Exhibit 10.3
SHARE PURCHASE AND OPTION AGREEMENT
AMONG
THERMOTREX CORPORATION
AND
GIVEN IMAGING LTD.
2
SHARE PURCHASE AND OPTION AGREEMENT
This Share Purchase and Option Agreement (the "Agreement") is entered into
as of the 15th day of April, 1998 by and among, ThermoTrex Corporation, a
Delaware corporation, with its principal office at 00 Xxxxx Xxxxxx,
Xxxxxxx, XX, X.X.X. ("TTC") of the first party, and GIven Imaging Ltd., an
Israeli company, with its principal office at Building 7B, New Industrial
Park, X.X. Xxx 000, Xxxxxxx 00000, Xxxxxx (the "Company") of the second
party.
PRELIMINARY STATEMENT
The parties to this Agreement have executed a Letter of Intent dated
December 23, 1997 (the "LOI") which sets forth their basic understandings
and guidelines regarding, among other, the transactions provided for in
this Agreement, under which TTC acquires five percent (5%) ownership
interest in the Company, and is hereby granted options to increase its
ownership interests in the Company, in accordance with the terms and
conditions as specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. ISSUE AND PURCHASE OF SHARES
1.01 ISSUE OF SHARES BY THE COMPANY. Subject to and upon the terms and
conditions of this Agreement, including the Company's receipt of the
purchase price, as provided for in Section 1.02 below, upon execution of
this Agreement, the Company shall issue and deliver to TTC and TTC shall
acquire and accept from the Company fifty thousand (50,000) ordinary
shares par value NIS 0.01 of the Company (the "Issued Shares").
Upon execution of this Agreement the Company shall present to TTC all
required resolutions and other documentation regarding the issue of the
Issued Shares (e.g., Board of Directors' resolution certified by the
Company's counsel to be true and correct and in accordance with the
Company's Memorandum and Articles of Association, and share issue form in
respect of the Issued Shares for submission to the Registrar Office as
defined below).
1.02 PURCHASE PRICE FOR THE ISSUED SHARES. The purchase price to be paid by TTC
for the Issued Shares shall be three hundred thousand US dollars
(US$300,000). The purchase price for the Issued Shares shall be paid to
the Company upon execution of this Agreement, by certified check or by
wire transfer to an account designated by the Company.
The Company shall bear and pay the costs, including stamp duty, for the
issue of the Issued Shares.
1.03 TTC HOLDINGS. The Company hereby declares that the Issued Shares shall
represent five percent (5%) of the total number of the issued and
3
outstanding ordinary shares of the Company, immediately after the issue of
Issued Shares as provided for above.
1.04 REGISTRATION OF SHARES. The Company hereby undertakes to submit the
required documents for the registration of the Issued Shares under the
name of TTC, at the Companies Registrar Office in Jerusalem, Israel (the
"Registrar Office") within fourteen (14) business days following the
execution of this Agreement.
1.05 FURTHER ASSURANCES. At any time and from time to time after the execution
of this Agreement, at TTC's request and without further consideration, the
Company shall promptly take all action necessary in order to effectively
transfer, convey, assign and confirm TTC's ownership and title to the
Issued Shares, as provided under this Agreement.
2. OPTION TO PURCHASE SHARES
2.01 Subject to the terms and conditions set forth herein, the Company hereby
grants TTC, without further consideration, the options to acquire:
(a) FIRST OPTION. The number of ordinary shares par value NIS 0.01 of the
Company ("Ordinary Shares") that, when added to the Issued Shares, will
amount to ten percent (10%) of the total number of the issued and
outstanding Ordinary Shares of the Company, immediately after the issue of
such additional Ordinary Shares (such additional Ordinary Shares shall be
referred to hereinafter as the "First Option Shares").
The option to purchase the First Option Shares may be exercised by TTC at
any time within six (6) months following the execution of this Agreement
(the "First Option Period"), at a purchase price of three hundred and
seventy five thousand U.S. dollars (U.S. $375,000).
However, in the event that the Company will sell an equity interest to any
third party (excluding issues of equity interests under an Employee Stock
Option Plan) during the two (2) year period following the execution of
this Agreement, for a purchase price less than the equivalent of seventy
five thousand U.S. dollars (U.S. $75,000) for each one percent (1%) equity
interest in the Company, then TTC shall be entitled to receive additional
Ordinary Shares in the Company for consideration of their par value only,
representing the additional equity interest resulting from the following
equation:
375,000 X
--------------- = ---
5 + Z Y
X - Third Party Total Purchase Price
Y - Equity Interest in the Company purchased by a third party
Z - Additional equity interest to be issued to TTC
4
(b) SECOND OPTION. The number of Ordinary Shares equivalent to five percent
(5%) of the total number of issued and outstanding Ordinary Shares of the
Company, immediately after the issue of such additional Ordinary Shares
(such additional Ordinary Shares shall be referred to hereinafter as the
"Second Option Shares").
The option to purchase the Second Option Shares may be exercised by TTC at
any time within five (5) years following the execution of this Agreement
(the "Second Option Period") at a purchase price of two million, two
hundred and fifty thousand US dollars (US $2,250,000), provided that TTC
had exercised the First Option in accordance with the provisions of this
Agreement.
In the event that Company shares will be offered to the public through an
initial public offering ("IPO") prior to the conclusion of the Second
Option Period, TTC's option to purchase the Second Option Shares shall
terminate immediately prior to the IPO. However, under the above
circumstances, TTC will be entitled to exercise the option to purchase the
Second Option Shares immediately prior to the IPO, at the lower of either
the purchase price mentioned in the previous paragraph or at the purchase
price of the shares issued through the IPO (calculated on a five percent
(5%) equity interest basis).
2.02 NON-DILUTION AND PREEMPTIVE RIGHTS.
The Parties have agreed upon the following mechanisms, which shall provide
TTC with the opportunity to maintain its equity interest in the Company.
Such mechanisms shall not apply to issues of equity interests under a
Stock Option Plan:
(a) NON-DILUTION. In the event that any capital investments in the Company,
other than the capital investments by TTC contemplated by this Agreement,
shall take place at any time within the First Option Period, TTC shall be
entitled to receive additional equity interest(s) in the Company for
consideration of their par value only, at the percentage necessary to
maintain TTC's holdings in the Company prior to such third party capital
investment and accordingly to prevent any dilution of its percentage
holding of the Company's issued and outstanding share capital.
The above non-dilution mechanism shall apply MUTATIS MUTANDIS in the event
that TTC's share of the Company equity shall decrease due to any reason
whatsoever, including through a stock dividend to any other shareholder.
(b) PREEMPTIVE RIGHTS. In the event that TTC shall exercise its right to
purchase the First Option Shares, as set forth in Subsection 2.01(a)
above, TTC shall thereafter have preemptive rights to participate, pro
rata to its equity interest in the Company, in any additional equity
financing of the Company by any third party, under terms and conditions
equivalent to the terms and conditions which shall be concluded with any
such third party, in accordance with the
5
Company's Articles of Association. Preemptive Rights under this Subsection
2.02(b) shall be in effect until the Company and/or its shareholders shall
offer their shares to the public through an initial public offering (IPO).
