Contract
EXHIBIT
99.2
WARRANT
AGENCY AGREEMENT dated
[ ],
2007 between CELL KINETICS LTD., an Israeli corporation, with
offices at 0 Xxxxxx Xxxxxx, Xxx 00000, Xxxxxx (the “Company”), and
AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York limited
trust company, with offices at 00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, as
warrant agent (the “Agent”).
The
Company is engaged in a rights offering (“Rights Offering”) to holders of the
common stock of Medis Technologies Ltd., held as of a record date to be
determined by the Company (the “Holders”), to purchase one ordinary share, par
value NIS $0.01 (“Common Stock”), at an exercise price of $0.30 per share and,
in connection therewith, has determined to issue and deliver up to 1,752,669
warrants (“Warrants”) to the Holders, each such Warrant evidencing the right of
the record Holder thereof to purchase one share of the Common Stock, at an
exercise price of $0.60 per share, subject to adjustment as described herein;
and
The
Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-[ ] on Form F-1 (“Registration
Statement”), for the registration, under the Securities Act of 1933, as amended
(“Act”) of, among other securities, the Warrants and the Common Stock issuable
upon exercise of the Warrants; and
The
Company desires the Agent to act on behalf of the Company, and the Agent is
willing to so act, in connection with the issuance, registration, transfer,
exchange, redemption and exercise of the Warrants; and
The
Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Agent, and the holders
of the Warrants; and
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
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1.
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Appointment
of Agent
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The
Company hereby appoints the Agent to act as agent for the Company for the
Warrants, and the Agent hereby accepts such appointment and agrees to perform
the same in accordance with the terms and conditions set forth in this
Agreement.
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2.
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Warrants
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2.1 Form
of Warrant. Each Warrant shall be issued in registered form only,
shall be in substantially the form of Exhibit A hereto, the provisions of which
are incorporated herein and shall be signed by, or bear the facsimile signature
of, the Chairman or Chief Executive Officer and Chief Financial Officer of
the
Company and shall bear a facsimile of the Company’s seal. In the
event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect
as
if he or she had not ceased to be such at the date of issuance.
2.2 Effect
of Countersignature. Unless and until countersigned by the Agent
pursuant to this Agreement, a Warrant shall be invalid and of no effect and
may
not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant
Register. The Agent shall maintain books (“Warrant Register”) for
the registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Agent shall
issue and register the Warrants in the names of the respective holders thereof
in such denominations and otherwise in accordance with instructions delivered
to
the Agent by the Company.
2.3.2 Registered
Holder. Prior to due presentment for registration of transfer of
any Warrant, the Company and the Agent may deem and treat the Holder in whose
name such Warrant shall be registered upon
the
Warrant Register (“registered holder”), as the absolute owner of such Warrant
and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the warrant certificate made by anyone other
than
the Company or the Agent), for the purpose of any exercise thereof, and for
all
other purposes, and neither the Company nor the Agent shall be affected by
any
notice to the contrary.
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3.
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Terms
and Exercise of Warrants
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3.1 Warrant
Price. Each Warrant shall, when countersigned by the Agent,
entitle the registered holder thereof, subject to the provisions of such Warrant
and of this Agreement, to purchase from the Company the number of shares of
Common Stock stated therein, at the price of $0.60 per whole share, subject
to
the adjustments provided in Section 4 hereof. The term “Warrant
Price” as used in this Agreement refers to the price per share at which Common
Stock may be purchased at the time a Warrant is exercised.
3.2 Duration
of Warrants. A Warrant may be exercised only during the period
(“Exercise Period”) commencing as soon as practicable following their issuance
and terminating at 5:00 p.m., New York City time on [the date four years after
the issue date (“Expiration Date”). Each Warrant not exercised on or
before the Expiration Date shall become void, and all rights thereunder and
all
rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date. The Company in its sole discretion
may extend the duration of the Warrants by delaying the Expiration Date;
provided, however, that the Company will provide notice to registered holders
of
the Warrants of such extension of not less than 20 days prior to such Expiration
Date.
3.3 Exercise
of Warrants.
