SERIES SEED PREFERRED SHARE PURCHASE AGREEMENT

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Exhibit 4.9

THIS SERIES SEED PREFERRED SHARE PURCHASE AGREEMENT (this “Agreement”), is made as of December 21, 2022 (the “Signing Date”), by and among (i) Biomica Ltd., a company organized under the laws of the State of Israel (the “Company”), (ii) Shanghai Healthcare Capital Partnership (Limited Partnership) (上海生物医药产业股权投资基金合伙企业(有限合伙)) (the “Lead Purchaser”), (iii) the purchasers listed in Exhibit A-1 attached hereto (each, together with the Lead Purchaser, a “Preferred Seed Purchaser), (iv) the purchaser listed in Exhibit A-2 attached hereto (the “Ordinary Purchaser”, and together with the Preferred Seed Purchasers, the “Purchasers”) and (v) Evogene Ltd. (“EVGN”).

W I T N E S S E T H:

WHEREAS, prior to the date hereof, (i) the Ordinary Purchaser has made available to the Company certain financing amounts in the amount of US$ [***] (the “Initial Financing Amount”) pursuant to that certain Financing Agreement by and between the Company and the Ordinary Purchaser, dated as of May 25, 2022 (the “Initial Financing Agreement”); (ii) the Ordinary Purchaser has made available to the Company certain financing amounts in the amount of US$ [***] (the “Advance Financing Amount”) pursuant to that certain Advance Investment Agreement by and among the Company and the Ordinary Purchaser, dated as of November 28, 2021 (the agreement, together with and any and all letters and/or instruments executed or delivered in connection therewith, the “Advance Investment Agreement”); and (iii) the Ordinary Purchaser has made available to the Company certain bridge loans in an aggregate amount of up to US$[***] (the “Bridge Loan”) pursuant to that certain bridge loan agreement(s) and/or instrument(s) (the “Bridge Loan Agreement”), out of which : an amount of up to US$ [***] provided prior to the date hereof and/or which may be provided by EVGN to the Company during the Interim Period, under the Bridge Loan Agreement (the “Preferred Advance Amount”) but shall nevertheless be deemed for all intents and purposes as an advance payment by EVGN on account of its portion of the Initial Closing Purchase Price (as defined below), and (ii) an amount of US$[***] which will be converted into the Conversion Shares (as defined below) pursuant to the terms herein below.  The Initial Financing Amount, the Advance Financing Amount and the Bridge Loan shall be collectively referred to as the “Financing Amount.”  The Initial Financing Agreement, the Advance Investment Agreement and the Bridge Loan Agreement shall be collectively referred to as the “EVGN Financing Agreements”;

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company to raise capital, by means of issuance of (i) the Company’s newly authorized Series Seed Preferred Shares, par value NIS 0.01 per share (the “Preferred Seed Shares” or the “Preferred Shares”) to the Preferred Seed Purchasers at a purchase price of US$ [***] per each Preferred Share (the “Preferred Seed PPS”) in consideration for a total investment amount of US$ 20,000,000 (the “Purchase Price”) and (ii) the Company’s newly authorized Ordinary Shares, par value NIS 0.01 per share (the “Ordinary Shares”) to the Ordinary Purchaser, at a purchase price of US$ [***] in respect of the Financing Amount of US$ 10,000,000, per each Ordinary Share (the “Ordinary PPS”) by way of conversion of the Financing Amount, all on the terms and conditions more fully set forth in this Agreement and the EVGN Financing Agreements when applicable; and

WHEREAS, the Purchasers desire to purchase and the Company desires to issue and sell to the Purchasers the Preferred Shares 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 hereby agree as follows:

 

 

2.1.Transactions at Signing. At the Signing Date, the following shall occur:

 

2.2.The Initial Closing. Subject to the satisfaction of the closing conditions set-forth in Sections 6 and 7 herein, or respective waiver thereof, at the Initial Closing, the Company shall issue and allot to the Purchasers, and the Purchasers shall purchase from the Company, severally and not jointly, the Initial Purchased Shares and the Conversion Shares, according to the allocations set forth in Exhibit A-1 and Exhibit A-2 attached hereto. The closing of the sale and purchase of the Initial Purchased Shares and Conversion Shares (the “Initial Closing”) shall take place remotely via the exchange of documents and signatures, concurrently with the execution of this Agreement by all parties hereto, or such other date, time and place as the Company and the Purchasers shall mutually agree (such date is hereinafter referred to as the “Initial Closing Date”).