2.03 The exercise of any of the options set forth in Subsection 2.01 above
shall be effected by delivery to the Company of a written notice of such
exercise (the "Option Exercise Notice"), concurrently with payment of the
purchase price. The Company shall issue the Shares to TTC within Five (5)
business days following the day on which the Option Exercise Notice shall
be received by the Company.
The Preemptive Rights set forth in Subsection 2.02(b) above shall be
exercised in the manner provided by the Articles of Association of the
Company.
2.04 The Company shall take all actions necessary to ensure that immediately
prior to the exercise of any of the options or rights to purchase Ordinary
Shares set forth in Subsections 2.01 and 2.02 above, it shall have
sufficient authorized capital to enable the Company to issue the required
Ordinary Shares upon the exercise of any such options or rights.
2.05 REGISTRATION OF SHARES. The Company hereby undertakes to submit the
required documents for the registration of the Ordinary Shares purchased
through the exercise of any of the above-mentioned options or rights under
the name of TTC at the Registrar Office, within fourteen (14) business
days following their purchase.
The Company shall bear and pay the costs, including stamp duty, for issue
of any additional Ordinary Shares.
2.06 Upon execution of this Agreement the Company shall present to TTC all
required resolutions and other documentation regarding the options granted
to TTC as set forth is this Section 2 (e.g., Board of Directors'
resolution, certified by the Company's counsel to be true and correct and
in accordance with the Company's Memorandum and Articles of Association).
2.07 FURTHER ASSURANCES. At any time and from time to time after the exercise
of any of the above-mentioned options or rights, at TTC's request and
without further consideration, the Company shall promptly take all action
necessary in order to effectively transfer, convey, assign and confirm
TTC's ownership and title to the Ordinary Shares purchased by same, as
provided under this Section 2.
3. COMPANY TECHNOLOGY.
The Company is engaged in the development of an in vivo video camera and
an autonomous video endoscope, including a swallowable capsule with a
camera and an optical system, a transmitter and a reception system.
6
All such technology, and any technology whatsoever which at any time will
be initiated, developed, modified, enhanced and/or improved by the Company
or on its behalf, together shall be referred to herein as "Company
Technology".
4. COMPANY MANAGEMENT
Concurrently with the execution of this Agreement and as a condition to
its coming into force, the Parties to this Agreement and RDC - Xxxxxx
Development Corporation Ltd. ("RDC") shall execute a Shareholders
Agreement, which shall embody the Parties' mutual agreements regarding the
operations of the Company and other affiliated entities and their rights
as Company shareholders.
5. COMPANY FINANCING
5.01 OUTSTANDING INDEBTEDNESS. As of February 28, 1998, the aggregate amount of
the outstanding indebtedness of the Company exceeding its assets was forty
six thousand and five hundred U.S. dollars (U.S. $46,500).
5.02 USE OF COMPANY FUNDS. Funds received by the Company from TTC upon the
exercise of the option to purchase the First Option Shares, shall be
utilized first to timely pay the Company's debts as required and then to
fund continued technology developments as determined by the Company and in
the ordinary course of its business, as it is presently conducted or
proposed to be conducted.
6. EMPLOYMENT AGREEMENTS
The employment agreements executed by the Company with its key employees
(Xx. Xxxxxxx Xxxxx and Mr. Xxxxxxxx Xxxx) prior to the execution of this
Agreement are hereby attached as EXHIBIT A to this Agreement.
7. REPRESENTATIONS OF THE COMPANY REGARDING THE COMPANY AND THE ISSUED SHARES
The Company hereby represents and warrants to TTC the following to be true
as of the date hereof:
7.01 ORGANIZATION. The Company is a private company limited in shares duly
incorporated on January 4, 1998 and registered at the Registrar Office,
validly existing and active under the laws of the State of Israel, and has
all requisite power and authority (corporate and other) to own its
properties, to carry on its business as now being conducted, to execute
and deliver this Agreement and the agreements contemplated herein, and to
consummate the transactions contemplated hereby. Attached hereto as
SCHEDULE 7.01 are complete copies of the Company's Certificate of
Registration, Memorandum and Articles of Association and any Special
Resolutions (as such term is defined in the Companies Ordinance [New
Version] of 1983 (the "Companies Ordinance")) which the Company adopted
since its incorporation.
7
The Company has neither: (i) received any notice from the Companies
Registrar that its registration may be invoked, stricken or erased, nor
(ii) are there any proceedings for the involuntary dissolution or
winding-up of the Company taken or threatened.
7.02 CAPITALIZATION OF THE COMPANY. The Company's authorized share capital
consists of six million and five hundred thousand (6,500,000) Ordinary
Shares and five hundred thousand Ordinary A' Shares, all of NIS 0.01 par
value each, of which nine hundred thousand (900,000) Ordinary Shares are
issued and outstanding on the date hereof and held or owned, directly or
indirectly, by RDC. All such issued and outstanding Ordinary Shares have
been and shall, upon execution of this Agreement, be duly and validly
issued and are, or will be on such date, fully paid and non-assessable.
Except as detailed in SCHEDULE 7.02 attached hereto, there are not
outstanding (i) any options, warrants or other rights to purchase from the
Company any share capital of the Company, other than TTC's options and
rights provided for in Subsections 2.01 and 2.02 to this Agreement above;
(ii) any securities convertible into or exchangeable for shares; or (iii)
any other commitments of any kind for the issuance of additional shares or
options, warrants or other securities of the Company.
7.03 BOARD OF DIRECTORS. Xx. Xxxxx Krupik and Mr. Zvi Xxx-Xxxxx are the members
of the Company's Board of Directors.
7.04 SUBSIDIARIES; AFFILIATED ENTITIES. SCHEDULE 7.04 attached hereto sets
forth a true, correct and complete list of the name and percentage
ownership by RDC of each corporation, partnership, joint venture or other
entity in which RDC has, directly or indirectly, any equity interest which
has or at any time as of the incorporation of the Company had a
contractual relationship with the Company and a description of the nature
of such relationship.
The Company has no subsidiaries.
7.05 AUTHORIZATION. The execution and delivery by the Company of this Agreement
and the agreements provided for herein have been duly authorized by all
requisite corporate action of the Company. This Agreement, and obligations
entered into and undertaken in connection with the transactions
contemplated hereby to which the Company is a party, constitute the valid
and legally binding obligations of the Company, enforceable against it in
accordance with their respective terms. The execution, delivery and
performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby will not, with or without
the giving of notice or the passage of time or both (a) violate the
provisions of any law, rule or regulation applicable to the Company; or
(b) violate the provisions of the Certificate of Registration or
Memorandum and Articles of Association of the Company; or (c) violate any
judgment, decree, order or award of any court, governmental body or
arbitrator; or (d) conflict with or result in the breach or termination of
any term or provision of, or constitute a default under, or cause any
acceleration under, or cause the creation of any lien, charge or
encumbrance upon the properties or assets of the Company
8
pursuant to any indenture, mortgage, deed of trust or other instrument or
agreement to which the Company is a party or by which the Company or any
of its assets is or may be bound, which may reasonably be expected to
have a material adverse effect on the Company. The Company represents
that no consent of any third parties, including the Israeli Government
and all affiliated entities, is required in connection with the
consummation by the Company of the transactions contemplated by this
Agreement, the lack of which may prevent the execution and delivery of
this Agreement or the consummation of the transactions contemplated
hereby.