3.3.1 Payment. Subject
to the provisions of the Warrant and this Agreement, including Section 3.3.2,
a
Warrant, when countersigned by the Agent, may be exercised by the registered
holder thereof by surrendering it, at the office of the Agent, or at the office
of its successor as Agent, in the Borough of Manhattan, City and State of New
York, with the subscription form, as set forth in the Warrant, duly executed,
and by paying in full, in lawful money of the United States, in cash, good
certified check or good bank draft payable to the order of the Company (or
as
otherwise agreed to by the Company), the Warrant Price for each full share
of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.2 Issuance
of Certificates. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant Price, the
Agent shall issue to the registered holder of such Warrant a certificate or
certificates for the number of full shares of Common Stock to which he is
entitled, registered in such name or names as may be directed by him, her or
it,
and if such Warrant shall not have been exercised in full, a new countersigned
Warrant for the number of shares as to which such Warrant shall not have been
exercised. Notwithstanding the foregoing, the Company shall not be
obligated to deliver any securities pursuant to the exercise of a Warrant and
shall have no obligation to settle the Warrant exercise unless a registration
statement under the Act with respect to the Common Stock is
effective. In the event that a registration statement with respect to
the Common Stock underlying a Warrant is not effective under the Act, the holder
of such Warrant shall not be entitled to exercise such
Warrant. Notwithstanding anything to the contrary contained in this
Agreement, under no circumstances will the Company be required to net cash
settle the exercise of the Warrants. Warrants may not be exercised
by, or securities issued to, any registered holder in any state in which such
exercise would be unlawful. As a result of the provisions of this
Section 3.3.2, any or all of the warrants may expire unexercised.
3.3.3 Valid
Issuance. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be validly issued,
fully paid and nonassessable.
3.3.4 Date
of Issuance. Each person in whose name any such certificate for
shares of Common Stock is issued shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price was made, irrespective of the
date
of delivery of such certificate, except that, if the date of such surrender
and
payment is a date when the stock transfer books of the Company are closed,
such
person shall be deemed to have become the holder of such shares at the close
of
business on the next succeeding date on which the stock transfer books are
open.
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4.
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Adjustments
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4.1 Stock
Dividends Split Ups. If after the date hereof, and subject to the
provisions of Section 4.6 below, the number of outstanding shares of Common
Stock is increased by a stock dividend payable in shares of Common Stock, or
by
a split-up of shares of Common Stock, or other similar event, then, on the
effective date of such stock dividend, split-up or similar event, the number
of
shares of Common Stock issuable on exercise of each Warrant shall be increased
in proportion to such increase in outstanding shares of Common
Stock.
4.2 Aggregation
of Shares. If after the date hereof, and subject to the
provisions of Section 4.6, the number of outstanding shares of Common Stock
is
decreased by a consolidation, amalgamation, merger, combination, reverse stock
split or reclassification of shares of Common Stock or other similar event,
then, on the effective date of such consolidation, combination, reverse stock
split, reclassification or similar event, the number of shares of Common Stock
issuable on exercise of each Warrant shall be decreased in proportion to such
decrease in outstanding shares of Common Stock.
4.3 Adjustments
in Exercise Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants is adjusted, as provided in
Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest
cent) by multiplying such Warrant Price immediately prior to such adjustment
by
a fraction (x) the numerator of which shall be the number of shares of
Common Stock purchasable upon the exercise of the Warrants immediately prior
to
such adjustment, and (y) the denominator of which shall be the number of
shares of Common Stock so purchasable immediately thereafter.
4.4 Replacement
of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such shares of Common Stock), or in the case of any
consolidation, amalgamation, merger or combination of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding shares of Common Stock), or in the case
of
any sale or conveyance to another corporation or entity of the assets or other
property of the Company as an entirety or substantially as an entirety in
connection with which the Company is dissolved, the registered holders shall
thereafter have the right to purchase and receive, upon the basis and upon
the
terms and conditions specified in the Warrants and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented thereby, the kind and amount of
shares of stock or other securities or property (including cash) receivable
upon
such reclassification, reorganization, consolidation, amalgamation, merger
or
combination, or upon a dissolution following any such sale or transfer, that
the
Warrant holder would have received if such Warrant holder had exercised his,
her
or its Warrant(s) immediately prior to such event; and if any reclassification
also results in a change in shares of Common Stock covered by Section 4.1 or
4.2, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3
and
this Section 4.4. The provisions of this Section 4.4 shall similarly
apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
4.5 Notices
of Changes in Warrant. Upon every adjustment of the Warrant Price
or the number of shares issuable upon exercise of a Warrant, the Company shall
give written notice thereof to the Agent, which notice shall state the Warrant
Price resulting from such adjustment and the increase or decrease, if any,
in
the number of shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and the facts
upon
which such calculation is based. Upon the occurrence of any event
specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the Agent
shall give written notice to each registered holder, at the last address set
forth for such holder in the warrant register, of the record date or the
effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such
event.
