CONFIDENTIAL
EXHIBIT
1.1
January
13, 2010
CONFIDENTIAL
Xxx
Xxxxxx
Chief
Executive Officer
00 Xxxxx
Xx., Xxxxxxx
Israel,
76706
Dear Xx.
Xxxxxx:
This
letter (the “Agreement”)
constitutes the agreement between Xxxxxx & Xxxxxxx, LLC (“Xxxxxx” or the “Placement Agent”) and
Rosetta Genomics Ltd. (the “Company”), that
Xxxxxx shall serve as the exclusive placement agent for the Company, on a
“reasonable best efforts” basis, in connection with the proposed placement by
Xxxxxx (the “Placement”) of
registered securities (the “Securities”) of the
Company, consisting of ordinary shares (the “Shares”) of the
Company, par value NIS0.01 per share (the “Ordinary Shares”),
and warrants to purchase Ordinary Shares. The terms of such Placement and the
Securities shall be mutually agreed upon by the Company and the purchasers
(each, a “Purchaser” and
collectively, the “Purchasers”) and
nothing herein constitutes that Xxxxxx would have the power or authority to bind
the Company or any Purchaser or an obligation for the Company to issue any
Securities or complete the Placement. This Agreement and the documents executed
and delivered by the Company to the Purchasers in connection with the Placement
shall be collectively referred to herein as the “Transaction Documents.” The date
of the closing of the Placement shall be referred to herein as the “Closing Date.” The
Company expressly acknowledges and agrees that Xxxxxx’x obligations hereunder
are on a reasonable best efforts basis only and that the execution of this
Agreement does not constitute a commitment by Xxxxxx to purchase the Securities
and does not ensure the successful placement of the Securities or any portion
thereof or the success of Xxxxxx with respect to securing any other financing on
behalf of the Company.
SECTION 1. COMPENSATION AND OTHER
FEES.
As
compensation for the services provided by Xxxxxx xxxxxxxxx, the Company agrees
to pay to Xxxxxx:
(A) The
fees set forth below with respect to the Placement:
1. A
cash fee payable immediately upon (but only in the event of) the closing of the
Placement and equal to 6% of the aggregate gross proceeds raised in the
Placement from the sale of Securities sold on the closing thereof
2. Such
number of warrants (the “Xxxxxx Warrants”) to
Xxxxxx or its designees at the Closing to purchase Ordinary Shares equal to 2.5%
of the aggregate number of Shares sold in the Placement, plus any Shares
underlying any convertible Securities or units sold in the
Placement. The Xxxxxx Warrants shall have the same terms as the
warrants (if any) issued to the Purchasers in the Placement except that the
exercise price shall be 125% of the public offering price per share and the
expiration date shall be five years from the effective date of the shelf
registration statement referred to in Section 2(A) below. The Xxxxxx
Warrants shall not be transferable for six months from the date of the Offering
except as permitted by Financial Industry Regulatory Authority (“FINRA”) Rule 5110,
and further, the number of Shares underlying the Xxxxxx Warrants shall be
reduced if necessary to comply with FINRA rules or regulations.
Xxxxxx
& Xxxxxxx, LLC 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000
Tel: 000 000 0000 Fax: 000 000 0000
xxx.xxxx.xxx Member: FINRA,
SIPC
(B) The
Company also agrees to reimburse Xxxxxx’x expenses (with supporting
invoices/receipts) up to a maximum of 1% of the aggregate gross proceeds raised
in the placement, but in no event more than $25,000. Such reimbursement shall be
payable immediately upon (but only in the event of) the closing of the
Placement.
SECTION 2. REGISTRATION
STATEMENT.