Without derogating from the generality of the foregoing, the Company
undertakes to immediately take all actions necessary in order to obtain
any such required consents of third parties.
7.06 BUSINESS PLAN. Attached as EXHIBIT B to this Agreement is the business
plan of the Company as of January 1, 1998 (the "Business Plan").
On the basis of the Company's knowledge, information and belief, as
presented in the Business Plan, the opinions and assumptions contained in
the Business Plan are reasonable, financial projections set out in the
Business Plan have been prepared with reasonable care and consideration,
and there are no other facts of which the Company is aware which are
likely to render any such opinions, assumptions or projections misleading,
but no assurance can be or is given that any of the forecast projections
or expectations will be attained.
7.07 ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the extent (a)
reflected in the Business Plan, (b) set forth on SCHEDULE 7.07 attached
hereto, or (c) incurred in the ordinary course of business and not
material in amount, either individually or in the aggregate, the Company
does not have any liability or obligation, secured or unsecured, whether
accrued, absolute, contingent or otherwise, which is material to the
condition (financial or otherwise) of the assets, properties, business or
prospects of the Company taken as a whole.
7.08 LITIGATION.
(a) There is no action, suit or proceeding to which the Company is a party
(either as a plaintiff or defendant) pending or, to the best knowledge of
the Company, threatened against the Company before any court or
governmental agency, authority, body or any arbitrator and the Company is
not aware of any basis for any such action, suit or proceeding.
(b) The Company and any officer, director or employee of the Company have not
been permanently or temporarily enjoined by any order, judgment or decree
of any court or any governmental agency, authority or body or any
arbitrator from engaging in or continuing any conduct or practice in
connection with the business, assets or properties of the Company.
(c) To the best knowledge of the Company, upon execution of this Agreement
there is not in existence any order, judgment or decree of
9
any court, tribunal or agency enjoining or requiring the Company to take
any action of any kind with respect to its business, assets or properties.
7.09 INSURANCE. SCHEDULE 7.09 attached hereto sets forth a true, correct and
complete list of all fire, theft, casualty, general liability, workers
compensation, automobile and other insurance policies maintained by the
Company and of all life insurance policies maintained on the lives of any
of its employees, specifying the type of coverage, the amount of coverage,
the premium, the insurer and the expiration date of each such policy
(collectively, the "Insurance Policies") and all claims under such
Insurance Policies since the Company's incorporation. The Insurance
Policies are in full force and effect and, in the Company's reasonable
judgment, are in amounts which are adequate and customary for the
Company's business as presently conducted. All premiums due on the
Insurance Policies or renewals thereof have been paid, and there is no
default by the Company under the Insurance Policies which may cause their
termination or may result in the Company's loss of its right(s) to receive
payment(s) thereunder.
7.10 TANGIBLE PROPERTY. SCHEDULE 7.10 attached hereto sets forth (i) a true,
correct and complete list of all items of tangible property valued at five
hundred U.S. dollars (U.S. $500) or more which are owned by the Company as
of the date hereof or not owned by the Company but in the possession of or
used by the Company in the business of the Company (collectively, the
"Tangible Property"); and (ii) a description of the owner of, and any
agreement relating to the use of, each item of Tangible Property not owned
by the Company and the circumstances under which such Tangible Property is
used. Except as disclosed in SCHEDULE 7.10,
(a) The Company has good and marketable title to each item of Tangible
Property, free and clear of all liens, leases, encumbrances, claims,
conditional sales contracts, security interests, charges and restrictions;
(b) The Tangible Property is in good operating condition and repair, normal
wear and tear excepted, is currently used by the Company in the ordinary
course of its business and normal maintenance has been consistently
performed with respect to the Tangible Property; and
(c) The Company has the right to use all of the Tangible Property in the
operation of its business without any limitations whatsoever.
7.11 INTANGIBLE PROPERTY. SCHEDULE 7.11 attached hereto sets forth: (i) a true,
correct and complete list, and, where appropriate, a description of, all
existing items of intangible property owned or used by the Company in
connection with the business of the Company, including, but not limited
to, trade secrets, know-how, any other confidential information of the
Company, patents, trade names, trademarks, trade name and trademark
registrations, copyrights and copyright registrations, and applications
for any of the foregoing (the "Intangible Property"); and (ii) a true,
correct and
10
complete list of all licenses or similar agreements or arrangements to
which the Company is a party, with respect to the Intangible Property.
Except as otherwise disclosed in SCHEDULE 7.11,
(a) The Company is the sole and exclusive owner of all right, title and
interest in and to the Intangible Property, as far as such rights are
recognized by the applicable laws, free and clear of all liens, security
interests, charges, encumbrances or other third party rights or claims;
(b) The Company has the right and authority to use, and to continue to use
after the execution of this Agreement, the Intangible Property in
connection with the conduct of its business in the manner presently
conducted or proposed to be conducted, and as far as the Company is aware,
however without conducting any investigation (except for as set forth in
the opinion of A. Xxxxx Xxxxx, Xxxx Xxxxx, X. Xxxxxx & Co. dated June 12,
1997, attached hereto as SCHEDULE 7.11(B)), such use or continuing use
does not and will not conflict with, infringe upon or violate any
currently existing intellectual property rights of any other person,
corporation or entity;
(c) The Company has not received notice of a pleading or threatened claim,
interference action or other judicial or adversarial proceeding against
the Company, that any of the operations or activities of the Company
infringes or will infringe any patent, trademark, trade name, copyright,
trade secret or other property right of a third party, or that it is
illegally using the intellectual property rights of others;
(d) The Company received no communication concerning any outstanding or any
threatened disputes or other disagreements with respect to any of the
agreements or arrangements described in SCHEDULE 7.11 or with respect to
infringement by a third party of any of the Intangible Property;
(e) The Company has taken all available steps reasonably necessary, according
to its best judgment, to protect its right, title and interest in and to
the Intangible Property and the continued use of the Intangible Property.
(f) Without derogating from the generality of the above, the Company hereby
declares and warrants that:
(1) The Company has not disclosed to any third party any Intangible Property
of material importance which is not legally protected without such third
party undertaking written confidentiality restrictions, except as
necessary for the process of registration of patents. All such executed
confidentiality restrictions are attached to or mentioned in EXHIBIT C to
this Agreement;
(2) The Company does not have any knowledge, however without conducting any
inquiry, that any third party is infringing, or will threaten to infringe
upon or otherwise violate any of the
11
Intangible Property in which the Company has ownership rights.
