EXHIBIT 10.12
THE SECURITIES ISSUABLE UNDER THIS DOCUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER
ANY STATE OR FOREIGN SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH SECURITIES, OR THE HOLDER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL FOR THE HOLDER OF THE SECURITIES
AND/OR SUCH SECURITIES SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION
REQUIREMENTS UNDER APPLICABLE STATE OR FOREIGN LAW.
SHARE PURCHASE AGREEMENT
This agreement (the "AGREEMENT"), is made by and between Voice Diary Inc., a
company incorporated under the laws of the state of Delaware (the "COMPANY") and
Ofer Yonach (the "INVESTOR")
WHEAREAS: the Investor wants to purchase 673,202 (six hundred seventy three
thousand two hundred and two) Class A Common Stocks of the Company, each bearing
a par value of $ 0.01 (the "Purchased Shares") allocated in consideration of
$33,333 (the "Purchase Price"); and
WHEAREAS: the Company wishes to allocate the Purchased Shares to the
Investor at the Purchase price in accordance with the terms and conditions set
forth herein.
NOW THEREFOR, the parties, intending to be legally bound, hereby agree as
follows:
1. PREAMBLE AND CAPTIONS
1.1. The preamble to this Agreement shall be deemed an integral part
thereof.
1.2. The captions in this Agreement shall not be deemed a part hereof as
they have been inserted for convenience and orientation only, and they
shall not affect the interpretation of this Agreement.
2. PURCHASE AND SALE OF SHARES
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2.1. Subject to and in accordance with the terms and conditions of this
Agreement, the Investor hereby buys the Purchased Shares from the
Company, and the Company hereby sells the Purchased Shares to the
Investor.
2.2. The parties hereby agree that the Purchase Price shall be paid by Nir
Or Israel Ltd ("Nir Or") by offsetting the Company's debt to Nir Or. A
written confirmation that part of the bridge loans that were provided
by Nir Or to the Company, equal to $33,333, is to be considered as
payment of the Purchase Price for the Investor and that the Company
has no obligation to pay Nir Or said sum, shall be considered as a
full payment of the Purchase Price..
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTOR
The Investor hereby represents and warrants to the Company as follows:
3.1. NO BREACH. The execution and performance of this Agreement and the
consummation of the transactions contemplated hereunder will not
result in a breach of, nor will they constitute a default under, any
agreement to which the Investor is party.
3.2. APPROVALS. No approval or consent of any person, authority or entity
is required in connection with the execution and delivery of this
Agreement or the performance of the Investor's obligations
contemplated hereby.
3.3. AUTHORIZATION. If the Investor is a corporation, it is duly organized
and validly existing in the jurisdiction of its organization and has
full power and authority to enter into this Agreement. All actions on
its part necessary for the authorization, execution, delivery and
performance by it of this Agreement have been duly taken to authorize
the execution and delivery by it, and this Agreement constitutes its
valid and legally binding obligation, enforceable in accordance with
its terms except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights, and (b) general principles
of equity that restrict the availability of equitable remedies.
3.4. NO PUBLIC MARKET; RULE 144. The Investor understands that no public
market now exists for any of the Purchased Stock and that it is
uncertain whether a public market will ever exist for any such
securities. The Investor further acknowledges that because the
Purchased Stock have not been registered under the Securities Act of
1933, as amended (the "SECURITIES ACT"), the Purchased Stock must be
held indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available. It is aware
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of the provisions of Rule 144 promulgated under the Securities Act,
which permits limited resale of shares purchased in a private
placement under certain circumstances.
3.5. RESTRICTED STOCK. The Purchased Stock are characterized as "restricted
securities" under the federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a
public offering or in reliance upon a safe harbor from the
registration requirements of the act under regulation S for offers and
sales of securities that occur outside of the united states, and such
securities may be resold without registration under the Act only in
certain limited circumstances. It understands that the certificates
evidencing the Purchased Stock will be printed with legends
restricting transfer except in compliance with applicable securities
laws in the form of the following or similar legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT") AND MAY NOT BE
OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS OR FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN DISTRIBUTORS AS
DEFINED IN REGULATION S) DURING THE DISTRIBUTION COMPLIANCE PERIOD AS
DEFINED IN RULE 902 OF REGULATION S UNLESS THE SHARES ARE REGISTERED
UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS
AVAILABLE.".
