ESCROW AGREEMENT
Exhibit
1.4
THIS
ESCROW AGREEMENT (“Agreement”)
is
made and entered into as of the 22nd day
of
March 2006, by and among JPMorgan Chase Bank, N.A., a national banking
association (the “Escrow
Agent”),
XTL
Biopharmaceuticals Ltd., a public
company limited by shares organized under the laws of the State of Israel (the
“Company”),
X.X.
Xxxxxx Securities Inc. (“JPMorgan”),
Xxxxx
Xxxxxx, Carret & Co., LLC (“Brean”),
Xxxxxxxxxxx & Co. Inc. (“Oppenheimer”),
and
Punk, Xxxxxx & Company, L.P. (“Punk
Xxxxxx”,
and
together with JPMorgan, Brean, and Oppenheimer, the “Placement
Agents”).
Background
WHEREAS,
the Company proposes to sell an aggregate of up to 46,666,670 shares of its
ordinary
shares, par value NIS 0.02
(the
“Shares”)
for an
aggregate of up to $28,000,002 and 23,333,335 warrants to purchase the Company’s
ordinary shares (the “Warrants,”
together with the Shares, the “Securities”),
all
as described in the Confidential Private Placement Memorandum, dated March
17,
2006 prepared by the Company, including all exhibits, supplements and amendments
thereto (the “Private
Placement Memorandum”);
WHEREAS,
the Securities are being offered by the Company to purchasers identified by
the
Placement Agents, pursuant to the terms of the Placement Agent Agreement dated
March 17, 2006, by and among the Company and the Placement Agents (the
“Placement
Agent Agreement”),
and
the Securities Purchase Agreement executed by the subscribers (the “Purchasers”)
in the
form attached to the Private Placement Memorandum as Exhibit A thereto (the
“Securities
Purchase Agreement”);
WHEREAS,
unless the transactions contemplated by the Securities Purchase Agreement have
been abandoned pursuant to the terms thereof, or unless otherwise agreed to
by
the Company and the Placement Agents, the Escrowed Funds (as defined below)
shall be released promptly after the date a registration statement (the
“Registration
Statement”)
meeting the requirements set forth in that certain Registration Rights
Agreement, dated the date hereof, among the Company and the Purchasers is first
declared effective (“Effective
Date”)
by the
United States Securities and Exchange Commission (“SEC”),
unless Escrowed Funds are released earlier in accordance herewith;
WHEREAS,
the offering of the Securities may be terminated pursuant to the terms of the
Securities Purchase Agreement if the Effective Date has not occurred on or
before March 15, 2007;
WHEREAS,
with respect to the subscription payments received from the Purchasers, the
Company and the Placement Agents propose to establish an escrow account with
the
Escrow Agent in the name of the Company at 0 Xxx Xxxx Xxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000; and
WHEREAS,
the Escrow Agent is willing to receive and disburse the proceeds from the
offering of the Securities in accordance herewith.
Terms
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Deposit
of Escrowed Funds.
On the
closing date of the Securities Purchase Agreement, each Purchaser shall wire
or
deposit with the Escrow Agent immediately available funds of such Purchaser
in
payment for the Shares (the “Escrowed
Funds”).
The
Placement Agents shall be responsible for providing the Escrow Agent with
advance written notice, prior to the closing date of the Securities Purchase
Agreement, of the name, address, and amount expected from each Purchaser in
substantially the form of Exhibit A along with a duly executed W-9 form on
behalf of each Purchaser. Upon receipt of funds from the Purchasers, the Escrow
Agent shall credit such funds to an account held by the Escrow Agent. The
Escrowed Funds shall be invested in a trust account earning the average 30
day
LIBOR minus 75 basis points. The Escrow Agent shall have the right to liquidate
any investments held in order to provide funds necessary to make required
payments under this Agreement. The Escrow Agent shall have no liability for
any
loss sustained as a result of any investment herein. The wire instructions
to
which each Purchaser shall wire or deposit such subscriber funds are set forth
in the notice provision for the Escrow Agent in Section 10 to this
Agreement.
2. Acceptance.
Upon
receipt of the Escrowed Funds, the Escrow Agent shall acknowledge such receipt
in writing to the Company and the Placement Agents, such writing to include
confirmation
that the Escrow Agent is prepared to transfer such Escrowed
Funds
to the
Company subject only to satisfaction of the receipt of the Effective Date Notice
provided in Section 4 hereof,
and
shall hold and disburse the same pursuant to the terms and conditions of this
Agreement. The Escrow Agent shall have no duty to verify whether the amounts
and
property delivered comport with the requirements of any other agreement.
3. List
of Purchasers.
Exhibit
A
hereto
contains the name of, the address of, the number of Shares and Warrants
subscribed for by, the subscription amount to be delivered to the Escrow Agent
on behalf of, and the social security or taxpayer identification number, if
applicable, of, each Purchaser whose funds are being deposited. The Escrow
Agent
shall notify the Placement Agents and the Company of any discrepancy between
the
subscription amounts set forth on any list delivered pursuant to this Section
3
and the subscription amounts received by the Escrow Agent. The Escrow Agent
is
authorized to revise such list to reflect the actual subscription amounts
received and the release of any subscription amounts pursuant to Section
4.
