Series D Preferred Share Purchase Agreement (2015)Full Document 

Start of Preview
 

 
SERIES D PREFERRED SHARE
 
PURCHASE AGREEMENT
 
DATED AS OF JUNE 26, 2014
 
AMONG
 
YORK GLOBAL FINANCE II S.À R.L.
 
AND
 
INSIGHTEC LTD.
 

 
 
 

 
 
TABLE OF CONTENTS
 
Page
 
1
1.1
Definitions
1
1.2
Other Defined Terms
7
1.3
Other Interpretive Matters
8
8
2.1
Purchase and Issuance of the Series D Preferred Shares
8
2.2
Closing
9
11
3.1
Conditions to the Closing
11
16
4.1
Affirmative Covenants
16
4.2
Securities Filings
16
17
5.1
Corporate Existence and Power
17
5.2
Corporate Authorization and Validity
17
5.3
Non-Contravention
17
5.4
Consents
18
5.5
Finder’s Fees
18
5.6
Capitalization
18
5.7
Validity of Shares; Issuance
19
5.8
Financial Statements
19
5.9
Assets
20
5.10
Intellectual Property
20
5.11
Subsidiaries
22
5.12
Litigation; Disputes
22
5.13
Compliance with Laws
22
5.14
Absence of Undisclosed Liabilities
23
5.15
Taxes
23
5.16
Employees
24
5.17
Approved Enterprise; Office of Chief Scientist
26
5.18
Material Contracts
26
5.19
Insurance
28
5.20
Transactions with Related Parties
28
5.21
Improper Payments
28
5.22
Sanctions Matters
28
5.23
Governmental Permits; Compliance
29
5.24
Product Liabilities
31
5.25
Warranties
32
5.26
Environmental Matters
32
 
 
 

 
 
32
6.1
Notices
32
6.2
Amendments; Waivers
33
6.3
Expenses
33
6.4
Remedies
33
6.5
Purchaser Investment Representations
33
6.6
Survival of Agreement
35
6.7
Successors and Assigns
35
6.8
Governing Law
35
6.9
Severability
35
6.10
Aggregation
36
6.11
Counterparts; Effectiveness
36
6.12
Captions
36
6.13
Construction
36
6.14
Entire Agreement
36
6.15
No Third Party Beneficiaries
36
6.16
Indemnification
37
6.17
Payment Set Aside
38

 
ii

 

LIST OF EXHIBITS
 
Exhibit A.1 – Current Articles of Association
Exhibit A.2 – Form of New Articles of Association
Exhibit B – Form of Seventh Amended and Restated Securityholders Agreement
Exhibit C – Form of Opinion of Counsel
Exhibit D – Cooperation Agreement Amendment

LIST OF SCHEDULES
 
Schedule 1 - Investment
Schedule 2.1– Post Closing Capitalization Table;
Disclosure Schedule
Section 1.1 – Permitted Liens
Section 5.3 – Non Contravention
Section 5.4 – Consents
Section 5.5 – Finder’s Fee
Section 5.6 – Capitalization
Section 5.8 – Financial Statements
Section 5.10 – Intellectual Property
Section 5.12 – Litigation; Disputes
Section 5.13 – Compliance with Laws
Section 5.15 - Taxes
Section 5.16 – Employees
Section 5.17 – Approved Enterprise; Office of Chief Scientist
Section 5.18 – Material Contracts
Section 5.19 – Insurance
Section 5.20 – Transactions with Related Parties
Section 5.23 – Governmental Permits; Compliance
Section 5.24 – Product Liabilities
Section 5.25 – Warranties
 
 
iii

 
 
SERIES D PREFERRED SHARE
PURCHASE AGREEMENT
 
THIS SERIES D PREFERRED SHARE PURCHASE AGREEMENT (this “Agreement”) is made as of June 26, 2014 among InSightec Ltd., a private limited company organized and existing under the laws of Israel (the “Company”) and York Global Finance II S.à r.l. (the “Purchaser” or “York” ).
 
WHEREAS, the Company is in need of additional funding in order to maintain and further develop its business, and the Purchaser is willing to provide funding, in exchange for Series D Preferred Shares to be issued by the Company, subject to the terms and conditions set forth in this Agreement;
 
NOW THEREFORE, the parties hereto agree as follows:
 
 
1.1
Definitions.  For the purposes of this Agreement, the following terms have the meanings set forth below (such meanings to be applicable to both the singular and plural forms of the terms defined):
 
Affiliate” of any particular Person means any other Person directly or indirectly controlling, controlled by or under common control with such particular Person.  The term “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by contract or otherwise.  Notwithstanding the foregoing or anything else herein to the contrary, neither General Electric Company (“GE Parent”), York, Elbit Imaging Ltd. (“EI”) nor Elbit Medical Technologies td. (“ET”) shall be considered an Affiliate of the Company for purposes of this Agreement. In addition, York's “Affiliates” shall include York Capital Management Global Advisors LLC, a company incorporated in the State of New York, its affiliates and any funds or accounts managed by it or its affiliates
 
Applicable Law” means, with respect to any Person, any domestic or foreign, federal, state or local statute, law, ordinance, rule, administrative action, regulation, directive, standard, guideline, guidance, policy, order, writ, injunction, judgment, extension order, decree or other requirement of any Governmental Authority, and any requirements imposed by common law or case law, applicable to such Person or any of its Affiliates or any of their respective properties, assets, officers, directors, employees, consultants or agents (in connection with their activities on behalf of such Person or any of its Affiliates).
 
Articles” means the June 26, 2013 Amended and Restated Articles of Association of the Company in the form of Exhibit A.1 attached hereto.
 
Business Day” means any day other than a Saturday, Sunday or public holiday under the laws of Israel or the State of New York or other day on which banking institutions are authorized or obligated to close in Israel or New York City, New York.
 
 

 
 
Capital Lease” means any lease of any property (whether real, personal or mixed) by any Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.
 
Contract” means any contract, agreement, lease, license, commitment (including an outstanding bid or proposal), sale or purchase order or other binding instruments of any kind, whether written or oral.
 
Designated Directors” has the meaning set forth in the New Articles.
 
Dividend” means any distribution by a corporation or other entity with respect to its capital stock or other ownership interests whether in cash, securities (including common and preferred stock) or other property.
End of Preview