Securities Purchase Agreement
Exhibit
10.1
This
SECURITIES PURCHASE AGREEMENT, dated as of March 25, 2008, is entered into
by
and among MODIGENE
INC.,
a
Nevada corporation (the “Company”),
and
the investors identified on the signature page hereto (each a “Buyer”
and
collectively, the “Buyers”).
Recitals:
A. The
Buyers desire to provide financing to the Company, and the Company desires
to
obtain financing from the Buyers, upon the terms and conditions set forth in
this Agreement;
B. The
total
financing being provided by the Buyers to the Company hereunder shall consist
of
the purchase by the Buyers of 800,000 shares (the “Shares”)
of
Series A preferred stock, $0.00001 par value per share (“Preferred
Stock”),
at
$2.50 per
share, for a total purchase price of $2,000,000; and
C. The
Company and the Buyers are executing and delivering this Agreement in reliance
upon the exemptions from securities registration afforded by Section 4(2) of
the
1933 Act (as defined below) and Rule 506 of Regulation D promulgated under
the
1933 Act.
Agreement
NOW
THEREFORE, the Company and the Buyers hereby agree as follows:
ARTICLE
1
Definitions
“1933
Act” means
the
Securities Act of 1933, as amended.
“1934
Act” means
the
Securities Exchange Act of 1934, as amended.
“Action” means
any
action, suit claim, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation against or affecting
the Company, any of its Subsidiaries or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency,
regulatory authority (federal, state, county, local or foreign), public board,
stock market, stock exchange or trading facility.
“Certificate
of Designation”
means
the Certificate of Designation of Preferences, Rights and Limitations of Series
A Convertible Preferred Stock in the form attached as Exhibit
A
hereto.
“Common
Stock” means
the
Company’s common stock, $0.0001 par value per share.
“Per
Share Price”
means
$2.50 per Share.
“SEC”
means
the United States Securities and Exchange Commission.
“Subsidiaries”
means
Modigene
Inc, a
Delaware corporation, and ModigeneTech Ltd., an Israeli corporation.
1
“Transaction
Documents”
means
this Agreement, the Certificate of Designation, and any other documents
contemplated by this Agreement.
ARTICLE
2
Purchase
and Sale of Shares
2.1 Purchase
of Shares.
Subject
to the terms and conditions of this Agreement, on the Closing Date, the Company
shall issue and sell the Shares and the Buyers shall purchase the Shares. The
number of Shares to be purchased by each Buyer shall be identified in
Schedule
1.
2.2 Purchase
Price for Shares and Form of Payment; Delivery.
On the
Closing Date each Buyer shall pay the Per Share Price for the Shares, for a
total price of $2,000,000 for all of the Shares sold hereunder (the “Purchase
Price”).
The
Purchase Price shall be paid by wire transfer of immediately available funds
in
accordance with the Company’s written instructions. At the Closing, upon payment
of the Purchase Price the Company will deliver or cause to be delivered
certificates representing the Shares registered in the name of each Buyer and
to
deliver such certificates to or at the direction of each Buyer.
2.3 Closing
Date.
Subject
to the terms of this Agreement, the closing of the transactions contemplated
by
this Agreement shall be held on the date that is three (3) business days after
the date that the last of the conditions in Article
6
and
Article
7
has been
satisfied, or such other time as may be mutually agreed upon by the parties
to
this Agreement (the “Closing
Date”),
at
the offices of Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 or
at
such other location or by such other method (including exchange of signed
documents by mail, electronic mail, and/or facsimile) as may be mutually agreed
upon by the parties to this Agreement (“Closing”).
ARTICLE
3
Buyers’
Representations and Warranties
Each
Buyer represents and warrants to the Company that:
3.1 Organization
and Qualification.
If a
corporation, partnership, limited partnership, limited liability company, or
other form of entity, the Buyer is duly organized or formed, as the case may
be,
validly existing, and in good standing under the laws of its jurisdiction of
organization or formation. The Buyer has all requisite individual or entity
right, power, and authority to execute, deliver, and perform this
Agreement.
