SHARE TRANSFER AGREEMENT
Exhibit 10.2
This
Share Transfer Agreement (the “Agreement”) is made as of June 15, 2011 by and between:
ISRAEL HEALTHCARE VENTURES 2 LP INCORPORATED, a Guernsey limited
partnership, with offices located at 00 Xxxxxxxx xx. Xxxxx Xxxxxxxx, Xxxxxx
(the
“Transferee”); and
MEDGENESIS PARTNERS LTD., an Israeli Company (p.c. number 513054064) located at 00
Xxxxx Xx., Xxxx Xxxx, Xxxxxx (the “Transferor”).
Whereas the Transferor own securities in TopSpin Medical, Inc. (the “Company”) a corporation
incorporated under the laws of the State of Delaware whose securities are publicly traded on
the Tel Aviv Stock Exchange Ltd. (the “TASE”); and |
Whereas The Transferee wishes to receive and the Transferor wishes to transfer to Transferee part
of its securities pursuant to the terms hereof. |
NOW, THEREFORE, the parties (each a “Party” and collectively “Parties”) hereby agree as follows:
| 1. | Recitals & Definitions |
|
| 1.1 | The recitals and schedules to this Agreement form integral and binding parts thereof. |
|
| 1.2 | The following terms used in this Agreement shall have the meaning ascribed to herein: |
| 1.2.1 | “Common Stock” means reorganized common stock of the Company par value US $0.001
each. |
||
| 1.2.2 | “Transferred Shares” means 1,015,295 Common Stock. |
| 2. | The transfer of the Transferred Shares |
| 2.1 | At the Closing (as defined below) the Transferor shall transfer to the Transferee the
Transferred Shares for no consideration, but subject to the simultaneous closing of the share
transfer agreement between the Transferee and the Company with respect to all of its holdings
in Metamorefix Ltd. for no consideration (the “Metamorefix Shares Transfer”). |
| 2.2 | The Transferred Shares are transferred “as-is” without any representation by Transferor to
Transferee, with respect to the Company and the Transferred Shares, except to the following
specific representations: (i) Transferor has paid the Company the full consideration due for
the Transferred Shares and there is no debt due to the Company or anyone else with respect to
the Transferred Shares; (ii) the Transferor is the sole and exclusive owner of the Transferred
Shares, and subject to lock-up provisions under
relevant legislation the Transferred Shares are free and clear of any and all encumbrances,
liens and third parties’ rights; (iii) Transferor has not Transferred nor promised to sell
the Transferred Shares to any third party; (iv) this Agreement constitutes a valid and
legally binding obligation of the Transferor, legally enforceable against the Transferor in
accordance with its terms; and (v) Transferor has full power and authority to transfer the
Transferred Shares. |
| 2.3 | The Transferee confirms that it is aware of and accepts the following restrictions with
respect to the Transferred Shares: |
| 2.3.1 | The Transferred Shares to be received under this Agreement are being received by
Transferee for investment and not as a nominee or agent for the benefit of any other
person, and Transferee has no current intention of distributing, re- selling or assigning
Transferred Shares. |
| 2.3.2 | Transferee understands that the sale of the Transferred Shares have not been
registered under the Securities Act of 1933, as amended (the “1933 Act”), or under the
laws of the state of Israel nor any other jurisdiction, and that there is no obligation
to so register the Transferred Shares. Transferee understands and agrees further that the
Transferred Shares must be held indefinitely unless they are subsequently registered
under the 1933 Act or an exemption from registration under the 1933 Act covering the
sale of the Transferred Shares is available and under the relevant Israeli Securities
laws and TASE regulations. Transferee understands that legends stating that the
Transferred Shares have not been registered under the 1933 Act and the securities laws of
the state of Israel and setting out or referring to the restrictions on transferability
and sale of the Transferred Shares will be placed on all documents evidencing the
Transferred Shares. Transferee understands and agrees further that the
certificates evidencing the Transferred Shares shall bear legends contemplated by the
1933 Act and under requirements set out by Israeli securities laws. Transferee is aware
that the Transferred Shares are not listed for trading on TASE and shall not be
registered with the transfer agent — Hachevra LeRishumim, until the Transferred Shares
are registered pursuant to the 1933 Act and until the needed US SEC approvals and the
Israeli authorities approvals including TASE are received. Transferee is also aware
and undertakes to comply with the restrictions on re-sale according to the Israeli
Securities laws and regulations with respect to the Transferred Shares. |
| 2.3.3 | Transferee is aware that: (i) investment in the Company involves a high degree of
risk, lack liquidity and substantial restrictions on transferability of interest; and
(ii) no Israeli, US Federal or any state agency has made any finding or
determination as to the fairness for investment by the public, nor has made any
recommendation or endorsement, regarding the Transferred Shares. |
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| 2.3.4 | Transferee has sufficient financial resources available to support the loss of
all or a portion of Transferee’s investment in the Company, has no need for liquidity in
the investment in the Company and is able to bear the economic risk of the investment. |
| 2.3.5 | Transferee represent that he is not a U.S. Person (as such term is used under
the 0000 Xxx) and is sophisticated and experienced in investment matters, and, as a
result, is in a position to evaluate an investment in the Company. |
| 2.3.6 | Transferee has been furnished any and all materials it has requested relating to
the Company or the offering of the Transferred Shares and Transferee has been afforded
the opportunity to ask questions of the senior management and directors of the Company
to obtain any additional information necessary to verify the accuracy of the information
provided to Transferee. Transferee understands that such material is current information
about the Company and does not in any way guarantee future performance or the completion
of future proposed events discussed in such material. Transferee, either alone or with
its professional advisors, has the capacity to protect his own interests in connection
with this transaction. |
| 2.4 | The Transferee further represents to the Transferor that: (i) this Agreement constitutes a
valid and legally binding obligation of the Transferee, legally enforceable against Transferee
in accordance with its terms; and (ii) Transferee has full power and authority to effect the