4. Release
of Escrowed Funds.
(a) The
Company and the Placement Agents shall deliver to the Escrow Agent a joint
notice, dated the Effective Date, substantially in the form of Exhibit
B
hereto
(an “Effective
Date Notice”),
certifying that the Registration Statement has been declared effective by the
SEC and designating to whom and the amount of the Escrowed Funds shall be
distributed. The Escrow Agent shall promptly after receipt of such Effective
Date Notice, pay, in federal or other immediately available funds and otherwise
in the manner specified in such Effective Date Notice, an amount equal to the
Escrowed Funds in accordance with the Effective Date Notice.
-2-
(b) If
the
Company and the Placement Agents have not delivered to the Escrow Agent an
Effective Date Notice, and the Escrow Agent shall receive a notice,
substantially in the form of Exhibit C hereto (an “Offering Termination Notice”)
from the Company as contemplated by Section 2.3 of the Securities Purchase
Agreement, the Escrow Agent shall promptly after receipt of such Offering
Termination Notice, send to each Purchaser listed on the list held by the Escrow
Agent pursuant to Section 3 whose total subscription amount shall not have
been
released pursuant to paragraph (a) of this Section 4, in the manner set forth
in
paragraph (c) of this Section 4, a check to the order of such Purchaser in
the
amount of the remaining subscription amount held by the Escrow Agent as set
forth on such list held by the Escrow Agent. The Escrow Agent shall notify
the
Company and the Placement Agents of the distribution of such funds to the
Purchasers.
(c) For
the
purposes of this Section 4 and Section 5, any check that the Escrow Agent shall
be required to send to any Purchaser shall be sent to such Purchaser by first
class mail, postage prepaid, at such Purchaser’s address furnished to the Escrow
Agent pursuant to Section 3.
5. Interest.
The
Escrow Agent shall create separate accounts for each Purchaser's deposit for
the
purpose of allocating to each deposit all interest that accrues on such deposit.
Upon distribution of any portion of the Escrowed Funds, in accordance with
Section 4(a) or 4(b) hereof, the Escrow Agent shall deliver and pay to each
Purchaser all of the interest accrued on its portion of the Escrowed Funds.
The
Escrow Agent shall file any Internal Revenue Service forms as may be required
to
report payment of any such interest. Prior to the execution of this Agreement,
the parties hereto shall provide the Escrow Agent with a fully executed W-8
or
W-9 IRS Form. The Placement Agents shall also forward a fully executed W-8
or
W-9 IRS form on behalf of each of the Purchasers as soon as possible. The Escrow
Agent shall report and, as required, withhold any taxes as it determines may
be
required by any law or regulation in effect at the time of the distribution.
It
is understood that the Escrow Agent shall only be responsible for income
reporting and not any other type of reporting.
6. Escrow
Agent; Duties and Liabilities.
(a) It
is
expressly understood and agreed by the parties that (i) the duties of the Escrow
Agent, as herein specifically provided, are purely ministerial in nature; (ii)
the Escrow Agent shall not have any duty to deposit the Escrowed Funds except
as
provided herein, (iii) the Escrow Agent shall not be responsible or liable
in
any manner whatsoever for, or have any duty to inquire into, the sufficiency,
correctness, genuineness or validity of the notices it receives hereunder,
or
the identity, authority or rights of any of the parties; (iv) the Escrow Agent
shall have no duties or responsibilities in connection with the Escrowed Funds,
other than those specifically set forth in this Agreement; (v) the Escrow Agent
shall not incur any liability in acting upon any signature, written notice,
request, waiver, consent, receipt, or any other paper or document believed
by
the Escrow Agent to be genuine; (vi) the Escrow Agent may assume that any person
purporting to have authority to give notices on behalf of any of the parties
in
accordance with the provisions hereof has been duly authorized to do so; (vii)
the Escrow Agent shall incur no liability whatsoever except for such resulting
from its willful misconduct or gross negligence, as long as the Escrow Agent
has
acted in good faith in the performance of its duties hereunder; and (viii)
upon
the Escrow Agent’s performance of its obligations under Section 4 hereof, the
Escrow Agent shall be relieved of all liability, responsibility and obligation
with respect to the Escrowed Funds or arising out of or under this
Agreement.
-3-
(b) The
Escrow Agent shall not be under any obligation to take any legal action in
connection with this Agreement or towards its enforcement or performance, or
to
appear in, prosecute or defend any action or legal proceeding, or to file any
return, or pay or withhold any income or other tax payable with respect to
any
Escrowed Funds or the disbursement thereof, any payment of or in respect of
which shall constitute a Loss under Section 7 below, and the Placement Agents
and the Company agree to provide to the Escrow Agent such information and
documentation as the Escrow Agent may reasonably request in connection
therewith.
