SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this "Agreement")
is
dated as of July 14, 2008, between Oramed Pharmaceuticals Inc., a Nevada
corporation (the "Company"),
and
the investors identified on the signature page hereto (each, an "Investor"
and
collectively the “Investors”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”)
and
Rule 506 promulgated thereunder, the Company desires to issue and sell to each
Investor, and each Investor desires to purchase from the Company certain
securities of the Company, as more fully described in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Investors agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:
"Affiliate"
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144.
"Common
Stock"
means
the common stock of the Company, par value $0.001 per share, and any securities
into which such common stock may hereafter be reclassified.
"Investment
Amount"
means,
with respect to each Investor, the investment amount indicated below such
Investor's name on the signature page of this Agreement and as set forth on
Schedule
1.
"Per
Unit Purchase Price"
means
$0.60.
"Person"
means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
"Rule
144"
means
Rule 144 promulgated by the Securities and Exchange Commission pursuant to
the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Securities and Exchange Commission
having substantially the same effect as such Rule.
"Securities"
means
the Shares, the Warrants and the Warrant Shares.
"Shares"
means
the shares of Common Stock issued or issuable to the Investors pursuant to
this
Agreement.
"Short
Sales"
means,
without limitation, all "short sales" as defined in Rule 200 of Regulation
SHO
of the Securities Exchange Act of 1934, as amended.
"Transaction
Documents"
means
this Agreement, the Warrants and any other documents or agreements executed
in
connection with the transactions contemplated hereunder.
"Warrants"
means
the Common Stock purchase warrants in the form of Exhibit A.
"Warrant
Shares"
means
the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Agreement
of Sale.
Subject
to the terms and conditions set forth in this Agreement, the Company shall
issue
and sell to each Investor, and each Investor shall purchase from the Company,
the Shares and the Warrants representing such Investor’s Investment Amount as
set forth opposite the Investor’s name on Schedule
1.
2.2 Payment
of Purchase Price.
Concurrently with the delivery of this Agreement, each Investor has delivered
(by check or wire transfer) the aggregate amount of the Investor’s Investment
Amount in payment for the Shares and Warrants in accordance with the
instructions set forth on Schedule
2
hereof.
2.3 Delivery
of Certificates.
Upon
Company’s receipt of each Investor’s Investment Amount, the Company shall
deliver to such Investor (i) certificates evidencing the number of Shares equal
to each Investor’s Investment Amount divided by the Per Unit Purchase Price,
registered in the name of such Investor as set forth on Schedule 1 and (ii)
Warrants, registered in the name of each Investor, pursuant to which such
Investor shall have the right to acquire the number of shares of Common Stock
equal to 50% of the number of Shares issuable to such Investor pursuant to
Section 2.3(i).
2
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Investors as follows:
(a) Authorization;
Enforcement.
The
Company is an entity duly organized, validly existing and in good standing
under
the laws of Nevada with the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by the applicable this
Agreement and otherwise to carry out its obligations hereunder. This Agreement
has been duly executed by the Company, and when delivered by the Company in
accordance with terms hereof, will constitute the valid and legally binding
obligation of the Company, enforceable against it in accordance with its
terms.
3.2 Representations
and Warranties of the Investor.
The
Investor hereby represents and warrants to the Company as follows:
(a) Authorization;
Enforcement.
Such
Investor represents and warrants that (i) it is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
organization with the requisite corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by the applicable
this Agreement and otherwise to carry out its obligations hereunder. This
Agreement has been duly executed by such Investor, and when delivered by such
Investor in accordance with terms hereof, will constitute the valid and legally
binding obligation of such Investor, enforceable against it in accordance with
its terms.
(b) Investment
Intent.
Such
Investor is acquiring the Securities as principal for its own account for
investment purposes only and not with a view to or for distributing or reselling
such Securities or any part thereof, without prejudice, however, to such
Investor's right at all times to sell or otherwise dispose of all or any part
of
such Securities in compliance with applicable federal and state securities
laws.
