Bridge Loan Agreement
EXHIBIT
10.14
This
Bridge Loan Agreement (this "Agreement") is entered into as
of January 10, 2007 (the "Effective Date"), by and
between BioLineRx Ltd.,
an Israeli company (the "Company"), and Pan Atlantic
Investments Limited, a Barbados company (the "Lender").
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Whereas
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The
Company is a company engaged in the development of innovative
therapeutics; and
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Whereas
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The
Company seeks to raise funds for its activities and is currently exploring
a number of funding alternatives;
and
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Whereas
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The
Lender wishes to participate in the upcoming funding by way of loaning to
the Company, and the Company wishes and agrees to receive from the Lender,
a loan under the terms and conditions set forth herein
below;
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NOW, THEREFORE, in
consideration of their mutual and respective undertakings and covenants herein
contained, the parties hereto hereby agree as follows:
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1.
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Preamble, Exhibits and
Headings
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The
preamble to this Agreement and all Exhibits attached hereto form an integral
part hereof. The headings appearing throughout this Agreement are used for
convenience of reference, and are not to be used or referred to for the purpose
of construing this Agreement or any provision thereof.
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2.
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Loan of
Funds
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The
Lender agrees and undertakes to loan to the Company the amount of US$9,000,000
(nine million U.S. Dollars) (the "Loan Amount"), and the Company
agrees to receive such loan from the Lender, in accordance with the terms and
conditions set forth in this Agreement. Payment of the entire Loan Amount shall
be made, in United States Dollars, by the Lender within 5 (five) business days
from the date on which all the conditions listed in Section 9 below have been
met, by way of a bank transfer, to the following bank account of the
Company:
Account
No. 97800/55
Bank
Leumi
Branch
#741
Givat
Xxxxx, Jerusalem
The Loan
Amount shall be automatically converted into an equity investment in the Company
upon the occurrence of the first to occur of the events specified in Sections 3
and 4, and conversion of the Loan Amount pursuant to either of such Sections
shall constitute full repayment of the Loan Amount.
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3.
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Automatic Conversion
upon a Private
Placement
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3.1.
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In
the event that the Company shall enter into an agreement for the
investment in the Company of an amount of at least US$8,000,000 (eight
million U.S. Dollars) from current shareholders of the Company (or any
affiliates thereof) (the "Private Placement"),
then the Loan Amount shall be automatically converted into an equity
investment, as part of, and on the same terms and conditions as, the
Private Placement, provided
however that the price per share paid by the Lender upon conversion of the
Loan Amount shall be equal to the lower of (i) US$1.34, or (ii) the agreed
price per share of the Private Placement, and further provided that
the shares to be issued to the Lender against conversion of the Loan
Amount shall be subject to rights and preferences substantially similar
to, but no worse than the rights and preferences attached to the Preferred
A-1 Shares.
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3.2.
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As
part of the Private Placement, the Lender shall be party to all
shareholders agreements, investors rights agreements, etc. which may apply
to the shares issued as part of the Private Placement. It is further
agreed that the definitive agreements of the Private Placement shall grant
all investors in the Company customary registration rights, as shall be
negotiated at that time.
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3.3.
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Upon
conversion of the Loan Amount into an equity investment, the Lender shall
be entitled to appoint one (1) member to the Company’s Board of Directors
(the "Board"), so
as long as the Lender and its Affiliates (any person or entity directly or
indirectly, through one or more intermediary persons or entities,
controls, is controlled by, or is under common control with the Lender)
hold shares of the Company constituting at least 4% (four percent) of the
Company's issued and outstanding share capital. This provision shall no
longer be applicable when the Lender becomes a party to the Voting
Agreement (as defined below).
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4.
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Automatic Conversion
upon a TASE IPO
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4.1.