(c) In
the
event of any disagreement relating to the Escrowed Funds or the disbursement
thereof resulting in adverse claims or demands being made in connection with
the
Escrowed Funds or in the event that the Escrow Agent is in doubt as to what
action it should take hereunder, the Escrow Agent shall be entitled to retain
the Escrowed Funds, but only to the extent of the Escrowed Funds in controversy,
until the Escrow Agent shall have received a final non-appealable order of
a
court of competent jurisdiction directing delivery of the Escrowed Funds, in
which event the Escrow Agent shall disburse the Escrowed Funds in accordance
with such order. Any court order shall be accompanied by a legal opinion by
counsel for the presenting party satisfactory to the Escrow Agent to the effect
that the order is final and non-appealable. The Escrow Agent shall act on such
court order and legal opinion without further question. If a proceeding for
such
determination is not begun and diligently continued, the Escrow Agent may make
an ex parte application, or bring any appropriate action, for leave to deposit
the Escrowed Funds in the Supreme Court of the State of New York, County of
New
York seeking such determination or such declaratory relief as the Escrow Agent
shall deem reasonably necessary under the circumstances, and the parties each
hereby irrevocably consent to the entering of an ex parte order pursuant to
all
applicable laws, rules and procedures of the State of New York and such court.
The Escrow Agent shall be reimbursed by the Company, for all of the Escrow
Agent’s reasonable costs and expenses of such action or proceeding, including,
without limitation, reasonable attorneys’ fees and disbursements.
(d) The
Escrow Agent does not have any interest in the Escrowed Funds deposited
hereunder and is serving as escrow agent only and having only possession
thereof. Any payments of income from the Escrowed Funds shall be subject to
withholding regulations then in force with respect to United States federal
or
state income taxes. The parties hereto shall provide the Escrow Agent with
appropriate Internal Revenue Service Forms W-9 for tax identification number
certification, or non-resident alien certifications. Section 6(c), Section
6(d)
and Section 7 shall survive any termination of this Agreement or the resignation
or removal of the Escrow Agent in accordance with Section 6(h)
below.
-4-
(e) None
of
the provisions of this Agreement shall require the Escrow Agent to expend or
risk its own funds or otherwise to incur any liability, financial or otherwise,
in the performance of any of its duties hereunder, or in the exercise of any
of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
(f) The
Escrow Agent may consult with independent counsel and the advice or any opinion
of counsel shall be full and complete authorization and protection in respect
of
any action taken or omitted by it hereunder in good faith and in accordance
with
such advice or opinion of counsel.
(g) The
Escrow Agent may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or through agents, attorneys, custodians or
nominees appointed with due care, and shall not be responsible for any willful
misconduct or gross negligence on the part of any agent, attorney, custodian
or
nominee so appointed.
(h) The
Escrow Agent may at any time resign by giving ten (10) days written notice
of
resignation to the Company and the Placement Agents. Upon receiving such notice
of resignation, the Company and the Placement Agents shall promptly appoint
a
successor and, upon the acceptance by the successor of such appointment, release
the resigning Escrow Agent from its obligations hereunder by written instrument,
a copy of which instrument shall be delivered to the resigning Escrow Agent
and
the successor. If no successor shall have been so appointed and have accepted
appointment within forty-five (45) days after the giving of such notice of
resignation, the resigning Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor.
(i) Any
partnership or other similar entity into which the Escrow Agent may be merged
or
converted or with which it may be consolidated, or any partnership, corporation
or other similar entity resulting from any merger, conversion or consolidation
to which the Escrow Agent shall be a party, or any partnership, corporation
or
other similar entity succeeding to the business of the Escrow Agent shall be
the
successor of the Escrow Agent hereunder without the execution or filing of
any
paper with any party hereto or any further act on the part of any of the parties
hereto except where an instrument of transfer or assignment is required by
law
to effect such succession, anything herein to the contrary
notwithstanding.
(j) No
printed or other matter in any language (including, without limitation, the
Private Placement Memorandum, the Registration Statement, the prospectus
relating to the Registration Statement, notices, reports and promotional
material) which mentions the Escrow Agent’s name or the rights, powers, or
duties of the Escrow Agent shall be issued by the other parties hereto or on
such parties’ behalf unless the Escrow Agent shall first have given its specific
written consent thereto. The Escrow Agent hereby consents to the use of its
name
and the reference to the escrow arrangement in the Private Placement Memorandum,
Registration Statement, the Securities Purchase Agreement and the Placement
Agent Agreement.
-5-
7. Indemnification
of Escrow Agent.
The
Company hereby agrees to indemnify and hold the Escrow Agent harmless from
any
and all liabilities, obligations, damages, losses, claims, encumbrances, costs
or expenses (including reasonable attorneys’ fees and expenses) (any or all of
the foregoing herein referred to as a “Loss”)
arising hereunder or under or with respect to the Escrowed Funds, except for
Losses resulting from the willful misconduct or gross negligence of the Escrow
Agent. Anything in this agreement to the contrary notwithstanding, in no event
shall the Escrow Agent be liable for special, indirect or consequential loss
or
damage of any kind whatsoever (including but not limited to lost profits),
even
if the Escrow Agent has been advised of the likelihood of such loss or damage
and regardless of the form of action.