3.2 Authorization;
Enforcement.
The
execution, delivery, and performance of this Agreement by the Buyer have been
duly authorized by all requisite partnership, corporate or other entity action,
as applicable. This Agreement has been duly executed and delivered by the Buyer,
and, upon its execution by the Company, shall constitute the legal, valid,
and
binding obligation of the Buyer, enforceable in accordance with its terms,
except to the extent that its enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws relating to or affecting
the enforcement of creditors’ rights generally and by general principles of
equity.
3.3 No
Violations.
The
execution, delivery, and performance of this Agreement by the Buyer do not
and
will not, with or without the passage of time or the giving of notice, result
in
the breach of, or constitute a default, cause the acceleration of performance,
or require any consent under, or result in the creation of any lien, charge
or
encumbrance upon any property or assets of the Buyer pursuant to, any material
instrument or agreement to which the Buyer is a party or by which the Buyer
or
its properties may be bound or affected, and, do not or will not violate or
conflict with any provision of the articles of incorporation or bylaws,
partnership agreement, operating agreement, trust agreement, or similar
organizational or governing document of the Buyer, as applicable.
2
3.4 Knowledge
of Investment and its Risks.
The
Buyer has such knowledge and experience in financial and business matters so
as
to be capable of evaluating the merits and risks of Buyer’s investment in the
Shares. The Buyer understands that an investment in the Company represents
a
high degree of risk and there is no assurance that the Company’s business or
operations will be successful. The Buyer has considered carefully the risks
attendant to an investment in the Company, and that, as a consequence of such
risks, the Buyer could lose Buyer’s entire investment in the
Company.
3.5 Investment
Intent.
The
Buyer hereby represents and warrants that (i) the Buyer’s Shares are being
acquired for investment for the Buyer’s own account, and not as a nominee or
agent and not with a view to the resale or distribution of all or any part
of
the Buyer’s Shares, and the Buyer has no present intention of selling, granting
any participation in, or otherwise distributing any of the Buyer’s Shares within
the meaning of the 1933 Act, (ii) the Buyer’s Shares are being acquired in the
ordinary course of the Buyer’s business, and (iii) the Buyer does not have any
contracts, understandings, agreements, or arrangements, directly or indirectly,
with any person and/or entity to distribute, sell, transfer, or grant
participations to such person and/or entity with respect to, any of the Buyer’s
Shares. The Buyer is not purchasing the Buyer’s Shares as a result of any
advertisement, article, notice or other communication regarding the Buyer’s
Shares 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.
3.6 Buyer
Status.
The
Buyer is an “accredited investor” as that term is defined by Rule 501 of
Regulation D promulgated under the 0000 Xxx. The Buyer is not registered as
a
broker-dealer under Section 15 of the 1934 Act or an affiliate of such
broker-dealer.
3.7 Disclosure.
The
Buyer has reviewed the information provided to the Buyer by the Company in
connection with the Buyer’s decision to purchase the Buyer’s Shares, including
but not limited to, the Company’s publicly available filings with the SEC and
the information contained therein. The Company has provided the Buyer with
all
the information that the Buyer has requested in connection with the decision
to
purchase the Buyer’s Shares. The Buyer further represents that the Buyer has had
an opportunity to ask questions and receive answers from the Company regarding
the business, properties, prospects, and financial condition of the Company.
All
such questions have been answered to the full satisfaction of the Buyer. Neither
such inquiries nor any other investigation conducted by or on behalf of the
Buyer or its representatives or counsel shall modify, amend, or affect the
Buyer’s right to rely on the truth, accuracy, and completeness of the disclosure
materials and the Company’s representations and warranties contained
herein.
3.8 No
Registration.