4.6 No
Fractional Shares. Notwithstanding any provision contained in
this Agreement to the contrary, the Company shall not issue fractional shares
upon exercise of Warrants. If, by reason of any adjustment made
pursuant to this Section 4, the holder of any Warrant would be entitled, upon
the exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round down to the nearest whole number the
number of the shares of Common Stock to be issued to the registered
holder.
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4.7 Form
of Warrant. The form of Warrant need not be changed because of
any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as
is
stated in the Warrants initially issued pursuant to this
Agreement. However, the Company may at any time, in its sole
discretion, make any change in the form of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
4.8 Notice
of Certain Transactions. In the event that the Company shall
propose to (a) offer the holders of its Common Stock rights to subscribe
for or to purchase any securities convertible into shares of Common Stock or
shares of stock of any class or any other securities, rights or options,
(b) issue any rights, options or warrants entitling the holders of Common
Stock to subscribe for shares of Common Stock or (c) make a tender offer or
exchange offer with respect to the Common Stock (with the understanding that
neither (a), (b) or (c) applies to the Rights Offering), the Company shall
send
to the registered holders a notice of such proposed action or
offer. Such notice shall be mailed to the registered holders at their
addresses as they appear in the Warrant Register, which shall specify the record
date for the purposes of such dividend, distribution or rights, or the date
such
issuance or event is to take place and the date of participation therein by
the
holders of Common Stock, if any such date is to be fixed, and shall briefly
indicate the effect of such action on the Common Stock and on the number and
kind of any other shares of stock and on other property, if any, and the number
of shares of Common Stock and other property, if any, issuable upon exercise
of
each Warrant and the Warrant Price after giving effect to any adjustment
pursuant to this Article 4 which would be required as a result of such
action. Such notice shall be given as promptly as practicable after
the Board of Directors of the Company (the “Board”) has determined to take any
such action and (x) in the case of any action covered by clause (a) or (b)
above at least 10 days prior to the record date for determining the holders
of
the Common Stock for purposes of such action or (y) in the case of any
other such action at least 20 days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of Common
Stock, whichever shall be the earlier.
4.9 Other
Events. If any event occurs as to which the foregoing provisions
of this Article 4 are not strictly applicable or, if strictly applicable, would
not, in the good faith judgment of the Board, fairly and adequately protect
the
purchase rights of the registered holders of the Warrants in accordance with
the
essential intent and principles of such provisions, then the Board shall make
such adjustments in the application of such provisions, in accordance with
such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as
aforesaid.
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5.
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Transfer
and Exchange of Warrants
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5.1 Registration
of Transfer. The Agent shall register the transfer, from time to
time, of any outstanding Warrant upon the Warrant Register, upon surrender
of
such Warrant for transfer, properly endorsed with signatures properly guaranteed
and accompanied by appropriate instructions for transfer. Upon any
such transfer, a new Warrant representing an equal aggregate number of Warrants
shall be issued and the old Warrant shall be cancelled by the
Agent. The Warrants so cancelled shall be delivered by the Agent to
the Company from time to time upon request.
5.2 Procedure
for Surrender of Warrants. Warrants may be surrendered to the
Agent, together with a written request for exchange or transfer, and thereupon
the Agent shall issue in exchange therefor one or more new Warrants as requested
by the registered holder of the Warrants so surrendered, representing an equal
aggregate number of Warrants; provided, however, that in the event that a
Warrant surrendered for transfer bears a restrictive legend, the Agent shall
not
cancel such Warrant and issue new Warrants in exchange therefor until the Agent
has received an opinion of counsel for the Company stating that such transfer
may be made and indicating whether the new Warrants must also bear a restrictive
legend.