8. Fees.
The
Company agrees to (a) pay the Escrow Agent upon execution of this Agreement
and
from time to time thereafter reasonable compensation for the services to be
rendered hereunder, which unless otherwise agreed in writing shall be as
described in Schedule
1
attached
hereto, and (b) pay or reimburse the Escrow Agent upon request for all expenses,
disbursements and advances, including reasonable attorney's fees and expenses,
incurred or made by it in connection with the preparation, execution,
performance, delivery, modification and termination of this
Agreement.
9. Security
Procedures.
In the
event funds transfer instructions are given (other than in writing at the time
of execution of this Agreement, as indicated in Schedule
2
attached
hereto), whether in writing, by telecopier or otherwise, the Escrow Agent is
authorized to seek confirmation of such instructions by telephone call-back
to
the person or persons designated on Schedule
3
hereto,
and the Escrow Agent may rely upon the confirmation of anyone purporting to
be
the person or persons so designated. The individuals authorized to give and
confirm funds transfer instructions may be changed only in a writing actually
received and acknowledged by the Escrow Agent. If the Escrow Agent is unable
to
contact any of the authorized representatives identified in Schedule
3,
the
Escrow Agent is hereby authorized to seek confirmation of such instructions
by
telephone call-back to any one or more of your executive officers (“Executive
Officers”),
as
the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow
Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely
upon the confirmation of anyone purporting to be any such officer. The Escrow
Agent and the beneficiary’s bank in any funds transfer may rely solely upon any
account numbers or similar identifying numbers provided by the Company or the
Placement Agents to identify (a) the beneficiary, (b) the beneficiary’s bank, or
(c) an intermediary bank. The Escrow Agent may apply any of the escrowed funds
for any payment order it executes using any such identifying number, even when
its use may result in a person other than the beneficiary being paid, or the
transfer of funds to a bank other than the beneficiary’s bank or an intermediary
bank designated. The parties to this Agreement acknowledge that these security
procedures are commercially reasonable. All funds transfer instructions must
include the signature of the person(s) authorizing said funds
transfer.
-6-
10. Notices.
Any
notice or demand desired or required to be given hereunder shall be in writing
and deemed given when sent by facsimile transmission with receipt confirmed
to
the telephone number below and addressed as follows:
|
a.
|
If
to the Escrow Agent, to:
|
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx
Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Fax
No.:
(000) 000-0000/6380
Attention:
Xxxxx Xxxxxxx
with
wire
transfers to:
JPMorgan
Chase Bank
ABA
#
000000000
Account
No.: 507897455
Account
Name: Subscription Escrow Account
FFC:
00000000, XTL Biopharmaceuticals
Attn:
Xxxxx Xxxxxxx
Tel
No:
000-000-0000
|
b.
|
If
to the Company, to:
|
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Fax
No.:
(000) 000-0000
Attention: Xxx
Xxxxxxx
Chief
Executive Officer
with
copies to:
Xxxxxx
& Bird LLP
00
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax
No.:
(000) 000-0000
Attention:
Xxxx X. XxXxxxxxx, Esq.
|
c.
|
If
to the Placement Agents, to:
|
-7-
X.X.
Xxxxxx Securities Inc.
000
Xxxx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Fax
No.:
(000) 000-0000
Attention:
Xxxxx Xxxxxx
Xxxxx
Xxxxxx, Carret & Co., LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Fax
No.:
(000) 000-0000
Attention:
Xxx Xxxxxx
Xxxxxxxxxxx
& Co. Inc.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax
No.:
(000) 000-0000
Attention:
Xxx Xxxxx
Punk,
Xxxxxx & Company, L.P.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Fax
No.:
(000) 000-0000
Attention:
Xxxx Xxxxx, CFO
with
a
copy to:
Dechert
LLP
Xxxx
Centre
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
XX 00000-0000
Fax
No.:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
or
to
such other address or account information as hereafter shall be designated
in
writing by the applicable party to the other parties hereto.
11. Entire
Agreement.
This
Agreement and any exhibits and schedules hereto constitute the entire agreement
between the parties hereto pertaining to the subject matters hereof, and
supersede all negotiations, preliminary agreements and all prior and
contemporaneous discussions and understandings of the parties in connection
with
the subject matters hereof. Any exhibits and schedules hereto are hereby
incorporated into and made a part of this Agreement.
-8-
12. Amendments.
No
amendment, waiver, change or modification of any of the terms, provisions or
conditions of this Agreement shall be effective unless made in writing and
signed by the parties or by their duly authorized agents. Waiver of any
provision of this Agreement shall not be deemed a waiver of future compliance
therewith and such provision shall remain in full force and effect.
13. Severability.
In the
event any provision of this Agreement is held invalid, illegal or unenforceable,
in whole or in part, the remaining provisions of this Agreement shall not be
affected thereby and shall continue to be valid and enforceable.
14. Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York without regard to any applicable principles of conflicts
of
law.