The
Company represents and warrants to, and agrees with, the Placement Agent
that:
(A) The
Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form F-3 (Registration File No. 333-163063) under the
Securities Act of 1933, as amended (the “Securities Act”),
which became effective on November 24, 2009, for the registration under the
Securities Act of the Shares. At the time of such filing, the Company met the
requirements of Form F-3 under the Securities Act. Such registration statement
meets the requirements set forth in Rule 415(a)(1)(x) under the Securities
Act and complies with said Rule. The Company will file with the Commission
pursuant to Rule 424(b) under the Securities Act, and the rules and regulations
(the “Rules and
Regulations”) of the Commission promulgated thereunder, a supplement to
the form of prospectus included in such registration statement relating to the
placement of the Shares and the plan of distribution thereof and has advised the
Placement Agent of all further information (financial and other) with respect to
the Company required pursuant to such Rule 424(b) to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the date
of this Agreement, is hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented) is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to
refer to and include the documents incorporated by reference therein (the “Incorporated
Documents”) pursuant to Item 6 of Form F-3 which were filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement, or the issue date of the Base Prospectus or
the Prospectus Supplement, as the case may be; and any reference in this
Agreement to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference. All references in this Agreement to financial statements
and schedules and other information that is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is or is deemed to
be incorporated by reference in the Registration Statement, the Base Prospectus
or the Prospectus Supplement, as the case may be. No stop order
suspending the effectiveness of the Registration Statement or the use of the
Base Prospectus or the Prospectus Supplement has been issued, and no proceeding
for any such purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission. For purposes of this Agreement,
“free writing
prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale
Prospectus” means the preliminary prospectus, if any, together with the
free writing prospectuses and supplements, if any, used in connection with the
Placement, including any documents incorporated by reference
therein.
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(B) The
Registration Statement (and any further documents to be filed with the
Commission in connection with the Placement) contains or will contain, as
applicable, all exhibits and schedules as required by the Securities Act. Each
of the Registration Statement and any post-effective amendment thereto, at the
time it became effective, complied in all material respects with the Securities
Act and the Exchange Act and the applicable Rules and Regulations and did not
and, as amended or supplemented, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus
Supplement, each as of its respective date, comply in all material respects with
the Securities Act and the Exchange Act and the applicable Rules and
Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if any,
and the Prospectus Supplement, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no representation or warranty
as to information contained in or omitted from the Registration Statement, the
Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus
Supplement, including any amendments or supplements thereto, in reliance upon,
and in conformity with, written information furnished to the Company by or on
behalf of Xxxxxx expressly for use in the preparation thereof. The Incorporated
Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable Rules and
Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base Prospectus or
Prospectus Supplement), in light of the circumstances under which they were made
not misleading; and any further documents so filed and incorporated by reference
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are no
documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been
filed as required pursuant to the Securities Act or (y) will not be
filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus, the Time of Sale
Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, that have not been described or filed
as required.
(C) The
Company is eligible to use free writing prospectuses in connection with the
Placement pursuant to Rules 164 and 433 under the Securities Act. Any free
writing prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act in connection with the Placement has been, or will be,
filed with the Commission in accordance with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by or
behalf of or used by the Company in connection with the Placement complies or
will comply in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder. The
Company will not, without the prior consent of the Placement Agent, prepare, use
or refer to, any free writing prospectus.
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(D) The
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the Base
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of its
directors and officers has distributed and none of them will distribute, prior
to the Closing Date, any offering material in connection with the offering and
sale of the Shares other than the Base Prospectus, the Time of Sale Prospectus,
if any, the Prospectus Supplement, the Registration Statement, copies of the
documents incorporated by reference therein and any other materials permitted by
the Securities Act.
SECTION 3. REPRESENTATIONS AND
WARRANTIES. Except as disclosed in the SEC Reports (as defined below) or
the Registration Statement or other documents filed by the Company under the
Securities Act, or as set forth under the corresponding section of the
Disclosure Schedules, which disclosures shall be deemed a part hereof, the
Company hereby makes the representations and warranties set forth below to the
Placement Agent.
(A) Organization and
Qualification. All of the direct and indirect subsidiaries (individually,
a “Subsidiary”)
of the Company are set forth on Schedule 3(A).