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In
the event that the Company shall offer to the public shares of the Company
at the Tel Aviv Stock Exchange (a "TASE IPO"), then
immediately prior to the closing of a TASE IPO that includes (i) an
investment by current shareholders of the Company (or any affiliates of
such shareholders) of at least US$8,000,000 (eight million U.S. Dollars)
(the “Qualifying
Amount”); and (ii) aggregate net proceeds to the Company of at
least US$17,000,000 (seventeen million U.S. Dollars), and subject to
approval of the Office of the Chief Scientist ("OCS"), to the extent
required, the Loan Amount shall be automatically converted into an equity
investment of a new class of Series B Redeemable Preferred Shares, par
value NIS 0.01 each, of the Company (the "Preferred B Shares"), at
a price per share paid by the Lender upon conversion of the Loan Amount of
US$1.34, but not more than the effective price per share of an Ordinary
Share of the Company based on the pre-money company valuation of the
company prior to the TASE IPO, and which Preferred B Shares shall
automatically be converted into Ordinary Shares, at the same conversion
ratio applicable at such time to the Preferred A-1
Shares.
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In the
event that current shareholders of the Company (or any affiliates of such
shareholders) commit to submit offers to purchase at least the Qualifying Amount
of securities offered for sale in the TASE IPO, but the underwriters require
that such shareholders purchase less than the Qualifying Amount or the rules
applying to the public offering result in such outcome, the Loan Amount shall be
automatically converted as set forth in the above paragraph even though the
actual amount invested by the current shareholders of the Company may be less
than the Qualifying Amount.
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4.2.
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As
part of the TASE IPO, certain shareholders of the Company, including at
least the Pitango Group entities, the Giza Group entities, and Hadasit (as
such terms are defined in the Articles of Association of the Company (the
"Articles") may
enter into a voting agreement in substantially the form attached hereto as
Schedule
A (the "Voting
Agreement"), in which case the Lender agrees to join as a party to
such Voting Agreement.
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4.3.
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In
the event that OCS approval is required but not obtained, then the Lender
may demand repayment of the entire Loan Amount together with interest at
the rate of 6.0% (six percent) per annum from the proceeds of the TASE
IPO.
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5.
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Repayment; Voluntary
Conversion
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In the
event that no Private Placement or TASE IPO shall occur prior to the end of 4
(four) months from the date of payment to the Company of the Loan Amount, then,
upon the written demand of the Lender, the Company shall repay to the Lender the
entire Loan Amount, together with interest at the rate of 6.0% (six percent) per
annum. In the event that no such demand is made within 120 (one hundred and
twenty) days (which period of time may be extended upon mutual written consent),
or if the Lender earlier requests a conversion, then the Loan Amount shall be
converted in accordance with the relevant provisions of Section 3.1 at a price
per share of US$1.34.
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6.
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Upgrade
Right
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At any
time as of the date of issuance of shares to the Lender pursuant to Section 3 or
Section 5 (as applicable) and until such date on which the Company shall have
raised an aggregate amount of US$26,000,000 (twenty six million U.S. Dollars),
taking into account the converted Loan Amount as well any and all funds which
may raised pursuant to Section 3 and/or Section 4 (but including the financing
round itself which results in the Company having raised at least US$26,000,000),
in the event that the Company shall issue any shares to any person or entity, in
consideration for an equity investment in the Company ("New Securities"), the Lender
shall have the right to have its holdings in the Company converted into the New
Securities at the time of closing of the issuance of such New Securities, at the
price per share equal to the lowest price per share paid for such New
Securities by the other investors thus subjecting and entitling the Lender, as a
shareholder of the Company, to all rights, preferences, obligations and
restrictions generally applying to all the holders of the New
Securities.
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7.
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Representations and
Warranties of the
Company
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Subject
to the provisions of Exhibit 7 (the "Disclosure Schedule"), the
Company hereby represents and warrants to the Lender, and acknowledges that the
Lender is entering into this Agreement in reliance thereon, as
follows:
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7.1.
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Organization.
The Company is duly organized and validly existing under the laws of
Israel, and has full corporate power and authority to own, lease and
operate its properties and assets and to conduct its business as now being
conducted and as currently proposed to be conducted. The Company has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated
hereby.
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7.2.
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Share capital.
The authorized share capital of the Company as of the Effective Date is
NIS400,000 (four hundred thousand New Israeli Shekels), divided into
16,350,000 (sixteen million three hundred fifty thousand) Ordinary Shares,
par value NIS 0.01 each, of the Company ("Ordinary Shares"),
13,650,000 (thirteen million six hundred fifty thousand) Series A
Redeemable Preferred Shares, par value NIS 0.01 each, of the Company (the
"Preferred A
Shares"), and 10,000,000 (ten million) Series A-1 Redeemable
Preferred Shares, par value NIS 0.01 each, of the Company (the "Preferred A-1 Shares").
