WARRANT PURCHASE AGREEMENT
Exhibit
2
WARRANT
PURCHASE AGREEMENT (“Agreement”),
entered into as of August 1, 2007, by and between ACCBT Corp., a corporation
duly incorporated under the laws of the British Virgin Islands (the
"Buyer"),
and
Ramot at Tel Aviv University Ltd. (the "Seller")
(each
of the Buyer and Seller, a "Party").
WHEREAS,
the
Seller owns a warrant or warrants issued by Brainstorm Cell Therapeutics Inc.,
a
corporation duly incorporated under the laws of the State of Delaware, USA
(the
“Company”)
reflecting a right to purchase 6,363,849 shares of Common Stock of the Company
(subject to adjustment as provided therein) with an Issue Date of November
4,
2004 and Amendment Date of August 1st
2007
(such warrant or warrants, the "Original
Warrant");
WHEREAS,
the
Seller is party to that certain Second Restated and Amended Registration Rights
Agreement by and between the Seller and the Company dated August 1, 2007 (the
"Rights
Agreement");
WHEREAS,
the
Buyer wishes to purchase from the Seller and the Seller wishes to sell to the
Buyer or one or more of its designees, one half of the rights Seller has under
the Original Warrant, such half in the form of a warrant issued by the Company
reflecting a right to receive 3,181,925 shares of Common Stock of the Company
on
substantially the same terms and conditions as the Original Warrant (such
warrant, the "Target
Warrant");
and
WHEREAS,
the
Seller wishes to assign to the Buyer, and the Buyer wishes to obtain from the
Seller, all rights of the Seller under the Rights Agreement that relate to
the
Target Warrant and the shares of Common Stock of the Company issuable upon
exercise of the Target Warrant (such shares, the "Warrant
Shares").
NOW,
THEREFORE, the
Buyer
and the Seller hereby agree as follows:
| 1. |
Purchase
and Sale. On
and subject to the terms and conditions herein, and for the consideration
specified in §2
below, the Buyer agrees to purchase from the Seller, and the Seller
agrees
to sell and assign to the Buyer, the Target Warrant, which in the
aggregate shall allow the holder thereof to purchase, upon due exercise,
3,181,925 Warrant Shares at an exercise price of $0.01 per Warrant
Share.
|
| 2. |
Consideration.
In
consideration of the Target Warrant, the Buyer agrees to pay the
Seller an
aggregate of $636,385.00, at the Closing, payable by bank check or
wire
transfer to the following account:
|
| 3. |
Closing.
The
closing of the transactions contemplated herein (the "Closing"')
shall take place at the offices of Caspi & Co, in Tel Aviv, 11:00 a.m.
on August 31, 2007, or such other place and date as the Buyer and
the
Seller may mutually determine (the "Closing
Date'').
|
| 4. |
Deliveries
at Closing.
At
the Closing,
|
| 4.1. |
the
Seller will deliver to the Buyer:
|
| 4.1.1. |
the
Target Warrant, reflecting a right to receive in the aggregate 3,181,925
Warrant Shares, upon exercise in full thereof, at an exercise price
of
$0.01 per Warrant Share;
|
| 4.1.2. |
a
duly completed and executed Transferor Endorsement in connection
with the
Target Warrant, in the form attached hereto as Exhibit A;
and
|
| 4.1.3. |
a
duly executed assignment of the Seller's rights under the Rights
Agreement
in connection with the Target Warrant and the Warrant Shares, in
the form
attached hereto as Exhibit B.
|
| 4.2. |
the
Buyer will deliver to Seller:
|
| 4.2.1. |
the
consideration specified in §2
above, by wire transfer or delivery of other immediately available
funds;
and
|
| 4.2.2. |
a
duly executed accession by the Buyer to be bound by and subject to
the
terms and conditions of the Registration Rights Agreement in connection
with the Target Warrant and Warrant Shares, in the form attached
hereto as
Exhibit C.
|
| 5. |
Representations
and Warranties of the Seller.
The Seller represents and warrants to the Buyer that the following
statements are correct and complete as of the date hereof and will
be
correct and complete as of the Closing Date:
|
| 5.1. |
The
Seller has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement constitutes
the
valid and legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions. The Seller need not give
any
notice to, make any filing with, or obtain any authorization, consent,
or
approval of any government or governmental agency in order to consummate
the transactions contemplated by this
Agreement.
|
| 5.2. |
Neither
the execution and the delivery of this Agreement, nor the consummation
of
the transactions contemplated hereby, will
|
| 5.2.1. |
violate
any constitution, statute, regulation, rule, injunction, judgment,
order,
decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject, or
|
| 5.2.2. |
conflict
with, result in a breach of, constitute a default under, result in
the
acceleration of, create in any person the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Seller
is a
party or by which the Seller is bound or to which any of the Seller's
assets is subject.