The Company owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any “Liens” (which for
purposes of this Agreement shall mean a lien, charge, security interest,
encumbrance, right of first refusal, preemptive right or other restriction,
other than restrictions imposed by applicable securities laws), all the issued
and outstanding shares of capital stock of each Subsidiary are validly issued
and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. The Company and each of the Subsidiaries
is an entity duly incorporated or otherwise organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization (as applicable), with the requisite power and authority to own and
use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or default of
any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the
Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be expected to result
in (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse effect
on the results of operations, assets, business, prospects or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations under any
Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and, to the Company’s knowledge, no “Proceeding” (which
for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened) has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or
qualification.
(B) Authorization;
Enforcement. The Company has the requisite corporate power and authority
to enter into and to consummate the transactions contemplated by each of the
Transaction Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of each of the Transaction Documents by
the Company and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of the Company and
no further action is required by the Company, its board of directors or its
stockholders in connection therewith other than in connection with the “Required Approvals”
(as defined in subsection 3(D) below). Each Transaction Document has been (or
upon delivery will have been) duly executed by the Company and, when delivered
in accordance with the terms hereof and thereof, will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
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(C) No Conflicts. The
execution, delivery and performance of the Transaction Documents by the Company,
the issuance and sale of the Securities and the consummation by the Company of
the other transactions contemplated hereby and thereby do not and will not
(i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) subject to the Required Approvals, conflict with or result in a
violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company or
a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii),
such as could not have or reasonably be expected to result in a Material Adverse
Effect.
(D) Filings, Consents and
Approvals. The Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other “Person” (defined as
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,
including, without limitation, any Trading Market) in connection with the
execution, delivery and performance by the Company of the Transaction Documents,
other than such filings as are required to be made under applicable Federal and
state securities laws, rules and regulations promulgated by NASDAQ, if
applicable, and rules and regulations promulgated by FINRA (collectively, the
“Required
Approvals”).
(E) Issuance of the Securities;
Registration. The Securities are duly authorized and, when issued and
paid for in accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided for in the
Transaction Documents. The Company has reserved from its duly
authorized capital stock the maximum number of Ordinary Shares issuable pursuant
to the Transaction Documents. The issuance by the
Company of the Securities has been registered under the Securities Act and all
of the Securities are freely transferable and tradable by the Purchasers without
restriction (other than any restrictions arising solely from an act or omission
of a Purchaser). The Securities are being
issued pursuant to the Registration Statement and the issuance of the Securities
has been registered by the Company under the Securities Act. The Registration
Statement is effective and available for the issuance of the Securities
thereunder and the Company has not received any notice that the Commission has
issued or intends to issue a stop-order with respect to the Registration
Statement or that the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently,
or intends or has threatened in writing to do so. The "Plan of Distribution" section under the
Registration Statement permits the issuance and sale of the Securities
hereunder. Upon
receipt of the Securities, the Purchasers will have good and marketable title to
such Securities and the Ordinary Shares will be freely tradable on the NASDAQ
Global Market (the “Trading Market”).
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(F) Capitalization. The
authorized capitalization of the Company is as set forth in the SEC
Reports. As of the date of this Agreement, the Company has not issued
any capital stock since it filed its most recently filed periodic report under
the Exchange Act, other than pursuant to the exercise of employee stock options
under the Company’s stock plans, the issuance of Ordinary Shares to
employees pursuant to the Company’s employee stock purchase plan and pursuant to
the conversion or exercise of securities exercisable, exchangeable or
convertible into Ordinary Shares (“Ordinary Share
Equivalents”). No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated by the Transaction Documents. Except pursuant to
the Company’s stock plans and as a result of the purchase and sale of the
Securities, there are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any Ordinary Shares, or contracts, commitments, understandings or arrangements
by which the Company or any Subsidiary is or may become bound to issue
additional shares of Ordinary Shares or Ordinary Shares Equivalents.
