BRAINSTORM CELL THERAPEUTICS INC. SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
THE
SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. ACCORDINGLY, THE SHARES OF COMMON STOCK MAY NOT BE OFFERED OR
SOLD IN THE UNITED STATES OR TO “U.S. PERSONS,” AS DEFINED UNDER REGULATION S
UNDER THE SECURITIES ACT OF 1933, UNLESS SUCH SECURITIES ARE REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ARE SUBJECT TO AN EXEMPTION FROM
REGISTRATION.
Reytalon
Ltd.
Address:
000 Xxxxx Xxxx, Xxx Xxxx, Xxxxxx
Attention: Xx.
Xxxxxxx Xxxxxxxx
Ladies
and Gentlemen:
BrainStorm
Cell Therapeutics Inc. (the “Company”) is offering (the “Offering”), pursuant to
Regulation S (“Regulation S”) promulgated under the Securities Act of 1933,
as amended (the “Securities Act”), to sell and issue up to 1,250,000 shares
of the Company’s common stock, $.00005 par value per share (“Common Shares”) at
a price per share of $0.20 (the “Price Per Share”).
There is
no minimum number of subscriptions required to close on any part of the
Offering.
In
connection with the Offering, the undersigned hereby agrees to purchase and
hereby subscribes for the number of Common Shares set forth on the signature
page of this Subscription Agreement at the Price Per Share and tenders herewith
a wire transfer (or other funding satisfactory to the Company) for the full
amount of the purchase price thereof.
a) The
undersigned hereby represents, warrants and covenants as follows:
i) The
undersigned is aware that the Common Shares have not been registered under the
Securities Act and are being offered and sold under Regulation S promulgated
under the Securities Act, which provides an exemption from registration
otherwise required by the Securities Act, and makes the following
representations, declarations and warranties with the intent that the same shall
be relied upon in determining its suitability as a shareholder of the
Company:
(1) the
Common Shares hereby subscribed for are being acquired by the undersigned in
good faith for its own account; alternatively, if the undersigned is purchasing
Common
Shares for one or more principals, it makes the representations, warranties and
covenants of this Subscription Agreement on behalf of those
principals. The undersigned will be the sole party in interest in the
Common Shares and as such will be vested with all legal and equitable rights in
the Common Shares; and
ii) The
undersigned recognizes that no government or governmental agency has recommended
or endorsed the purchase of the Common Shares, and that the Company is relying
on the truth and accuracy of the undersigned’s representations, declarations and
warranties in selling the Common Shares subscribed for herein to the undersigned
without first having registered the same under the Securities Act.
iii) The
offer to sell the Common Shares was not communicated to the undersigned while
the undersigned was in the United States of America, its territories or
possessions (the “United States”), and this Subscription Agreement was entered
into outside of the United States.
iv) The
undersigned is not purchasing the Common Shares with a view to, or for sale in
connection with any, distribution of the Common Shares in the United States or
for the account(s) of any U.S. person. The undersigned hereby (i)
certifies that he or it is a Non-U.S. Person (as such term is defined in
Regulation S and in Appendix A hereto) and is not acquiring the Common Shares
for the account or benefit of a “U.S. Person”; (ii) agrees that any resale of
the Common Shares by the undersigned shall be in accordance with the provisions
of Regulation S, pursuant to registration under the Securities Act or pursuant
to an available exemption from registration thereunder; and (iii) agrees not to
engage in any hedging transactions with regard to such Common Shares unless in
compliance with the Securities Act. In accordance with Regulation S,
the undersigned hereby acknowledges (i) that the Company will refuse to register
any transfer of Common Shares unless such transfer is made in accordance with
the provisions of Regulation S, pursuant to registration under the Securities
Act or pursuant to an available exemption from registration and (2) that the
certificates representing the Common Shares sold to the undersigned will bear a
legend substantially similar to the legend at the top of the first page of this
Subscription Agreement.
v) The
undersigned acknowledges that the purchase of the Common Shares is a speculative
investment involving a high degree of risk and any estimates and predictions
that may have been made by the Company merely represent predictions of future
events, which may or may not occur and are based on assumptions, which may or
may not occur. As a consequence, such predictions may not be relied
upon to indicate the actual results, which might be attained. The
undersigned has carefully reviewed the Company’s filings with the Securities
Exchange Commission, including, without limitation, the Company’s Annual Report
on Form 10-K for the year ended December 31, 2008, Proxy Statement on Schedule
14A dated February 28, 2005, Quarterly Reports on Form 10-Q for the quarters
ending September 30, 2009, June 30, 2009, and March 31, 2009, and Current
Reports on Form 8-K for the past 12 months (the “Securities Filings”) and
understands and has evaluated the risks of a purchase of the Common Shares. Such
risks are set forth in the section of the 10-Q for the Quarterly Period ended
September 30, 2009 entitled “Risk Factors.” The undersigned (without
derogating from any representations made by the Company hereunder) further
verifies that the undersigned:
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(1) has
been provided an opportunity to obtain any additional information concerning the
Offering, the Company and all other information to the extent the Company
possesses such information or can acquire it without reasonable effort or
expense; and
(2) has
been given the opportunity to ask questions of, and receive answers from, the
Company and its management concerning the terms and conditions of the Offering
and other matters pertaining to this investment, and has been given the
opportunity to obtain such additional information necessary to verify the
accuracy of the information contained in the Securities Filings or that which
was otherwise provided in order for the undersigned to evaluate the merits and
risks of an investment in the Common Shares to the extent the Company possesses
such information or can acquire it without reasonable effort or expense, and has
not been furnished any other offering literature or prospectus.