The
Buyer understands that Buyer may be required to bear the economic risk of
Buyer’s investment in the Company for an indefinite period of time. The Buyer
further understands that (i) neither the offering nor the sale of the
Buyer’s Shares has been registered under the 1933 Act or any applicable state
securities laws in reliance upon exemptions from the registration requirements
of such laws, (ii) the Buyer’s Shares must be held by the Buyer
indefinitely unless the sale or transfer thereof is subsequently registered
under the 1933 Act and any applicable state securities laws, or an exemption
from such registration requirements is available, (iii) the Company is under
no
obligation to register any of the shares on the Buyer’s behalf or to assist the
Buyer in complying with any exemption from registration, and (iv) the
Company will rely upon the representations and warranties made by the Buyer
in
this Agreement and the Transaction Documents in order to establish such
exemptions from the registration requirements of the 1933 Act and any applicable
state securities laws.
3
3.9 Transfer
Restrictions.
Subject
to Article
9
of this
Agreement, the Buyer will not transfer any of the Buyer’s Shares unless such
transfer is registered or exempt from registration under the 1933 Act and such
state securities laws, and, if requested by the Company in the case of an exempt
transaction, the Buyer has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt. The Buyer
understands and agrees that (i) the certificates evidencing the Shares will
bear
appropriate legends indicating such transfer restrictions placed upon the
Shares, (ii) the Company shall have no obligation to honor transfers of any
of
the Buyer’s Shares, including any shares of Common Stock underlying the Shares,
in violation of such transfer restrictions, and (iii) the Company shall be
entitled to instruct any transfer agent or agents for the securities of the
Company to refuse to honor such transfers.
3.10 No
Solicitation.
The
Buyer (i) did not receive or review any advertisement, article, notice or other
communication published in a newspaper or magazine or similar media or broadcast
over television or radio, whether closed circuit, or generally available, with
respect to the Shares or (ii) was not solicited by any person, other than by
representatives of the Company, with respect to a purchase of the
Shares.
3.11 Principal
Address.
The
Buyer’s principal residence, if an individual, or principal executive office, if
an entity, is set forth on the signature page of this Agreement.
3.12 Reliance
by the Company.
The
Buyer acknowledges and consents to the Company’s reliance on the Buyer’s
representations and warranties made above for purposes of complying with all
applicable securities laws and any applicable exemptions from registration
requirements thereunder and otherwise.
ARTICLE
4
Representations
and Warranties of the Company
Except
as
set forth in the Company’s Disclosure Schedule attached hereto, the Company
represents and warrants to the Buyers that:
4.1 Subsidiaries.
The
Company has no direct or indirect subsidiaries other than the Subsidiaries.
The
Company owns, directly or indirectly, all of the capital stock of each of its
Subsidiaries free and clear of any and all liens, and all the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights.
4.2 Organization
and Qualification.
The
Company and the Subsidiaries are each an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to
carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company, and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not
have, or reasonably be expected to result in (i) a material adverse effect
on
the legality, validity or enforceability of this Agreement or the Shares, (ii)
a
material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a timely basis its
obligations under this Agreement (any of (i), (ii) or (iii), a “Material
Adverse Effect”)
and no
proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification.
4
4.3 Authorization;
Enforcement.
Subject
to the filing of the Certificate of Designation with the Secretary of State
of
the State of Nevada, the Company has the requisite corporate power and authority
to enter into and to consummate the transactions contemplated by this Agreement
and otherwise to carry out its obligations hereunder. The execution and delivery
of the Transaction Documents by the Company and, at the time of the Closing
the
consummation of the transactions contemplated hereby and thereby have been
or
will have been duly authorized by all necessary action on the part of the
Company and no further action will, at the time of the Closing, be required
by
the Company or its Board of Directors or stockholders in connection therewith.
Each Transaction Document has been (or upon delivery will have been) duly
executed by the Company and, when delivered in accordance with the terms hereof
and thereof, will constitute the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be
limited by applicable law.