The issuance and sale of the Securities will not obligate the Company to issue
Ordinary Shares or other securities to any Person (other than the Purchasers)
and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under such securities. All of the
outstanding shares of capital stock of the Company are validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and none of such outstanding shares was issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. No further approval or authorization of any stockholder,
the Board of Directors of the Company or others is required for the issuance and
sale of the Securities. There are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which
the Company is a party or, to the knowledge of the Company, between or among any
of the Company’s stockholders.
(G) SEC Reports; Financial
Statements. The Company has complied in all material respects with
requirements to file all reports, schedules, forms, statements and other
documents required to be filed by it under the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law to file such
material) (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively referred to herein as the
“SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with
United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
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(H) Material Changes;
Undisclosed Events, Liabilities or Developments. Since the date of the
latest audited financial statements included within the SEC Reports, except as
specifically disclosed in the SEC Reports, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company has not
declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) the Company has not
issued any equity securities to any officer, director or “Affiliate” (defined
as 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 under the Securities
Act), except pursuant to existing Company stock option plans. The
Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Securities
contemplated by this Agreement, no event, liability or development has occurred
or exists with respect to the Company or its Subsidiaries or their respective
business, properties, operations or financial condition, that would be required
to be disclosed by the Company under applicable securities laws at the time this
representation is made that has not been disclosed in the Time of Sale
Prospectus.
(I) Litigation. There
is no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the
Company, any Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”) which
(i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or
(ii) could, if there were an unfavorable decision, reasonably be expected
to result in a Material Adverse Effect. Except as set forth in Schedule 3(I)
Neither the Company nor any Subsidiary, nor, to the Company’s knowledge, any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws, or
a claim of breach of fiduciary duty There has not been, and to the knowledge of
the Company, there is not pending or contemplated, any investigation by the
Commission involving the Company or any current director or
officer of the Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the
Company or any Subsidiary under the Exchange Act or the Securities Act. None of
the Company’s or its Subsidiaries’ employees is a member of a union that relates
to such employee’s relationship with the Company, and neither the Company or any
of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their
employees are good. To the knowledge of the Company, no executive officer, is,
or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or
non-competition agreement, or any other contract or agreement or any restrictive
covenant, and the continued employment of each such executive officer does not
subject the Company or any of its Subsidiaries to any liability with respect to
any of the foregoing matters. The Company and its Subsidiaries are in compliance
with all U.S. federal, state, local and foreign laws and regulations relating to
employment and employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(J) Labor Relations. No
material labor dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company which could reasonably be
expected to result in a Material Adverse Effect.
(K) Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of
(and no event has occurred that has not been waived that, with notice or lapse
of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it
is in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of
any statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its business
and all such laws that affect the environment, except in each case as could not
have a Material Adverse Effect.
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(L) Regulatory Permits.
The Company and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits could not
reasonably be expected to result in a Material Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit,
except where such potential revocation or modification would not reasonably be
expected to result in a Material Adverse Effect.
(M) Title to Assets. The
Company and the Subsidiaries have good and marketable title in fee simple to all
real property owned by them that is material to the business of the Company and
the Subsidiaries and good and marketable title in all personal property owned by
them that is material to the business of the Company and the Subsidiaries, in
each case free and clear of all Liens, except for Liens created under license or
collaboration agreements relating to the Company’s products or Intellectual
Property Rights and Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries and Liens for the payment of
federal, state or other taxes, the payment of which is neither delinquent nor
subject to penalties. Any real property and facilities held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are in
compliance, except where such non-compliance would not have a Material Adverse
Effect.
(N) Patents and
Trademarks. The Company and the Subsidiaries have, or have rights to use,
all patents, patent applications, trademarks, trademark applications, service
marks, trade names, trade secrets, inventions, copyrights, licenses and other
similar intellectual property rights necessary or material for use in connection
with their respective businesses as described in the SEC Reports and which the
failure to so have could have a Material Adverse Effect (collectively, the
“Intellectual Property
Rights”). Neither the Company nor
any Subsidiary has received notice (written or otherwise) that the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes upon
the rights of any Person. To the knowledge of the Company, all
such Intellectual Property Rights are enforceable. The Company and
its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where
failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(O) Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business without a significant increase in
cost.