|
| 5.3. |
The
Seller has no liability or obligation to pay any fees or commissions
to
any broker, finder, or agent with respect to the transactions contemplated
by this Agreement for which the Buyer could become liable or
obligated.
|
| 6. |
Representations
and Warranties of the Buyer. The
Buyer represents and warrants to the Seller that the following statements
are correct and complete as of the date hereof and will be correct
and
complete as of the Closing Date:
|
| 6.1. |
The
Buyer is a corporation, duly organized and validly existing under the laws
of the British Virgin Islands.
|
| 6.2. |
The
Buyer has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement constitutes
the
valid and legally binding obligation of the Buyer, enforceable in
accordance with its terms and conditions. The Buyer need not give
any
notice to, make any filing with, or obtain any authorization, consent,
or
approval of any government or governmental agency in order to consummate
the transactions contemplated by this
Agreement.
|
| 6.3. |
Neither
the execution and the delivery of this Agreement, nor the consummation
of
the transactions contemplated hereby, will
|
| 6.3.1. |
violate
any constitution, statute, regulation, rule, injunction, judgment,
order,
decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject, or any
provision of its charter or bylaws, or
|
| 6.3.2. |
conflict
with, result in a breach of, constitute a default under, result in
the
acceleration of, create in any person the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Buyer
is a
party or by which the Buyer is bound or to which any of the Buyer's
assets
is subject.
|
| 6.4. |
The
Buyer has no liability or obligation to pay any fees or commissions
to any
broker, finder, or agent with respect to the transactions contemplated
by
this Agreement for which the Seller could become liable or
obligated.
|
| 7. |
Further
Representations and Warranties
by the Seller.
The Seller represents and warrants to the Buyer that the following
statements are correct and complete as of the date hereof and will
be
correct and complete as of the Closing
Date:
|
| 7.1. |
The
Seller holds of record and owns beneficially the Target Warrant,
free and
clear of any restrictions on transfer (other than any restrictions
expressly set forth in the Target Warrant and restrictions under
securities laws), taxes, security interests, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands.
|
| 7.2. |
The
Seller is not a party to any voting trust, proxy, or other agreement
or
understanding with respect to the voting of any of the Warrant
Shares.
|
| 8. |
Pre-Closing
Covenants.
With respect to the period between execution of this Agreement and
the
Closing:
|
| 8.1. |
each
Party will use its reasonable best efforts to take all action and
to do
all things necessary, proper, or advisable to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth
in
§10
below).
|
| 8.2. |
each
Party will give prompt written notice to the others of any material
adverse development causing a breach of any of such Party's own
representations and warranties herein. No disclosure by a Party pursuant
to this §8.2,
however, shall be deemed to cure any misrepresentation, breach of
warranty, or breach of covenant.
|
| 9. |
Post-Closing
Covenants.
With respect to the period following the
Closing:
|
| 9.1. |
In
case at any time after the Closing any further action is necessary
to
carry out the purposes of this Agreement, each Party will take such
further action (including execution and delivery of such further
instruments and documents) as the other Party reasonably may request,
at
the expense of the requesting
Party.
|
| 9.2. |
In
the event and for so long as a Party actively is contesting or defending
against an action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand in connection with a transaction contemplated
under this Agreement, the other Party will cooperate in the contest
or
defense, at the expense of the contesting or defending
Party.
|
.
| 10. |
Conditions
to Obligation of
the Buyer to Close.
The obligation of the Buyer to consummate the transactions to be
performed
by it at the Closing is subject to satisfaction of the following
conditions:
|
| 10.1. |
the
representations and warranties herein of the Seller shall be true
and
correct in all material respects as of the Closing Date.
|
| 10.2. |
the
Seller shall have performed and complied with all of it covenants
hereunder in all material respects through the Closing;
|
| 10.3. |
no
action, suit, or proceeding shall be pending before a court, agency
or
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Buyer to own
the
Target Warrant.
|
| 10.4. |
the
Seller shall have delivered to the Buyer a certificate to the effect
that
each of the conditions specified in §§ 10.1
and 10.2
and, to the extent known to and affecting the Seller, §10.3
is
satisfied in all respects;
|
| 10.5. |
All
actions to be taken by the Seller in connection with consummation
of the
transactions contemplated hereby and all documents required to effect
such
actions will be reasonably satisfactory in form and substance to
the
Buyer.
|
| 11. |
Conditions
to Obligation of
the Seller to Close.