Investor understands that any transfer agent of the Company will issue
stop-transfer instructions with respect to the Purchased Stock unless
any transfer thereof is subsequently registered under the Act and
applicable state and other securities laws or unless an exemption from
such registration is available.
3.6. The Investor's present intention is to acquire the Purchased Stock for
its own account and further represents that the Purchased Stock are
being and will be acquired by it for the purpose of investment and not
with a view to distribution or resale thereof. The acquisition by the
Investor of the Purchased Stock acquired by it shall constitute a
confirmation of this representation by such Investor.
3.7. ACCESS TO INFORMATION. The Investor acknowledges that it, during the
course of this transaction and prior to the acquisition of any
Purchased Stock has had the opportunity to ask questions of and
receive answers from representatives of the
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Company concerning the terms and conditions of this Agreement relating
to the Purchased Stock, and to obtain additional information,
documents, records and books relative to the Company, its business,
and an investment in Company. The Investor acknowledges that the
Company or any agent thereof has made no representations or warranties
except as explicitly set forth in this Agreement.
3.8. PREVIOUS INVESTMENTS. By reason of the Investor's knowledge and
experience in business and financial matters, including investments in
securities of companies in the development stage, 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 transactions
contemplated herein.
3.9. RISKS. The Investor understands that an investment in the Company
involves a high degree of risk and is suitable only for shareholders
who can afford a loss of their entire investment and who have no need
for liquidity from their investment.
3.10.The Investor is either (i) an "accredited investor", as that term is
defined in Rule 501 of Regulation D promulgated under the Securities
Act, or (ii) not a "U.S. Person", as defined by Rule 902 of Regulation
S promulgated under the Securities Act, was not formed by a "U.S.
Person" as defined by Rule 902 of Regulation S, was not organized
under the laws of any United States jurisdiction, is not holding the
Purchased Stock for the benefit of any US Person, and was not formed
for the purpose of investing in securities not registered under the
Securities Act. At the time the buy order for this transaction was
originated, the Investor was outside the United States.
All subsequent offers and sales of the Purchased Stock will be made
(i) outside the United States in compliance with Rule 903 or Rule 904
of Regulation S, (ii) pursuant to registration of the Purchased Stock
under the Securities Act, or (iii) pursuant to an exemption from such
registration. The Investor understands the conditions of the exemption
from registration afforded by Section 4(1) of the Securities Act and
acknowledges that there can be no assurance that it will be able to
rely on such exemption. The Investor will not engage in hedging
transactions with regard to the Purchased Stock prior to the
expiration of the distribution compliance period specified in Rule 903
of Regulation S, unless in compliance with the Securities Act.
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3.11.The Investor, if not a natural person, was not formed for the
specific purpose of acquiring the securities offered in this
Agreement.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
The Company hereby represents and warrants to the Investor as follows:
4.1. AUTHORIZATION BY COMPANY. By signing, all actions on the part of
Company necessary for the authorization, execution, delivery, and
performance by it of this Agreement have been duly taken, and this
Agreement constitutes a legal, valid and binding obligation,
enforceable against the Company in accordance with its terms.
4.2. NO BREACH. The execution and performance of this Agreement and the
consummation of the transactions contemplated hereunder will not
result in a breach of, nor will they constitute, a default under any
agreement to which the Company is party.
4.3. NO ADDITIONAL REPRESENTATIONS. The Company is familiar with the
Company, its property, its obligations and its activities. Company is,
thus, purchasing the Purchased Shares "AS IS", without having relied
upon any representations and/or warranties by the Investor, except
those representations and warrants specifically indicated herein.