(P) Transactions With Affiliates
and Employees. Except as set forth in the SEC Reports, none of the
officers or directors of the Company and, to the knowledge of the Company, none
of its employees are presently a party to any transaction with the Company or
any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner that would be required to be
disclosed in the SEC Reports or the Time of Sale Prospectus that is not so
disclosed.
8
(Q) Xxxxxxxx-Xxxxx. The
Company is in material compliance with all provisions of the Xxxxxxxx-Xxxxx Act
of 2002 which are applicable to it as of the date hereof and of the closing date
of the Placement.
(R) Certain Fees. Except
as otherwise provided in this Agreement or set forth under Section 3(R) of the
Disclosure Schedules, no brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by the Transaction Documents. The Purchasers shall
have no obligation with respect to any fees or with respect to any claims made
by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by the
Transaction Documents.
(S) Trading Market Rules.
The issuance and sale of the Securities hereunder does not contravene the rules
and regulations of the Trading Market.
(T) Investment Company.
The Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
The
Company shall conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(U) Registration Rights.
No Person has any right to cause the Company to effect the registration under
the Securities Act of any securities of the Company.
(V) Listing and Maintenance
Requirements. Except as set forth in Schedule 3 (V) the
Company’s Common Stock is registered pursuant to Section 12(b) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge
is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that
the Commission is contemplating terminating such registration. The Company has
not, in the 12 months preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or quoted to the
effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. The Company is, and has no reason to
believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements.
(W) Application of Takeover
Protections. The Company and its Board of Directors have taken all
necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s
Certificate of Incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Purchasers as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.
(X) Solvency. Based on
the financial condition of the Company as of the Closing Date after giving
effect to the receipt by the Company of the proceeds from the sale of the
Securities hereunder, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in
respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature in the ordinary course; and (ii) the
current cash flow of the Company, together with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its debt when such amounts are required to be paid. The Company does
not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in
respect of its debt). The Company has no knowledge of any facts or circumstances
which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy, liquidation or reorganization laws of any jurisdiction
within one year from the Closing Date. The SEC Reports set forth as of the dates
thereof all outstanding secured and unsecured Indebtedness of the Company or any
Subsidiary, or for which the Company or any Subsidiary has commitments that are
required to be set forth in such SEC Reports. For the purposes of this
Agreement, “Indebtedness” shall
mean (a) any liabilities for borrowed money or amounts owed in excess of
$200,000 (other than trade accounts payable incurred in the ordinary course of
business), (b) all guaranties, endorsements and other contingent obligations in
respect of Indebtedness of others, whether or not the same are or should be
reflected in the Company’s balance sheet (or the notes thereto), except
guaranties by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; and (c) the
present value of any lease payments in excess of $200,000 due under leases
required to be capitalized in accordance with GAAP. Neither the Company nor any
Subsidiary is in default with respect to any Indebtedness.
9
(Y) Tax Status. Except
for matters that would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect, the Company and each
Subsidiary has filed all necessary federal, state and foreign income and
franchise tax returns and has paid or accrued all taxes shown as due thereon,
and the Company has no knowledge of a tax deficiency which has been asserted or
threatened against the Company or any Subsidiary.
(Z) Foreign Corrupt
Practices. Neither the Company, nor to the knowledge of the Company, any
agent or other person acting on behalf of the Company, has (i) directly or
indirectly, used any funds for unlawful contributions, gifts, entertainment or
other unlawful expenses related to foreign or domestic political activity,
(ii) made any unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from
corporate funds, (iii) failed to disclose fully any contribution made by
the Company (or made by any person acting on its behalf of which the Company is
aware) which is in violation of law, or (iv) violated in any material
respect any provision of the Foreign Corrupt Practices Act of 1977, as
amended.