4.4 Approvals.
The
execution, delivery, and performance by the Company of this Agreement require
no
consent of, action by or in respect of, or filing with, any person, governmental
body, agency, or official other than those consents that have been obtained
prior to the Closing, the filing of the Certificate of Designation and those
filings required to be made pursuant to the 1933 Act and the 1934 Act.
4.5 Capitalization;
Valid Issuance of Securities .
Upon
issuance in accordance with the terms of this Agreement against payment of
the
Purchase Price therefor, the Shares will be duly and validly issued, fully
paid,
and nonassessable and free and clear of all liens imposed by or through the
Company, and, assuming the accuracy of the representations and warranties of
the
Buyers, will be issued in accordance with a valid exemption from the
registration or qualification provisions of the 1933 Act, and any applicable
state securities laws. The Company has not issued any capital stock since its
most
recently filed periodic report under the
1934
Act and
the
rules and regulations thereunder, and no
person
has any right of first refusal, preemptive right, right of participation, or
any
similar right to participate in the transactions contemplated by the Transaction
Documents. Except as set forth on Schedule
4.5
attached
hereto, there are no anti-dilution or price adjustment provisions contained
in
any security issued by the Company (or in any agreement providing rights to
security holders) that may be triggered by the transactions contemplated by
the
Transaction Documents. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been issued
in
compliance with all federal and state securities laws, and none of such
outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. No further approval or
authorization of any stockholder, the Board of Directors of the Company or
others is required for the issuance and sale of the Shares. There are no
stockholders agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s
stockholders. Upon
the
Closing, the Series A Preferred Stock will have the rights, preferences and
privileges set forth in the Certificate of Designation.
5
4.6 No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company,
the issuance and sale of the Shares and the consummation by the Company of
the
other transactions contemplated hereby and thereby do not and will not (i)
conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time, or both, would become a default) under,
result in the creation of any lien upon any of the properties or assets of
the
Company or any Subsidiary, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding
to
which the Company or any Subsidiary is a party or by which any property or
asset
of the Company or any Subsidiary is bound or affected, or (iii) conflict with
or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which
the
Company or any Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or
a
Subsidiary is bound or affected; except in the case of each of clauses (ii)
and
(iii), such as could not have, or reasonably be expected to result in, a
Material Adverse Effect.
6
4.7 SEC
Documents.
During
the period between May 9, 2007 and the date of this Agreement, all reports
and
statements, including all amendments, required to be filed by the Company with
the SEC under the 1934 Act, have been timely filed. Such filings, together
with
all amendments and all documents incorporated by reference therein, are referred
to as “SEC
Documents.”
Each
SEC Document conformed in all material respects to the requirements of the
1934
Act and the rules and regulations thereunder, and no SEC Document, at the time
each such document was filed, included any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
4.8 Company
Financial Statements.
The
audited financial statements, together with the related notes of the Company
as
of December 31, 2006, included in the Company’s Form 8-K as filed with the SEC
on May 14, 2007, and the unaudited financial statements, together with the
related notes of the Company as of September 30, 2007, included in the Company’s
Form 10-QSB as filed with the SEC on November 13, 2007, fairly present in all
material respects, on the basis stated therein and on the date thereof, the
financial position of the Company at the respective dates therein specified
and
its results of operations and cash flows for the periods then ended. Such
statements and related notes have been prepared in accordance with generally
accepted accounting principles in the United States (“GAAP”)
applied on a consistent basis except as expressly noted therein and subject
in
the case of the unaudited financial statements to year-end
adjustments.
4.9 Material
Changes; Undisclosed Events, Liabilities or Developments.
Since
May 9, 2007, except as specifically disclosed in any SEC Document filed
subsequent to May 9, 2007 and prior to the date hereof, (i) there has been
no
event, occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect; (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent
with
past practice, (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP, and (C) liabilities arising under that
certain Credit Agreement dated as of the date hereof between the Company and
The
Frost Group, LLC, and the related note and security agreement issued thereunder;
(iii) the Company has not altered its method of accounting; (iv) the Company
has
not declared or made any dividend or distribution of cash or other property
to
its stockholders or purchased, redeemed or made any agreements to purchase or
redeem any shares of its capital stock; and (v) the Company has not issued
any
equity securities to any officer, director or affiliate. The Company does not
have pending before the SEC any request for confidential treatment of
information. Except for the issuance of the Shares contemplated by this
Agreement, no event, liability or development has occurred or exists with
respect to the Company or its Subsidiaries or their respective business,
properties, operations or financial condition that is required to be disclosed
by the Company under applicable securities laws as of the time this
representation is made.
