EXHIBIT 4.34
SHARE TRANSFER AGREEMENT
This SHARE TRANSFER AGREEMENT (this "AGREEMENT") made as of the ________th
day of April, 2005, by and among Healthcare Technologies Ltd. (the "SELLER") and
Gamida for Life, BV, a company incorporated under the laws of the Netherlands,
and having its registered offices at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ (the "PURCHASER" and together with the Seller, to be collectively
referred to herein as the "PARTIES");
W I T N E S S E T H :
WHEREAS, the Seller wishes to sell six million two hundred and fifty five
thousand (6,255,000) Ordinary Shares (the "SHARES") in Procognia Ltd., a private
company registered in England, (the "COMPANY"), bearing a nominal value of 1
▇▇▇▇▇ ((pound)0.01) per share, to the Purchaser on the terms and conditions more
fully set forth in this Agreement; and
WHEREAS, the Purchaser desires to purchase the Shares from the Seller pursuant
to the terms and conditions more fully set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the Parties hereto hereby agree as follows:
1. SALE AND PURCHASE.
1.1 SALE AND PURCHASE OF SHARES.
Subject to the terms and conditions hereof, the Seller shall sell, assign, and
transfer an aggregate amount of six million two hundred and fifty five thousand
(6,255,000) Ordinary Shares in the Company to the Purchaser, and the Purchaser
shall purchase and accept the assignment and transfer of the Shares from the
Seller, in consideration for an initial payment of ten thousand U.S. dollars
($10,000) (the "INITIAL PAYMENT") to be paid on the date hereof and the
Additional Payments (as defined herein).
1.2 ADDITIONAL PAYMENT.
1.2.1 Upon the occurrence of any of the following events, the
Purchaser shall make one (1) additional payment to the Seller as set forth
herein:
1.2.1.1 In the event an asset purchase agreement (the "ASSET
PURCHASE AGREEMENT") is executed by and among Immvarx, Inc.
("IMMVARX"), the Seller and the Purchaser, and Immvarx consummates a
tender offer as contemplated therein (the "TENDER OFFER"), the
Purchaser shall pay the Seller an additional four hundred twenty
thousand U.S. dollars ($420,000) (the "TENDER OFFER PAYMENT).
1.2.1.2 In the event the Asset Purchase Agreement with Immvarx is
not executed or in the event it is executed but Immvarx's option to
execute the Tender Offer expires before consummation thereof, the
Purchaser will pay the Seller, upon the sale of the Shares, all
amounts received in consideration therefore (the "POST-TENDER OFFER
CONSIDERATION") equivalent to an amount no greater than $420,000,
plus, if any, 30% of the remaining Post Tender-Offer Consideration
(the "POST-TENDER OFFER PAYMENT").
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1.2.1.3 Notwithstanding the above events, in the event:
(a) the Purchaser, within within one (1) year of the
execution date of this Agreement, either sells the Shares, and/or
executes a letter of intent with a potential purchaser of the
Shares (the "SALE") AND
(b) the Sale occurs prior to the consummation of the Tender
Offer,
the Purchaser will pay the Seller, upon the sale of the Shares,
all amounts received in consideration therefore (the "PRE-TENDER
OFFER CONSIDERATION") up to $420,000, plus, if any, 80% of the
remaining Pre-Tender Offer Consideration (the "PRE-TENDER OFFER
PAYMENT").
1.2.2 For the purposes of this Agreement, each of the Tender Offer
Payment, the Post-Tender Offer Payment and the Pre-Tender Offer Payment,
shall be severally referred to as an "ADDITIONAL PAYMENT".
1.2.3. The Additional Payment, as the case may be, shall be made by
wire transfer of immediately available funds to a bank account designated
by the Seller.
2. Execution of Agreement and Closing of Transfer and Purchase.
2.1 SIGNING. This Agreement shall be executed by the all of the relevant
Parties, on the date first listed above.
2.2 CLOSING. The sale, assignment, transfer and delivery of the Shares and
the purchase thereof by the Purchaser shall take place at a closing (the
"CLOSING") to be held at a time and place to be mutually agreed upon by the
Parties hereto.
2.3 TRANSACTIONS AT CLOSING. At the Closing, the following transactions
shall occur, which transactions shall be deemed to take place simultaneously and
no transaction shall be deemed to have been completed or any document delivered
until all such transactions have been completed and all required documents
delivered:
(a) Each of the Seller and the Purchaser, shall duly execute the
requisite actions under applicable law to effect the transfer of title and
registration of the Shares in the name of the Purchaser.