Such Investor is acquiring the Securities hereunder in the ordinary course
of
its business. Such Investor does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the
Securities.
(c) Investor
Status.
At the
time such Investor was offered the Securities, it was, and at the date hereof
it
is, and on each date on which it exercises the Warrants it will be, an
"accredited investor" as defined in Rule 501(a) under the Securities Act. Such
Investor is not required to be registered as a broker-dealer under Section
15 of
the Securities Exchange Act of 1934, as amended.
(d) General
Solicitation.
Such
Investor is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
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(e) Access
to Information.
Such
Investor acknowledges that it has been afforded (i) the opportunity to ask
such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Shares and the merits and risks of investing in the Securities;
(ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. Such Investor understands that a
purchase of the Securities is a speculative investment involving a high degree
of risk. Such Investor is aware that there is no guarantee that such Investor
will realize any gain from this investment, and that such Investor could lose
the total amount of this investment. Such Investor acknowledges that it has
received no representations or warranties from the Company or its employees
or
agents in making this investment decision other than as set forth in this
Agreement.
(f) Independent
Investment Decision.
Such
Investor has independently evaluated the merits of its decision to purchase
Securities pursuant to this Agreement, such decision has been independently
made
by such Investor and such Investor confirms that it has only relied on the
advice of its own business and/or legal counsel and not on the advice of any
other Investor’s business and/or legal counsel in making such
decision.
(g) Short
Sales.
Such
Investor has not directly or indirectly, nor has any Person acting on behalf
of
or pursuant to any understanding with such Investor, executed any Short Sales
in
the securities of the Company since the date that such Investor was first
contacted regarding an investment in the Company.
(h) Residency.
Such
Investor is a resident of that jurisdiction specified as the address that the
Investor is to receive notices hereunder on the signature pages hereto.
(i) Limitations
on Transfers. Such
Investor acknowledges that the Securities must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
such registration is available. Such Investor is aware of the provisions of
Rule
144 promulgated under the Securities Act which permit limited resale of
securities purchased in a private placement subject to the satisfaction of
certain conditions, which may include, among other things, the existence of
a
public market for the securities, the availability of certain current public
information about the Company, the resale occurring not less than six months
after a party has purchased and paid for the security to be sold, the sale
being
effected through a “broker’s transaction” or in transactions directly with a
“market maker” and the number of securities being sold during any three month
period not exceeding specified limitations.
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(j) Anti-Money
Laundering Compliance. Such
Investor acknowledges that the Company seeks to comply with all applicable
laws
concerning money laundering and related activities. In furtherance of those
efforts, such Investor represents, warrants and agrees that, to the best of
such
Investor’s knowledge based upon appropriate diligence and investigation, (i)
none of the cash or property that such Investor has paid, will pay or will
contribute to the Company has been or shall be derived from, or related to,
any
activity that is deemed criminal under United States law, and (ii) no
contribution or payment by such Investor to the Company, to the extent that
they
are within such Investor’s control, shall cause the Company to be in violation
of the United States Bank Secrecy Act, the United States Money Laundering
Control Act of 1986 or the United States International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001. Such Investor agrees to
promptly notify the Company if any of these representations cease to be true
and
accurate regarding such Investor. Such Investor further agrees to provide to
the
Company any additional information regarding such Investor that the Company
deems necessary or convenient to ensure compliance with all applicable laws
concerning money laundering and similar activities. If at any time it is
discovered that any of the foregoing representations is incorrect, or if
otherwise required by applicable law or regulation related to money laundering
and similar activities, the Company may undertake appropriate actions to ensure
compliance with applicable law or regulation, including, but not limited to
segregation and/or redemption of such Investor’s investment in the Company. Such
Investor further understands that the Company may release confidential
information about such Investor and, if applicable, any underlying beneficial
owners, to proper authorities if the Company, in its sole discretion, determines
that it is in the best interests of the Company in light of relevant rules
and
regulations under the laws set forth above.