 

2.3.Transactions at the Initial Closing. At the Initial 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:

 

 

 

 

 

 

 

 

2.4.The Subsequent Closing. At each Closing (subject to the satisfaction of the closing conditions set forth in Sections 6 and 7 herein, as applicable, or respective waiver thereof by Lead Purchaser or the respective Subsequent Purchaser, at or prior to the Subsequent Closing), the Company shall issue and allot to each Subsequent Purchaser, and each Subsequent Purchaser shall purchase from the Company, its respective allocation of the Subsequent Purchased Shares. Each closing of the sale and purchase of the Subsequent Purchased Shares (each a “Subsequent Closing”) shall take place remotely via the exchange of documents and signatures, upon the date, time and place as the Company and each Subsequent Purchaser shall mutually agree (each such date is hereinafter referred to as the “Subsequent Closing Date”). It is clarified that Lead Purchaser shall participate as a Subsequent Purchaser, and contribute, in the last Subsequent Closing, an amount equal to all amounts invested by any other Subsequent Purchaser under all Subsequent Closings, provided that in no event shall SHC be required to provide, nor Company be required to accept from SHC, any amount exceeding an aggregate amount of US$[***] within the course of all Subsequent Closings (the “Investment Match Amount”).  Notwithstanding the aforesaid, in the event that the Company consummates a Subsequent Closing with a Subsequent Purchaser within [***] days after the Subsequent Closing Period, then the Lead Purchaser shall be required to contribute the Investment Match Amount, provided that such Subsequent Purchaser has committed to the Company in writing its intention to purchase Subsequent Purchased Shares within the Subsequent Closing Period.

 

2.5.Transactions at the Subsequent Closing. At each Subsequent 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:

 

 

 

 

 

 

The Company and EVGN hereby, severally and jointly, represent and warrant to the Purchasers as of the date hereof, and, otherwise as specified under the applicable Bring Down Certificate (as defined below), as of the Initial Closing Date, and subject to Section 6.1, as of the Subsequent Closing Date (as applicable) and acknowledge that the Purchasers are entering into this Agreement in reliance thereon, as follows:

3.1.Organization. The Company is duly organized and validly existing under the laws of the State 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, the Amended Articles, the Management Rights Letter, the License Agreement and the other agreements, instruments and documents contemplated hereby or thereby or which are ancillary hereto (collectively, the “Transaction Documents”) and to consummate the transactions and perform its obligations contemplated hereby and thereby. Neither the nature of the Company’s business as now conducted and as currently proposed to be conducted, nor its ownership or leasing of property require that the Company be qualified to do business or be in good standing in any jurisdiction other than the State of Israel, except where the failure to have such qualification would not reasonably be expected to have a Material Adverse Effect. The Current Articles are attached hereto as Schedule 3.1. The Company has all franchises, permits, licenses, and any similar authority necessary or required under any law, regulation, rule or ordinance, for the conduct of its business as now being conducted by it, except where the lack of it would not reasonably be expected to result in a Material Adverse Effect and the Company is not in material default under any of the same. The Company has not taken any action or failed to take any action, which action or failure would preclude or prevent the Company from conducting its business, in all material respects, after the Closing in the manner heretofore conducted.  “Material Adverse Effect” means  any event, change or effect that has a material adverse effect to the condition (financial or otherwise), properties, assets, liabilities, business or operations of the Company; provided, however, that in determining whether a Material Adverse Effect has occurred, there shall be excluded (i) any effects resulting from conditions generally affecting the industry or industries in which the Company, participates or the Israeli, U.S. or global economy or capital markets as a whole to the extent that such conditions do not have a disproportionate impact on the Company, when compared to other companies in the industries in which the Company participates; (ii) effects resulting from the execution of this Agreement or announcement or pendency of the transactions including the impact thereof on (1) relationships, contractual or otherwise, with customers, suppliers, distributors, employees or partners, (2) any resulting actions of competitors of the Company, and (3) any resulting shortfalls or declines in revenue, margins or profitability; (iii) general economic, business or political conditions (to the extent that such conditions do not have a materially disproportionate impact on the Company, as applicable, when compared to other companies in the industries or geographies in which the Company participates); (iv) failure to meet any projections or forecasts, in and of itself; (v) acts of God or other calamities, national or regional political or social conditions, including acts of god, stoppages or shutdowns of any governmental authority, any declaration of war, hostilities, act of terrorism, military actions, pandemics, epidemics or disease outbreaks or any escalation or material worsening of any such stoppages or shutdowns, in each case, existing or underway as of the date hereof, (to the extent that such conditions do not have a disproportionate impact on the Company, when compared to other companies in the industries or geographies in which the Company participates); (vi) changes in applicable laws or in generally accepted accounting principles or accounting standards, or changes in general legal, regulatory or political conditions; (vii) any action taken by the Company that is required under or otherwise consummate the transactions contemplated hereby  (including this Agreement), or (viii) any law or any directive, pronouncement or guideline issued by a Governmental Authority or industry group providing for business closures, “sheltering-in-place” or other restrictions that relate to, or arise out of, the COVID-19 pandemic.

