LOCK-UP LETTER AGREEMENT
LOCK-UP
LETTER AGREEMENT
X.X.
Xxxxxx Securities Inc.
Xxxxx
Xxxxxx, Carret & Co., LLC
Xxxxxxxxxxx
& Co., Inc.
Punk,
Xxxxxx & Company, L.P.
c/o
X.X.
Xxxxxx Securities Inc.
000
Xxxx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned understands that you and certain other placement agents (the
“Placement
Agents”)
propose to enter into a Placement Agent Agreement (the “Placement
Agent Agreement”)
relating to the sale (the “Offering”)
by XTL
Biopharmaceuticals Ltd., a public company limited by shares organized under
the
laws of the State of Israel (the “Company”)
of its
Ordinary Shares, par value NIS 0.02 (the “Ordinary
Shares”)
and
warrants to purchase Ordinary Shares (the “Warrants”).
In
consideration of the execution of the Placement Agent Agreement by the Placement
Agents, and for other good and valuable consideration, the undersigned hereby
irrevocably agrees that, without the prior written consent of X.X. Xxxxxx
Securities Inc., on behalf of the Placement Agents, the undersigned will not,
directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose
of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any Ordinary Shares (including, without limitation, Ordinary Shares that
may
be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations of the Securities and Exchange Commission and Ordinary
Shares that may be issued upon exercise of any options or warrants) or
securities convertible into or exercisable or exchangeable for Ordinary Shares,
(2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership
of shares of Ordinary Shares, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Ordinary Shares or other
securities, in cash or otherwise, (3) make any demand for or exercise any right
or cause to be filed a registration statement, including any amendments thereto,
with respect to the registration of any Ordinary Shares or securities
convertible into or exercisable or exchangeable for Ordinary Shares or any
other
securities of the Company or (4) publicly disclose the intention to do any
of
the foregoing, for a period commencing on the date hereof and ending on the
90th
day after the Effective Date (as that term is defined in the Securities Purchase
Agreement, dated as of March 17, 2006, among the Company and certain purchasers)
(such period, the “Lock-Up
Period”).
Notwithstanding
the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company
issues an earnings release or material news or a material event relating to
the
Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed
by this letter agreement shall continue to apply until the expiration of the
18-day period beginning on the date of the issuance of such earnings release
or
the announcement of such material news or event or such release, as the case
may
be, unless X.X. Xxxxxx Securities Inc. waive such extension in writing. The
undersigned hereby further agrees that, prior to engaging in any transaction
or
taking any other action that is subject to the terms of this letter agreement
during the period from the date of this Lock-Up Letter Agreement to and
including the 34th
day
following the expiration of the Lock-Up Period, it will give notice thereof
to
the Company and will not consummate such transaction or take any such action
unless it has received written confirmation from the Company that the Lock-Up
Period (as such may have been extended pursuant to this paragraph) has expired.
The
foregoing shall not apply to bona fide gifts, sales or other dispositions of
shares of any class of the Company’s capital stock, in each case that are made
exclusively between and among the undersigned or members of the undersigned’s
family, or affiliates of the undersigned, including its partners (if a
partnership) or members (if a limited liability company); provided that it
shall
be a condition to any such transfer that (1) the transferee/donee agrees to
be
bound by the terms of this letter agreement (including, without limitation,
the
restrictions set forth in the foregoing) to the same extent as if the
transferee/donee were a party hereto, (2) no filing by any party (donor, donee,
transferor or transferee) under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), shall be required or shall be voluntarily made in
connection with such transfer or distribution (other than a filing on a Form
5,
Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration
of
the 90-day period referred to above), (3) each party (donor, donee, transferor
or transferee) shall not be required by law (including, without limitation,
the
disclosure requirements of the Securities Act of 1933, as amended, and the
Exchange Act) to make, and shall agree to not voluntarily make, any public
announcement of the transfer or disposition and (4) the undersigned notifies
X.X. Xxxxxx Securities Inc. at least two business days prior to the proposed
transfer or disposition.
In
furtherance of the foregoing, the Company and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this letter agreement.
It
is
understood that, if the Company notifies the Placement Agents that it does
not
intend to proceed with the Offering, if the Placement Agent Agreement does
not
become effective, or if the Placement Agent Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Ordinary Shares and the Warrants, the
undersigned will be released from its obligations under this letter
agreement.
The
undersigned understands that the Company and the Placement Agents
will proceed
with the Offering in reliance on this letter agreement. Whether or not the
Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to a Placement Agent
Agreement, the terms of which are subject to negotiation between the Company
and
the Placement Agents.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this letter agreement and that, upon request, the
undersigned will execute any additional documents necessary in connection with
the enforcement hereof. Any obligations of the undersigned shall be binding
upon
the heirs, personal representatives, successors and assigns of the
undersigned.
Very truly yours, | ||
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By: | ||
Name: |
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Title: |
Dated: | |
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