15. Submission
to Jurisdiction.
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN
THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE
COURTS FROM ANY THEREOF. THE COMPANY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF TO THE COMPANY BY REGISTERED OR CERTIFIED
MAIL,
POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE COMPANY AT ITS ADDRESS
SPECIFIED HEREIN. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
16. Headings
and Captions.
The
titles or captions of paragraphs in this Agreement are provided for convenience
of reference only, and shall not be considered a part hereof for purposes of
interpreting or applying this Agreement, and such titles or captions do not
define, limit, extend, explain or describe the scope or extent of this Agreement
or any of its terms or conditions.
17. Gender
and Number.
Words
and phrases herein shall be construed as in the singular or plural number and
as
masculine, feminine or neuter gender, according to the context.
-9-
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument, and in making proof hereof, it shall not be necessary to
produce or account for more than one such counterpart.
19. Binding
Effect on Successors and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
assigns, and the subscribers of the Securities. Nothing in this Agreement,
express or implied, is intended to confer upon any party, other than the parties
hereto (and their respective legal representatives, heirs, successors and
assigns), any rights, remedies, obligations or liabilities.
20. Account
Opening Information/TINs.
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
For
accounts opened in the US:
To
help
the government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person who opens an account. When an account
is
opened, the Escrow Agent will ask for information that will allow it to identify
relevant parties.
-10-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
|
ESCROW
AGENT:
|
COMPANY:
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
By:
/s/
Xxxxx X. XxXxxxx
Name:
Xxxxx X. XxXxxxx
Title:
Vice President
|
By:
/s/
Xxx Xxxxxxx
Name:
Xxx Xxxxxxx
Title:
Chief Executive Officer
|
|
PLACEMENT
AGENTS:
|
|
|
X.X.
XXXXXX SECURITIES INC.
|
XXXXXXXXXXX
& CO. INC.
|
|
By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Managing Director
|
By:
/s/
Xxx Xxxxx
Name:
Xxx Xxxxx
Title:
Managing Director
|
|
XXXXX
XXXXXX, CARRET & CO., LLC
|
PUNK,
XXXXXX & COMPANY, L.P.
|
|
By:
/s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Chief Finance Officer
|
By:
/s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Managing Director
|
EXHIBIT
A
SUMMARY
OF ESCROWED FUNDS TO BE RECEIVED
|
Name,
Address &
Tax ID of Purchaser |
Number
of
Shares/Warrants |
Subscription
Amount |
Receipt
Confirmed by
Escrow
Agent
|
|
Catalytix,
LDC
c/o
CIBC Bank and Trust Company (Cayman) Limited
CIBC
Financial Centre
11
Xx. Xxx’x Drive
P.O.
Box 694 GT
Grand
Cayman, Cayman Islands, B.W.I.
with
a copy to:
Array
Capital Management, LLC
000
Xxxxx Xxxxxx, Xxxxx 00X
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
125,000
Shares
62,500
Warrants
|
$
75,000
|
|
|
Catalytix
LDC Life Science Hedge AC
c/o
CIBC Bank and Trust Company (Cayman) Limited
CIBC
Financial Centre
11
Xx. Xxx’x Drive
P.O.
Box 694 GT
Grand
Cayman, Cayman Islands, B.W.I.
with
a copy to:
Array
Capital Management, LLC
000
Xxxxx Xxxxxx, Xxxxx 00X
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
125,000
Shares
62,500
Warrants
|
75,000
|
|
|
Formula
Investment House, Ltd.
Trident
Xxxxxxxx, P.O. Box 146
Road
Town, Tortola
British
Virgin Islands
Tax
ID: N/A
|
500,000
Shares
250,000
Warrants
|
300,000
|
|
|
GLG
North American Opportunity Fund
Xxxxxx
House
P.O.
Box 908GT
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Tax
ID: N/A
|
1,666,660
Shares
833,330
Warrants
|
999,996
|
|
North
Sound Legacy Institutional Fund LLC
c/o
North Sound Capital LLC
00
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Tax
ID: 00-0000000
|
1,400,000
Shares
700,000
Warrants
|
840,000
|
|
|
North
Sound Legacy International Ltd.
c/o
North Sound Capital LLC
00
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Tax
ID: N/A
|
3,600,000
Shares
1,800,000
Warrants
|
2,160,000
|
|
|
Merlin
Biomed, LP
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
1,300,000
Shares
650,000
Warrants
|
780,000
|
|
|
Merlin
Biomed Round Table Fund, LP
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
77,000
Shares
38,500
Warrants
|
46,200
|
|
|
Merlin
Biomed II, LP
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
386,330
Shares
193,165
Warrants
|
231,798
|
|
|
Merlin
Biomed International, Ltd.