 

3.2.Share Capital. The registered share capital of the Company as of immediately prior to the Initial Closing is divided into: (i) [***] Ordinary Shares, of which [***] are issued and outstanding, and (ii) [***] Preferred Seed Shares. Except as set forth in Schedule 3.2, the Amended Articles and the Transaction Documents, there are no other share capital, preemptive rights, convertible securities, outstanding warrants, options or other rights to subscribe for, purchase or acquire from the Company and/or from the shareholders of the Company any share capital of the Company and there are no contracts or commitments, written or oral, providing for the issuance of, or the granting of, any rights to acquire, any share capital of the Company or under which the Company and/or the shareholders of the Company is, or may become, obligated to issue any debt or equity securities, and there are no commitments, promises, understandings or undertakings with respect to grants of any options under the ESOP Pool or otherwise. All issued and outstanding share capital of the Company has been duly authorized and is validly issued and outstanding and fully paid and non-assessable. The Purchased Shares, when issued and allotted in accordance with this Agreement for the consideration set forth herein, will be duly authorized, validly issued, fully paid, non-assessable, and free of any preemptive rights, and will have the rights, preferences, privileges, and restrictions set forth in the Amended Articles, and will be free and clear of any liens, claims, encumbrances or third party rights of any kind (except as specified in the Amended Articles and the Transaction Documents) and duly registered in the name of each of the Purchasers in the Company’s register of shareholders. The Ordinary Shares issuable upon conversion of the Purchased Shares have been duly authorized and upon issuance in accordance with the terms of the Amended Articles, shall be duly and validly issued, fully paid, non-assessable, and free of any preemptive rights, will have the rights, preferences, privileges and restrictions set forth in the Amended Articles, and will be free and clear of any liens, encumbrances, claims, or third party rights of any kind (except as specified in the Amended Articles and the Transaction Documents) and duly registered in the name of the Purchasers in the Company’s register of shareholders. Except as set forth in Section 8.3 herein, the Company is under no obligation to register for trading on any securities exchange any of its securities, including any securities, which may hereafter be issued. Since its incorporation, there has been no declaration or payment by the Company of dividends, or any distribution by the Company of any assets of any kind to any of its shareholders, and there has been no redemption or repurchase of any of the Company’s securities, except as set forth in Schedule 3.2.

 

3.3.Ownership of Shares. Attached as Schedule 3.3(a) hereto, is a complete and correct Capitalization Table setting forth the number and class of shares held by the shareholders of the Company, and the total number of reserved and granted/promised options, warrants, and all other rights to subscribe for, purchase or acquire from the Company any share capital of the Company, all immediately prior to, and after, the Closing. The individuals identified in Schedule 3.3(a) as the shareholders of the Company are the registered owners of record, the beneficial holders, of all of the issued and outstanding share capital of the Company set forth opposite their names in Schedule 3.3(a) and of all rights thereto, and to Company’s knowledge, 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 Amended Articles, the Transaction Documents and in Schedule 3.3(a)), and the shareholders do not own any other shares, options or other rights to subscribe for, purchase or acquire any share capital of the Company from the Company (except as specified in the Transaction Documents).

 

Schedule 3.3(b) attached hereto sets forth for each holder of options to purchase securities pursuant to the Plan: (i) the name of the holder thereof; (ii) the exercise price, (iii) the vesting commencement date and vesting schedule (including provisions regarding acceleration of vesting, if any); and (iii) whether each such option was granted and is subject to tax pursuant to Section 102 of the Israeli Income Tax Ordinance [New Version], 1961 (the “Section 102 Options” or “Section 102 to the ITO”, as applicable). To Company’s knowledge, all Section 102 Options: (i) comply with the requirements of Section 102 and the rules and regulations promulgated thereunder, (ii) qualify for treatment under the capital gain route thereunder, and (iii) were duly and timely deposited with the trustee appointed by the Company to serve as trustee pursuant to Section 102 to the ITO in accordance with the provisions of Section 102 and the rules and regulations promulgated thereunder.

