ACQUISITION AGREEMENT DATED SEPT 2009
EXHIBIT
10.1
ACQUISITION AGREEMENT DATED
SEPT 2009
THIS
STOCK PURCHASE AND SALE AGREEMENT (the "Agreement") is dated as of
September 7, 2009, by and among NEW AIR, INC.,
a Maryland corporation (“Buyer”); each of the SELLERS
listed in Annex
A attached and incorporated hereto by reference (each a "Seller" and collectively the
"Sellers"); and BABY’S
BREATH LTD., an Israeli company ("Baby's Breath").
WHEREAS, Baby's Breath is
engaged in the business of research, development, manufacturing and sale of
medical devise suitable for treatment of respiratory diseases; and
WHEREAS, Sellers collectively
own all of the outstanding share capital of Baby's Breath comprised of
31,403 Ordinary Shares of Baby's Breath par value NIS1.00 ("Baby's Shares"),
each which; and
WHEREAS, Sellers want to
collectively sell to Buyer and Buyer wants to buy from Sellers all of Baby's
Shares, free and clear from any and all Encumbrances (as defined
below) upon the terms and subject to the conditions set forth herein;
and
NOW, THEREFORE, in
consideration of the premises and the representations, warranties and agreements
contained in this Agreement, the parties to this Agreement agree as
follows:
ARTICLE
1
GENERAL
Terms
defined in the singular will have a comparable meaning when used in the plural,
and vice-versa. the preamble to this Agreement together with any and all
Schedules and Annexes hereto constitutes an integral part hereof. The term
"person" includes any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
ARTICLE
2
PURCHASE
AND SALE; PURCHASE PRICE; REVOCATION OF SALE
2.1 Purchase and Sale. By
executing this Agreement and the respective Deliverables (as defined below) and
in effect as of the date hereof, each of the Sellers hereby sells and transfers
to Buyer such Seller's entire portion of Baby's Shares as set forth in Annex
A hereto opposite such Seller's name, free and clear of any and all
liens, pledges and other third party rights (collectively "Encumbrances"), and Buyer
hereby purchases all of Baby's Shares and becomes the beneficial owner of all of
Baby's Shares, in consideration for the issuance by Buyer to each of the
Sellers, such amount of Shares of Common Stock of the Buyer par value US$0.001
each, as set forth in Annex
B hereto opposite each of the Seller's name, free and clear of any and
all Encumbrances, constituting in the aggregate 6,280,600 (
collectively the "Issued
Shares"). All Baby's Shares and all Issued Shares will be held by the
Trustee (as defined below), for the benefit of Buyer, or each of the respective
Sellers, as applicable, in accordance with the terms and provisions of the
Ruling, the Trust Agreement and the Ruling Undertaking (all as defined
below).