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
1,570,000
Shares
785,000
Warrants
|
942,000
|
|
|
Capital
Ventures International
c/o
Heights Capital Management, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Tax
ID: 00-0000000
|
833,330
Shares
416,665
Warrants
|
499,998
|
|
|
RAQ,
LLC
000
Xxxxxxx Xxx., 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
416,670
Shares
208,335
Warrants
|
250,002
|
|
|
Valesco
Healthcare Partners I LP
000
Xxxxxxx Xxx., 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
140,000
Shares
70,000
Warrants
|
84,000
|
|
Valesco
Healthcare Partners II LP
000
Xxxxxxx Xxx., 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
293,330
Shares
146,665
Warrants
|
175,998
|
|
Valesco
Healthcare Overseas Fund, Ltd.
000
Xxxxxxx Xxx., 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
233,330
Shares
116,665
Warrants
|
139,998
|
|
|
Fore
Convertible Master Fund, Ltd.
c/o
Fore Research & Management, L.P.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
2,154,000
Shares
1,077,000
Warrants
|
1,292,400
|
|
|
Fore
Multi Strategy Master Fund, Ltd.
c/o
Fore Research & Management, L.P.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
1,343,000
Shares
671,500
Warrants
|
805,800
|
|
|
Fore
Erisa Fund, Ltd.
c/o
Fore Research & Management, L.P.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
263,000
Shares
131,500
Warrants
|
157,800
|
|
|
Man
Mac 1, Ltd.
c/o
Fore Research & Management, L.P.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
1,240,000
Shares
620,000
Warrants
|
744,000
|
|
|
Narragensett
I, LP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
2,400,000
Shares
1,200,000
Warrants
|
1,440,000
|
|
|
Narragensett
Offshore, Ltd.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
2,600,000
Shares
1,300,000
Warrants
|
1,560,000
|
|
|
Highbridge
International LLC
c/o
Highbridge Capital Management, LLC
0
X. 00xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: N/A
|
5,000,000
Shares
2,500,000
Warrants
|
3,000,000
|
|
|
Portside
Growth and Opportunity Fund
c/o
Ramius Capital Group, LLC
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
1,666,660
Shares
833,330
Warrants
|
999,996
|
|
|
Senvest
Master Fund LP
000
Xxxx 00xx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
1,043,330
Shares
521,665
Warrants
|
625,998
|
|
Senvest
Israel Partners LP
000
Xxxx 00xx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
1,040,000
Shares
520,000
Warrants
|
624,000
|
|
|
Sonostar
Capital Partners LLC
000
Xxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Tax
ID: 00-0000000
|
833,330
Shares
416,665
Warrants
|
499,998
|
|
|
Xxxxxxx
Xxxxxxxx
28
Avenue at Xxxx Xxxxxxxx #000
Xxxx
Xxx Xxxx, XX 00000
Tax
ID: ###-##-####
|
423,340
Shares
211,670
Warrants
|
254,004
|
|
|
Nortrust
Nominees Ltd.
c/o
Invesco Asset Management
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx XX0X 0XX
Tax
ID: N/A
|
8,040
Shares
4,020
Warrants
|
4,824
|
|
|
Chase
Nominees Ltd.
c/o
Invesco Asset Management
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx XX0X 0XX
Tax
ID: N/A
|
292,080
Shares
146,040
Warrants
|
175,248
|
|
|
Vioacos
Nominees Ltd.
c/o
Invesco Asset Management
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx XX0X 0XX
Tax
ID: N/A
|
51,980
Shares
25,990
Warrants
|
31,188
|
|
|
Perpetual
Income & Growth Investment Trust
c/o
Invesco Asset Management
00
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx XX0X 0XX
Tax
ID: N/A
|
947,900
Shares
473,950
Warrants
|
568,740
|
|
|
Xxxxx
Xxxxxxxx III
000
Xxxxxxxxx Xxxxxxxxx, #0X
Xxx
Xxxx, XX 00000
Tax
ID: ###-##-####
|
110,060
Shares
55,030
Warrants
|
66,036
|
|
|
Diamondback
Master Fund, Ltd.
Xxx
Xxxxxxxx Xxxxxx - 00xx
Xxxxx
Xxxxxxxx,
XX 00000
Tax
ID: 00-0000000
|
1,666,660
Shares
833,330
Warrants
|
999,996
|
|
Cimarron
Biomedical Equity Master Fund L.P.
0000
Xxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Tax
ID : 00-0000000
|
500,000
Shares
250,000
Warrants
|
300,000
|
|
|
Rock
Securities Limited
00
Xxxxxxxxx Xxxxxx - 4th
Floor
London,
England WIK 6TL
Tax
ID: 000-00000-00000 (UK C.T. No.)
|
833,330
Shares
416,665
Warrants
|
499,998
|
|
|
Iroquois
Master Fund Ltd.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Tax
ID: 00-0000000
|
1,250,000
Shares
625,000
Warrants
|
750,000
|
|
|
Bank
Xxxxxx Xxxx & Co. Ltd.
Xxxxxxxxxxxxxx
00
P.O.
Box
CH-8010
Zurish
Tax
ID: N/A
|
6,666,660
Shares
3,333,330
Warrants
|
3,999,996
|
|
|
Apex
Investments Ltd.