A complete and correct list of the shareholders of the Company and their
shareholdings as of the Effective Date is set forth in Section 7.2 of the
Disclosure Schedule.
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Except
for the transactions contemplated by this Agreement and as set forth in the
Articles and in Section 7.2 of the Disclosure Schedule, there are no other
preemptive rights, rights of first refusal, convertible securities, outstanding
warrants, options or other rights to subscribe for, purchase or acquire from the
Company any share capital of the Company and there are not any contracts or
binding commitments providing for the issuance of, or the granting of rights to
acquire, any share capital of the Company or under which the Company is, or may
become, obligated to issue any of its securities. All issued and outstanding
shares of the Company have been duly authorized, and are validly issued and
outstanding and fully paid and non-assessable.
The
Company is not under any current obligation to register for trading on any
securities exchange any of its currently outstanding securities or any of its
securities which may hereafter be issued.
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7.3.
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Ownership of
Shares. A complete and correct list of the shareholders of the
Company on the Effective Date is set forth in Section 7.2 of the
Disclosure Schedule. To the Company's knowledge, the individuals
identified in Section 7.2 of the Disclosure Schedule as the shareholders
of the Company are the lawful owners, beneficially and of record, of all
of the issued and outstanding shares of share capital of the Company and
of all rights thereto, free and clear of all liens, claims, charges,
encumbrances, restrictions, rights, options to purchase, proxies, voting
trust and other voting agreements, calls or commitments of every kind
(except as specified in the Articles and the Shareholders Agreement dated
September 26, 2005), and, to the Company's knowledge, none of the said
individuals owns any other share, options or other rights to subscribe
for, purchase or acquire any share capital of the Company from the Company
or from each other.
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7.4.
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Financial
Statements. The Company has furnished the Lender with its audited
financial statements for the annual period ended on December 31, 2005, as
well as un-audited balance sheets of the Company for the period ended on
September 30, 2006 (hereinafter collectively referred to as the “Financial Statements”).
The Financial Statements are true and correct, in accordance with the
books and records of the Company, and have been prepared in accordance
with Israeli generally accepted accounting principles ("GAAP") consistently
applied, and fairly and accurately present the financial condition of the
Company as of such dates and the results of its operations for the periods
then ended. The Company does not have any material liabilities, debts or
obligations, whether accrued, absolute or contingent, pertaining to the
time periods referred to in the Financial Statements, other than
liabilities reflected or reserved against in the Financial
Statements.
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Since
September 30, 2006, there has not
been:
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(a)
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any
material change in the assets, liabilities, condition (financial or
otherwise) or business of the
Company;
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(b)
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any
damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the material assets, properties,
conditions (financial or otherwise), operating results or business of the
Company;
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(c)
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any
waiver by the Company of a valuable right or of a material debt owed to
it;
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(d)
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any
satisfaction or discharge of any material lien, material claim or material
encumbrance or payment of any material obligation by the Company, except
in the ordinary course of business and that is not individually or in the
aggregate adverse to the assets, properties, condition (financial or
otherwise), operating results or business of the
Company;
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(e)
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any
material change or amendment to a material contract or material
arrangement by which the Company or any of its assets or properties is
bound or subject;
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(f)
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any
loans made by the Company to its employees, officers, or directors, other
than travel advances made in the ordinary course of
business;
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(g)
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any
sale, transfer or lease of, except in the ordinary course of business, or
mortgage or pledge of imposition of lien on, any of the Company’s material
assets;
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(h)
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any
change in the accounting methods or accounting principles or practices
employed by the Company, except as required by applicable laws, rules,
regulations and standards; or
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(i)
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to
the Company's knowledge, any other event or condition of any character
that would materially adversely affect the assets, properties, condition
(financial or otherwise), operating results or business of the
Company.
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7.5.