4.10 Certain
Registration Matters.
Assuming the accuracy of each of the Buyer’s representations and warranties set
forth in this Agreement, no registration under the 1933 Act is required for
the
offer and sale of the Shares by the Company to the Buyers
hereunder.
4.11 No
General Solicitation.
Neither
the Company nor any person acting on behalf of the Company has offered or sold
any of the Shares by any form of general solicitation or general
advertising.
4.12 Acknowledgment
Regarding Buyers’ Purchase of Securities.
The
Company acknowledges and agrees that each of the Buyers is acting solely in
the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further acknowledges
that
no Buyer is acting as a financial advisor or fiduciary of the Company (or in
any
similar capacity) with respect to the Transaction Documents and the transactions
contemplated thereby, and any advice given by any Buyer or any of their
respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to
the
Buyers’ purchase of the Shares. The Company further represents to each Buyer
that the Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of
the
transactions contemplated hereby by the Company and their
representatives.
7
4.13 Disclosure.
The
representations and warranties of the Company in this Agreement are true and
correct in all material respects and do not contain any untrue statement of
a
material fact or omit to state any material fact necessary in order to make
the
statements made herein, in light of the circumstances under which they are
made,
not misleading.
ARTICLE
5
Covenants
5.1 Form
D; Blue Sky Laws.
Upon
completion of the Closing, the Company shall file with the SEC a Form D with
respect to the Securities as required under Regulation D and each applicable
state securities commission and will provide a copy thereof to the Buyers
promptly after such filing.
5.2 Filing
of Certificate of Designation.
Prior
to the Closing Date the Certificate of Designation shall be signed by an officer
of the Company and filed with the Secretary of State of the State of Nevada,
all
as required by Section 78.1955 of Chapter 78 of the Nevada Revised
Statutes.
5.3 Expenses.
The
Company and each Buyer shall each bear its respective expenses and legal fees
incurred with respect to this Agreement and the other Transaction Documents
and
the transactions hereunder and thereunder.
ARTICLE
6
Conditions
To The Company’s Obligation
The
obligation of the Company hereunder to issue and sell the Shares to the Buyers
at the Closing is subject to the satisfaction, at or before the Closing Date,
of
each of the following conditions thereto, provided that these conditions are
for
the Company’s sole benefit and may be waived by the Company at any time in its
sole discretion:
6.1 Delivery
of Transaction Documents.
The
Buyers shall have executed and delivered the Transaction Documents to which
they
are a party to the Company.
6.2 Payment
of Purchase Price.
The
Buyers shall have delivered the Purchase Price in accordance with Section
2.2
above.
6.3 Representations
and Warranties.
The
representations and warranties of the Buyers shall be true and correct in all
material respects (provided, however, that such qualification shall only apply
to representations or warranties not otherwise qualified by materiality) as
of
the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that speak as of a specific date),
and the applicable Buyer shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by
this
Agreement to be performed, satisfied or complied with by the applicable Buyer
at
or prior to the Closing Date.
8
6.4 Litigation.
No
litigation, statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by or
in
any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
ARTICLE
7
Conditions
to The Buyers’ Obligation
The
obligation of the Buyers hereunder to purchase the Shares at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for the Buyers’ sole
benefit and may be waived by the Buyers at any time in their sole
discretion:
7.1 Approval
and Filing of Certificate of Designation.