 

3.4.Subsidiaries. Except as set forth in Schedule 3.4, the Company does not own, directly or indirectly, any of the issued and outstanding share capital of any other corporation, association or business entity.

 

3.5.Directors, Officers. The directors and officers of the Company immediately prior to the Initial Closing are set forth in Schedule 3.5(a). Except as set forth in Schedule 3.5(b), the Company has no agreement, obligation or commitment with respect to the election or appointment of any individual or individuals as an officer or director of the Company and there is no voting agreement or other arrangement among the Company’s shareholders or to which the Company is a party in this respect (except as specified in the Amended Articles and the Transaction Documents).

 

Financial Statements; Liabilities.

3.7.Authorization; Approvals. All corporate action on the part of the Company, its shareholders and directors necessary for the authorization, execution, delivery, and performance of all of the Company’s obligations under the Transaction Documents including the authorization, issuance, and allotment of the Purchased Shares being issued under this Agreement, and of the Ordinary Shares issuable upon conversion of the Purchased Shares, has been taken (except for filing of notices with the Israeli Registrar of Companies which will be taken immediately following each of the Closings). The Transaction Documents, when executed and delivered by or on behalf of the Company shall be duly and validly authorized, executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties thereto, shall constitute the valid and legally binding obligations of the Company, legally enforceable against the Company in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Indemnity Agreements may be limited by applicable securities laws. 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, or will not have been, obtained by the Company prior to or at the applicable Closing in connection with the valid execution, delivery and performance of the Transaction Documents or the offer, sale, or issuance of the Purchased Shares hereunder except for the filing of the Amended Articles and notification of appointment of directors and issuance of the Purchased Shares with the Israeli Registrar of Companies each of which shall be made as soon as practicable following the Closing.

 

3.8.Compliance with Other Instruments. The Company is not in material default (a) under the Current Articles or other formative document of the Company, or (b) under any note, indenture, mortgage, lease, agreement, contract, purchase order or other instrument, document or agreement to which the Company is a party or by which it or any of its property is bound or affected, or (c) with respect to any law, statute, ordinance, regulation, order, writ, injunction, decree, or judgment of any court or any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which default, in any such case, would have a Material Adverse Effect. No third party is in default under any agreement, contract or other instrument, document or agreement to which the Company is a party or by which it or any of its property is affected.  The Company is not a party to, or bound by, any order, judgment, decree or award of any governmental authority, agency, court, tribunal or arbitrator.

 

▇.▇.▇▇ Breach. Neither the execution and delivery of the Transaction Documents nor compliance by the Company with the terms and provisions hereof or thereof, will conflict with, or result in a breach or violation of, any of the terms, conditions and provisions of: (i) the Current Articles, or other formative document of the Company, (ii) any judgment, order, injunction, decree, or ruling of any court or governmental authority, domestic or foreign to which the Company is a party to or bound by, (iii) any material agreement, contract, lease, license or commitment to which the Company is a party or to which it is subject, or (iv) applicable law or regulation. Such execution, delivery and compliance with the Transaction Documents 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) otherwise require the consent or approval of any person, which consent or approval has not heretofore been obtained or shall be obtained prior to Closing.

 

3.10.Records. The minute books of the Company, which have been provided to the Purchasers’ legal counsel, contain accurate and complete copies of the minutes of every meeting of the Company’s shareholders and the Board (and any committee thereof) in all material respects. No resolutions have been passed, enacted, consented to or adopted by the directors (or any committee thereof) or shareholders of the Company, except for those contained in such minute books. The corporate records of the Company have been maintained, in all material respects, in accordance with all applicable statutory requirements and are complete and accurate in all respects.

 

3.11.Ownership of Assets. Except as set forth in Schedule 3.11, the Company does not currently lease any property. The Company does not currently own any tangible assets, other than tangible assets customarily used in the ordinary course of business (e.g., furniture, equipment, computers and the like).

3.12.Intellectual Property and Other Intangible Assets.