(AA) Accountants. To
the
knowledge of the Company, Kost, Forer, Gabbay, Kasierer, a member of the
Ernst & Young Global, who the Company expects will
express their opinion with respect to the financial statements to be included in
the Company’s next Annual Report on Form 20-F, are a registered public
accounting firm as required by the Securities Act.
(BB) Regulation M
Compliance. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities or (iii) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company other than, in the case of clauses (ii) and
(iii), services under this Agreement.
(CC)
Approvals. The
issuance and listing on the Trading Market of the Shares requires no further
approvals, including, but not limited to, the approval of
shareholders.
(DD) FINRA Affiliations.
There are no affiliations with any FINRA member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent (5%)
or greater stockholder of the Company, except as set forth in the Base
Prospectus.
10
SECTION 4.
ENGAGEMENT
TERM. Xxxxxx’x engagement hereunder will be for the period of
45 days. The engagement may be terminated by either the Company or Xxxxxx at any
time upon 10 days’ written notice. Notwithstanding anything to the contrary
contained herein, the provisions in this Agreement concerning confidentiality,
indemnification and contribution will survive any expiration or termination of
this Agreement, and the Company's obligation to pay Xxxxxx any fees actually
earned and payable upon the closing of the Placement under Section 1(A), shall
survive any expiration or termination of this Agreement, as permitted by FINRA
Rule 5110(f)(2)(d). Upon any termination of this Agreement, the
Company's obligation to reimburse Xxxxxx for out of pocket accountable expenses
actually incurred by Xxxxxx and reimbursable upon closing of the Placement
pursuant to Section 1(B), if any are otherwise due under Section 1(B) hereof,
will survive any expiration or termination of this Agreement, as permitted by
FINRA Rule 5110(f)(2)(d). Xxxxxx agrees not to use any confidential
information concerning the Company provided to them by or on behalf of the
Company for any purposes other than those contemplated under this
Agreement.
SECTION
5. XXXXXX
INFORMATION. The Company agrees that any information or advice
rendered by Xxxxxx to the Company in connection with this engagement is for the
confidential use of the Company only in their evaluation of the Placement and,
except as otherwise required by law, the Company will not disclose or otherwise
refer to the advice or information in any manner without Xxxxxx’x prior written
consent.
SECTION
6. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be construed
as creating rights enforceable by any person or entity not a party hereto,
except those entitled hereto by virtue of the indemnification provisions
hereof. The Company acknowledges and agrees that Xxxxxx is not and
shall not be construed as a fiduciary of the Company and shall have no duties or
liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of Xxxxxx hereunder, all of
which are hereby expressly waived.
SECTION
7. CLOSING. The
obligations of the Placement Agent and the Purchasers, and the closing of the
sale of the Securities hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties on the part of the
Company and its Subsidiaries contained herein, to the accuracy of the statements
of the Company and its Subsidiaries made in any certificates pursuant to the
provisions hereof, to the performance by the Company and its Subsidiaries of
their obligations hereunder, and to each of the following additional terms and
conditions:
(A) No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent.
(B) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the Placement
Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(C) All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
11
(D) The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent, which opinion shall include a “10b-5” representation from
such counsel.
(E) Except
as disclosed in the Time of Sale Prospectus, neither the Company nor any of its
Subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Base Prospectus,
(i) any material loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth in or contemplated by the Base Prospectus,
and (ii) since such date there shall not have been any change in the
capital stock (other than pursuant to the exercise of employee stock options
under the Company’s stock plans, the issuance of Ordinary Shares to
employees pursuant to the Company’s employee stock purchase plan and pursuant to
the conversion or exercise of securities exercisable, exchangeable or
convertible into Ordinary Shares or as otherwise disclosed in the SEC Reports)
or increase in the long-term debt of the Company or any of its Subsidiaries or
any change, or any development involving a prospective material change, in or
affecting the business, general affairs, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its
Subsidiaries, otherwise than as set forth in or contemplated by the Base
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Placement Agent, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus,
the Time of Sale Prospectus, if any, and the Prospectus Supplement.
