EXHIBIT 10.1 ACQUISITION
AGREEMENT DATED SEPT 2009
STOCK PURCHASE AND SALE
AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (the "
Agreement ") is dated as of September____, 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 Gelfand
(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