“Open Source Materials” means all software or other material that is distributed as “free software”, “open source software” (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL) the Sun Industry Standards License (SISL) and the Apache License).

3.13.Taxes.

3.14.Material Agreements.

(i)           Any obligations (contingent or otherwise) of, or payments to, the Company in excess of US$ [***] individually;

(ii)          any license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company (other than non-exclusive licenses from the Company entered into in the ordinary course of business, or commercially available software products under standard end-user object code license agreements licensed to the Company);

(iii)          any grant of rights to manufacture, produce or assemble the Company’s products to any other person;

(iv)          any agreement granting any other person the right to market, distribute or resell (including as an OEM or value-added reseller) any of the Company’s technology, products or services;

(v)           any covenants, restrictions or limitations on the Company’s right to do business (including, the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products or services) or compete in any area, field or geography with any person (including any exclusivity with respect to any geographic territory, any customer, or any product or service), or any agreement providing any person a right of first notification, right of first offer, right of first refusal or exclusivity in case of a sale (or offer to sell) the Company or any of its shares or assets or with respect to the provision of services or products to the Company;

(vi)           any indemnification by the Company with respect to infringements of proprietary rights (other than non-exclusive licenses from the Company entered into in the ordinary course of business);

(vii)          any joint development agreement, joint venture agreement, collaboration agreement, strategic alliance agreement or agreement involving the sharing of profits, losses, costs or liabilities with any other person;

(viii)         any lien, charge, pledge or other material encumbrance on the Company’s assets, properties or rights;

(ix)           any agreement for the sale, exchange or other disposition of any of the assets or rights of the Company to any person, or of any person by the Company, other than the sale of inventory in the ordinary course of business; or

(x)            any proposed offer, arrangement or commitment by the Company to enter into or effect any of the foregoing agreements in this Section 3.14.1.

 

3.15.Litigation. No action, proceeding or, to Company’s knowledge, governmental inquiry or investigation, is pending or threatened against the Company, or to Company’s knowledge against the Founders by virtue thereof, or against any of the Company’s properties, or against the Company with regard to the Company’s business, before any court, arbitration board or tribunal or administrative or other governmental agency, nor, to Company’s knowledge is there any basis for the foregoing.  The foregoing includes, without limiting its generality, actions pending or threatened, involving the prior employment of the Co-Founder or use by him in connection with the Company’s business of any information, property or techniques allegedly proprietary to any of its former employers. Neither the Company nor any of the Founders are a party to or, to the knowledge of the Company and the Founders, subject to the provisions, of any order, writ, injunction, judgment or decree of any court or governmental agency. There is no action, suit, proceeding or investigation by the Company or the Founders currently pending or that the Company or any of the Founders currently intend to initiate.

▇.▇▇.▇▇ 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 solicit any offer to acquire any of the same from, anyone so as to make issuance and sale of the Purchased Shares hereunder not exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the “Securities Act”) or the prospectus requirements of the Israeli Securities Law, 1968. None of the shares of the Company’s issued and outstanding share capital has been offered or sold in such a manner as to make the issuance and sale of such shares not exempt from such registration and prospectus requirements, and all such shares of capital stock have been offered and sold in compliance with all applicable securities laws.

3.17.Interested Party Transactions. Except as set forth in Schedule 3.17, no officer, director or shareholder of the Company, nor any affiliate of any such Person, has or has had, either directly or indirectly, (a) an interest in any Person which (i) furnishes or sells services or products which are furnished or sold or are proposed to be furnished or sold by the Company, or (ii) purchases from or sells or furnishes to the Company any goods or services, or (b) a beneficial interest in any contract or agreement to which the Company is a party or by which it is bound. Except as set forth in Schedule_3.17, there are no existing arrangements or proposed transactions between the Company and any officer, director, or shareholder of the Company, or any affiliate of any such Person. No employee, shareholder, Founder, officer, or director of the Company is indebted to the Company, nor at the Closing, shall the Company be indebted (or committed to make loans or extend or guarantee credit) to any such Person, other than in connection with the agreements prescribed in Schedule 3.17. As of the Closing, there are no agreements or other arrangements between the Founders with respect to the Company’s share capital, voting rights or otherwise with respect to the Company and/or its business not disclosed herein.

3.18.Labor Matters.

