PURCHASE AND ASSIGNMENT AGREEMENT
EXHIBIT 10.8
THIS
PURCHASE AND ASSIGNMENT AGREEMENT (this "Agreement"), is made
on April 9 ___, 2008, among Westek Ltd. (“Westek” or the “Assignor”), Medical
Diagnostic Innovations Ltd. (the “Assignee”), and In
Veritas Medical Diagnostics, Inc. (the "Company").
WHEREAS, the Company is
indebted to Westek in the aggregate sum of One Million Eight Hundred Thousand
($1,800,000) Dollars (the “Debt”) pursuant to certain Promissory Notes set forth
on Schedule I attached hereto (collectively, the “Notes”), issued on the dates
and in the amounts as indicated on Schedule I.
WHEREAS, the Company and / or
its wholly owned subsidiary IVMD (UK) Limited (together “the Group”) is also
indebted to Westek in the aggregate sum of Seven Hundred and Five Thousand Five
Hundred and Twenty Four ($705,524) Dollars (the “Short Term Advances”) which
were advanced to the Company and / or its IVMD (UK) Limited.
WHEREAS, Assignor desires to
assign to Assignee and Assignee desires to accept from Assignor the Debt and the
Short Term Advances on the basis of the representations, warranties and
agreements contained in this Agreement, and upon the terms but subject to the
conditions set forth herein;
WHEREAS,
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Purchase
Price
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a)
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As
consideration for assignment set forth herein of the Debt owed by the
Company to the Assignor, the Assignee agrees to pay to Westek the
aggregate sum of Ninety Thousand ($90,000) Dollars (the “Debt Purchase
Price”) within 30 days of the date of this
Agreement.
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b)
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As
consideration for assignment set forth herein of the Short Term Advances
owed by the Company to the Assignor, the Assignee agrees to pay to Westek
the aggregate sum of One Hundred and Forty One Thousand One
Hundred and Five ($141,105) Dollars (the “Short Term Purchase
Price”) within 30 days of the date of this
agreement.
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2. Assignment.
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a)
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Upon
execution hereof the Assignor hereby absolutely, irrevocably and
unconditionally sells, assigns, conveys, contributes and transfers to the
Assignee the Debt and the Short Term Advances by the Assignor and all of
its rights and benefits thereunder and conferred therein, including
without limitation the right to collect from the Company the principal
amounts outstanding thereunder, plus accrued but unpaid
interest.
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b)
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Closing
Procedures. The closing of the assignment contemplated hereunder
shall take place simultaneously with the date of execution hereof (the
“Closing
Date”) or such other date as mutually agreed by the parties hereto,
On the Closing Date,
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i)
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The
Assignor shall deliver to the Assignor the original Debentures as set
forth on Schedule I and any and all evidence of the Short Term
Advances
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3. Additional
Documents. The Assignor and Assignee agree to take such
further action and to execute and deliver, or cause to be executed and
delivered, any and all other documents which are, in the reasonable opinion of
their counterparty, necessary to carry out the terms and conditions of this
Assignment.
4. Effective
Date and Counterpart Signature. This Agreement shall be
effective as of the date first written above. This Agreement, and
acceptance of same, may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Confirmation of execution by telex or by telecopy or
telefax of a facsimile signature page shall be binding upon that party so
confirming.
5. Representations
and Warranties of the Assignee.
(a) Organization;
Authority. The Assignee is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate, partnership or other applicable power
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations thereunder, and the
execution, delivery and performance by the Assignee of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or similar action on the part of the Assignee. This
Agreement, when executed and delivered by the Assignee, will constitute a valid
and legally binding obligation of the Assignee, enforceable against the Assignee
in accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors’ rights
generally, (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, or (c) to the
extent the indemnification provisions contained herein may be limited by federal
or state securities laws.
(b) Ownership. Assignee
owns and is conveying to Assignee all of its rights, title and interests to the
Shares and the Warrant, free and clear of all liens, mortgages, pledges,
security interests, encumbrances or charges of any kind or
description
(c) Investment Experience;
Access to Information and Preexisting Relationship. The
Assignee (a) either alone or together with its representatives, has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of this investment and make an informed decision
to so invest, and has so evaluated the risks and merits of such investment, (b)
has the ability to bear the economic risks of this investment and can afford a
complete loss of such investment, (c) understands the terms of and risks
associated with the acquisition of the Debentures, including, without
limitation, a lack of liquidity, price transparency or pricing availability and
risks associated with the industry in which the Company operates, (d) has had
the opportunity to review such disclosure regarding the Company, its business,
its financial condition and its prospects as the Assignee has determined to be
necessary in connection with the Assignment of the Debentures, including,
without limitation, the Company’s Annual Report on Form 10-K (or substantially
equivalent form) for its most recently completed fiscal year, the Company’s
Quarterly Reports on Form 10-Q (or substantially equivalent form) for the fiscal
quarters since the end of such completed fiscal year, and the Company’s Current
Reports on Form 8-K (or substantially equivalent form) since the end of such
completed fiscal year, each as amended.