0
Xxxxxxx Xxxxxx
Xxx-Xxxx,
Xxxxxx 00000
Tax
ID: N/A
|
333,330
Shares
166,665
Warrants
|
199,998
|
|
|
Apex
Provident Funds
0
Xxxxxxx Xxxxxx
Xxx-Xxxx,
Xxxxxx 00000
Tax
ID: N/A
|
333,330
Shares
166,665
Warrants
|
199,998
|
|
|
Yourdent
Ltd.
Xxxxxx
0/00
Xxxxxxx,
Xxxxxx
Tax
ID: N/A
|
333,330
Shares
166,665
Warrants
|
199,998
|
|
|
Aviv
Raiz
00
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxxxxx
Tax
ID: N/A
|
666,660
Shares
333,330
Warrants
|
399,996
|
EXHIBIT
B
FORM
OF
EFFECTIVE DATE NOTICE
________________,
2006
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx
Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx
Dear
Xx.
Xxxxxxx:
Pursuant
to Section 4(a) of the Escrow Agreement dated as of March 17, 2006 (the
“Escrow
Agreement”)
by and
among XTL
Biopharmaceuticals Ltd. (the
“Company”),
X.X.
Xxxxxx Securities Inc., Xxxxx Xxxxxx, Carret & Co., LLC, Xxxxxxxxxxx &
Co. Inc. and Punk, Xxxxxx & Company, L.P. and you, the Company hereby
certifies that the Registration Statement (as that term is defined in the Escrow
Agreement) has been declared effective by the United States Securities and
Exchange Commission.
Please
accept these instructions as standing instructions for the release of the
Escrowed Funds promptly after the date hereof to the parties and in the amounts
listed below. The parties hereto certify that they do not wish to have a call
back regarding these instructions. The parties hereto further certify that
their
instructions may be transmitted to you via facsimile.
We
hereby
request that the Escrowed Funds be paid to us is as follows:
1.
To the
Company, $_________, pursuant to the following wire transfer
instructions:
Primary
Bank:
Chips
#:
ABA
#:
Secondary
Bank:
Acct
Name:
Account
#:
Reference:
2.
To
X.X. Xxxxxx Securities Inc., $_________, pursuant to the following wire transfer
instructions:
Bank:
JPMorgan Chase Bank (TAXPAYER ID 00-0000000)
Fed
ABA:
000000000
SWIFT:
XXXXXX00-CHIPS Member #0002
X.X.
Xxxxxx Securities Inc.
Account
#: 000-000-000
Account
Title: JPMSI-IB BEST
Attn:
Xxxxx X. Xxxxxxxxxxx, VP, (000) 000-0000
For
ACH
Payments please use ABA #000000000
Reference:
XTL
Biopharmaceutical Ltd.
3.
To
Xxxxx Xxxxxx, Carret & Co., LLC, $_________, pursuant to the following wire
transfer instructions:
Bank: Citibank
ABA# 021-000089
Address:
000 Xxxx Xxxxxx, XX, XX 00000
For
Account of Bear Xxxxxxx #092-53186
For
further credit to Account #165-70001
Acct
Name: Xxxxx Xxxxxx, Carret & Co cash account
Reference: XTL
Biopharmaceuticals Ltd.
4.
To
Xxxxxxxxxxx & Co. Inc., $_________, pursuant to the following wire transfer
instructions:
Bank: XX
Xxxxxx
Xxxxx
ABA
#:
000-000-000
Acct
Name: Xxxxxxxxxxx
& Co. Inc.
Account
#: 616003234
For
Final
Credit to Account Number: X999449000-A8
Reference: XTL
Biopharmaceuticals Ltd.
5.
To
Punk, Xxxxxx & Company, L.P., $_________, pursuant to the following wire
transfer instructions:
XXX#
000000000
Xxxxxx
Xxxxxx Trust Company, N.A.
In
favor
of: Punk, Xxxxxx & Company
Account
#
68-89115
Reference:
XTL Biopharmaceuticals Ltd.
To
JPMorgan Chase Bank, N.A. as Escrow Agent, $7,500.00, pursuant to the following
wire transfer instructions:
Bank:
JPMorgan Chase Bank, N.A.
ABA:
000000000
Account
Number: 507953312
Account
Name: Escrow Incoming Wire Account
Ref:
further credit to 10226184,
Attn:
Xxxxx Xxxxxxx
7.
To
Dechert LLP, $_________, pursuant to the following wire transfer
instructions:
Bank: Citibank,
N.A.
ABA
#:
000000000
Acct
Name: Dechert LLP
Account
#: 00000000
Reference:
XTL Biopharmaceuticals Ltd./Xxxxx Xxxxxxxx
[Signatures
on following page]
These
instructions may be executed in any number of counterparts, each of which shall
be deemed to be an original, and all of which together shall constitute one
and
the same instrument.
Very
truly yours,
By:
_______________________________________
Name:
Title:
X.X.
XXXXXX SECURITIES INC.
By:
_______________________________________
Name:
Title:
XXXXX
XXXXXX, CARRET & CO., LLC
By:
_______________________________________
Name:
Title:
XXXXXXXXXXX
& CO. INC.