7.12 LEASES AND REAL ESTATE. SCHEDULE 7.12 attached hereto sets forth a true,
correct and complete list of all leases of real property to which the
Company is a party. The Company does not own any real estate.
7.13 TAX MATTERS. With respect to the period since its incorporation and up to
and including the execution of this Agreement, the Company has been
registered with the Israeli Tax Authorities and has filed with the
appropriate tax authorities all of the tax statements, reports or returns
as are required by law, including but not limited to statements, reports
and/or returns relating to income tax and value added tax (where
applicable), except as otherwise disclosed in SCHEDULE 7.13. The Company
has not obtained any final tax assessments.
7.14 BOOKS AND RECORDS. The books of account of the Company and all other tax
reports filed by the Company are in all material respects in accordance
with all applicable procedures required by Israeli law and regulations.
7.15 CONTRACTS AND COMMITMENTS.
(a) SCHEDULE 7.15 attached hereto contains a true, complete and correct list
and description of the following contracts and agreements, whether written
or oral (collectively, the "Contracts"):
(i) All loan agreements, mortgages and guaranties to which the Company is a
party or by which the Company or any of its property is bound;
(ii) All pledges, security agreements, liens, charges, encumbrances, Tangible
Property leases and lease purchase agreements to which the Company is a
party or by which any of its property is bound;
(iii) All material contracts, agreements, commitments, purchase orders or other
understandings or arrangements to which the Company is a party or by which
it is bound, including such undertakings which may materially adversely
affect the condition (financial or otherwise) or the properties, assets,
business or prospects of the Company;
(iv) All employment and consulting agreements, executive compensation plans,
pension plans, health and accident insurance and other employee benefit
plans (unless referred to in the employment agreements), and all other
agreements (whether collective or personal), collective arrangements or
commitments related to Employment issues to which the Company is a party
or by which the Company or any of its property are bound;
(v) All contracts, agreements or other understandings or arrangements between
the Company and any of its shareholders or any affiliated entities to
same;
12
(vi) All contracts, agreements or other arrangements imposing a non-competition
or non-solicitation obligation on the Company; and
(vii) Any other material agreements or contracts entered into by the Company.
(b) Except as set forth on SCHEDULE 7.15:
(i) Each Contract is a valid and binding agreement of the Company, enforceable
by or against the Company in accordance with its terms, and the Company
does not have any knowledge that any Contract is not a valid and binding
agreement of the other parties thereto;
(ii) The Company has fulfilled all material obligations required, pursuant to
the Contracts, to have been performed by the Company, as the case may be,
on or prior to the execution of this Agreement, and the Company, as the
case may be, has no reason to believe that it will not be able to fulfill,
when due, all of its obligations under the Contracts which remain to be
performed after the execution of this Agreement;
(iii) The Company is not in breach of or default under any Contract, which may
reasonably be expected to have a material adverse effect on the Company's
business, and no event has occurred which with the passage of time or
giving of notice or both would constitute such a default, result in a loss
of rights or result in the creation of any lien, charge or encumbrance
thereunder or pursuant thereto, which may reasonably be expected to have a
material adverse effect on the Company's business. Without derogating from
the generality of the above, the Company is not in breach of or default
under the Technology Purchase and License Agreement executed among itself
and Xxxxxx - Armament Development Authority, and no event has occurred
which with the passage of time or giving of notice or both would
constitute such a default by the Company or result in a loss of any rights
of the Company under such Agreement;
(iv) The Company is not aware of any existing breach or default by any other
party to any Contract, which may reasonably be expected to have a material
adverse effect on the Company's business, nor is it aware of an event
which has occurred which with the passage of time or giving of notice or
both would constitute such a default by such other party, result in a loss
of rights of the Company or result in the creation of any lien, charge or
encumbrance thereunder or pursuant thereto, which may reasonably be
expected to have a material adverse effect on the Company's business;
(v) The Company is not restricted by any Contract from carrying on its
business anywhere in the world.
13
7.16 COMPLIANCE WITH LAWS AND DECREES. The Company is not aware of being in
violation of any law, regulation, ordinance, ruling, order or decree
relating to its business or properties, which may reasonably be expected
to have a material adverse effect on the Company. The Company has had no
notice or communication from any governmental authority or otherwise of
any such violation or noncompliance of national and local laws.
7.17 EMPLOYEE RELATIONS.
(a) As far as it is aware, the Company is, in all material aspects, in
compliance with all Israeli Employment Laws, Regulations, Collective and
Individual Agreements, and there are no arrears in the payment of wages,
social security taxes, withholding taxes etc.
(b) There are no pending proceedings at the Israeli Labor Court or otherwise
arising out of or under any employment agreement to which the Company is a
party, nor any basis for which a claim may be threatened against the
Company in respect of or under any employment agreement to which the
Company is a party;
(c) SCHEDULE 7.17 sets forth a true, correct and complete list of the current
payroll of the Company, including salary, wage rates and bonuses and
benefit plans of each of the Company's employees.
(d) The Company has adopted a share option plan for employees, consultants and
directors, involving no more than ten percent (10% ) of its share capital,
calculated immediately after the consummation of the investment by TTC
under Section 1 above and by the DEP Group as provided in Schedule 7.02
(plus an additional two percent (2%) to be granted to Xx. Xxxxxxx Xxxxx,
in the event that certain conditions precedent set forth in Xx. Xxxxxxx
Xxxxx'x Employment Agreement, attached as Exhibit A to this Agreement,
will be fulfilled). A copy of the Company's 1998 Option Plan is attached
to Schedule 7.17.
7.18 EMPLOYMENT MATTERS.
(a) CLAIMS AND LITIGATION. The Company has not received notice of any
threatened, nor is it party to any pending claims, suits or other
proceedings by present or former employees of the Company, the Israeli
Income Tax or the Social Security Authorities.
(b) The Company is not aware of any claims against it by any of its employees
or its former employees for severance payments.
7.19 ABSENCE OF CERTAIN CHANGES OR EVENTS.
(a) As of February 28, 1998, the Company has not entered into any transaction
which is not in the usual and ordinary course of business, except as
disclosed in SCHEDULE 7.19, and, without limiting the generality of the
foregoing, the Company has not incurred any material obligation or
liability not in its ordinary course of business.
(b) The Company has no knowledge of any existing or threatened occurrence,
event or development within the Company or in
14
connection therewith, which was not disclosed to TTC or its
representatives and which, as far as can be reasonably foreseen, could
have a material adverse effect on the business, properties, assets,
condition (financial or otherwise) or prospects of the Company.
7.20 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND SHAREHOLDERS. Except as
set forth on SCHEDULE 7.20 attached hereto, the Company is not indebted
directly or indirectly, to any person who is an officer, director or
shareholder of the Company or any affiliate of any such person in any
amount whatsoever, other than of salaries for services rendered or
reimbursable business expenses anticipated to be incurred by such obligor.