(k) Company
Reliance.
Such
Investor expressly acknowledges and agrees that the Company is relying upon
such
Investor’s representations contained in this Agreement.
ARTICLE
IV.
MISCELLANEOUS
4.1 Certificates.
(a) Securities
may only be disposed of in compliance with state and federal securities laws.
In
connection with any transfer of the Securities other than pursuant to an
effective registration statement, the Company may require the transferor thereof
to provide to the Company an opinion of counsel selected by the transferor,
reasonably acceptable to the Company, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred Securities under
the
Securities Act.
5
(b) Certificates
evidencing the Securities will contain the following legend, until such time
as
they are not required:
[NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN REGISTERED] WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. [THESE SECURITIES AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THESE SECURITIES] [THESE SECURITIES] MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
(c) Certificates
evidencing the Shares and Warrant Shares shall not contain any legend (including
the legend set forth in Section 4.1(b)): (i) following a sale of such Securities
pursuant to an effective registration statement, or (ii) following a sale of
such Shares or Warrant Shares pursuant to Rule 144 (assuming the transferor
is
not an Affiliate of the Company), or (iii) while such Shares or Warrant Shares
are eligible for sale under Rule 144 without limitations or restrictions by
virtue of a holder’s or previous holder’s status as an Affiliate. Following such
time as restrictive legends are not required to be placed on certificates
representing Shares or Warrant Shares pursuant to the preceding sentence, the
Company will, no later than five business days following the delivery by such
Investor to the Company or the Company's transfer agent of a certificate
representing Shares or Warrant Shares containing a restrictive legend, deliver
or cause to be delivered to such Investor a certificate representing such Shares
or Warrant Shares that is free from all restrictive and other legends.
4.2 Indemnification.
Each
Investor acknowledges that he, she or it understands the meaning and legal
consequences of the representations and warranties that are contained herein
and
hereby agrees to indemnify, save and hold harmless the Company and its
directors, officers, employees and counsel, from and against any and all claims
or actions arising out of a breach of any representation, warranty or
acknowledgment of such Investor contained in this Agreement. Such
indemnification shall be deemed to include not only the specific liabilities
or
obligations with respect to which such indemnity is provided, but also all
reasonable costs, expenses, counsel fees and expenses of settlement relating
thereto, whether or not any such liability or obligation shall have been reduced
to judgment. In addition, each Investor’s representations, warranties and
indemnification contained herein shall survive such Investor’s purchase of the
Securities hereunder.
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4.3 Entire
Agreement; Amendment.
The
parties have not made any representations or warranties with respect to the
subject matter hereof not set forth herein. This Agreement, together with the
Warrants and any other instruments executed simultaneously herewith, constitute
the entire agreement between the parties with respect to the subject matter
hereof. All understandings and agreements heretofore between the parties with
respect to the subject matter hereof are merged in this Agreement and any such
instruments, which alone fully and completely expresses their agreement. This
Agreement may not be changed, modified, extended, terminated or discharged
orally, but only by an agreement in writing, which is signed by all of the
parties to this Agreement.
4.4 Notices.
Any
notice required or permitted to be given to a party pursuant to the provisions
of this Agreement will be in writing and will be effective on (i) the date
of
delivery by facsimile, (ii) the business day after deposit with a nationally
recognized courier or overnight service, including Express Mail, for United
States deliveries or (iii) five (5) business days after deposit in the United
States mail by registered or certified mail for United States deliveries. All
notices not delivered personally or by facsimile will be sent with postage
and
other charges prepaid and properly addressed to the party to be notified at
the
address set forth below such party’s signature of this Agreement or at such
other address as such party may designate by ten (10) days advance written
notice to the other parties hereto. The address for such notices and
communications shall be as follows:
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If
to the Company:
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0
Xxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxx 00000
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Attn:
Xxxxx Xxxxxx
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Facsimile:
972 2 566 0004
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With
a copy to:
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Xxxxx
Xxxxxx & Xxxxx P.C.