2.2 Execution and Exchange of
Deliverables. Upon the execution of the Agreement, each of the parties
hereto shall deliver to the other parties a duly executed copy of each of the
following documents (collectively the "Deliverables"):
(a) Deed
of Transfer of Shares, in the form attached hereto as Schedule
2.2(a), signed by each respective Seller, transferring such Seller's
entire portion of Baby's Shares to the Trustee, to be held by the Trustee for
the sole benefit of Buyer, under the terms and conditions of the Ruling and the
Trust Agreement (as defined herein);
(b) the
Trust Agreement with Yardeni ▇▇▇▇▇▇▇ (the "Trustee") in the form attached
hereto as Schedule
2.2(b) duly executed and signed by the Trustee, the Buyer and each of the
Sellers;
(c) the
undertaking to be provided to the Israeli Tax Authorities in connection with the
Ruling, in the form attached hereto as Schedule
2.2(c) duly executed by each of the Trustee, and the
Sellers;
(d) a
stock certificate of Baby's Breath, in the form attached hereto as Schedule
2.2(d) for all of Baby's Shares, in the name of the Trustee as a holder
of such shares for the sole benefit of Buyer under the terms and conditions of
the Pre-Ruling and the Trust Agreement;
(e) a
duly executed resolution of: (i) the Board of Directors of Buyer, and the (ii)
stockholders of Buyer, in the form attached hereto as Schedule
2.2(e)(i) and (ii) authorizing: the entrance of Buyer into this
Agreement, any Annex or Schedule hereto and any and all other documents or
instruments to be executed or delivered by Buyer in connection with or in
furtherance of the transactions contemplated hereby (the "Transaction Documents"), and
the performance by it of any and all of its obligations hereunder and
thereunder;
(f) a
duly executed resolution of the Board of Directors of Baby's Breath in the form
attached hereto as Schedule
2.2(f) authorizing the entrance of Baby's Breath into each of the
Transaction Documents and the performance by it of any and all of its
obligations hereunder and thereunder;
(g) a
duly executed register of shareholder of Baby's Breath in the form attached
hereto as Schedule
2.2(g) reflecting the consummation of the transactions contemplated
hereunder;
(h) duly
executed stock certificates of Buyer, in the form attached hereto as Schedule
2.2(h), each for the respective amount of the Issued Shares appearing
opposite the name of each Seller in Annex
B, and each in the name of the Trustee to be held by the Trustee for the
sole benefit of the respective Seller, in accordance with the Trust Agreement
and Ruling;
(i)
capitalization table of Buyer in the form attached hereto as Schedule
2.2(i) reflecting the issuance of all Issued Shares to each of the
Sellers as of the date hereof;
(j) duly
executed copy of authorization and approval of the Office of the Chief Scientist
of the Ministry of Industry and Trade in the form attached hereto as Schedule
2.2(j) for the consummation of the transactions contemplated hereunder
and under the Transaction Documents;
(k) duly
executed copy of the Tax Pre- Ruling dated November
23, 2009 as was received by the Israeli Tax Authorities in connection
with the transactions hereunder in the form attached hereto as Schedule
2.2(k) (the "Ruling");
(l) duly
executed copy of the Shareholders Agreement in the form attached hereto as Schedule
2.2(l) governing Parties rights with respect to their holdings in
Purchaser until the completion of a Registration (as that term defined
therein)
All
transactions set forth herein shall be deemed to take place simultaneously and
no transaction described in any of the Transaction Documents shall be deemed to
have been completed until all such transactions have been completed and no
document to be delivered or exchanged between the Parties as per this Section 2
shall be deemed delivered or exchanged until all such Deliverables have been so
delivered and exchanged.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF SELLERS
Each of
the Sellers hereby represents and warrants to Buyer as of the date of this
Agreement as follows:
3.1 Organization; Directors and
Officers. Baby's Breath is a corporation duly organized, validly existing
under the laws of the State of Israel, and has all necessary corporate power and
authority to own its properties and assets and conduct its
business.
3.2 Capital Stock. Baby's
Breath entire issued and outstanding share capital is comprised of Baby's
Shares. Baby's Breath's authorized share capital consists of 1,000,000 Ordinary
Shares par value NIS1.00. Except for certain hypothecation that exists over some
of the Baby's shares held by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ pending the resolution of some
legal proceedings he is a party to, all of Baby's Shares are owned by Sellers,
free and clear of any Encumbrances. No options, rights or securities
exercisable, exchangeable or convertible into shares of Baby's Breath are
outstanding, and there are no plans, contracts or commitments or undertaking by
Baby's Breath or any of the Sellers providing for the issuance, sale, or grant
of any of Baby's Breath Shares or any securities or rights exercisable,
exchangeable or convertible into shares of Baby's Breath. All of Baby's Shares
have been duly authorized, validly issued, and are fully paid.
