Contract
EXHIBIT
99.1
SUBSCRIPTION
AGENCY AGREEMENT dated
[ ], 2007
between CELL KINETICS LTD., an Israeli corporation, with
offices at 0 Xxxxxx Xxxxxx, Xxx 00000, Xxxxxx (the “Company”), MEDIS
TECHNOLOGIES LTD., a Delaware corporation and the corporate parent of
the Company (“Medis”), and AMERICAN STOCK TRANSFER & TRUST
COMPANY, a New York limited purpose trust company, with offices at 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, as subscription agent (the
“Agent”)
The
Company is making an offer to issue (the “Offering”) to the holders of record of
the outstanding shares of common stock of Medis Technologies Ltd (“Medis Common
Stockholders”), the right to subscribe for and purchase (“the Rights”) newly
issued shares of the Company’s ordinary shares, par value NIS $0.01 (“Common
Stock”), as described in and upon such terms as are set forth in the prospectus
(the “Prospectus”) included in the Registration Statement on Form F-1 filed by
the Company with the Securities and Exchange Commission, as amended by any
amendment filed with respect thereto (the “Registration Statement”), a final
copy of which has been or, upon availability will promptly be, delivered to
the
Agent; and
The
Company wishes the Agent to perform certain acts on behalf of the Company,
and
the Agent is willing to so act, in connection with the Offering, all upon the
terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment
of Subscription Agent. The Company hereby appoints the Agent to
act as subscription agent in connection with the Offering in accordance with
the
terms set forth in this Agreement and the Agent hereby accepts such
appointment.
2. Form
and Execution of Subscription Certificates. The certificates or
other evidences of subscription rights, in the form designated by the Company
(the “Subscription Certificates”), shall be irrevocable and
non-transferable. The Agent shall maintain a register of Subscription
Certificates and the holders of record thereof. Each Subscription
Certificate shall, subject to the provisions thereof, entitle the Medis Common
Stockholder in whose name it is recorded to subscribe during the subscription
period set forth in the Prospectus, upon payment of the subscription price
set
forth in the Prospectus, (i) for shares of Common Stock at the rate of one
share
of Common Stock for each whole Right evidenced by the Subscription Certificate
(the “Basic Subscription Privilege”) and (ii) for additional shares of Common
Stock, subject to the availability of such shares and to the allotment of such
shares as may be available on the basis specified in the Prospectus; provided,
however, that such Medis Common Stockholder has exercised its Basic Subscription
Privilege in full (the “Oversubscription Privilege”).
3. Rights
and Issuance of Subscription Certificates.
3.1 Each
Subscription Certificate shall evidence the Rights of the Medis Common
Stockholder therein named to purchase Common Stock upon the terms and conditions
therein and herein set forth.
3.2 Upon
the written advice of the Company, signed by any of its duly authorized officers
or its legal counsel on behalf of the Company, as to the record date for
determining Medis Common Stockholders entitled to participate in the Offering
(the “Record Date”), the Agent shall, from a list of the Medis Common
Stockholders as of the Record Date to be prepared by the Agent in its capacity
as Transfer Agent of Medis, prepare and record Subscription Certificates in
the
names of the Medis Common Stockholders, setting forth the number of Rights
to
subscribe for the Common Stock calculated on the basis of a ratio to be set
forth in the Prospectus and provided to the Agent by Medis and the Company
for
such purpose. The number of Rights that are issued to Medis Common
Stockholders will be rounded downwards, by the Agent, to the nearest number
of
whole Rights, as fractional Rights will not be issued. Each
Subscription Certificate shall be dated as of the Record Date and shall be
executed manually by or by facsimile signature of a duly authorized officer
of
the Agent.
3.3 Upon
the written advice, signed as aforesaid, as to the effective date of the
Registration Statement, the Agent shall promptly countersign and deliver, or
cause to be delivered, (i) by first class mail, the Subscription Certificates,
together with a copy of the Prospectus, instruction letter and any other
document
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as
the
Company deems necessary or appropriate (collectively, the “Offering Documents”),
to all Medis Common Stockholders with record addresses in the United States
(including its territories and possessions and the District of Columbia) and
Canada; provided, however, that the Agent shall not deliver the Offering
Documents to any Medis Common Stockholder upon notice to the Agent that such
stockholder has a record address in a jurisdiction in the United States
(including its territories and possessions and the District of Columbia) or
Canada where the offering is or would be unlawful (the “Other Jurisdictions”),
(ii) by first class mail, a copy of the Prospectus, instruction letter and
any
other document as the Company deems necessary or appropriate, but not
Subscription Certificate (collectively, the “Alternate Documents”), to all Medis
Common Stockholders with record addresses in Other Jurisdictions (“Other
Continental Stockholders”), (iii) by airmail, the Offering Documents, to all
Medis Common Stockholders with record addresses in the State of Israel;
provided, however, that the Agent shall not deliver the Offering Documents
to
any Medis Common Stockholder with a record address in the State of Israel upon
notice to the Agent that the Offering is or would be unlawful and (iv) by air
mail, a copy of the Alternate Documents to Medis Common Stockholders whose
record addresses are outside the United States (including its territories and
possessions and the District of Columbia), and Israel (collectively with the
Other Continental Stockholders, “Other Stockholders”). The Agent will
hold Subscription Certificates for the account of any Other Stockholder, subject
to such Other Stockholder making satisfactory arrangements with the Agent for
the exercise of the Rights evidenced thereby, and follow the instructions of
such Other Stockholder for the exercise of such Rights if such instructions
are
received by the Expiration Date (as hereinafter defined).
