applicable
law.
If one or more provisions of this Agreement are nevertheless held to be
prohibited, invalid or unenforceable under applicable law, such provision will
be effective to the fullest extent possible excluding the terms affected by
such
prohibition, invalidity or unenforceability, without invalidating the remainder
of such provision or the remaining provisions of this Agreement. If the
prohibition, invalidity or unenforceability referred to in the prior sentence
requires such provision to be excluded from this Agreement in its entirety,
the
balance of the Agreement will be interpreted as if such provision were so
excluded and will be enforceable in accordance with its terms.
Section
5.9. Governing
Law.
This
Agreement
shall be
construed in accordance with, and governed in all respects by, the laws of
the
State of Florida.
Section
5.10. Waiver
of Jury Trial. EACH
OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF.
EACH
OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH
BOND
THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE OTHER PARTY. THE SCOPE
OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE PARTIES HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS
AGREEMENT. EACH OF THE PARTIES HERETO HEREBY FURTHER ACKNOWLEDGES AND AGREES
THAT EACH HAS REVIEWED OR HAD THE OPPORTUNITY TO REVIEW THIS WAIVER WITH ITS
RESPECTIVE LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH SUCH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL
BY THE COURT.
Section
5.11. Further
Assurances;
Access.
The
Frost
Group and Borrower will from time to time and at all times hereafter make,
do,
execute, or cause or procure to be made, done and executed such further acts,
deeds, conveyances, consents and assurances without further consideration,
which
may reasonably be required to effect the transactions contemplated by this
Agreement.
Upon
reasonable written notice, Borrower shall afford the officers, employees and
authorized agents and representatives of the Frost Group reasonable access,
during normal business hours, to the offices, properties, books, records and
such additional financial and operating data and other information regarding
the
assets, goodwill and business of the Borrower as the Frost Group may from time
to time reasonably request.
-
18 -
Section
5.12. Entire
Agreement.
This
Agreement and all exhibits hereto and thereto constitute the entire agreement
among the parties with respect to the subject matter hereof and thereof and
no
party will be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein.
Section
5.13. Delays
or Omissions.
No delay
or omission to exercise any right power or remedy accruing to any party under
this Agreement, or upon any breach or default of any other party under this
Agreement, will impair any such right, power or remedy of such non-breaching
or
non-defaulting party nor will it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor will any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any provisions or conditions of this
Agreement, must be in writing and will be effective only to the extent
specifically set forth in such writing. Except as otherwise set forth herein,
all remedies, either under this Agreement or by law or otherwise afforded to
any
party, will be cumulative and not alternative.
Section
5.14. Third
Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person or entity.
Section
5.15. Equitable
Relief.
The
parties hereto recognize that, if such party fails to perform or discharge
any
of its obligations under this Agreement, any remedy at law may prove to be
inadequate relief to the other parties. Each party hereto therefore agrees
that
the other parties are entitled to seek temporary and permanent injunctive relief
and any other equitable remedy a court of competent jurisdiction may deem
appropriate in any such case.
Section
5.16. No
Strict Construction.
The
language used in this Agreement is deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
Section
5.17. Public
Announcements.
No
public announcements shall be made by any party hereto relating to the
transactions contemplated by this Agreement without the prior written consent
of
Borrower and the Frost Group, such consent not to be unreasonably
withheld,
except
where required by applicable law; provided,
however,
that in
the event of such a legally required disclosure, the disclosing party will
consult with the other consenting party with respect to the text of such
disclosure and will provide the other consenting party with a copy of the
disclosure prior to its publication.
Section
5.18. Expenses.
Each
party shall bear its own costs and expenses in connection with the transactions
contemplated hereby,
except
to the extent that Lender’s Expenses shall be Obligations subject to the
provisions hereof.
-
19 -
Section
5.19. Exhibits
and Schedules.
All
exhibits, annexes and schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. A disclosure in any particular Schedule to this Agreement or otherwise
in this Agreement shall be deemed a disclosure for each and every other Schedule
where such disclosure is relevant.
[Signatures
begin on next page.]
-
20 -
IN
WITNESS THEREOF, this Agreement
has been
executed by the undersigned as of the day, month and year first above
written.
Modigene
Inc.
|
|
By:
|
/s/
Xxxx Xxxxx
|
Name:
Xxxx Xxxxx
Title:
President
|
|
The
Frost Group, LLC
|
|
By:
|
/s/
Xxxxxxx Xxxxx
|
Name: Xxxxxxx
Xxxxx, M.D.
Title:
President
|
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21-