5.3 Fractional
Warrants. The Agent shall not be required to effect any
registration of transfer or exchange which will result in the issuance of a
certificate for a fraction of a Warrant.
5.4 Service
Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
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5.5 Warrant
Execution and Countersignature. The Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this Agreement,
the
Warrants required to be issued pursuant to the provisions of this Section 5,
and
the Company, whenever required by the Agent, will supply the Agent with Warrants
duly executed on behalf of the Company for such purpose.
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6.
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Other
Provisions Relating to Rights of Holders of
Warrants
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6.1 No
Rights as Shareholder. A Warrant does not entitle the registered
holder thereof to any of the rights of a shareholder of the Company, including,
without limitation, the right to receive dividends, or other distributions,
exercise any preemptive rights to vote or to consent or to receive notice as
stockholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter.
6.2 Lost,
Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost,
stolen, mutilated, or destroyed, the Company and the Agent may on such terms
as
to indemnity or otherwise as they may in their discretion impose (which shall,
in the case of a mutilated Warrant, include the surrender thereof), issue a
new
Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a
substitute contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable
by anyone.
6.3 Reservation
of Common Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that
will be sufficient to permit the exercise in full of all outstanding Warrants
issued pursuant to this Agreement.
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7.
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Concerning
the Agent and Other Matters
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7.1 Payment
of Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Agent in respect
of the issuance or delivery of shares of Common Stock upon the exercise of
Warrants, but the Company shall not be obligated to pay any transfer taxes
in
respect of the Warrants or such shares.
7.2 Resignation,
Consolidation, or Merger of Agent.
7.2.1 Appointment
of Successor Agent. The Agent, or any successor to it hereafter
appointed, may resign its duties and be discharged from all further duties
and
liabilities hereunder after giving sixty (60) days’ notice in writing to the
Company. If the office of the Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in writing a successor
Agent in place of the Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after it has been notified
in
writing of such resignation or incapacity by the Agent or by the holder of
the
Warrant (who shall, with such notice, submit its Warrant for inspection by
the
Company), then the holder of any Warrant may apply to the Supreme Court of
the
State of New York for the County of New York for the appointment of a successor
Agent at the Company’s cost. Any successor Agent, whether appointed
by the Company or by such court, shall be a corporation or other business entity
organized and existing under the laws of the State of New York, in good standing
and having its principal office in the Borough of Manhattan, City and State
of
New York, and authorized under such laws to exercise corporate trust powers
and
subject to supervision or examination by federal or state
authority. After appointment, any successor Agent shall be vested
with all the authority, powers, rights, immunities, duties, and obligations
of
its predecessor Agent with like effect as if originally named as Agent
hereunder, without any further act or deed; but if for any reason it becomes
necessary or appropriate, the predecessor Agent shall execute and deliver,
at
the expense of the Company, an instrument transferring to such successor Agent
all the authority, powers, and rights of such predecessor Agent hereunder;
and
upon request of any successor Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully
and
effectually vesting in and confirming to such successor Agent all such
authority, powers, rights, immunities, duties, and obligations.
7.2.2 Notice
of Successor Agent. In the event a successor Agent shall be
appointed, the Company shall give notice thereof to the predecessor Agent and
the transfer agent for the Common Stock not later than the effective date of
any
such appointment.
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7.2.3 Merger
or Consolidation of Agent. Any corporation into which the Agent
may be merged or with which it may be consolidated or any corporation or other
business entity resulting from any merger or consolidation to which the Agent
shall be a party shall be the successor Agent under this Agreement without
any
further act.
7.3 Fees
and Expenses of Agent.
7.3.1 Remuneration. The
Company agrees to pay the Agent reasonable remuneration for its services as
such
Agent hereunder and will reimburse the Agent upon demand for all expenditures
that the Agent may reasonably incur in the execution of its duties
hereunder.