The
Certificate of Designation shall have been approved by the Board of Directors
of
the Company as required by the Chapter 78 of the Nevada Revised Statutes and
shall have been filed with the Secretary of State of the State of Nevada in
accordance with Section 78.1955 of the Nevada Revised Statutes.
7.2 Delivery
of Transaction Documents; Issuance of Securities.
The
Company shall be prepared to issue certificates in the name of each Buyer
representing the Shares being purchased by such Buyer.
7.3 Representations
and Warranties.
The
representations and warranties of the Company shall be true and correct in
all
material respects (provided, however, that such qualification shall only apply
to representations or warranties not otherwise qualified by materiality) as
of
the date when made and as of the Closing Date as though made at such time
(except for representations and warranties that speak as of a specific date)
and
the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or
prior
to the Closing Date.
7.4 Consents.
Any
consents or approvals required to be secured by the Company for the consummation
of the transactions contemplated by the Transaction Documents shall have been
obtained.
7.5 Litigation.
No
litigation, statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by or
in
any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
7.6 Reservation
of Common Stock.
The
shares of Common Stock issuable upon conversion of the Shares shall have been
duly authorized and reserved for issuance upon such conversion.
ARTICLE
8
Termination
8.1 Termination
Provisions.
This
Agreement may be terminated at any time before the Closing Date:
a. By
mutual
consent of the Company and the Buyers;
9
b. By
either
the Company or the Buyers as applicable, in the event that any of the conditions
precedent to their respective obligations to consummate the transactions
contemplated hereby as set forth in Article
6
or
Article
7,
through
no fault of the terminating party, have not been met and satisfied and have
become impossible of fulfillment; or
c. By
either
the Company or the Buyers if the Closing Date does not occur within one hundred
twenty (120) days after the date hereof, or such later date as the parties
may
mutually agree upon (provided that the terminating party is not then in material
breach of any representation, warranty, covenant or other agreement contained
herein).
8.2 Effect
of Termination.
Upon
the termination of this Agreement pursuant to the terms hereof, this Agreement
will be void and neither party will have any further liability obligations
with
respect hereof, except as otherwise provided in this Agreement or except and
to
the extent termination results from the intentional breach by a party of any
of
its representations, warranties or covenants hereunder.
ARTICLE
9
Restrictions
on Transfer
9.1 Restrictions
on Transfer.
The
Shares and Common Stock issuable upon conversion of the Shares (the
“Conversion
Shares”)
(the
Shares, Common Stock and Conversion Shares are collectively referred to as
the
“Securities”)
may
only be disposed of in compliance with state and federal securities laws. In
connection with any transfer of Securities other than pursuant to an effective
registration statement or Rule 144 of the 1933 Act, the Company may require
the
transferor thereof to provide to the Company an opinion of counsel selected
by
the transferor and reasonably acceptable to the Company, the form and substance
of which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Securities
under the 1933 Act. As a condition of transfer, any such transferee shall agree
in writing to be bound by the terms of this Agreement.
9.2 Lock-Up
Agreement.
Each
Buyer hereby covenants and agrees, except as provided herein, not to (1) offer,
sell, contract to sell, grant any option to purchase, hypothecate, pledge or
otherwise dispose of, or (2) transfer title to (a “Prohibited
Sale”)
any of
the Shares acquired by the Buyer pursuant to this Agreement, without the prior
written consent of the Company; provided, however, that a Prohibited Sale shall
not apply to any Conversion Shares and shall not include transfers
to immediate family members of participants, trusts and partnerships established
for the primary benefit of such family members in each case for estate planning
purposes or transfers to charitable organizations so long as such transfers
are
not made for consideration to the Buyer.
9.3 General
Legend.
The
Buyers agree to the imprinting, so long as is required by this Article
9,
of a
legend on any of the Securities in substantially the following
form:
THIS
SECURITY HAS NOT 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
10
9.4 Lock-up
Legend.