vi) The
undersigned agrees to fully indemnify, defend and hold harmless the Company, its
management, directors, advisers, consultants, representatives, and each of their
affiliates, employees and agents from any and all claims, actions and causes of
action whatsoever which may result from a breach or an alleged breach of the
representations, warranties and acknowledgments contained herein.
vii) The
undersigned represents and warrants that if the undersigned is executing this
Subscription Agreement in a representative or fiduciary capacity, the
undersigned has full power and authority to execute and deliver the Subscription
Agreement on behalf of the subscribing corporation, partnership, trust or other
entity for whom the undersigned is executing this Subscription Agreement, and
such corporation, partnership, trust or other entity has full right and power to
enter into and perform this Subscription Agreement.
viii) The
undersigned represents and warrants that it is not a dealer in securities or, if
the undersigned is a dealer in securities, the undersigned is acquiring the
Common Shares for the account of a beneficial owner that (a) is not a dealer in
securities and (b) is acquiring the Common Shares for investment purposes only
and not with a view to resell them.
b) The
Company hereby represents warrants and covenants as set forth in Appendix B
hereto.
c) The
parties further agree as follows:
i) The
Company will use its best efforts to maintain its status as a Reporting Issuer,
as defined in Regulation S.
ii) The
Company shall have the right to accept or reject this Subscription Agreement, in
whole or in part, for any reason. The undersigned understands that
the Company will notify it promptly upon rejection of this Subscription
Agreement. If the Company rejects this Subscription Agreement, the
Company will promptly return all amounts paid hereunder without interest, and if
such repayment has not been completed within 5 business days following receipt
by the Company of payment hereunder, the Company shall be deemed to have
accepted this
Subscription Agreement. If the Company accepts this Subscription
Agreement in whole or in part, all of the provisions hereof shall become binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, permitted assigns, executors, administrators or successors; provided,
that neither this Subscription Agreement nor any of the rights, interests or
obligations hereunder shall be assigned or delegated by either of the parties
hereto without the prior written consent of the other party. This
Subscription Agreement is not intended to confer upon any person other than the
parties hereto and their permitted successors and assigns any rights or remedies
hereunder.
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iii) Except
as otherwise provided herein, this Subscription Agreement may not be
amended, modified or supplemented, except in writing signed by the parties
hereto.
iv) All
notices or other communications given or made with respect to the Common Shares
shall be in writing and shall be delivered or mailed by registered or certified
mail, return receipt requested, postage prepaid, to the undersigned at the
undersigned’s address set forth on the signature page below.
v) This
Subscription Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and may be amended only by a
writing executed by all parties.
vi) All
pronouns contained herein and any variations thereof shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the
parties hereto may require.
vii) This
Subscription Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
viii) The
subscription of the Common Shares was offered and purchased in the country named
on the signature page to this Subscription Agreement. This
Subscription Agreement shall be governed by and construed in accordance with the
laws of the New York, United States of America.
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IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement this
24th day January of 2010.
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Israeli Company
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Reytalon
Ltd.
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Citizenship
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Print
Name of Subscriber
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000 Xxxxx xxxx, Xxx
Xxxx, Xxxxxx
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Address
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(By: Xxxxx
Xxxxxx)
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Ramat
Gan
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Israel
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/s/
Xxxxx Xxxxxx
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City
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Country
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Signature
of Subscriber or
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Duly
Appointed Agent
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x000
0 000 0000
Telephone
Number(s)
Number of
Common Shares Subscribed For: 1,250,000 Common Shares at a Price Per Share of
$0.20.
Country
in which Offer and Sale was Made: Israel
Accepted and Agreed
to:
________________________
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
CEO
Dated:
January 24, 2010
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Appendix A
Definition of U.S.