3.3 Authorization and Binding
Obligation. The execution, delivery and performance by such Seller and
Baby's Breath of this Agreement and each of the Transaction Documents, have been
duly and validly authorized and approved by all requisite corporate action on
the part of each such person and each of the Transaction Documents constitutes,
when executed, a valid and binding obligation of Baby's Breath and each of the
Sellers, enforceable in accordance with its respective terms except as may be
limited by laws affecting creditors rights generally or by judicial limitations
on the right to specific performance or other equitable remedies.
3.4 Consents Required.
The consummation of the transactions set forth in this Agreement and in the
Transaction Documents does not require any approval or permit from any
regulatory agency or other third party (except for those that have been obtained
and are attached as part of the Deliverables).
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
represents and warrants to each of the Sellers as of the date of this Agreement
as follows:
4.1 Organization. Buyer
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Maryland.
4.2 Authorization and Binding
Obligation. The execution, delivery and performance by Buyer of this
Agreement and each of the Transaction Documents have been duly and validly
authorized and approved by all requisite corporate action on the part of Buyer.
Buyer has all requisite power and authority to do and perform all acts and
things required to be done by it under this Agreement and the Transaction
Documents and each such document constitutes, when executed, a valid and binding
obligation of Buyer enforceable in accordance with its respective terms except
as may be limited by laws affecting creditors' rights generally or by judicial
limitations on the right to specific performance or other equitable
remedies.
ARTICLE
5
COVENANTS
5.1 Compliance with the
Ruling. Each of the Parties hereby undertakes to refrain from taking any
action, except with the prior written consent of the other Parties, that would
constitute a breach or default under the Ruling.
5.2 Employment
Undertaking. As soon as practicable after the date hereof each of the
Chief Executive Officer of the Company and the Chief Financial Officer of the
Company shall enter into an Employment Agreement with the Buyer in the form to
be satisfactory to the Board of Directors of the Buyer, which will include inter
alia an undertaking in connection with intellectual property and an undertaking
in connection with non-compete.
5.3 Amirav's holdings.
Buyer shall reflect in its records an hypothecation on 50% of the holdings of
▇▇. ▇▇▇▇▇▇ in the Buyer pending the resolution of certain legal proceedings to
which ▇▇ ▇▇▇▇▇▇ is a party.
ARTICLE
6
OTHER
PROVISIONS
6.1 Further Assurances.
At such time and from time to time on and after the date hereof upon request by
another party, Sellers and Buyer will execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
deeds, assignments, transfers, conveyances, powers of attorney and assurances
that may be required for carrying out the intention of the transactions
contemplated hereunder.
6.2 Governing Law. This
Agreement will be governed by and interpreted in accordance with the laws of the
State of Maryland, including all matters of construction, validity, performance
and enforcement.
6.3 Successors and
Assigns. This Agreement will be binding upon and inure to the benefit of
the parties to this Agreement and the successors or assigns of the parties to
this Agreement.
6.4 Benefit. Nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties to this Agreement or their respective successors or assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
6.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which will be
deemed as original and all of which together will constitute one
instrument.
IN WITNESS WHEREOF, each of
the parties has caused this Agreement to be executed in the manner appropriate
for each, and to be dated as of the date written on the first page of this
Agreement.
[Execution
Page Follows]
Signature
Page for Stock Purchase Agreement
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
CEO
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Baby's
Breath Ltd.
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
CEO
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/s/
Prof.
David Grusher
Prof.
David Grusher
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
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GPI
Granot Development Enterprises Ltd.
By:
____________________________
Title:
___________________________
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A.M.
Maagal – Marketing & Business
Development
Ltd.
By:
__________________________
Title:
_________________________
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/s/
Alon Lifroni
By:
Alon Lifroni
Title:
CEO
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Ramport
Finance Ltd
.
By:
/s/ Golan ▇▇▇▇▇
▇▇▇▇▇ Gilad
Title:
_____________________________________________
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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/s/
Orni ▇▇▇▇
▇▇▇▇
Elad
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
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_______________________________
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Yaniv
Shekel in Trust for Microdel Ltd.
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Life
Support Ltd.
By:
__________________________
Title:
_________________________
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