4.4. APPROVALS. No approval or consent of any third party is required in
connection with the execution and delivery of this Agreement on the
consummation of the transaction contemplated hereby.
5. STAND-OFF AGREEMENT
In connection with any offering of the Company's equity securities,
pursuant to an effective registration statement, for such period (the
"Lock-Up Period") as the Company may request (such period not to exceed 180
days following the date of the applicable offering), the Investor shall
not, directly or indirectly, sell make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any portion or other contract for
the purchase of, purchase any option or other contract for the sale of, or
otherwise dispose of or transfer, or agree to engage in any of the
foregoing transactions with respect to, any Purchased Stock acquired
hereunder without the prior written consent of the Company. The Investor
agrees to (i) have any certificate or certificates representing his, her or
its Purchased Stock bear, in addition to any other applicable securities
legends, a legend stating that the shares represented by that certificate
may not be transferred by any means whatsoever, without the agreement of
the Company, during the Lock-Up Period; and (ii) execute any and all
agreements with underwriters
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representing the Company to effect and perfect the foregoing. The Company
may impose stop transfer instructions with respect to the shares subject to
the foregoing restrictions, until the end of the Lock-Up Period.
6. WAIVER AND CONSENTS
The Investor hereby waives any right, title, interest in and to any
additional shares or other securities of the Company, whether pursuant to
an option agreement, warrant agreement, antidilution right, preemptive
right or the like, and hereby waive any other right to receive shares or
other securities of the Company or the Company (to the extent such rights
exist), and agrees that the Purchased Shares are the sum total of the
shares or other securities of the Company to which the Investor is
entitled. The Investor hereby waives any and all registration rights the
Investor may have had in the Company, and acknowledges that the Investor is
not receiving herein any registration rights in and to the Company's
equities. The Investor hereby agrees and consents to the resolutions
adopting the Voice Diary Inc. 2003 Stock Option Plan. The execution of this
Agreement also serves as execution of the resolutions.
7. TAXATION
Each Party shall bear the payment of any tax or levy, should such payment
apply to the Party, pursuant to the provision of any law, in its status of
transferor or transferee, depending on the case. Without derogating from
the foregoing, Investor, alone, will be responsible for payment of any
capital gains tax, if any, which may apply as a result of (i) the transfer
and sale of the Purchased Shares, and (ii) the issuance of Purchased Stock
by the Company, as contemplated herein.
8. MISCELLANEOUS
8.1. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided 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.
8.2. ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto and
the other documents delivered pursuant hereto constitute the full and
entire understanding and agreement between and among the parties with
regard to the subjects hereof and thereof.
8.3. AMENDMENTS. Any and all changes, amendments or additions to this
Agreement shall require the prior written consent of all Parties, or
else they shall be deemed null and void.
8.4. NOTICES. Any notice, payment, report or other communication required
or permitted to be given by one party to any other party by this
Agreement shall
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be in writing and addressed to the other party at its address as
indicated below, or to such other address as any addressee shall have
theretofore furnished to the other party by like notice. All notices
shall be deemed to have been given or delivered upon: (i) personal
delivery; or (ii) three (3) days after deposit in the United States
mail by certified mail (return receipt requested); or (iii) one (1)
business day after deposit with any return receipt express courier
(prepaid); or (iv) one (1) business day after transmission by
facsimile.
8.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
8.6. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts between New York residents entered into and to be performed
entirely within the State of New York. The parties irrevocably consent
to the exclusive jurisdiction of any competent court located within
the city of New York, State of New York, with respect to any and all
disputed arising from this Agreement.
8.7. The parties hereto agree to maintain the confidentiality of the terms
hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of
the date first written above.
Investor's Name: Ofer Yonach Company: Voice Diary Inc.
Signature: Signature:
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Address: 13 Kiriati St., Ramat Gan By: Arie Hinkis, CEO
52223, Israel Address: 200 Robbins Lane
Date: May 9, 2003 Jericho NY 11753
Date: May 9, 2003