7.21 BANKING FACILITIES. SCHEDULE 7.21 attached hereto sets forth a true,
correct and complete list of:
(a) Each bank, or similar financial institution in which the Company has an
account and the numbers of the accounts maintained by the Company; and
(b) The names of all persons authorized to draw on each such account together
with a description of the authority (and conditions thereof, if any) of
each such person with respect thereto.
7.22 POWERS OF ATTORNEY AND SURETYSHIPS. Except as detailed in SCHEDULE 7.22,
the Company does not have any general or special powers of attorney
outstanding or accruing, contingent or otherwise, as guarantor, surety,
co-signer, endorser, co-maker, indemnitor or otherwise in respect of the
obligation of any person, corporation, partnership, joint venture,
association, organization or other entity.
7.23 REGULATORY APPROVALS. All consents, approvals, authorizations or other
requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by the Company or any entity directly or indirectly
controlling it and/or the Company Technology, including Xxxxxx - Armament
Development Authority of the Israeli Ministry of Defense, and the lack of
which may prevent the execution by the Company of this Agreement or any
documents to be executed by the Company or by RDC in connection herewith
have been obtained and satisfied.
7.24 DISCLOSURE. The information concerning the Company set forth in this
Agreement, the Exhibits and Schedules attached hereto and any document,
written statement or certificate furnished or to be furnished to TTC
pursuant hereto, including, without limitation, X. Xxx-Xxxx'x letter to
Xxxx Xxxxxxx, Esq. of March 2, 1998 summarizing information received from
the Company regarding various Due Diligence issues, attached as EXHIBIT D
to this Agreement, does not or will not, as the case may be, contain any
untrue statement of a material fact or omit any fact necessary to make the
statements and facts contained herein not false or knowingly misleading.
The Company has disclosed to TTC all material facts known to it pertaining
to the transactions contemplated by this Agreement and the Exhibits hereto
or any transactions contemplated herein, which the Company deems material
to TTC's decision to enter this Agreement.
15
Copies of all documents heretofore or hereafter delivered by or on behalf
of the Company or made available to TTC by or on behalf of the Company
pursuant to this Agreement were or will be complete and accurate copies of
such documents.
8. REPRESENTATIONS OF TTC
TTC represents and warrants to the Company as follows:
8.01 ORGANIZATION AND AUTHORITIES. TTC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
all requisite power and authority (corporate and other) to own its properties
and to carry on its business as now being conducted. TTC has full power to
execute and deliver this Agreement, and to consummate the transactions
contemplated hereby.
8.02 AUTHORIZATION. The execution and delivery of this Agreement by TTC, and
the consummation by TTC of the transactions contemplated hereby, have been
duly authorized by all requisite corporate action. This Agreement and all
such other agreements and written obligations entered into and undertaken
in connection with the transactions contemplated hereby constitute the
valid and legally binding obligations of TTC, enforceable against TTC in
accordance with their respective terms.
8.03 COMPLETION OF INVESTIGATION. Subject to Section 7.24 above, TTC has
received all the information which it considers sufficient for deciding
whether to invest in the Company as provided in this Agreement, had the
opportunity to ask questions and receive answers from the Company
regarding the Company, its assets, technology, financial status, business
and otherwise, and based on such information it has decided to enter into
this Agreement.
8.04 HIGH-RISK INVESTMENT. TTC is aware that an investment in the Company as a
technology "start-up" company involves a high degree of risk, there is no
assurance that its development or business goals will ever be achieved nor
that any market for the Company's shares will exist in the future, and the
Company currently does not have any sales, and TTC is financially capable
of sustaining the loss of its entire investment in the Company.
8.05 COMPETING ACTIVITIES. Neither TTC nor any of its affiliates is engaged in
the development of a product similar to the product described in Section 3
to this Agreement.
Any individual acting on behalf of TTC as member of the Board of Directors
of the Company, the Board of Directors of GIven Imaging Inc. or the
Advisory Committee shall execute, no later than the first meeting in which
she or he will participate, a non-compete undertaking as provided for in
SCHEDULE 8.05.
16
9. COVENANTS OF THE COMPANY
The Company hereby undertakes to comply with the following provisions
(after Company shares have been offered to the public through an IPO, the
Company will continue to comply with the provisions, subject to any
applicable Securities Acts and Regulations, and Underwriters'
requirements):
9.01 AFFIRMATIVE COVENANTS. The Company covenants and agrees with TTC, that
following the execution of this Agreement, the Company will comply with
the following provisions:
(a) FINANCIAL INFORMATION. The Company shall maintain a system of accounting
established and administered in accordance with Israeli generally accepted
accounting principles consistently applied, will keep full and complete
financial records and will furnish TTC with the following reports in
English, as long as TTC is a shareholder of the Company:
(i) As soon as practicable following the end of each year, and in any event
within sixty (60) days thereafter, audited financial statements of the
Company for the end of such year, prepared in accordance with Israeli
generally accepted accounting principles consistently applied (and
according to the Israeli Securities Law and Regulations) in NIS adjusted
to the CPI or to U.S. dollars, as shall be determined by the Board of
Directors, and at TTC's request and for it's convenience such reports
shall be provided to TTC translated to U.S. dollars and contain notes on
adjustment to U.S. generally accepted accounting principles.
(ii) As soon as practicable following the end of the first, second and third
quarter in each year, and in any event within thirty (30) days thereafter,
unaudited but reviewed financial statements of the Company for the end of
each quarter, certified by the chief financial officer of the Company,
prepared in accordance with U.S. and Israeli generally accepted accounting
principles consistently applied (according to the Israeli Security Law and
Regulations) in NIS adjusted to the CPI or to U.S. dollars, as shall be
determined by the Board of Directors, and at TTC's request and for it's
convenience, such reports shall be provided to TTC translated to U.S.
dollars and contain notes on adjustment to U.S. generally accepted
accounting principles.
(iii) At least ten (10) days prior to the commencement of each year, a draft
detailed budget for the immediately ensuing year.
(b) INSPECTION. The Company, upon at least three (3) business days' prior
notice from TTC, will permit a representative of TTC, at TTC's expense, to
visit and inspect any of the properties of the Company, including its
books of account, to make copies and
17
extracts therefrom and to discuss the affairs, finances and accounts of
the Company with its officers, all at such reasonable times and as often
as TTC may reasonably request. Such information received by any
representative of TTC shall be subject to the provisions of Section 10
below.
(c) MARKETING AND DISTRIBUTION OF COMPANY PRODUCTS. All Company products based
on the Company Technology shall be marketed and distributed in the U.S.A.
through GIven Imaging Inc., or any other subsidiary of the Company which
will be directly or indirectly controlled by the Company.
9.02 NEGATIVE COVENANTS. As of the exercise of the First Option, the Company
shall not, without the prior written consent of TTC:
(a) MERGERS. Merge or consolidate with, or sell, assign, lease or otherwise
transfer or dispose of (whether in one transaction or a series of
transactions) all or substantially all of its assets to any person or
entity, subject to Subsection 9.04 below.