Person
a) “U.S.
person” means:
i) any
natural person resident in the United States;
ii) any
partnership or corporation organized or incorporated under the laws of the
United States;
iii) any
estate of which any executor or administrator is a U.S. person;
iv) any
trust of which any trustee is a U.S. person;
v) any
agency or branch of a foreign entity located in the United States;
vi) any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
person;
vii) any
discretionary account or similar account (other than an estate or trust) held by
a dealer or other fiduciary organized, incorporated, or (if an individual)
resident in the United States; and
viii) any
partnership or corporation if:
(1) organized
or incorporated under the laws of any foreign jurisdiction; and
(2) formed
by a U.S. person principally for the purpose of investing in securities not
registered under the Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under the Act who are not
natural persons, estates or trusts.
b) Notwithstanding
paragraph (1) of this section, any discretionary account or similar account
(other than an estate or trust) held for the benefit or account of a non-U.S.
person by a dealer or other professional fiduciary organized, incorporated, or
(if an individual) resident in the United States shall not be deemed a “U.S.
person.”
c) Notwithstanding
paragraph (1) of this section, any estate of which any professional fiduciary
acting as executor or administrator is a U.S. person shall not be deemed a U.S.
person if:
A-1
i) an
executor or administrator of the estate who is not a U.S. person has sole or
shared investment discretion with respect to the assets of the estate;
and
ii) the
estate is governed by foreign law.
d) Notwithstanding
paragraph (1) of this section, any trust of which any professional fiduciary
acting as trustee is a U.S. person shall not be deemed a U.S. person if a
trustee who is not a U.S. person has sole or shared investment discretion with
respect to the trust assets, and no beneficiary of the trust (and no settlor if
the trust is revocable) is a U.S. person.
e) Notwithstanding
paragraph (1) of this section, an employee benefit plan established and
administered in accordance with the law of a country other than the United
States and customary practices and documentation of such country shall not be
deemed a U.S. person.
f) Notwithstanding
paragraph (1) of this section, any agency or branch of a U.S. person located
outside the United States shall not be deemed a “U.S. person” if:
i) the
agency or branch operates for valid business reasons; and
ii) the
agency or branch is engaged in the business of insurance or banking and is
subject to substantive insurance or banking regulation, respectively, in the
jurisdiction where located.
g) The
International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the United Nations, and their agencies, affiliates
and pension plans, and any other similar international organizations, their
agencies, affiliates and pension plans shall not be deemed “U.S.
persons.”
Rule
902(o), General Rules and Regulations Under the Securities Act of
0000
X-0
Xxxxxxxx X
Representations and
Warranties f the Company
1. Authority Relative to this
Subscription Agreement. The Company has all necessary
corporate power and authority to execute and deliver this Subscription
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Subscription Agreement, and the consummation of the transactions contemplated
hereby, have been duly and validly authorized by the board of directors of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Subscription Agreement or to consummate the
transactions contemplated hereby. This Subscription Agreement, when
duly accepted by the Company, will constitute, assuming the due authorization,
execution and delivery hereof by the other parties hereto, the valid, legal and
binding agreements of the Company enforceable against the Company in accordance
with its terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally or to general principles of equity.
2. Consents and Approvals; No
Violations. Except for such filings, permits, authorizations,
consents, and approvals as are listed in Schedule B-2 hereto, no
filing with or notice to, and no permit, authorization, consent or approval of
any court or tribunal, or administrative, governmental or regulatory body,
agency or authority is necessary for the execution and delivery by the Company
of this Subscription Agreement or the consummation by the Company of the
transactions contemplated hereby. Neither the execution, delivery and
performance of this Subscription Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby will (i) conflict with or
result in any breach of any provision of the Certificate of Incorporation and
By-Laws of the Company, (ii) result in a violation or breach of or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration or security
interest) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, license, contract, agreement or other instrument or
obligation to which the Company or any of the Company's subsidiaries is a party
or by which any of them or any of their respective properties or assets may be
bound or (iii) violate any order, writ, injunction, decree, law, statute, rule
or regulation applicable to the Company or any of the Company's subsidiaries or
any of their respective properties or assets.
3. Securities Filings;
Financial Statements.
3.1 The
Securities Filings complied at the time of filing in all material respects with
all applicable requirements of the U.S. Exchange Act. None of the
Securities Filings, including any financial statements or schedules included or
incorporated by reference therein, contained when filed any untrue statement of
a material fact or omitted to state a material fact required to be stated
or incorporated by reference therein or necessary in order to make the
statements therein in light of the circumstances under which they were made not
misleading, except to the extent superseded by a periodic report under the U.S.
Exchange Act filed subsequently and prior to the date hereof. The
audited and any unaudited consolidated financial statements of the Company
included in the Securities Filings fairly present in conformity in all material
respects with generally accepted accounting principles applied on a consistent
basis (except as may be indicated in the notes thereto and except for the
absence of footnotes in the unaudited financial statements), the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and their consolidated results of operations and changes in
financial position for the periods then ended (subject, in the case of any
interim financial statements, to normal year-end adjustments).
3.2 No
change in the business, assets, liabilities, condition (financial or other), or
results of operations of the Company has occurred between the date of filing of
the most recent Securities Filing filed prior to the date hereof with the SEC
that would cause such Securities Filing, including the financial statements and
schedules included therein, to contain, as of the date hereof, any untrue
statement of a material fact or to omit to state a material fact that would be
required to be stated or incorporated by reference therein or that would be
necessary in order to make the statements contained therein, as of the date
hereof, not misleading.
B-1