The
Buyers agree to the imprinting of a legend on the Shares in substantially the
following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THE SECURITIES PURCHASE AGREEMENT, DATED AS OF MARCH
25,
2008, A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER OR FROM THE HOLDER OF
THESE SECURITIES. NO TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS
OF
THE ISSUER UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH
AGREEMENT.
ARTICLE
10
Indemnification;
Governing Law; Miscellaneous
10.1 Company
Indemnification.
The
Company will indemnify and hold the Buyers and, if applicable, their respective
directors, officers, stockholders, members, managers, partners, employees and
agents (each, a “Buyer Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs, and reasonable attorneys’ fees and costs of
investigation (collectively, “Losses”)
that
any such Buyer Party may suffer or incur as a result of or relating to any
misrepresentation, breach, or inaccuracy of any representation, warranty,
covenant, or agreement made by the Company in this Agreement. In addition to
the
indemnity contained herein, the Company will reimburse each Buyer Party for
its
reasonable legal and other expenses (including the cost of any investigation,
preparation, and travel in connection therewith) incurred in connection
therewith, as such expenses are incurred.
10.2 Buyer
Indemnification.
Each of
the Buyers, severally and not jointly, will indemnify and hold the Company
and
its directors, officers, stockholders, members, managers, partners, employees
and agents (each, a “Company
Party”)
harmless from any and all Losses that any such Company Party may suffer or
incur
as a result of or relating to any misrepresentation, breach, or inaccuracy
of
any representation, warranty, covenant, or agreement made by such Buyer in
this
Agreement. In addition to the indemnity contained herein, each of the Buyers
will reimburse each Company Party for its reasonable legal and other expenses
(including the cost of any investigation, preparation, and travel in connection
therewith) incurred in connection therewith, as such expenses are
incurred.
10.3 Contribution.
If the
indemnification under Section 10.1 or 10.2 is unavailable to an indemnified
party or insufficient to hold an indemnified party harmless for any Losses,
then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other fees or expenses incurred
by such party in connection with any Action to the extent such party would
have
been indemnified for such fees or expenses if the indemnification provided
for
in this Section was available to such party in accordance with its
terms.
11
10.4 Governing
Law.
This
Agreement shall be enforced, governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state, without regard to the principles of conflict of
laws. Any
judicial proceeding brought against any of the parties to this agreement or
any
dispute arising out of this Agreement or any matter related hereto shall be
brought in the courts of the State of New York, New York County, or in the
United States District Court for the Southern District of New York and, by
its
execution and delivery of this agreement, each party to this Agreement accepts
the jurisdiction of such courts.
The
party which does not prevail in any dispute arising under this Agreement shall
be responsible for all reasonable fees and expenses, including reasonable
attorneys’ fees, incurred by the prevailing party in connection with such
dispute.
10.5 Counterparts;
Electronic Signatures.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement
and shall become effective when counterparts have been signed by each party
and
delivered to the other party. This Agreement, once executed by a party, may
be
delivered to the other party hereto by electronic transmission of a copy of
this
Agreement bearing the signature of the party so delivering this
Agreement.
10.6 Headings.
The
headings of this Agreement are for convenience of reference only and shall
not
form part of, or affect the interpretation of, this Agreement.
10.7 Severability.
In the
event that any provision of this Agreement is invalid or unenforceable under
any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
10.8 Entire
Agreement; Amendments.
This
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and
supersede all previous understandings or agreements between the parties with
respect to such matters. No provision of this Agreement may be waived other
than
by an instrument in writing signed by the party to be charged with enforcement.
The provisions of this Agreement may be amended only by a written instrument
signed by the Company and the Buyers.
10.9 Notices.
Any
notices required or permitted to be given under the terms of this Agreement
shall be sent by certified or registered mail (return receipt requested) or
delivered personally or by courier (including a recognized overnight delivery
service) or by facsimile and shall be effective five days after being placed
in
the mail, if mailed by regular United States mail, or upon receipt, if delivered
personally or by courier (including a recognized overnight delivery service)
or
by facsimile, in each case addressed to a party. The addresses for such
communications shall be:
12
if
to any
Buyer:
to
the
address set forth on the signature page of this Agreement
if
to
Modigene or to the Company after the Closing Date, to:
0
Xxxxx
Xxxxxx
Weizmann
Science Park
Nes-Ziona,
Israel 74140
Attention:
Xxxx Xxxxx, President
Facsimile:
(000) 000-0000
with
a
copy to:
Barack
Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000
X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxx Xxxx Xxxxx, Esq.