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Authorization;
Approvals. All corporate action on the part of the Company
necessary for the authorization, execution, delivery, and performance of
all of the Company's obligations under this Agreement has been taken. This
Agreement, when executed and delivered by or on behalf of the Company,
shall constitute the valid and legally binding obligation of the Company,
legally enforceable against the Company in accordance with its terms. No
consent, approval, order, license, permit, action by, or authorization of
or designation, declaration, or filing with any governmental authority on
the part of the Company is required that has not been obtained by the
Company in connection with the valid execution, delivery and performance
of this Agreement.
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7.6.
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Compliance with Other
Instruments. To the best of its knowledge, the Company is not in
default (a) under the Articles, or under any material note,
indenture, mortgage, lease, agreement, contract, purchase order or other
instrument, document or agreement to which the Company is a party or
(b) with respect to any Israeli law, statute, ordinance, regulation,
order, writ, injunction, decree, or judgment of any court or any
governmental authority, which default, in any such case, would adversely
affect the Company's business, prospects, condition (financial or
otherwise), affairs, operations or assets. To the best knowledge of the
Company, no third party is in default under any agreement, contract or
other instrument, document or agreement to which the Company is a
party.
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7.7.
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No Breach.
Neither the execution and delivery of this Agreement nor compliance by the
Company with the terms and provisions hereof, will conflict with, or
result in a breach or violation of, any of the terms, conditions and
provisions of: (i) the Articles, (ii) to the Company's
knowledge, any judgment, order, injunction, decree, or ruling of any court
or governmental authority, (iii) any material agreement, contract,
lease, license or commitment to which the Company is a party, or
(iv) to the best of its knowledge, applicable law. Such execution,
delivery and compliance will not (a) give to others any rights,
including rights of termination, cancellation or acceleration, in or with
respect to any agreement, contract or commitment referred to in this
paragraph, or to any of the properties of the Company or (b) unless
otherwise specified herein, otherwise require the consent or approval of
any person, which consent or approval has not heretofore been
obtained.
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7.8.
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Intellectual Property
and Other Intangible Assets.
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7.8.1.
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Unless
otherwise stated in any of the agreements referred to in Section 7.8.1 of
the Disclosure Schedule, the Company owns and has developed, or has
obtained the right to use, free and clear of all liens, claims and
restrictions, all patents, trademarks, service marks, trade names and
copyrights, and applications, licenses and rights with respect to the
foregoing, and all related trade secrets, including know-how, inventions,
designs, processes, works of authorship, computer programs and technical
data and information (collectively herein "Intellectual Property"),
without, to the knowledge of the Company, infringing upon or violating any
right, lien, or claim of others. Unless otherwise stated in the applicable
agreements referred to in Section 7.8.1 of the Disclosure Schedule, the
Company is not obligated or under any liability whatsoever to make any
payments by way of royalties, fees or otherwise to any owner or licensee
of, or other claimant to, any patent, trademark, service xxxx, trade name,
copyright or other intangible asset, with respect to the use thereof or in
connection with the conduct of its business as now conducted or as
currently proposed to be conducted or
otherwise.
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7.8.2.
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Any
and all Intellectual Property of any kind which has been developed, is
currently being developed, or will be developed in the future, by any
employee of the Company in the course of their employment by the Company
shall be the property solely of the Company. The Company has taken
security measures to protect the secrecy, confidentiality and value of all
the Intellectual Property, which measures are reasonable and customary in
the industry in which the Company operates. Each of the Company's
employees have entered into written agreements with the Company, assigning
to the Company all rights in intellectual property developed in the course
of their employment by the Company and each of the Company's employees
who, either alone or in concert with others, developed, invented,
discovered, derived, programmed or designed the Intellectual Property have
entered into a written agreement with the Company, the forms of which have
been made available to the Lender.
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7.8.3.
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The
Company has not received any communications alleging that the Company has
violated or by conducting its business as proposed, would violate, any of
the patents, trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity. To the
Company's knowledge, none of the Company's employees is obligated under
any contract (including licenses, covenants or commitments of any nature)
or other agreement, or subject to any judgment, decree or order of any
court or administrative agency, that would interfere with the use of such
employee's best efforts to promote the interests of the Company. To the
Company's knowledge, neither the execution nor delivery of this Agreement,
nor the carrying on of the Company's business by the employees of the
Company, nor the conduct of the Company's business as currently proposed
to be conducted, will conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now
obligated.