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(d) Assignee
Status. At the time the Assignee was offered the Debentures,
it was, and as of the date hereof it is, an “accredited investor”
as that term is defined in Rule 501(a) of Regulation D under the Securities
Act. The Assignee is not, and is not required to be registered as, a
broker-dealer under Section 15 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
(e) Restrictions on
Transfer. The Assignee understands that (a) the Debentures
(including the shares of Common Stock underlying such Debentures) have not been
registered under the Securities Act or the securities laws of any state, (b) the
Debentures (including the shares of Common Stock underlying such Debenture) are
and will be “restricted
securities” as said term is defined in Rule 144 of the Rules and
Regulations promulgated under the Securities Act (“Rule 144”), (c) the
Debentures (including the shares of Common Stock underlying such Debenture) may
not be sold, pledged or otherwise transferred unless a registration statement
for such transaction is effective under the Securities Act and any applicable
state securities laws, or unless an exemption from such registration provisions
is available with respect to such transaction, and (d) the Debentures (including
the shares of Common Stock underlying such Debentures) will bear a legend
substantially as set forth below:
NEITHER
THIS DEBENTURE NOR THE SECURITIES INTO WHICH THIS DEBENTURE IS CONVERTIBLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
(f) General
Solicitation. The Assignee is not accepting such Assignment as
a result of any advertisement, article, notice or other communication regarding
the Debentures 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.
(g) No Conflicts;
Advice. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, does or will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency, or court to which the Assignee is subject or any provision
of its organizational documents or other similar governing instruments, or
conflict with, violate or constitute a default under any agreement, credit
facility, debt or other instrument or understanding to which the Assignee is a
party. The Assignee has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with the Assignment of the Debenture.
(h) No
Litigation. There is no action, suit, proceeding, judgment,
claim or investigation pending, or to the knowledge of the Assignee, threatened
against the Assignee which could reasonably be expected in any manner to
challenge or seek to prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement.
(i) Consents. No
authorization, consent, approval or other order of, or declaration to or filing
with, any governmental agency or body or other Person is required for the valid
authorization, execution, delivery and performance by the Assignee of this
Agreement and the consummation of the transactions contemplated
hereby.
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(j) Stop Transfer
Notices. The Assignee agrees that, in order to ensure
compliance with the restrictions referred to herein, appropriate “stop transfer”
instructions may be issued to the Company’s transfer agent.
6. Representations
and Warranties of the Assignor
(a) Organization;
Authority. The Assignor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate, partnership or other applicable power
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations thereunder, and the
execution, delivery and performance by the Assignor of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or similar action on the part of the Assignor. This
Agreement, when executed and delivered by the Assignor, will constitute a valid
and legally binding obligation of the Assignor, enforceable against the Assignor
in accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors' rights
generally, (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, or (c) to the
extent the indemnification provisions contained herein may be limited by federal
or state securities laws.
(b) Ownership. Assignor
owns and is conveying to Assignee all of its rights, title and interests to the
assigned Debentures, and Short Term Advances free and clear of all liens,
mortgages, pledges, security interests, encumbrances or charges of any kind or
description.
(c) No Consents, Approvals,
Violations or Breaches. Neither the execution and delivery of this
Agreement by the Assignor, nor the consummation by Assignor of the transactions
contemplated hereby, will (i) require any consent, approval, authorization or
permit of, or filing, registration or qualification with or prior notification
to, any governmental or regulatory authority under any law of the United States,
any state or any political subdivision thereof applicable to Assignor, (ii)
violate any statute, law, ordinance, rule or regulation of the United States,
any state or any political subdivision thereof, or any judgment, order, writ,
decree or injunction applicable to Assignor or any of Assignor’s properties or
assets, the violation of which would have a material adverse effect upon
Assignor, or (iii) violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or any event which, with or without due
notice or lapse of time, or both, would constitute a default) under, or result
in the termination of, or accelerate the performance required by, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which
Assignor is a party or by which Assignor or any of Assignor’s properties or
assets may be bound which would have a material adverse effect upon
Assignor.
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7. Governing
Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EACH PARTY AGREES THAT
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT
SHALL BE BROUGHT IN A U.S. FEDERAL OR STATE COURT OF COMPETENT JURISDICTION
SITTING IN HUDSON COUNTY, IN THE STATE OF NEW YORK. EACH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF SUCH COURT AND
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY DEFENSE OF AN INCONVENIENT
FORUM OR A LACK OF PERSONAL JURISDICTION TO THE MAINTENANCE OF ANY ACTION OR
PROCEEDING AND ANY RIGHT OF JURISDICTION OR VENUE ON ACCOUNT OF THE PLACE OF
RESIDENCE OR DOMICILE OF ANY PARTY HERETO. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
8. Amendments. No
provision hereof may be waived or modified other than by an instrument in
writing signed by the party against whom enforcement is sought.