The obligation of the Seller to consummate the transactions to be
performed by it at the Closing is subject to satisfaction of the
following
conditions:
|
| 11.1. |
the
representations and warranties herein of the Buyer shall be true
and
correct in all material respects as of the Closing Date.
|
| 11.2. |
the
Buyer shall have performed and complied with all of their covenants
hereunder in all material respects through the Closing;
|
| 11.3. |
no
action, suit, or proceeding shall be pending before a court, agency
or
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Buyer to own
the
Target Warrant.
|
| 11.4. |
the
Buyer shall have delivered to the Seller a certificate to the effect
that
each of the conditions specified in §§ 11.1
and 11.2
and, to the extent known to and affecting the Buyer, §11.3
is
satisfied in all respects;
|
| 11.5. |
All
actions to be taken by the Buyer in connection with consummation
of the
transactions contemplated hereby and all documents required to effect
such
actions will be reasonably satisfactory in form and substance to
the
Seller.
|
| 12. |
Termination.
|
| 12.1. |
Certain
of the Parties may terminate this Agreement as provided
below:
|
| 12.1.1. |
the
Buyer and the Seller may terminate this Agreement by mutual written
consent at any time prior to the
Closing.
|
| 12.1.2. |
The
Buyer may terminate this Agreement by giving written notice to the
Seller
at any time prior to the Closing if the Seller has breached any material
representation, warranty, or covenant contained in this Agreement
in any
material respect, the Buyer has notified the Seller of the breach,
and the
breach has continued without cure for a period of 5 days after the
notice
of breach.
|
| 12.1.3. |
The
Buyer may terminate this Agreement by giving written notice to the
Seller
at any time prior to the Closing if the Closing shall not have occurred
on
or before August 31, 2007, by reason of the failure of any condition
precedent under §10
(unless the failure results primarily from the Buyer breaching any
representation, warranty, or covenant contained in this
Agreement).
|
| 12.1.4. |
The
Seller may terminate this Agreement by giving written notice to the
Buyer
at any time prior to the Closing if the Buyer has breached any material
representation, warranty, or covenant contained in this Agreement
in any
material respect, the Seller has notified the Buyer of the breach,
and the
breach has continued without cure for a period of 5 days after the
notice
of breach.
|
| 12.1.5. |
The
Seller may terminate this Agreement by giving written notice to the
Buyer
at any time prior to the Closing if the Closing shall not have occurred
on
or before August 31, 2007, by reason of the failure of any condition
precedent under §11
(unless the failure results primarily from Seller breaching any
representation, warranty, or covenant contained in this
Agreement).
|
| 12.2. |
If
a Party terminates this Agreement pursuant to this §12,
all rights and obligations of the Parties shall terminate without
any
liability of any Party to any other Party, except for any liability
of any
Party then in breach.
|
| 13. |
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 related in
any way
to the subject matter hereof.
|
| 14. |
Assignment.
No
Party may assign either this Agreement or any of his or its rights,
interests, or obligations hereunder without the prior written approval
of
the other, except that the Buyer may assign any of its rights hereunder
without such approval.
|
| 15. |
Headings.
The
section headings contained in this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this
Agreement.
|
| 16. |
Governing
Law and Jurisdiction.
This Agreement shall be governed by the laws of the State of Israel.
The
competent courts in Tel Aviv shall have exclusive jurisdiction over
any
dispute that may arise with respect to this
Agreement.
|
| 17. |
Amendments
and Waivers.
No
amendment of any provision of this Agreement shall be valid unless
made in
writing and signed by both Parties. 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.
|
| 18. |
Severability.
Any term or provision of this Agreement that is invalid or unenforceable
shall not affect the validity or enforceability of the remaining
terms and
provisions hereof.
|
| 19. |
Construction.
In
the event an ambiguity or question of intent or interpretation arises,
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 of the provisions of this
Agreement. The word "including" shall mean including without limitation.
|
| 20. |
Incorporation.
Exhibits identified in this Agreement are incorporated herein by
reference
and made a part hereof.
|
|
Seller:
Ramot at Tel Aviv University Ltd.
By:
/s/
Xxxxxx Niv
Name:
Xxxxxx Niv
Title:
CEO
By:
/s/
Ze’xx Xxxxxxxx, Ph.D.
Name:
Ze’xx Xxxxxxxx, Ph.D.
Title:
Executive Vice President
Business Development
|
Buyer:
ACCBT Corp.
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
President
|
|
|
EXHIBIT
A
FORM
OF
TRANSFEROR ENDORSEMENT
(To
be
signed only on transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto
the
person(s) named below under the heading "Permitted Transferees" the right
represented by the within Warrant to purchase the number of shares of Common
Stock of BRAINSTORM CELL THERAPEUTICS INC. to which the within Warrant relates
specified under the heading "Number Transferred," opposite the name(s) of such
person(s) and appoints each such person Attorney to transfer its respective
right on the books of BRAINSTORM CELL THERAPEUTICS INC. with full power of
substitution in the premises.
|
Permitted
Transferees
|
Number
Transferred
|
|||
| Dated: ______________, ___________ | ||
|
(Signature
must conform to name of holder as
specified on the face of the warrant)
|
||
| Signed in the presence of: | ||
|
(Name)
|
||
| (address) | ||
| ACCEPTED AND AGREED: | ||
| [PERMITTED TRANSFEREE] | (address) | |
|
(Name)
|
Exhibit
B
Exhibit
C
