Shares Assignment Agreement
Exhibit 10.1
Made by and between:
Israel Healthcare Ventures 2 LP Incorporated, a Guernsey limited partnership, with offices located
at 00 Xxxxxxxx Xx., Xxxxx Xxxxxxxx, Xxxxxx (the “IHCV”); and
Topspin Medical, Inc., a Delaware corporation, TopSpin Medical (Israel) Ltd., an Israeli
corporation, with head office at 5 Ha’mapilim St., Kfar Shmaryaho, Israel (the “Topspin”); and
Whereas IHCV is the holder of 1,400,000 ordinary shares par value NIS 0.01 each of Metamorefix
Ltd., an Israeli company limited by shares with a registration number 513935221 (“Transferred
Shares” and “Metamorefix” respectively); and
Whereas IHCV is willing to assign to Topspin the Transferred Shares for no consideration
subject to receipt of shares in Topspin from Megenesis Partners Ltd. pursuant to a separate
agreement executed on even date (“Medgenesis STA”).
Now therefore the parties hereto (“Parties” and each a “Party”) agree as follows:
| 1. | Premable and Interpetation |
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| 1.1 | The preamble and any appendices hereto form integral and inseparable parts of this Agreement. |
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| 1.2 | This Agreement and schedules thereto, and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the Parties with regard to
the subjects hereof. |
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| 2. | IHCV’s and Topspin’s Representations |
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| 2.1 | IHCV represents that: (i) IHCV has paid Metamorefix the full consideration due for the
Transferred Shares and there is no debt due to Metamorefix or anyone else with respect to the
Transferred Shares; (ii) IHCV is the sole and exclusive owner of the Transferred Shares, and
the Transferred Shares are free and clear of any and all encumbrances, liens and third
parties’ rights; (iii) IHCV has not sold nor promised to sell the Transferred Shares to any
third party; (iv) this Agreement constitutes a valid and legally binding obligation of the
IHCV, legally enforceable against IHCV in accordance with its terms; and (v) IHCV has full
power and authority to assign the Transferred Shares. |
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| 2.2 | Without derogating from the IHCV’s representations set out in this Agreement and based upon
such representations, Topspin represents: (i) that it is purchasing the Transferred Shares
“As-Is” and it is not relying on any representation or warranty other than as set out above
either expresss or implied and it acknowledged that IHCV is not providing any representation
with
respect to Metamorefix’s business, commercial or financial situtation. |
| 2.3 | All actions on the part of Topspin which are necessary for the authorization, execution,
performance and delivery of this Agreement have been (or will be) taken prior to the Closing
(as defined below). This Agreement, when executed and delivered, shall constitute a valid and
legally binding obligation of Topspin, legally enforceable against Topspin in accordance with
its terms. |
| 2.4 | Topspin is receiving the Transferred Shares only for investment for Topspin’s own account,
and without any present intention to sell or distribute such Transferred Shares. Topspin is a
sophisticated investor with experience and knowledgeable in business and financial matters and
is capable of evaluating the risk of receiving shares in a medical high tech company. |
| 2.5 | Topspin understands that the Transferred Shares have not been registered under the securities
laws of Israel or of any other state or jurisdiction. Topspin acknowledges that the Shares are
not, and will not be, tradable unless they are subsequently registered under applicable
securities laws or an exemption from such registration is available. |
| 3. | Closing. Subject to the fullfilement of the provisions set out in Sections 3.1-3.4
below, IHCV hereby grants, transfers and assigns to Topspin all of the right, title and
interest of IHCV in, to and under the Transferred Shares to be held by Topspin subject to the
conditions on which IHCV held the same immediately prior to the transfer of the Transferred
Shares hereof including pusuant to the provisions of the Articles of Association of
Metamorefix (“Articles”). |
| 3.1 | Each of IHCV and Topspin represents and confirms that the Transferred Shares are subject to a
right of first refusal and tag along and that IHCV must receive a waiver by each of the
Qualified Shareholders of Metamorefix with respect to the transfer. |
| 3.2 | Each of IHCV and Topspin represents and confirms that IHCV has certain personal rights
granted to it in the Articles that are not automatically transferred upon the transfer of the
Transferred Shares and therefore IHCV shall try to cause Metamorefix to amend the Articles in
order to replace all the references of IHCV with Topspoin, nevertheless the Parties
acknowledge that this is not a condition by Topsoin to complete the transaction. |
| 3.3 | IHCV and Topspin shall sign any documents that may be required in order to register the
transfer of the Transferred Shares in the name of Topspin, including a Share Transfer Deed
executed by IHCV and Topspin in the form attached hereto as Schedules 3.3. |
| 3.4 | IHCV shall use best efforts to obtain the consent of the board of directors of
Metamorefix(the “Board”) for the transfer of the Transferred Shares and such transfer shall be
effective as of the date of the Closing. |
| 3.5 | The closing of this Agreement is subject to the compliance with Israeli Companies Regulations
 , 2000, within 15 days of the date herof (“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. |
| 4. | Miscellaneous |
| 4.1 | Entire Agreement: Agreement and Waiver. This Agreement (including all Schedules)
constitutes the full and entire understanding and agreement between the Parties with regard
to the subject matter hereof and thereof. Any term of this Agreement may be amended and the
observance of any term hereof may be waived (either prospectively or retroactively and either
generally or in a particular instance) only with the written consent of both Parties to
this Agreement. |
| 4.2 | Notices, etc. Any notice sent by one Party to the other Party, by registered mail
to the addresses heading the Agreement, or to addresses provided by one Party to the other
from time to time — will be deemed to have been received on the 5th business day after the
day of mailing. Fax and electronic messages will be deemed to have been received one business
day after transmission provided there is an electronic confirmation of delivery, notices sent
via courier shall be deemed to have been delivered upon receipt. |
| 4.3 | Counterparts. This Agreement may be executed in counterparts, and all of which
together shall constitute one and the same instrument. Signatures appearing on a faxed page
shall be deemed original signatures and shall be enforceable against the Parties transmitting
such signature pages by facsimile. |
| 4.4 | 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. |
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of June 15, 2011
ISRAEL HEALTHCARE VENTURES 2 LP INCORPORATED |
Topspin Medical, Inc TopSpin Medical (Israel) Ltd. |
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By its authorized signatory
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By its authorized signatory | |
Name: Dr. Xxxxx Xxx
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Name: | |
/s/ Dr. Xxxxx Xxx
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/s/ Xx. Xxxxxx Xxxxxxxxxx |