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7.9.
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Litigation.
Except as set forth in Section 7.9 of the Disclosure Schedule, no action,
proceeding or governmental inquiry or investigation is pending or, to the
knowledge of the Company, threatened against the Company or any of its
officers, directors, or employees (in their capacity as such), or against
any of the Company's properties, before any court, arbitration board or
tribunal or administrative or other governmental agency, nor, to the
knowledge of the Company, is there is any basis for the foregoing. To its
knowledge, the Company is not a party to or subject to the provisions of
any order, writ, injunction, judgment or decree of any court or
governmental agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company currently pending or that the
Company intends to initiate.
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7.10.
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No Public
Offer. Neither the Company nor anyone acting on its behalf has
offered securities of the Company or any part thereof or any similar
securities for issuance or sale to, or solicited any offer to acquire any
of the same from, anyone so as to make the execution and performance of
this Agreement not in compliance with applicable securities
laws.
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7.11.
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Full
Disclosure. Neither this Agreement (including the Schedules and
Exhibits attached hereto) nor any certificate made or delivered in
connection herewith contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements herein or
therein not misleading, in view of the circumstances in which they were
made. To the best knowledge of the Company, there is no material fact or
information relating to the business, prospects, condition (financial or
otherwise), affairs, operations, or assets of the Company that has not
been disclosed to the Lender by the
Company.
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Each
representation and warranty herein is deemed to be made on the effective Date
and shall survive and remain in full force and effect after the Effective Date
until the earlier of: (i) the conversion of the Loan Amount pursuant to Section
3, provided, that the
Lender receives representations and warranties in the agreement governing the
Private Placement which are no less favorable, in all material respects, than
those contained herein; (ii) a period of two (2) years; (iii) a M&A
Transaction (as defined in the Articles), or (iv) consummation of an IPO (as
defined in the Articles). In the event of any breach or misrepresentation of any
covenant, warranty, or representation made by the Company under this Agreement
(a “Misrepresentation”),
the Company shall indemnify the Lender and hold it harmless from and against any
and all direct claims, loss, damage, liability, and expense (including
reasonable legal fees and costs), actually sustained or incurred by it as a
result of or in connection with said Misrepresentation. The liability of the
Company to the Lender for claims brought against it by the Lender shall not
exceed the Loan Amount. In no case shall the Company be liable to indemnify the
Lender for any incidental, indirect, consequential, special or punitive damages.
Notwithstanding the foregoing provisions of this Section, no claims shall be
asserted under this Section unless the aggregate amount claimed is in excess of
$50,000 (fifty thousand U.S. Dollars), in which case a claim can be submitted
for the entire amount at issue, subject to the limits set forth in this Section
above. The remedies listed hereinabove are the sole and exclusive remedies, to
the exclusion of all other remedies, for any Misrepresentation.
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8.
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Representations and
Warranties of the
Lender
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The
Lender hereby represents and warrants to the Company as follows:
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8.1.
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The
execution, delivery and performance of this Agreement by it have been duly
authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government,
its corporate documents or any provision of any indenture, agreement or
other instrument to which it or any of its properties or assets is bound,
conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or
other instrument or result in the creation or imposition of any charge,
attachment or lien upon any of the properties or assets of the
Company.
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8.2.
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This
Agreement has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and moratorium laws and other laws
of general application affecting enforcement of creditors' rights
generally and (ii) the availability of equitable remedies as such remedies
may be limited by equitable principles of general applicability
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
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8.3.
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The
Lender is investing in the Company for the Lender's own account (not as a
nominee or agent), for its investment only, and not with a view towards
the distribution or resale of any securities which may be issued to the
Lender ("Securities").
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8.4.
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The
Lender understands that any Securities it may be issued by the Company
shall not be registered under Israeli laws (including but not limited to
the Israel Securities Law - 1968) or other securities laws (including but
not limited to the U.S. Securities Act of 1933), that there is no
established market for such Securities and that no public market is
presently foreseeable.
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8.5.