The provisions of this Subsection shall not apply in the event that TTC's
holdings of Company shares shall drop below 10% (ten percent) of the
Company's outstanding and issued share capital at the relevant time (not
including dilution due to issue of shares under an Employee Stock Option
Plan).
(b) TRANSACTIONS WITH AFFILIATES OR SHAREHOLDERS. Enter into, execute or be a
party to any transaction with one of the Company's affiliates or
shareholders, except in the ordinary course of business and pursuant to
the reasonable requirements of the Company's business and upon fair and
reasonable terms which are no less favorable to the Company than those
terms which the Company would obtain under open market conditions, where
available.
(c) INTANGIBLE PROPERTY. Subject to Subsection 9.04 below, sell, assign,
lease, license or otherwise transfer or dispose of any substantial segment
of the Intangible Property, not including subcontracting, manufacturing,
OEM and licensing the Company's Trademarks and Trade-names. The provisions
of this Subsection shall not apply in the event that TTC's holdings of
Company shares shall drop below 10% (ten percent) of the Company's
outstanding and issued share capital at the relevant time (not including
dilution due to issue of shares under an Employee Stock Option Plan).
(d) MEMORANDUM AND ARTICLES OF ASSOCIATION. Alter provisions of its Memorandum
and Articles of Association (excluding alterations provided for in the
Shareholders Agreement) to the extent that such alteration impairs the
rights of TTC under this Agreement or the Shareholders Agreement.
Alterations which evenly affect the rights of all then existing
shareholders shall not be regarded as impairing TTC's rights under this
Subsection 9.02(d)).
18
9.03 CONTINUATION OF BUSINESS. Following the exercise of the First Option, the
Company shall not, without the prior consent of the director appointed by
TTC to the Company's Board of Directors, provided that such director is
appointed and is not precluded from participating in meeting of the
Company's Board of Directors by law or by the Company's Articles of
Association, entirely change the nature or character of the business
conducted or proposed to be conducted by the Company from that described
in the Business Plan.
9.04 RIGHT OF FIRST OFFER. Upon or prior to entering into significant
negotiations with any third party for engaging in any of the transactions
referred to under paragraphs (a) or (c) of Subsection 9.02 above
(hereinafter, a "MATERIAL TRANSACTION"), the Company shall notify TTC in
writing of its intention of entering into such negotiations, together with
a general description of such intended Material Transaction, the proposed
terms thereof and the identity of the third party involved. TTC shall have
fourteen (14) days from receiving such notice to respond in writing,
stating whether or not it is interested in entering into negotiations with
the Company regarding such Material Transaction on the basis of the
proposed terms set forth in the Company's notice. Should TTC give an
affirmative response within the said fourteen (14) day period, then the
Company shall enter into good-faith negotiations with TTC (and/or other
parties designated by TTC) and all parties shall employ their respective
best efforts to reach an agreement within forty-five (45) days following
TTC's response. If the Company and TTC shall not be able to reach such an
agreement within such period, then the Company shall be at liberty to
commence or resume negotiations with the third party and consummate the
Material Transaction, without the need for TTC's consent as provided in
Subsection 9.02 above, provided that (i) the terms of such Material
Transaction shall be no less favorable to the Company then the terms
proposed by TTC during the negotiations therewith and (ii) the agreement
with such third party shall be signed within ninety (90) days following
the expiration of the negotiations with TTC, and TTC at its election shall
be entitled to receive its share in the consideration in such transaction,
proportionate to its equity interest in the Compnay.
9A. IN-KIND INVESTMENT
TTC shall exercise reasonable efforts in its sole discretion in order to
provide the Company with pre-clinical and clinical assistance (including
pre-regulatory strategy and clinical trial design), as well as with
support in acquiring additional capital and assistance in product
marketing planning.
The provisions of this Section shall not apply in the event that TTC's
holdings of Company shares shall drop below 10% (ten percent) of the
Company's outstanding and issued share capital at the relevant time (not
including dilution due to issue of shares under an Employee Stock Option
Plan).
19
10. CONFIDENTIALITY
10.01 TTC agrees that all of the information received by it or to be received by
it in the future regarding the Company is provided solely for the purpose
of evaluating the transactions contemplated by this Agreement and by the
Shareholders Agreement, and will not use any of such information for any
other purpose or disclose any of such information to any third party
without the prior written consent of the Company, except and only to the
extent as required by applicable law, legal process or stock exchange
regulations. The Parties agree, however, that any such information may be
disclosed to TTC's representatives and advisors on a "need-to-know" basis
only, provided that such representatives and advisors agree to keep such
information confidential to the same extent as provided in this section
10.
The obligations of TTC and its representatives and advisors under this
paragraph shall not apply to information that TTC can prove (i) is or
becomes generally available to the public other than as a result of a
breach of this Section 10 by TTC or its representatives or advisors, (ii)
becomes available to TTC from a source other than the Company, its
shareholders or their representatives or advisors, which source, to TTC's
knowledge, after due inquiry, is not bound by a confidentiality
obligation, (iii) is known to TTC prior to receiving such information, or
(iv) has been or subsequently is independently developed by TTC or one of
its affiliates.
10.02 The Parties and their respective officers and employees shall maintain
full confidentiality as to the substance and matters contained in this
Agreement and any information concerning the Company Technology or the
other party, provided that the foregoing shall not apply to disclosures
and public announcements required in order to comply with applicable laws
and regulations. Such disclosures will in no event include technical
information which is part of the Company Technology.
The Parties will coordinate in advance all announcements to the press or
the general public concerning this Agreement and the issue and purchase of
the Issued Shares and otherwise regarding the Company.
SCHEDULE 10.02 contains a form of joint press release which the Parties
agree that each may release.
11. CONDITIONS TO OBLIGATIONS OF TTC
The obligations of TTC under this Agreement are subject to the
fulfillment, upon or prior to the execution of this Agreement, of the
following conditions precedent, each of which may be waived in writing in
the sole discretion of TTC:
11.01 CONSENT OF THIRD PARTIES; WAIVERS. The Company shall attach, as EXHIBIT E
to this Agreement, a letter of waiver signed by by RDC, according to which
RDC acknowledges that it has no rights or claims
20
whatsoever regarding any of the currently existing intellectual property
forming part of the "In Vivo Camera and an Autonomous Video Endoscope
Project" engaged by GIven Imaging Ltd., including any possible ownership
rights arising out of former employment relations between RDC and any of
the persons who have developed or continue to develop such Company
Technology, and that it waives any rights it might have had regarding
same.
11.02 OPINION OF COUNSEL. TTC shall have received an opinion of Zellermayer &
Pelossof, counsel to the Company, dated as of the execution of this
Agreement, in substantially the form attached hereto as EXHIBIT F.
11.03 EXECUTION OF A SHAREHOLDERS AGREEMENT. A Shareholders Agreement shall have
been executed by the Parties and RDC concurrently with the execution of
this Agreement.