(F) The
Ordinary Shares are registered under the Exchange Act and, as of the Closing
Date, the Shares shall be listed and admitted and authorized for trading on the
Trading Market, and satisfactory evidence of such actions shall have been
provided to the Placement Agent. The Company shall have taken no action designed
to, or likely to have the effect of terminating the registration of the Ordinary
Shares under the Exchange Act or delisting or suspending from trading the
Ordinary Shares from the Trading Market, nor has the Company received
any information suggesting that the Commission or the Trading Market is
contemplating terminating such registration or listing.
(G) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the any
Trading Market or in the over-the-counter market, or trading in any securities
of the Company on the Trading Market or in the over-the-counter market, shall
have been suspended or minimum or maximum prices or maximum ranges for prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, (iii) the United States shall have become engaged in
hostilities in which it is not currently engaged, the subject of an act of
terrorism, there shall have been an escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency or
war by the United States, or (iv) there shall have occurred any other
calamity or crisis or any change in general economic, political or financial
conditions in the United States or elsewhere, if the effect of any such event in
clause (iii) or (iv) makes it, in the sole judgment of the Placement
Agent, impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus
and the Prospectus Supplement.
(H) No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which
would, as of the Closing Date, prevent the issuance or sale of the Securities or
result in a Material Adverse Effect; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance or sale of the Securities or result in Material Adverse
Effect.
12
(I) The
Company shall have prepared and filed with the Commission a Form 6-K with
respect to the Placement, including as an exhibit thereto this
Agreement.
(J) The
Company shall have entered into subscription agreements with each of the
Purchasers and such agreements shall be in full force and effect and shall
contain representations and warranties of the Company as agreed between the
Company and the Purchasers.
(K) FINRA
shall have raised no objection to the fairness and reasonableness of the terms
and arrangements of this Agreement. In addition, the Company shall,
if requested by the Placement Agent, make, or authorize Placement Agent’s
counsel to make on the Company’s behalf, an Issuer Filing with FINRA pursuant to
FINRA Rule 5110 with respect to the Registration Statement and pay all filing
fees required in connection therewith.
(L) Prior
to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, certificates and documents as the Placement Agent may
reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
SECTION
8. INDEMNIFICATION. (A) To
the extent permitted by law, the Company will indemnify Xxxxxx and its
affiliates, stockholders, directors, officers, employees and controlling persons
(within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) against all losses, claims, damages, expenses and liabilities,
as the same are incurred (including the reasonable fees and expenses of
counsel), relating to or arising out of its activities hereunder or pursuant to
this engagement letter, except to the extent that any losses, claims, damages,
expenses or liabilities (or actions in respect thereof) are found in a final
judgment (not subject to appeal) by a court of law to have resulted primarily
from Xxxxxx’x willful misconduct or gross negligence in performing the services
described herein, or from information supplied in writing by Xxxxxx expressly
for inclusion in the Registration Statement. Notwithstanding the foregoing,
Xxxxxx shall repay to the Company any reimbursements or other amounts paid
hereunder to the extent they are attributable to losses, claims, damages,
expenses or liabilities finally judicially determined to have resulted primarily
from Xxxxxx’x willful misconduct or gross negligence or from such information
supplied in writing by Xxxxxx.