 

 

3.19.Brokers. Except as set forth in Schedule 3.19, no agent, broker, investment banker, person or firm acting in a similar capacity on behalf of or under the authority of the Company is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, on account of any action taken by the Company in connection with any of the transactions contemplated under this Agreement.

 

3.20.Government Funding. The Company has not received or applied for any grant or other support or benefits (including, without limitation, tax benefits) from any Israeli or foreign government or regulatory entity or agency thereof or any multinational, bi-national or international program funding research and development programs or any other programs imposing any restriction of any kind on the Company's IP Rights, including, without limitation, grants from the European Innovation Council, the Israeli Innovation Authority (previously the Office of the Chief Scientist) of the Israeli Ministry of Economy and Industry or the Fund for the Encouragement of Marketing Activities, and, except as set forth in Schedule 3.20, Company has not entered into any arrangement with any Person with respect thereof. The Company is not an “approved enterprise”, “benefitted enterprise” or “preferred enterprise” under the Israeli Law for Encouragement of Capital Investments, 1959. Except as set forth in Schedule 3.20, the Company is not subject to the provisions of the Encouragement of Research, Development and Technological Innovation in the Industry Law 5744-1984 or any regulations promulgated thereunder. To the knowledge of the Company, neither the Company nor any of the Company's employees or consultants have used facilities or resources of a university, college, other educational institution, multinational, bi-national or international organization, research grants or research center in the development of the Company’s IP Rights. To the extent applicable, the Company has complied in all material respects with: (i) all procedural, financial and other requirements and all the terms and provisions of all of its grants, incentives and subsidies from the Government of the State of Israel or any agency thereof and applicable laws and regulations (including, without limitation, the limitations on the transfer of Intellectual Property from Israel); and (ii) all applicable laws, approvals and undertakings relating thereto.

 

Budget. The Company’s Budget, has been prepared in good faith, provided however, that the Company does not warrant that the results of the Company will allow it to abide by the expenses contemplated therein.

 

3.22.Anti-Corruption. Neither the Company nor any of the Founders have, directly or indirectly, made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority, or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or any of its affiliates in obtaining or retaining business for or with, or directing business to, any person. Neither the Company nor the Founders have made or authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds or received or retained any funds in violation of any law, rule or regulation. Neither the Company nor any of its officers, directors or employees are the subject of any allegation, voluntary disclosure, investigation, prosecution, or other enforcement action related to the FCPA or any other anti-corruption law.

Obligations of Management. Except as set forth in Schedule 3.28 attached hereto, each of the Key Persons is currently devoting one hundred percent (100%) of their business time to the conduct of the business of the Company.

 

Each Purchaser hereby, severally and not jointly, represents and warrants to the Company, solely with respect to itself, as follows:

5.1.Existence and Power. Purchaser is duly organized, validly existing, and in good standing under the laws of the respective jurisdiction of incorporation and has all requisite power and authority required to own and lease its property and to carry on its business as presently conducted.

 

5.2.Enforceability. This Agreement, when executed and delivered by such Purchaser and assuming the due authorization, execution and delivery by the other parties thereto, shall constitute the valid and legally binding and enforceable obligations of such Purchaser in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Indemnity Agreements may be limited by applicable securities laws. The execution and delivery of this Agreement by such Purchaser will not result in a violation of such Purchaser’s corporate documents (if the Purchaser is a legal entity) or be in conflict with or constitute, with or without the passage of time or giving of notice, a default under any agreement to which the Purchaser is party.

 

5.3.Authorization. The execution, delivery and performance of the obligations of such Purchaser hereunder have been duly authorized by all necessary corporate action.

 

5.4.Brokers. No agent, broker, investment banker, person or firm acting in a similar capacity on behalf of or under the authority of such Purchaser is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, on account of any action taken by such Purchaser in connection with any of the transactions contemplated under this Agreement.

 

5.5.Investment Experience. The Purchasers have experience in investing in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Purchased Shares pursuant to this Agreement.

 

▇.▇.▇▇▇▇▇▇▇▇▇ Capabilities. Purchaser has full financial capabilities to finance the Company in accordance with the terms hereto, at each of the Closings (as applicable), in immediately available US$ funds.

 

5.7.Disclosure of Information. Without derogating from the Purchaser’s right to rely on the representations and warranties set forth herein or to seek indemnification for any breach thereof, such Purchaser represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Purchased Shares and the business, properties, prospects and financial condition of the Company.