11.04 GOVERNMENTAL APPROVALS. All governmental agencies, departments, bureaus,
commissions, ministries and similar bodies, the consent, authorization or
approval of which is necessary under any applicable law, rule, order or
regulation for the consummation by the Company of the transactions
contemplated by this Agreement, shall have consented to, authorized,
permitted or approved all such transactions.
12. INDEMNIFICATION
12.01 The Parties hereby undertake to indemnify and hold each other harmless
from and against all claims, damages, losses, liabilities, costs and
expenses (including, without limitation, settlement costs and any
reasonable legal, accounting or other expenses for investigating or
defending any actions or threatened actions), each in excess of fifty
thousand U.S. dollars (U.S. $50,000) (collectively, the "Damages")
resulting directly from each and all of the following (a "Breach of
Warranty"):
(a) Any misrepresentation or breach of any representation or warranty made by
either Party in this Agreement;
(b) Any breach of any covenant, agreement or obligation of either Party
contained in this Agreement or in the Shareholders Agreement to be
executed by the Parties and RDC concurrently with the execution of this
Agreement.
12.02 CLAIMS FOR INDEMNIFICATION. Whenever any claim or demand (hereinafter:
"Claim") shall arise which may give rise to indemnification under this
Section 12, the Party which may be seeking indemnification (the "First
Party") shall promptly notify in writing the other Party (the "Second
Party") of the Claim and, when known, the facts constituting the basis for
such Claim.
In the event of any such Claim hereunder resulting from or in connection
with any claim or legal proceedings by a third party, the notice shall
specify, if known, the amount or an estimate of the amount of the
liability arising therefrom. The First Party shall not be entitled to
settle or
21
compromise any such claim without the prior written consent of the Second
Party, however:
(a) In the event that the Claim is made under Subsection 12.01(a) above, the
consent of the Second Party shall not be required, provided that the
claimed amount is two hundred percent (200%) or more of the maximum
indemnification amount pursuant to Section 12.06 below;
(b) In the event that the Claim is made under Subsection 12.01(b) above, the
consent of the Second Party shall not be unreasonably withheld or delayed.
12.03 DEFENSE UNDERTAKEN BY THE SECOND PARTY. In connection with any Claim which
may give rise to indemnity hereunder resulting from or arising out of any
claim or legal proceeding by a person other than any of the Parties to
this Agreement, and at the sole cost and expense of the Second Party, it
may, upon written notice to the First Party, assume the defense of any
such Claim or legal proceeding, if the Second Party acknowledges to the
First Party in writing the obligation of the Second Party to indemnify the
First Party with respect to all elements of such Claim, subject to the
provisions of Subsection 12.06 below. If the Second Party assumes the
defense of any such Claim or legal proceeding, it shall select counsel
reasonably acceptable to the First Party to conduct the defense of such
claims or legal proceedings and, at the sole cost and expense of the
Second Party, shall take all steps necessary in the defense or settlement
thereof. The Second Party shall not consent to a settlement of the Claim,
or the entry of any judgment arising out of such settlement, without prior
written consent of the First Party (which consent shall not be
unreasonably withheld or delayed). The First Party shall be entitled to
participate in (but not control) the defense of any such action, with its
own counsel and at its own expense.
Notwithstanding the above, in the event that the Claim may give rise to
indemnification pursuant to Subsection 12.01(a) above and that the claimed
amount does not exceed the maximum indemnification amount pursuant to
Subsection 12.06 below, then the First Party's consent shall not be
required for either the selection of counsel or the settlement of the
Claim by the Second Party, unless the proposed settlement may reasonably
be expected to have an adverse effect on the reputation of the First
Party, in which case the First Party's prior written consent to the
proposed settlement shall be required.
If the Second Party does not assume the defense of any such Claim or
litigation resulting therefrom within twenty one (21) days after the date
such claim is made: (a) The First Party may defend against such Claim or
litigation in such manner as it may deem appropriate, including, but not
limited to, settling such Claim or litigation, after giving seven (7) days
prior written notice of the same to the Second Party, on such terms as the
First Party may deem appropriate, and (b) the Second Party shall be
entitled to participate in (but not control) the defense of such action,
with its counsel and at its own expense. If the Second Party thereafter
seeks to
22
question the manner in which the First Party defended such Claim or the
amount or nature of any such settlement, the Second Party shall have the
burden to prove that the First Party did not defend or settle such Claim
in a reasonably prudent manner.
12.04 PAYMENT OF INDEMNIFICATION OBLIGATIONS. All indemnification by the Parties
hereunder shall be effected by payment through wire or delivery of a
certified bank check in the amount of the indemnification liability.
12.05 SURVIVAL OF REPRESENTATIONS. All representations and warranties made by
the Parties in this Agreement, or in any instrument or document furnished
in connection with this Agreement or the transactions contemplated hereby,
shall survive the execution of this Agreement for a period of two (2)
years and shall expire on the second anniversary of the execution date of
this Agreement, except for claims, if any, (a) claimed in writing, prior
to such second anniversary, as claims for indemnification pursuant to this
section 12, or (b) which are based upon fraud by any of the Parties, which
shall survive until the passage of the applicable limitation period.
12.06 All indemnification obligations undertaken by the Parties in this
Agreement regarding misrepresentations or breach of representations, as
provided under Subsection 12.01(a) above, shall be limited, at any given
time, to the amount(s) invested at that time by TTC in Company equity,
including interest on the amount(s) of such investment(s) at the rate of
eight percent (8%) per year, as of the date of investment of each
respective amount.
12.07 The indemnification provided for in this Section 12 shall constitute the
Parties' sole and exclusive monetary remedy against the Company and/or its
representatives for any misrepresentation or breach of any representation
or warranty made by either Party in this Agreement.
13. TERMINATION OF AGREEMENT
13.01 TERMINATION BY AGREEMENT OF THE PARTIES. This Agreement may be terminated
by the mutual written agreement of the parties hereto.
13.02 TERMINATION DUE TO A MATERIAL BREACH. Any material breach of this
Agreement will entitle the injured Party to terminate either or both this
Agreement and the Shareholders Agreement, upon written notice, provided
that the other Party fails to cure such breach within twenty one (21) days
after it has received written notice from the injured Party regarding such
breach.
13.03 AVAILABILITY OF REMEDIES AT LAW. Subject to the provisions of Section
12.07 above, in the event this Agreement is terminated by either Party,
pursuant to the provisions of this Section 13, the Parties hereto shall
have available to them all remedies afforded to them by applicable law.
In the event that following a breach of either this Agreement or the
Shareholders Agreement, the injured Party shall terminate this Agreement
and demand restitution thereunder, then TTC shall be entitled to
restitution of the amount(s) invested at that time by TTC in Company
23
equity, including interest on the amount(s) of such investment(s) at the
rate of eight percent (8%) per year, as of the date of investment of each
respective amount. Upon full payment of the said amount(s) to TTC, TTC
shall voluntarily surrender its Ordinary Shares, and the Parties to this
Agreement shall use their best efforts so as to cause the Company's board
of directors to adopt a resolution accepting such Ordinary Shares, in
accordance with the provisions of Section 11(d) of the Company's amended
Articles of Association.