transactions set out herein and the financial means to do so. |
| 2.5 | The Transferor agrees to compensate the Transferee by transfer of additional shares of the
Company if and upon one or more of the following events occurs: |
| 2.5.1 | It is the intent of the Parties that the Transferred Shares shall represent 10% of the
outstanding share capital of the Company (not on a fully diluted basis) post the Listing
Transactions (as defined below) and therefore if post such Listing Transactions, Transferee
holds less than the intended 10%, the Parties shall conclude additional transactions in order
to compensate the Transferee proportionally. The term “Listing Transactions” shall mean
transactions in which the Transferor is involved for the purpose of returning the Company to
the main list  (“Listing Transactions”). |
| 2.5.2 | If prior to the next public offering consummated in the Company, other shareholders of
Metamorefix Ltd. conclude a more beneficial transaction (to such shareholder) with the
Transferor, concerning the sale or transfer of their shares, then the transactions set out
herein and in the Metamorefix Share Transfer, a compensation mechanism shall be
reached between the Parties. |
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| 2.5.3 | The holdings of the Transferee shall not be diluted by any shares issued by the Company to
the shareholders of Metamorefix Ltd. in return for their shares in Metamorefix, if such
transaction shall take place. |
| 2.5.4 | During a period commencing at the Closing (as defined below) and terminating upon the
earlier of (i) 12 months following the Closing; or (ii) consummation of an M&A transaction in
which Metamorefix is not the surviving entity or 100% of the Metamorefix shares are
transferred to the Company (“Protection Period”), Transferee has the right (including
immediately prior to an M&A transaction in Metamorefix with a third party — not the Company)
to transfer to Transferor all of the Transferred Shares and any other benefit received
pursuant to Section 2.5, and Transferor together with Xx. Xxxxxx Xxxxxxxxxx shall transfer to
Transferee all of their currently held securities in Metamorefix (i.e. 1,400,000) and shall
use best efforts to cause all such personal rights (i.e. the right to appoint a director) in
the name of the Transferor or Xx. Xxxxxxxxxx included in the Metamorefix Articles of
Association to be transferred to the name of the Transferee. For that purpose, Transferor
shall refrain from disposing of its securities in Metamorefix during the Protection Period
(except as part of said M&A). |
| 2.6 | In addition, but without derogating from the Transferee’s representations above, if the
Company registers the Transferor’s securities, then the Transferor shall use best efforts to
cause the Company to include the Transferee’s Transferred Shares in such registration. |
It is clarified and agreed between the Parties that the protection and other benefits granted
to the Transferee pursuant to Sections 2.5 and 2.6, are made solely between the Parties and
does not obligate the Company in anyway,
| 2.7 | The closing date of the transfer of the Transferred Shares shall be simultaneously with the
closing of the Metamorefix Shares Transfer and when the compliance
with all legal aspects of
the transfer is verified by the Parties, mainly compliance with Israeli and US securities laws
and the TASE rules and regulations (“Closing”). If the Closing does not take place within 15
days of the date hereof, each Party may terminate this Agreement by written notice to the
other Party and neither Party shall have any demands or claims against the other Parties with
respect to such termination. |
| 2.8 | At the Closing the Transferor shall execute the needed transfer documentation in order to
finalize the transfer. |
| 2.9 | The Parties shall provide notice to the Company as needed in order to notify it in a timely
manner of this Agreement and the transfer according to applicable rules and regulations. |
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| 3. | Miscellaneous |
| 3.1 | This Agreement constitutes the full and entire understanding and agreement between the
Parties with respect to the subject matter hereof, and any other written or oral agreement
relating to the subject matter hereof existing between the Parties are expressly canceled. The
Parties confirm that there are no voting agreements between them and not other agreements
between them concerning the Company except as set out herein. |
| 3.2 | Each Party shall take any and all action that may be required, including signing on
additional documentation, providing information, voting shares, in order to fulfill the terms
and intentions set forth herein. |
| 3.3 | No delay or omission to exercise any right, power, or remedy accruing to any Party upon any
breach or default under this Agreement, shall 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 breach or default under this Agreement, or
any waiver on the part of any Party of any provisions or conditions of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any of the
Parties, shall be cumulative and not alternative. |
| 3.4 | This Agreement shall be governed by and construed according to the laws of the State of
Israel without regard to the conflict of laws provisions thereof any matter governed by
provided, however, that any and all issues relating to US SEC rules, would be governed by such
rules and laws. The exclusive jurisdiction is granted to the courts of Tel-Aviv, Israel. If
one or more provisions of this Agreement are held to be unenforceable under applicable law,
such provision shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in accordance with
its terms. |
| 3.5 | All notices and other communications required or permitted hereunder to be given to a Party
to this Agreement shall be in writing and shall be deemed to have arrived at its destination:
(i) upon delivery or within 7 days of sending via registered mail; (ii) one business day after
transmission if sent via fax or e-mail; (iii) upon delivery, if hand delivered, to the
addresses listed in the preamble to this Agreement. |
| 3.6 | The rights and obligations of the Parties hereby may not be assigned without the consent of
the other Party. Except that the right to receive cash consideration maybe assigned subject to
providing notice to the other Party. |
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the above date
ISRAEL HEALTHCARE VENTURES 2 LP INCORPORATED |
MEDGENESIS PARTNERS LTD. | |
By its authorized signatory
|
By its authorized signatory | |
Name: Dr. Xxxxx Xxx
|
Name: Xx. Xxxxxx Shmulewitz | |
/s/
Dr. Xxxxx Xxx
|
/s/ Xx. Xxxxxx Shmulewitz |
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