(B) Promptly
after receipt by Xxxxxx of notice of any claim or the commencement of any action
or proceeding with respect to which Xxxxxx is entitled to indemnity hereunder,
Xxxxxx will notify the Company in writing of such claim or of the commencement
of such action or proceeding, and the Company will assume the defense of such
action or proceeding and will employ counsel reasonably satisfactory to Xxxxxx
and will pay the fees and expenses of such counsel. Notwithstanding the
preceding sentence, Xxxxxx will be entitled to employ counsel separate from
counsel for the Company and from any other party in such action if counsel for
Xxxxxx reasonably determines that it would be inappropriate under the applicable
rules of professional responsibility for the same counsel to represent both the
Company and Xxxxxx. In such event, the reasonable fees and disbursements of no
more than one such separate counsel will be paid by the Company. The Company
will have the exclusive right to settle the claim or proceeding provided that
the Company will not settle any such claim, action or proceeding without the
prior written consent of Xxxxxx, which will not be unreasonably withheld;
provided, however, that such consent shall not be required if the settlement (i)
includes a full and unconditional release of Xxxxxx from all liability arising
or that may arise out of such claim or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of Xxxxxx.
13
(C) The
Company agrees to notify Xxxxxx promptly of the assertion against it or any
other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by this engagement letter.
(D) If
for any reason the foregoing indemnity is unavailable to Xxxxxx or insufficient
to hold Xxxxxx harmless, then the Company shall contribute to the amount paid or
payable by Xxxxxx as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and Xxxxxx on the other, but also the
relative fault of the Company on the one hand and Xxxxxx on the other that
resulted in such losses, claims, damages or liabilities, as well as any relevant
equitable considerations. The amounts paid or payable by a party in respect of
losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees and expenses incurred in defending any
litigation, proceeding or other action or claim. Notwithstanding the provisions
hereof, Xxxxxx’x share of the liability hereunder shall not be in excess of the
amount of fees actually received, or to be received, by Xxxxxx under this
engagement letter (excluding any amounts received as reimbursement of expenses
reasonably incurred by Xxxxxx).
(E)
These indemnification provisions shall remain in full force and effect whether
or not the transaction contemplated by this engagement letter is completed and
shall survive the termination of this engagement letter, and shall be in
addition to any liability that the Company might otherwise have to any
indemnified party under this engagement letter or otherwise.
SECTION 9. GOVERNING LAW. This
Agreement will be governed by, and construed in accordance with, the laws of the
State of New York applicable to agreements made and to be performed entirely in
such State. This Agreement may not be assigned by either party without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
permitted assigns. Any right to trial by jury with respect to any dispute
arising under this Agreement or any transaction or conduct in connection
herewith is waived. Any dispute arising under this Agreement may be brought into
the courts of the State of New York or into the Federal Court located in New
York, New York and, by execution and delivery of this Agreement, the Company
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof via
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If either party shall commence an action or
proceeding to enforce any provisions of a Transaction Document, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
14
SECTION 10. ENTIRE
AGREEMENT/MISC. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof. If any provision of
this Agreement is determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived except by an
instrument in writing signed by both Xxxxxx and the Company. The
representations, warranties, agreements and covenants contained herein shall
survive the closing of the Placement and delivery and/or exercise of the
Securities, as applicable. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or a .pdf format file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
or .pdf signature page were an original thereof.
SECTION 11. NOTICES. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified on
the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a
business day, (b) the next business day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
on the signature pages attached hereto on a day that is not a business day or
later than 6:30 p.m. (New York City time) on any business day, (c) the
business day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages
hereto.
15
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to Xxxxxx a copy of this Agreement.
|
Very
truly yours,
|
||
|
XXXXXX
& XXXXXXX, LLC
|
||
|
By:
|
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
|
||
|
Title:
Sr. Managing Director
|
||
|
Address for notice:
|
||
|
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
|
||
|
New
York, NY, 10020
|
||
|
Fax
(000) 000-0000
|
||
|
Attention: General
Counsel
|
||
Accepted
and Agreed to as of the date first written above:
|
/s/
Xxxxxxx X. Xxxxxx
|
|
|
Title: President
and CEO
|
Address for
notice:
00 Xxxxx
Xx,
Rehovot,
Israel, 76706
Attn:
General Counsel
With a
copy to:
Mintz,
Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C.
One
Financial Center
Boston,
MA 02111
Fax:
(000) 000-0000
Attention: Xxxxx
X. Xxxxx
16