Alternatively, at the Company's choice, the restitution amount and the
interest thereon, as provided above, shall be paid to TTC by another
person or entity designated by the Company, and against making such
payment in full, such person or entity shall acquire all rights and title
in and to TTC's Ordinary Shares, free and clear of any liens or other
encumbrances.
14. FULFILLMENT OF OBLIGATIONS IN GOOD FAITH
The parties undertake to take, at any time and from time to time and
without further consideration, all actions required for the fulfillment in
good faith of the obligations under this Agreement and all transactions
contemplated hereby.
Without derogating from the above, the Company shall fully cooperate with
TTC in obtaining an "authorized dealer's" stamp on its share certificate,
confirming the purchase of the shares by foreign resident in foreign
currency, by providing any required document or declaration (including,
without limitation, to the Bank of Israel) which TTC may require in order
to transfer out of Israel any of the moneys to be paid for Company shares
or future payments of the Company or a third party with regard to TTC's
rights in the Company.
15. NOTICES
Any notices or other communications required or permitted hereunder shall
be sufficiently given if delivered personally or sent by courier or by
registered or certified mail, postage prepaid and return receipt
requested, addressed as follows or to such other address of which the
parties may have given notice in accordance with the provisions of this
Section:
To TTC: ThermoTrex Corporation
00 Xxxxx Xxxxxx
P. O. Box 9046
Waltham, MA 02254-9046
U. S. A.
Attention: Chief Executive Officer
With a copy to: X. Xxx-Xxxx Law Offices
Xxxxx Xxxxxxxx
0 Xxxxxxxxxx Xx.
Xxxxx-Xxx 00000
Xxxxxx
24
To the Company: Xxxxxxx Xxxxx, President and CEO
GIven Imaging Ltd.
Xxxxxxxx 0X
Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx 00000
Xxxxxx
With a Copy to: Adv. Xxxxxxx Xxxxxxxxxxx
Xxxxxxxxxxx & Pelossof
Europe Xxxxx
00 Xxxxx Xxxxxxxx Xxxx.
Xxx-Xxxx 00000
Xxxxxx
and to: RDC - Xxxxxx Development Corporation Ltd.
Xxxxxxxx 0X
Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx 00000
Xxxxxx
Such notices or other communications shall be deemed received (a) on the
date delivered, if delivered personally, or (b) three business days after
being sent, if sent by courier, or (c) seven business days after being
sent, if sent by registered or certified mail.
16. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and assigns, except that
TTC, on the one hand and the Company, on the other hand may not assign
their respective obligations hereunder without the prior written consent
of the other party; provided, however, that the Company may assign this
Agreement, and its rights and obligations hereunder, to any other legal
entity wholly owned by the Company, and TTC may assign this Agreement, and
its rights and obligations hereunder, and may transfer its shares in the
Company, to any other legal entity affiliated with TTC, including any
parent corporation or subsidiary and any affiliated entity to same,
provided that either Party remain a guarantor to such assignee's
obligations under this Agreement.
For purposes of this Section 16, a legal entity shall be considered
affiliated with TTC or any parent or subsidiary to TTC, in the event that
it either "controls" or is "controlled" by any of the above-mentioned
entities, within the meaning of such term in the Company's Articles of
Association.
25
17. ENTIRE AGREEMENT; AMENDMENTS; ATTACHMENTS
17.01 This Agreement, all Schedules and Exhibits hereto, and all agreements and
instruments to be delivered by the parties pursuant hereto represent the
entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersede all prior oral and written and
all contemporaneous oral negotiations, commitments and understandings
between such parties, including the LOI. TTC and the Company may amend or
modify this Agreement, in such manner as may be agreed upon, by a written
instrument executed by same.
17.02 The Exhibits and Schedules attached hereto or to be attached hereafter are
hereby incorporated as integral parts of this Agreement. If the provisions
of any Schedule or Exhibit to this Agreement are inconsistent with the
provisions of this Agreement, the provisions of the Agreement shall
prevail.
18. SEVERABILITY
Any provision of this Agreement which is invalid, illegal or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such jurisdiction
or rendering any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction.
19. DELAYS OR OMISSIONS; WAIVER
No delay or omission to exercise any right, power, or remedy accruing to
any of the parties upon any breach or default by the other party under
this Agreement shall impair any such right or remedy nor shall it be
construed to be a waiver of any such breach or default, or any
acquiescence therein or in any similar breach or default thereafter
occurring.
20. EXPENSES
The Parties shall each pay their respective expenses incurred in
connection with this Agreement and the Shareholders Agreement, including,
without limitation, investment banks', financial advisors', and auditors'
fees and legal fees and expenses.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Israel (excluding its internal Choice of Law Rules),
and the competent courts situated in Tel-Aviv shall have exclusive
jurisdiction over any dispute arising in connection with this Agreement
and/or the Shareholders Agreement.
26
22. SECTION HEADINGS
The section headings are for the convenience of the Parties and in no way
alter, modify, amend, limit, or restrict any contractual obligations of
the Parties.
23. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall be one and the
same document.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties
hereto as of and on the date first above written.
-------------------------
ThermoTrex Corporation
By:
-----------------------
Title:
--------------------
/s/ Xxxxxxx Xxxxx
--------------------------
GIven Imaging Ltd.
By: Xxxxxxx Xxxxx
-----------------------
Title: President & CEO
--------------------
We the undersigned, RDC - Xxxxxx Development Corporation Ltd., hereby
represent that we agree to the provisions of Section 2.02 and undertake to
fulfill the obligations provided therein.
28-4-98 /s/ Z. Ben Xxxxx X. Krupik
----------- -------------------------------------------
Date RDC - Xxxxxx Development Corporation Ltd.
By: Z. Ben Xxxxx X. Krupik
---------------------------
Title: CFO President & CFO
---------------------------
22. SECTION HEADINGS
The section headings are for the convenience of the Parties and inno way
alter, modify, amend, limit, or restrict any contractual obligations of
the Parties.
23. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an orginal, but all of which shall be one and the
same document.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties
hereto as of and on the date first above written.
/s/ X. Xxxxxxxxx
-------------------------
ThermoTrex Corporation
By: Xxxx X. Xxxxxxxxx
-----------------------
Title: Chairman & CEO
--------------------
--------------------------
GIven Imaging Ltd.
By:
-----------------------
Title:
--------------------
We the undersigned, RDC - Xxxxxx Development Corporation Ltd., hereby
represent that we agree to the provisions of Section 2.02 and undertake to
fulfill the obligations provided therein.
----------- -------------------------------------------
Date RDC - Xxxxxx Development Corporation Ltd.
By:
---------------------------
Title:
---------------------------