 

6.1.Representations and Warranties. The representations and warranties made by the Company and EVGN in this Agreement shall have been true and correct when made, and shall be true and correct in all material respects as of the applicable Closings, as if made on the dates thereof.

 

6.2.Covenants. All covenants, agreements, and conditions contained in this Agreement to be performed or complied with by the Company or EVGN prior to the applicable Closing shall have been performed or complied with by the Company or EVGN, as the case may be, prior to or at the applicable Closing.

 

▇.▇.▇▇ Material Adverse Change. There shall have been no Material Adverse Effect to the financial conditions and/or prospects of the Company between the date hereof and the Initial Closing Date and/or Subsequent Closing Date, as applicable.

 

6.4.Consents. The Company shall have secured, prior to or at the Closing, corporate consents and authorizations that shall be necessary or required lawfully to consummate this Agreement and to issue the Purchased Shares to the Purchasers.

 

▇.▇.▇▇▇▇▇▇▇▇ of Documents. All of the documents to be delivered by the Company pursuant to Sections 2.3.1 and 2.5.1 hereof (as applicable), shall be in the respective form attached to this Agreement or, if no such forms are attached, in a form and substance satisfactory to the Purchasers and their counsel, in their sole discretion, and all the documents to be delivered by the Company pursuant to Sections 2.3.1 and 2.5.1 shall have been executed and delivered to the respective Purchasers.

 

▇.▇.▇▇▇▇▇▇▇ Status. Prior to the Initial Closing Date, the Company shall have remedied its status as a 'company in breach' with the Israeli Registrar of Companies and show evidence of such to the Lead Purchaser.

 

The Company’s obligations to sell and issue the Purchased Shares at the Closings, are subject to the fulfillment at or before each of the Closings of the conditions that (a) all covenants, agreements and conditions contained in this Agreement to be performed, or complied with, by the Purchasers prior to each Closing, shall have been performed or complied with by the Purchasers, (b) the representations and warranties made by the Purchasers in this Agreement shall have been true and correct when made, and shall be true and correct as of the date of each Closing, and (c) with respect to the Lead Purchaser, the Lead Purchaser has completed (x) [***]; (y) [***], and (z) [***] (the “[***]”), and (d) all of the Purchasers shall have delivered its respective portion of the Purchase Price at the applicable Closing. The conditions set forth in this Section 7 (other than Section 7(c)) may be waived in whole or in part by the Company, which waiver shall be at the sole discretion of the Company.

 

8.1.Use of Proceeds. The proceeds of the investment hereunder shall be used by the Company to conduct its business as determined by the Board of Directors, inter-alia, for continued research and development of its products and services, including sales and marketing of products developed as stated and in accordance with the proposed Budget.

 

8.2.Lead Purchaser Information and Inspection Rights.

 

 

 

 

 

 

 

 

8.3.Registration Rights. The Purchasers shall be entitled to the most favorable registration rights first granted by the Company to any future investors in the Company in the first financing round in which registration rights are granted, if granted prior to the consummation of an IPO (as defined in the Amended Articles, as amended), on a pro-rata basis.

 

8.4.[Reserved]

8.5.Standard Insurance Policies. [***] days as of the Closing, the Company shall obtain a liability insurance including cyber liability, fire and casualty, sufficient in amount (subject to reasonable deductions) to allow it to replace any of its properties that might be damaged or destroyed.

8.6.[***].

8.7.Proprietary Information Proprietary Rights Assignment and Non-Competition Agreements. The Company will not employ, or continue to employ, any person, whether as an employee, consultant, contractor or otherwise, (i) who will have access to confidential information with respect to the Company and its operations unless such person has executed and delivered a confidentiality agreement in a customary form; and (ii) who participated in the conception, reduction to practice, development, invention, discovery or design of any items included in the Company’s intellectual property, unless such person has executed and delivered a proprietary rights assignment agreement in a customary form.

 

8.8.Fees and Expenses. The Company shall pay at the Closing and subject thereto, all reasonable legal and other fees and costs incurred by the Lead Purchaser in connection with this Agreement, including in connection with the due diligence processes, the negotiations and preparation of definitive agreements, and subject to the Closing of the transactions contemplated hereunder, out of pocket expenses of the Lead Purchaser in an aggregate amount not to exceed US$ [***] plus VAT, if applicable.

