SECURITY HOLDERS AGREEMENT
Exhibit
5
THIS
SECURITY HOLDERS AGREEMENT (“Agreement”),
dated
as of ____ ____, and among ACCBT Corp., a corporation duly incorporated under
the laws of the British Virgin Islands (“ACCBT”),
and
the persons listed in Exhibit A (“Holders”).
Each
of ACCBT and the Holders is referred to herein as a “Party” and collectively as
the “Parties”.
WHEREAS,
pursuant to that certain subscription agreement by and between ACCBT and
Brainstorm Cell Therapeutics Inc. (“Company”)
dated
as of July 2 ,2007 (“Subscription
Agreement”),
ACCBT
will purchase and subscribe from the Company up to 27,500,000 of the Company’s
common shares for an aggregate subscription price of up to $5.0 million
(“Subscription
Price”);
WHEREAS,
pursuant to Section 7.2 of the Subscription Agreement, ACCBT’s obligation to
purchase the relevant shares is subject to the satisfaction of, inter
alia,
the
Company's shareholders duly approving certain rights of ACCBT granted to ACCBT
under the Agreement;
WHEREAS,
in
order to satisfy the foregoing condition, the Parties wish to enter into this
Agreement.
NOW,
THEREFORE,
the
Holders and ACCBT hereby agree as follows:
1. BOARD
COMPOSITION
1.1
Each
of
the Holders who is a shareholder of the Company or who shall be a shareholder
of
the Company at any time following the date hereof, hereby undertakes that
immediately following a payment by ACCBT of its first USD $1 million towards
the
Subscription Price, then at any shareholders’ meeting in which directors of the
Company or its subsidiaries are being elected, such Holder will vote all of
its
shares such that ACCBT’s nominees to the relevant Board of Directors (and any of
their respective committees) will constitute a minimum of 40% (fractions to
be
rounded up to the nearest whole number) of the relevant board or committee.
Such
Holder additionally undertakes that it shall not vote any of its shares of
the
Company to replace an ACCBT nominee from the Board of Directors if said
replacement will be inconsistent with the composition indicated above. At the
request of ACCBT, a Holder will promptly provide ACCBT with an irrevocable
and
unconditional proxy to vote the Holder's shares at any shareholders' meeting
of
the Company to effect the foregoing in this paragraph.
1.2
Each
of
the Holders who is a shareholder of the Company or who shall be a shareholder
of
the Company at any time following the date hereof, hereby undertakes that
immediately following a payment by ACCBT of its second USD $1 million towards
the Subscription Price, then at any shareholders’ meeting in which directors of
the Company or its subsidiaries are being elected, such Holder will vote all
of
its shares such that ACCBT’s nominees to the relevant Board of Directors (and
any of their respective committees) will constitute a minimum of 50.1%
(fractions to be rounded up to the nearest whole number) of the relevant board
or committee. Such Holder additionally undertakes that it shall not vote any
of
its shares of the Company to replace an ACCBT nominee from the board if said
replacement will be inconsistent with the composition indicated above. At the
request of ACCBT, a Holder will promptly provide ACCBT with an irrevocable
and
unconditional proxy to vote the Holder's shares at any shareholders' meeting
of
the Company to effect the foregoing in this paragraph.
2. PROTECTIVE
PROVISIONS
Each
Holder hereby acknowledges and accepts that for so long as ACCBT holds (taking
into account, for the avoidance of doubt, an affiliate of ACCBT) at least 5%
of
the issued and outstanding share capital of the Company, it shall not vote
any
of its shares to approve the following matters, without the written consent
of
ACCBT:
2.1
For
any
change in the certificate of incorporation of the Company or its bylaws, or
alteration of the capital structure of the Company through any reclassification
or consolidation;
2.2
For
the
declaration or payment of any dividend or the making of any distributions to
any
holders of any shares in the capital of the Company;
2.3
For
the
taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise
terminate the corporate existence of the Company;
2.4
For
the
share sale or exchange, merger, consolidation, amalgamation, arrangement, asset
acquisition or any other similar transaction the effect of which is to place
control of the business of the Company in the hands of an arm’s length third
party;
2.5
For
any
commitment or agreement to do any of the foregoing..
3. INTENTIONALLY
LEFT BLANK.
4. NO
PREEMPTION OR OTHER SHAREHOLDERS’ AGREEMENTS
Each
of
the Holders represents and warrants that as of the date of this Agreement,
it
does not have or waive any preemptive rights in the issuances of securities
of
the Company and, except this Agreement, is not a party to any agreement which
could influence any of its decisions or actions taken in its capacity as a
security holder of the Company.
5. HOLDERS’
TRANSFEREES
To
the
extend a Holder elects to sell to a third party the securities of the company
held by it, it shall obtain from such third party as a pre-condition for such
transfer an obligation to vote its shares and otherwise act in compliance with
the terms of this Agreement.
6. INTENTIONALLY
LEFT BLANK.
7. MISCELLANEOUS
7.1
Integration.
This
Agreement constitutes the entire agreement among the Parties and supersedes
any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter
hereof.
7.2
Amendments
and Waivers.
No
amendment of any provision of this Agreement shall be valid unless made in
writing and signed by ACCBT and the majority in interest of the Holders
(calculated as of the date of such amendment). No waiver by a Party of any
default, misrepresentation, or breach of warranty or covenant hereunder, shall
be deemed to extend to any prior or subsequent default, misrepresentation,
or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
-
2
-
7.3
Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of Israel without regard to the choice of law principles
thereof.
7.4
This
Agreement expires on December 31, 2008.
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be duly executed and delivered as of
the
day and year first written above.
|
Brainstorm
Cell Therapeutic Inc. Security Holders
By:
Signature:
|
By:
Title:
|
|
|
By:
Signature:
|
||
|
By:
Signature:
|
||
|
By:
Signature:
|
||
|
By:
Signature:
|
-
3
-