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The
Lender has experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company and it has
such knowledge and experience in financial and business matters so that it
is capable of evaluating the merits and risks of its investment in the
Company, and has the capacity to protect its own interests and bear the
economic risk of its investment in the Company. The Lender has had the
opportunity to pose to the Company any and all questions it may have had
in connection with its investment in the Company (including, without
limitation, questions regarding the due diligence materials asked for and
delivered to it, the terms and conditions of the investment in the Company
and the business, properties, prospects and financial condition of the
Company) and has received, to its satisfaction, answers to all such
questions. The Lender has independently evaluated the risks and merits of
investing in the Company, has reached a knowledgeable decision to make the
investment in the Company and has independently determined that it is a
suitable investment for it. The Lender understands that there is no
assurance that any exemption from registration under Israeli or foreign
securities laws will be available and that, even if available, such
exemption may not allow the Lender to transfer all or any portion of any
Securities it may be issued, under the circumstances, in the amounts or at
the times the Lender might propose.
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8.6.
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No
agent, broker, investment banker, person, or firm acting in a similar
capacity on behalf of or under the authority of the Lender is or will be
entitled to any broker’s or finder’s fee or any other commission or
similar fee, directly or indirectly, from the Company and the Company
shall be entitled to receive the entire Loan Amount without any deductions
or payments of such fees.
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9.
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Conditions to
Obligations of the
Lender
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The
obligations of the Lender to consummate the transactions contemplated hereby,
shall be subject to the satisfaction of each of the following
conditions:
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9.1.
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The
representations and warranties of the Company contained in this Agreement
shall have been true and correct in all material respects as of the
Effective Date.
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9.2.
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The
Company shall have delivered to the Lender an opinion of Xxxxxxxx,
Klagsbald & Co., counsel to the Company, in the form attached hereto
as Schedule
B.
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9.3.
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The
Company shall have delivered to the Lender minutes of resolutions of the
Board in substantially the form attached hereto as Schedule
C.
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9.4.
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The
Company shall have delivered to the Lender a certificate duly executed by
an executive officer of the Company in the form attached hereto as Schedule D,
dated as of the date hereof.
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9.5.
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Any
and all preemptive rights or other participation rights with respect to
the transactions contemplated hereby shall have been validly waived or
satisfied.
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10.
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Observership
Right
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Until the
conversion or repayment of the Loan Amount, the Lender shall be entitled to
appoint, replace and terminate, from time to time, at its discretion, one
observer to the Board. Such right shall be subject to the applicable provisions
in the Articles applying to observers and shall include any rights of such
observer (as they may be from time to time).
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11.
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Confidentiality
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Without
derogating from any other agreement or undertaking to which the Lender is or may
become subject, and in addition to any such agreement or undertaking, the Lender
undertakes that it shall keep in confidence, and not use for any purpose
whatsoever except in connection with the exercise of any of its rights under
this Agreement, any and all information relating to the Company which has been
provided to it by the Company or was otherwise obtained by it ("Confidential Information"),
except for information: (i) which is or shall be in the public domain not due to
any act of the Lender in breach of law or agreement; (ii) which, at the time of
disclosure to the Lender was already known to the Lender and was not acquired
directly or indirectly from the Company or any of its affiliates, all as may be
evidenced by written records of the Lender; (iii) which, at the time of
disclosure to the Lender was already received by the Lender from a third party
who did not acquire it directly or indirectly from the Company or any of its
affiliates under an obligation of confidence, all as may be evidenced by written
records of the Lender; (iv) was independently developed by the Lender without
the use of Confidential Information, as may be evidenced by written records of
the Lender; or (v) which the Lender is required to disclose under any applicable
law or stock exchange regulations. Notwithstanding the above, the Lender will
have the right to disclose its funding of the Company under this Agreement and
under the Early Development Program Agreement between the Lender and the
Company, dated January 10, 2007.
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12.
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Settlement of
Conflicts
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The laws
of the State of Israel, without giving effect to conflict of law rules, shall
govern the interpretation and enforcement of this Agreement. The parties hereto
agree to submit to the jurisdiction of the courts of Tel-Aviv-Jaffa with respect
to the breach or interpretation of this Agreement or the enforcement of any and
all rights, duties, liabilities, obligations, powers, and other relations
between the parties arising under this Agreement.