By:
_______________________________________
Name:
Title:
PUNK,
XXXXXX & COMPANY, L.P.
By:
_______________________________________
Name:
Title:
EXHIBIT
C
FORM
OF
OFFERING TERMINATION NOTICE
March
__,
2007
JPMorgan
Chase Bank, N.A.
Escrow
Services
0
Xxx
Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx
Dear
Xx.
Xxxxxxx:
Pursuant
to Section 4(b) of the Escrow Agreement dated as of March 17, 2006 (the
“Escrow
Agreement”)
by and
among XTL
Biopharmaceuticals Ltd. (the
“Company”),
X.X.
Xxxxxx Securities Inc., Xxxxx Xxxxxx, Carret & Co., LLC, Xxxxxxxxxxx &
Co. Inc. and Punk, Xxxxxx & Company, L.P. and you, the Company hereby
notifies you of the termination of the offering of the Securities (as that
term
is defined in the Escrow Agreement) and directs you to make payments to the
Purchasers as provided for in Section 4(b) of the Escrow Agreement.
Very
truly yours,
XTL
BIOPHARMACEUTICALS LTD.
By:
____________________________________
Name:
Title:
SCHEDULE
1
Escrow
Agent’s Compensation: $10,000.00 per annum without pro-ration for any partial
year.
SCHEDULE
2
Name
of
Company: XTL Biopharmaceuticals Ltd.
Wiring
Instructions:
Primary
Bank:
Chips
#:
ABA
#:
Secondary
Bank:
Acct
Name:
Account
#:
Reference:
| Name of Placement Agents: | X.X.
Xxxxxx Securities Inc.
Xxxxx
Xxxxxx, Carret & Co., LLC
Xxxxxxxxxxx
& Co. Inc.
Punk,
Xxxxxx & Company, L.P.
|
Wiring
Instructions for X.X. Xxxxxx Securities Inc.:
Bank:
JPMorgan Chase Bank (TAXPAYER ID 00-0000000)
Fed
ABA:
000000000
SWIFT:
XXXXXX00-CHIPS Member #0002
X.X.
Xxxxxx Securities Inc.
Account
#: 000-000-000
Account
Title: JPMSI-IB BEST
Attn:
Xxxxx X. Xxxxxxxxxxx, VP, (000) 000-0000
For
ACH
Payments please use ABA #000000000
Reference:
XTL
Biopharmaceutical Ltd.
Wiring
Instructions for Xxxxx Xxxxxx, Carret & Co., LLC:
Bank: Citibank
ABA# 021-000089
Address:
000 Xxxx Xxxxxx, XX, XX 00000
For
Account of Bear Xxxxxxx #092-53186
For
further credit to Account #165-70001
Acct
Name: Xxxxx Xxxxxx, Carret & Co cash account
Reference: XTL
Biopharmaceuticals Ltd.
Wiring
Instructions for Xxxxxxxxxxx & Co. Inc.:
Bank: XX
Xxxxxx
Xxxxx
ABA
#:
000-000-000
Acct
Name: Xxxxxxxxxxx
& Co. Inc.
Account
#: 616003234
For
Final
Credit to Account Number: X999449000-A8
Reference: XTL
Biopharmaceuticals Ltd.
Wiring
Instructions for Punk, Xxxxxx & Company, L.P.:
XXX#
000000000
Xxxxxx
Xxxxxx Trust Company, N.A.
In
favor
of: Punk, Xxxxxx & Company
Account
#
68-89115
Reference:
XTL Biopharmaceuticals Ltd.
Wiring
Instructions for Dechert LLP:
Bank: Citibank,
N.A.
ABA
#:
000000000
Acct
Name: Dechert LLP
Account
#: 00000000
Reference:
XTL Biopharmaceuticals Ltd./Xxxxx Xxxxxxxx
SCHEDULE
3
Telephone
Number(s) for Person(s)
Designated
to Give and Confirm Funds Transfer Instructions
If
to
Company:
| Name |
Telephone
Number
|
Signature
Specimen
|
||||
| 1. | Xxx Xxxxxxx | (000) 000-0000 | ||||
| 2. | ||||||
| 3. |
If
to
Placement Agents:
| Name |
Telephone
Number
|
Signature
Specimen
|
||||
| 1. | Xxx
Xxxxxx
(Xxxxx
Xxxxxx, Carret & Co., LLC)
|
(000)
000-0000
|
||||
|
|
||||||
| 2. |
Xxxxxxxx
Xxx (Xxxxxxxxxxx & Co.)
|
000-000-0000
|
||||
|
|
||||||
| 3. | Xxxxx
X. Xxxxxxxxxxx
(X.X.
Xxxxxx Securities Inc.)
|
(000)
000-0000
|
||||
|
|
||||||
| 4. | Xxxx
Xxxxx (Punk, Xxxxxx &
Company,
L.P.)
|
(000)
000-0000
|
Telephone
call-backs shall be made to the Placement Agents and the Company if joint
instructions are required pursuant to this Escrow Agreement.