 

▇.▇.▇▇ Public Disclosure. No party shall publicly announce or disclose the existence of this Agreement or its terms and conditions, or advertise or release any publicity regarding this Agreement or the transactions contemplated hereunder, without the prior coordination with the remaining parties and with providing such parties with copies of such disclosures or publicity within reasonable time in advance in order to enable them to review and provide comments. Notwithstanding the aforesaid, upon signing of this Agreement, the parties may issue a joint press release, which content shall be mutually agreed upon by the parties, in good faith.

 

9.1.           During the period commencing on the Signing Date and ending at the Closing Date (the “Interim Period”), Company shall have the right (but not the obligation) to supplement or amend the Disclosure Schedule with respect to any matter through one or more certificates (each a “Bring Down Certificate”), and each such Bring Down Certificate shall automatically be deemed to be incorporated into and to supplement and amend the Disclosure Schedule for all purposes hereunder, and Lead Purchaser shall, if applicable, have the sole discretion to determine whether to waive any closing conditions set forth in Section 6 or rights to terminate this Agreement with respect to the matters so disclosed during the Interim Period. In the event that any such matter disclosed in a Bring Down Certificate would cause the condition set forth in Section 6.3 to fail to be satisfied or Lead Purchaser determines in good faith not to waive any conditions to its obligations hereunder or rights to terminate this Agreement, then each Purchaser shall have the right to terminate this Agreement in accordance with the terms hereunder within ten (10) Business Days after delivery of such Bring Down Certificate to the respective Purchaser. This provision shall apply mutatis-mutandis, to the Subsequent Closing.

 

 

10.1.This Agreement may be terminated and the transactions may be abandoned at any time prior to the Initial Closing:

 

 

 

 

11.1.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.

 

11.2.Governing Law; Dispute Resolution. This Agreement shall be governed by and construed according to the substantive laws of the State of Israel, without regard to the conflict of laws thereof. Any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, breach, termination or invalidity thereof, shall be settled by arbitration in [***] (“[***]”) in accordance with the arbitration rules in force at the time of the initiation of the arbitration.  The place of arbitration shall be in [***] and the arbitration shall be conducted in the English language. The arbitration awards shall be final and binding upon the parties.

 

11.3.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 each Purchaser to such Purchaser’s Permitted Transferee as such a term is defined in the Amended Articles and in accordance with the limitations on such a transfer as stated in the Amended Articles; provided, however, that in the case that a Purchaser transfers its shares to a Permitted Transferee and the Permitted Transferee ceases to be a Permitted Transferee, the Purchaser shall resume the obligations set forth in, arising under, or created by this Agreement prior to such event.

 

11.4.Entire Agreement; Amendment and Waiver. This Agreement and the Schedules hereto constitute the full and entire understanding and agreement between the parties with regard to the subject matters 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 the Company and the Purchasers and, solely with respect to an amendment that adversely affects the personal rights, obligations and liabilities of EVGN in their capacity as a Founder, also EVGN.

 

11.5.Notices, etc. All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be faxed, emailed or mailed by registered or certified mail, postage prepaid, or prepaid air courier, or otherwise delivered by hand or by messenger, addressed to such party’s address as set forth below or opposite each Purchaser’s name as set forth in Exhibit C or at such other address as the party shall have furnished to each other party in writing in accordance with this provision:

if to the Company: Biomica Ltd. [***] Attn: [***] Tel: [***] Email: [***] with a copy to (which shall not constitute a notice): ▇▇▇▇▇▇▇▇ & Worcester Tel-Aviv Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Adv. Tel: [***] Email: [***] if to EVGN: Evogene Ltd. Attn: [***] Tel: [***] Email: [***]

Any notice sent in accordance with this Section 9.5 shall be effective (i) if mailed by registered or certified mail, five (5) Business Days after mailing, (ii) if by courier one (1) Business Day after delivery to the courier service, (iii) if sent by messenger, upon delivery, and (iv) if sent via facsimile or email, upon transmission and electronic confirmation of receipt or, if transmitted and received on a non-Business Day, on the first Business Day following transmission and electronic confirmation of receipt (provided, however, that any notice of change of address shall only be valid upon receipt).

 

11.6.Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party upon any breach or default under this Agreement, shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. Except as otherwise limited herein, all remedies, either under this Agreement or by law or otherwise afforded to any of the parties, shall be cumulative and not alternative.

 

11.7.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.

 

11.8.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.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF the parties have signed this Series Seed Preferred Share Purchase Agreement as of the date first hereinabove set forth.

 

[***]

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