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13.
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Miscellaneous
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13.1.
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This
Agreement embodies the entire agreement between the parties and supersedes
all other agreements or understandings between any of the parties in
connection with the subject matter hereof. This Agreement cannot be
modified, supplemented or rescinded except in writing signed by the
Company and the Lender.
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13.2.
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The
Lender may not assign, transfer, or otherwise dispose of any of its
rights, obligations or duties under this Agreement to any other person or
entity, except with the prior written consent of the Company, and any
assignment in violation of this Section shall be void. Notwithstanding
anything to the contrary contained in this Agreement, the Lender may
transfer all or any portion of its rights hereunder without restriction to
its Affiliates (as defined below) or to any officer or director of the
Lender or an Affiliate (provided, that with
respect to a transfer to an officer or director such transfer not exceed
3% of the Loan Amount) and provided, that such
transferee agrees to be bound by the terms and conditions of this
Agreement. For the purposes of this Agreement, an “Affiliate” of any
person or entity means any other person or entity, directly or indirectly,
through one or more intermediary persons or entities, controlling,
controlled by or under direct or indirect common control with /or having
the same beneficial ownership as/ such person or entity. For purposes of
this definition, “control” means the power to direct the management and
policies of such person or firm, directly or indirectly, whether through
the ownership of voting securities, by contract or
otherwise
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— 10 —
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13.3.
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All
notices to be given pursuant to this Agreement shall be in writing, and
shall be deemed to have been duly given if hand delivered to such party's
designated representative, or mailed, postage prepaid, by registered mail,
or faxed (with a confirming copy sent by registered mail) and shall be
deemed given (i) when so delivered personally; (ii) if mailed, five (5)
days after the time of mailing; (iii) if faxed or sent by electronic mail
(email), twenty four (24) hours after the time of sending the fax or
electronic mail. Addresses for notices (which may be changed from time to
time by a written notice pursuant hereto)
are:
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If to the
Lender:
Pan
Atlantic Investments Limited
Xxxxxx
Building, 0xx Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx West Indies 11000
Attention:
Xxxxxx X. Xxxxxxx, Managing Director
Tel:
x0-000-000-0000
Fax:
x0-000-000-0000
With a
copy (which shall not constitute notice) to:
Gross,
Kleinhendler, Hodak, Halevy, Xxxxxxxxx & Co.
One
Azrieli Center
Xxx Xxxx,
00000 Xxxxxx
Tel:
x000-0-000-0000
Fax: x000
0 000 0000
Attention:
Xxxxxx Gamulka, Adv
If to the
Company:
00 Xxxxxx
Xxxxxx
P.O. Box
45158
Xxxxxxxxx
00000, Xxxxxx
Attention: Vice President Finance
and Corporate Development
Tel:
x000-0-000-0000
Fax:x000-0-000-0000
With a
copy (which shall not constitute notice) to:
Xxxxxxxx,
Klagsbald & Co.
Attn.
Xxxxx Xxxxxxxxx, Adv.
0
Xxxxxxxx Xxxxx Xxxxxx
Xxxxx Xxx
00000, Israel
Tel:
x000-0-000-0000
Fax: x000
0-000-0000
— 11 —
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13.4.
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This
Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and enforceable against the parties actually
executing such counterpart, and all of which together shall constitute one
and the same instrument.
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13.5.
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Each
of the parties shall bear its own costs and expenses in negotiating and
executing this Agreement, except that subject to and following of the
receipt of the Loan Amount, the Company shall reimburse the Lender for its
actual put of pocket legal expenses of up to $10,000 plus applicable value
added tax.
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IN WITNESS WHEREOF the parties
have signed this Bridge Loan Agreement as of the date first herein above set
forth.
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PAN
ATLANTIC INVESTMENTS LIMITED
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||||
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By:
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/s/
Xxxxxx Xxxxxx /s/ Xxxxxx
Xxxxxxxx
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
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Name:
Xxxxxx
Xxxxxx Xxxxxx Xxxxxxxx
|
Name:
|
XXXXXX
X. XXXXXXX
|
||
|
Title:
CEO VP
Finance
|
Title:
|
Managing
Director
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||