(b) The Purchaser shall cause the Company to deliver to it a validly
executed share certificate covering all of the Shares, issued in the name
of the Purchaser.
(c) a resolution of the Seller's shareholders approving the execution
and performance of this Agreement and any ancillary document thereto (the
"TRANSACTION DOCUMENTS") and the transfer of the Shares pursuant to the
terms set forth herein.
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3. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller and the Company, as the case may be, hereby represent and warrant to
the Purchaser, and acknowledges that the Purchaser is entering into this
Agreement in reliance thereon, as follows:
3.1 TITLE. The Seller is the sole lawful holder and owner, beneficially and
of record, of the Shares, and upon the consummation of the transactions at the
Closing, the Purchaser will acquire from the Seller, good and marketable title
to such Shares free and clear of all liens, charges, encumbrances, debt,
restrictions, rights, claims, calls and commitments of any kind.
3.2 AUTHORITY AND ENFORCEABILITY. Pursuant to the approval of the Seller's
shareholders, the Seller has full and unrestricted legal right, power and
authority to enter into and perform all of its obligations under this Agreement,
and to sell and transfer the Shares to the Purchaser as provided herein. This
Agreement, when executed and delivered by the Seller, shall constitute the valid
and legally binding obligation of the Seller, legally enforceable against the
Seller in accordance with its terms.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Seller as follows:
4.1 ENFORCEABILITY. This Agreement and the agreements to be executed by the
Purchaser under this Agreement, when executed and delivered by the Purchaser,
will constitute the valid, binding and enforceable obligations of the Purchaser.
4.2 AUTHORIZATION. The execution, delivery and performance of the
obligations of the Purchaser hereunder have been duly authorized by all
necessary corporate action.
4.3 SHARES ON AN "AS-IS" BASIS. The Parties hereby represent and warrant
that the sale and purchase of the Shares is being made on an "as-is" basis, and
it is further understood and agreed that, with the exception of the foregoing
express warranties and representations, no representation or warranty with
respect to the subject matter of this Agreement, is made by the Seller or the
Purchaser, and that no further representation or warranty of any kind is to be
implied, all representations and/or warranties implied by applicable law being
hereby expressly excluded to the maximum extent permitted by such law.
5. MISCELLANEOUS
5.1 FURTHER ASSURANCES. Each of the parties hereto shall perform such
further acts and execute such further documents as may reasonably be necessary
to carry out and give full effect to the provisions of this Agreement and the
intentions of the parties as reflected thereby.
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5.2 GOVERNING LAW; ARBITRATION, JURISDICTION. 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. In the event of any
dispute between the parties in connection with this Agreement that cannot be
resolved amicably by and between the parties, such dispute shall be settled
exclusively and finally by a single arbitrator in Israel in accordance with
Israel's Arbitration Law.
5.3 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise expressly
limited herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators of
the parties hereto. None of the rights, privileges, or obligations set forth in,
arising under, or created by this Agreement may be assigned or transferred
without the prior consent in writing of each party to this Agreement, with the
exception of assignments and transfers from the Purchaser to any other entity
which controls, is controlled by or is under common control with, such
Purchaser.
5.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and any and all appendices,
exhibits and schedules attached hereto constitute the full and entire
understanding and agreement between the parties with regard to the subject
matters hereof and thereof, and shall supersede any prior agreement or
arrangement, whether written or oral. Any term of this Agreement may be amended
only with the written consent of both Parties to this Agreement.
if to the Purchaser: Gamida-for-Life BV
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Fax: [_________________]
Attention: Chief Executive Officer
if to the Seller: Healthcare Technologies Ltd.
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▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax:▇▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
or such other address with respect to a party as such party shall notify each
other party in writing as above provided.
5.5 COUNTERPARTS. 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.
5.6 STAMP TAX. Purchaser shall bear any stamp tax due in connection with
this agreement.
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IN WITNESS WHEREOF the parties have signed this Agreement as of the date
first hereinabove set forth:
HEALTHCARE TECHNOLOGIES LTD. GAMIDA FOR LIFE, B.V.
BY: _______________________ BY: _______________________
NAME: _______________________ NAME: _______________________
TITLE: _______________________ TITLE: _______________________