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Xxx
Xxxxxxxxxx Xxxxx
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Xxxxxx,
XX 00000
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Attn:
Xxxxxxx Xxxxxxxx
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Facsimile:
000-000-0000
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If
to an Investor:
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To
the address set forth under such Investor's name
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on
the signature pages hereof.
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4.5 Delays
or Omissions.
Except
as otherwise specifically provided for hereunder, no party shall be deemed
to
have waived any of his or her or its rights hereunder or under any other
agreement, instrument or document signed by any of them with respect to the
subject matter hereof unless such waiver is in writing and signed by the party
waiving said right. Except as otherwise specifically provided for hereunder,
no
delay or omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or of any such
other right. A waiver on any one occasion with respect to the subject matter
hereof shall not be construed as a bar to, or waiver of, any right or remedy
on
any future occasion. All rights and remedies with respect to the subject matter
hereof, whether evidenced hereby or by any other agreement, instrument or
document, will be cumulative, and may be exercised separately or
concurrently.
4.6 Severability.
If any
provision of this Agreement is held to be unenforceable under applicable law,
then such provision shall be excluded from this Agreement, and the balance
of
this Agreement shall be interpreted as if such provision was so excluded and
shall be enforceable in accordance with its terms.
4.7 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.
4.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one
instrument.
4.9 Survival
of Warranties.
The
representations, warranties, covenants and agreements of the Company and the
Investors contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and shall in no way be affected by
any
investigation made by an Investor or the Company.
4.10 Further
Action.
The
parties agree to execute any and all such other and further instruments and
documents, and to take any and all such further actions reasonably required
to
effectuate this Agreement and the intent and purposes hereof.
4.11 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party. This Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden
of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
8
4.12 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
4.13 Governing
Law; Venue and Waiver of Jury Trial.
This
Agreement is to be construed in accordance with and governed by the internal
laws of the State of Nevada without giving effect to any choice of law rule
that
would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Nevada to the rights and duties of the parties.
The Company and the Investors agree that any suit, action, or proceeding arising
out of or relating to this Agreement shall be brought in the United States
District Court for the District of Nevada (or should such court lack
jurisdiction to hear such action, suit or proceeding, in a Nevada state court
in
the County of Xxxxxx City) and that the parties shall submit to the jurisdiction
of such court. The parties irrevocably waive, to the fullest extent permitted
by
law, any objection the party may have to the laying of venue for any such suit,
action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE
ANY
RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR
PROCEEDING. If any one or more provisions of this Section 4.13 shall for any
reason be held invalid or unenforceable, it is the specific intent of the
parties that such provisions shall be modified to the minimum extent necessary
to make it or its application valid and enforceable.
4.14 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement Securities.
If a replacement certificate or instrument evidencing any Securities is
requested due to a mutilation thereof, the Company may require delivery of
such
mutilated certificate or instrument as a condition precedent to any issuance
of
a replacement.
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SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
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/s/
Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Chief Executive Officer
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR INVESTORS FOLLOW]
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IN
WITNESS WHEREOF, the parties have executed this Securities Purchase Agreement
as
of the date first written above.
Investment
Amount:
___________
Units x $0.60 per Unit = $_________________
(Each
Unit consists of one Share and one half Warrant)
Name
of
Purchaser: ________________________________________________________
Signature
of Authorized Signatory of
Purchaser:__________________________________
Name
of
Authorized Signatory:
_______________________________________________
Title
of
Authorized
Signatory:_________________________________________________
Email
Address of
Purchaser:__________________________________________________
Social
Security or Taxpayer Identification Number
_______________________________
Address
for Notice of Purchaser:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
Address
for Delivery of Securities for Purchaser (if not same as above):
____________________________________________
____________________________________________
____________________________________________
____________________________________________
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SCHEDULE
1
|
Investor
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Number
of Shares
|
Number
of Warrants
(50%
of the Number
of
Shares)
|
Investment
Amount
|
12