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Each
party shall provide notice to the other party of any change in
address.
10.10 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns. No party shall assign this Agreement or any rights
or obligations hereunder without the prior written consent of the other parties
hereto.
10.11 Third
Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
10.12 Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
10.13 No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
10.14 Rights
Cumulative.
Each
and all of the various rights, powers and remedies of the parties shall be
considered cumulative with and in addition to any other rights, powers and
remedies which or the Transaction Documents such parties may have at law or
in
equity in the event of the breach of any of the terms of this Agreement. The
exercise or partial exercise of any right, power or remedy shall neither
constitute the exclusive election thereof nor the waiver of any other right,
power or remedy available to such party.
[Signature
Page Follows]
13
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
as of the date first above written.
COMPANY:
|
MODIGENE
INC., a Nevada corporation
|
|
|
By:
|
/s/
Xxxx Xxxxx
|
|
Name:
Xxxx Xxxxx
|
|
|
Title:
President
|
|
BUYERS:
|
Frost
Gamma Investments Trust
|
Xxxx
Xxxxx, M.B.A., Ph.D.
|
|
|
By:
Xxxxxxx Xxxxx, M.D., Sole Trustee
|
||
|
/s/Xxxxxxx
Xxxxx
|
/s/
Xxxx Xxxxx
|
|
|
Signature
|
Signature
|
|
|
Address
of Principal Place of Business:
|
Address
of Principal Residence:
|
|
|
0000
Xxxxxxxx Xxxxxxxxx
|
0000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx
0000
|
Xxxxx
0000
|
|
|
Xxxxx,
Xxxxxxx 00000
|
Xxxxx,
Xxxxxxx 00000
|
|
|
Tax
ID number:
|
Social
Security Number:
|
|
|
00-0000000
|
###-##-####
|
|
|
Telephone
Number:
|
Telephone
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
|
Facsimile
Number:
|
Facsimile
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
|
Email
Address:
|
Email
Address:
|
|
|
xxxxxxx_xxxxx@xxxxxxx.xxx
|
xx@xxxxxxxxxxx.xxx
|
[Signatures
Continue on Next Page]
|
Xxxxxxxx
Xxxxxxxx
|
||
|
/s/
Xxxxxx X. Xxxxx
|
/s/
Xxxxxxxx Xxxxxxxx
|
|
|
Signature
|
Signature
|
|
|
Address
of Principal Place of Business:
|
Address
of Principal Residence:
|
|
|
0000
Xxxxxxxx Xxxxxxxxx
|
0000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx
0000
|
Xxxxx
0000
|
|
|
Xxxxx,
Xxxxxxx 00000
|
Xxxxx,
Xxxxxxx 00000
|
|
|
Social
Security Number:
|
Social
Security Number:
|
|
|
###-##-####
|
###-##-####
|
|
|
Telephone
Number:
|
Telephone
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
|
Facsimile
Number:
|
Facsimile
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
|
Email
Address:
|
||
|
xx@xxxxxxxxxxx.xxx
|
xx@xxxxxxxxxxx.xxx
|
Schedule
I
|
Name
|
Investment Amount
|
Number of Shares
|
|||||
|
Frost
Gamma Investments Trust
|
$
|
1,580,000
|
632,000
|
||||
|
Xxxx
Xxxxx
|
380,000
|
152,000
|
|||||
|
Xxxxxxxx
Xxxxxxxx
|
20,000
|
8,000
|
|||||
|
Xxxxxx
X. Xxxxx
|
20,000
|
8,000
|
|||||