9. Severability. If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
10. Release. Upon
the execution of this Agreement by the Assignor, the Assignee, and the Company
and completion of the obligations contained in Paragraph 1 and 2:
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a)
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any
and all commitments, rights and obligations to the Company by the Assignor
set forth under the Debentures or arising under the Short Term Advances
shall be terminated, and all amounts due and payable by the Company to the
Assignor under the Debentures and the Short Term Advances shall be deemed
to be paid in full and complete satisfaction of all outstanding
obligations;
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b)
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the
Assignee, on behalf of itself and on behalf of its affiliates, and its and
their respective officers, directors, partners, general partner, limited
partners, shareholders, associates, employees, members, parents,
subsidiaries, affiliates, agents, predecessors, successors and assigns
(collectively, the "Assignee Affiliated
Parties"), hereby releases and forever discharges the Assignor and
their affiliates, and their respective officers, directors, partners,
general partner, limited partners, shareholders, associates, employees,
members, parents, subsidiaries, affiliates, agents, predecessors,
successors and assigns (collectively, the "Assignor Affiliated
Parties"), of and from any and all claims, complaints, demands,
obligations, causes of action, choices in action and/or damages
whatsoever, at law or in equity (collectively, "Claims") which such
parties ever had or now have based on or arising out of events or
circumstances occurring, or actions taken or failed to be taken, in each
case, that are known or unknown by an Assignee or an Assignee Affiliated
Party as of the date hereof, in connection with the
Debentures.
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c)
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each
of the Assignees, on its own behalf and on behalf of the Assignee
Affiliated Parties, covenants, to the maximum extent permitted by law,
that neither it nor any Assignee Affiliated Party shall at any time
hereafter file, commence or maintain or authorize any third party to file,
commence or maintain on its behalf, any suit, action or proceeding before
any federal, state or local court, administrative body, agency, authority
or arbitral organization or other tribunal against any of the Assignor
Affiliated Parties with respect to any Claims released pursuant to
Paragraph 10(b).
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d)
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the
Company, on behalf of itself and on behalf of its affiliates, and its and
their respective officers, directors, partners, general partner, limited
partners, shareholders, associates, employees, members, parents,
subsidiaries, affiliates, agents, predecessors, successors and assigns,
and anyone claiming by or through any of the foregoing (collectively, the
"Company
Affiliated Parties"), hereby releases and forever discharges the
Assignor and the Assignor Affiliated Parties of and from any and all
Claims which such parties ever had or now have based on or arising out of
events or circumstances occurring, or actions taken or failed to be taken,
in each case, that are known or unknown by the Company or a Company
Affiliated Party as of the date hereof, in connection with the Debentures
.
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e)
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the
Company, on its own behalf and on behalf of the Company Affiliated
Parties, covenants, to the maximum extent permitted by law, that neither
it nor any Company Affiliated Party shall at any time hereafter file,
commence or maintain or authorize any third party to file, commence or
maintain on its behalf, any suit, action or proceeding before any federal,
state or local court, administrative body, agency, authority or arbitral
organization or other tribunal against the Assignor or the Assignor
Affiliated Parties with respect to any Claims released pursuant to
Paragraph 10(d).
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f)
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the
Assignor, on behalf of itself and the Assignor Affiliated Parties, hereby
releases and forever discharges the Assignee Parties, the Assignee
Affiliated Parties, the Company and the Company Affiliated Parties of and
from any and all Claims, known or unknown, which such parties ever had,
now have or may hereafter have based on or arising out of the
Debentures.
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g)
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the
Assignor, on its own behalf and on behalf of the Assignor Affiliated
Parties, covenants, to the maximum extent permitted by law, that neither
it nor any Assignor Affiliated Party shall at any time hereafter file,
commence or maintain or authorize any third party to file, commence or
maintain on its behalf, any suit, action or proceeding before any federal,
state or local court, administrative body, agency, authority or arbitral
organization or other tribunal against the Assignee Parties, the Assignee
Affiliated Parties, the Company or the Company Affiliated Parties with
respect to any Claims released pursuant to Paragraph
10(f).
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12. Assignment.
No party may assign any of its rights under this Agreement without the prior
consent of the other party hereto; provided that Assignee may, without the
consent of any other party, assign all or any portion of its rights hereunder
to any of its Affiliates. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or
referred to in this Agreement will be construed to give any Person other than
the parties to this Agreement any legal or equitable right, remedy, or claim
under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions
are for the sole and exclusive benefit of the parties to this Agreement and
their successors and assigns.
[Signature
page follows]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement the day and year first above
written.
| ASSIGNOR |
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WESTEK
LTD.
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| By: | /s/ Xxxxxx Xxxxxx |
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Name:
Xxxxxx Xxxxxx
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Title:
Managing Director
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ASSIGNEE
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MEDICAL
DIAGNOSTIC INNOVATIONS LTD.
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| By: | /s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx
Xxxxxx
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Title:
Director
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AGREED AND
ACKNOWLEDGED
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| By: | /s/ Xxxxxx Xxxxx |
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Name:
Xxxxxx Xxxxx
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| Title: Chief Financial Officer | |||||
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SCHEDULE
I
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