7.3.2 Further
Assurances. The Company agrees to perform, execute, acknowledge,
and deliver or cause to be performed, executed, acknowledged, and delivered
all
such further and other acts, instruments, and assurances as may reasonably
be
required by the Agent for the carrying out or performing of the provisions
of
this Agreement.
7.4 Liability
of Agent.
7.4.1 Reliance
on Company Statement. Whenever in the performance of its duties
under this Agreement, the Agent shall deem it necessary or desirable that any
fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the Chairman or
Chief Executive Officer of the Company and delivered to the
Agent. The Agent may rely upon such statement for any action taken or
suffered in good faith by it pursuant to the provisions of this
Agreement.
7.4.2 Indemnity. The
Agent shall be liable hereunder only for its own negligence, willful misconduct
or bad faith. The Company agrees to indemnify the Agent and save it
harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Agent in the
execution of this Agreement except as a result of the Agent’s negligence,
willful misconduct, or bad faith.
7.4.3 Exclusions. The
Agent shall have no responsibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by
the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under
the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to
make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant
or
as to whether any shares of Common Stock will, when issued, be valid and fully
paid and nonassessable.
7.5 Acceptance
of Agency. The Agent hereby accepts the agency established by
this Agreement and agrees to perform the same upon the terms and conditions
herein set forth and among other things, shall account promptly to the Company
with respect to Warrants exercised and concurrently account for, and pay to
the
Company, all moneys received by the Agent for the purchase of shares of Common
Stock through the exercise of Warrants.
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8.
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Miscellaneous
Provisions
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8.1 Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Agent shall be binding upon, and inure to the benefit of, their
respective successors and assigns.
8.2 Notices. Any
notice, statement or demand authorized by this Agreement to be given or made
by
the Agent or by the holder of any Warrant to or on the Company shall be
sufficiently given when so delivered if by hand or overnight delivery or if
sent
by certified mail or private courier service within five days after deposit
of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Company with the Agent), as follows:
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0
Xxxxxx
Xxxxxx
Xxx
00000, Xxxxxx
Attn:
Xx.
Xxxx Xxx Xxxx, President and Chief Executive Officer
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the holder of any Warrant or by the Company to or on the Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if
sent
by certified mail or private courier service five days after deposit of such
notice, postage prepaid, addressed (until another address is filed in writing
by
the Agent with the Company), as follows:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
General Counsel
with
a
copy in each case to:
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxx
X. Xxxxxxx, Esq.
8.3 Applicable
Law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws
of
the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any such process or summons to be served upon the
Company may be served by transmitting a copy thereof by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 8.2 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action,
proceeding or claim.
8.4 Persons
Having Rights under this Agreement. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof
is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the parties hereto and the registered holders of the
Warrants, any right, remedy, or claim under or by reason of this Agreement
or of
any covenant, condition, stipulation, promise, or agreement
hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the parties hereto and their successors and assigns and of the
registered holders of the Warrants.
8.5 Examination
of this Agreement. A copy of this Agreement shall be available
for inspection by the registered holder of any Warrant at all reasonable times
at the office of the Agent in the Borough of Manhattan, City and State of New
York. The Agent may require any such holder to submit its Warrant for
inspection by it.
8.6 Counterparts. This
Agreement may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
8.7 Effect
of Headings. The Section headings herein are for convenience only
and are not part of this Agreement and shall not affect the interpretation
thereof.
8.8 Amendments. This
Agreement may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective
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provision
contained herein or adding or changing any other provisions with respect to
matters or questions arising under this Agreement as the parties may deem
necessary or desirable and that the parties deem shall not adversely affect
the
interest of the registered holders. All other modifications or
amendments, including any amendment to increase the Warrant Price or shorten
the
Exercise Period, shall require the written consent of the registered holders
of
a majority of the then outstanding Warrants. Notwithstanding the
foregoing, the Company may lower the Warrant Price or extend the duration of
the
Exercise Period in accordance with Sections 3.1 and 3.2, respectively, without
such consent.
8.9 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
| CELL KINETICS LTD. | |||
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By:
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| Xx. Xxxx Xxx-Xxxx | |||
|
President
and Chief Executive Officer
|
|||
|
AMERICAN
STOCK TRANSFER & TRUST COMPANY
|
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By:
|
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9