4. Exercise.
4.1 Medis
Common Stockholders may acquire shares of Common Stock under their Basic
Subscription and Oversubscription Privileges by delivering to the Agent as
specified in the Prospectus (i) the Subscription Certificate with respect
thereto, duly executed by such stockholder in accordance with and as provided
by
the terms and conditions of the Subscription Certificate, together with (ii)
the
purchase price as disclosed in the Prospectus for each share of
Common Stock subscribed for by exercise of such Basic Subscription and
Oversubscription Privileges, in U.S. dollars by wire transfer of immediately
available funds or by money order or check drawn on a bank in the United States,
in each case payable to the order of the Agent, as Subscription
Agent.
4.2 Rights
may be exercised at any time after the date of issuance of the Subscription
Certificates with respect thereto but no later than 5:00 P.M. New
York time on such date as the Company shall designate to the Agent in writing
(the “Expiration Date”). For the purpose of determining the time of
the exercise of any Rights, delivery of any material to the Agent shall be
deemed to occur when such materials are received by the Agent as specified
in
the Prospectus.
4.3 Notwithstanding
the provisions of Section 4.1 and 4.2 regarding delivery of an executed
Subscription Certificate to the Agent prior to 5:00 P.M. New York time on the
Expiration Date, if prior to such time the Agent receives (i) a Notice of
Guaranteed Delivery by facsimile or otherwise from a bank, a trust company
or a
New York Stock Exchange member guaranteeing delivery of a properly completed
and
executed Subscription Certificate and (ii) full payment for the Common Stock,
then such exercise of Basic Subscription and Oversubscription Privileges shall
be regarded as timely, subject, however, to receipt by the Agent of the duly
executed Subscription Certificate within three Business Days (as defined below)
after the Expiration Date. For the purposes of the Prospectus and
this Agreement, “Business Day” shall mean any day on which trading is conducted
on the New York Stock Exchange.
4.4 Any
excess payment to be refunded by the Company to a Medis Common Stockholder
will
be mailed by the Agent as soon as practicable after the Expiration
Date. The Agent will not issue or deliver certificates for shares of
Common Stock subscribed for until payment in full therefore has been received,
including collection of checks and payment pursuant to notices of guaranteed
delivery.
5. Validity
of Subscriptions. Irregular subscriptions not otherwise covered
by specific instructions herein shall be submitted to an appropriate officer
of
the Company and handled in accordance with his instructions. Such
instructions will be documented by the Agent indicating the instructing officer
and the date thereof.
6. Oversubscription. If,
after allocation of shares of Common Stock to Medis Common Stockholders, there
remain unexercised Rights, then the Agent shall allot the shares issuable upon
exercise of such unexercised Rights (the “Remaining Shares”) to Medis Common
Stockholders who have exercised all of their Basic Subscription Privilege and
who have exercised an Oversubscription Privilege. Shares subscribed
for pursuant to the Oversubscription Privilege will be allocated in the amounts
of such oversubscriptions if remaining sufficient shares
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are
available. If the number of shares for which the Oversubscription
Privilege has been exercised is greater than the Remaining Shares, the Agent
shall allocate the Remaining Shares to Medis Common Stockholders exercising
Oversubscription Privileges based on the number of shares of Common Stock
purchased by each of them pursuant to the Basic Subscription
Privilege. The percentage of Remaining Shares each over-subscribing
stockholder may acquire will be rounded downwards, to result in delivery of
whole shares of Common Stock. The Agent shall advise the Company
immediately upon the completion of the allocation set forth above as to the
total number of shares subscribed and distributable.
7. Delivery
of Certificates. The Agent will deliver (i) certificates
representing those shares of Common Stock validly purchased pursuant to exercise
of Basic Subscription Privileges as soon as practicable after the Expiration
Date and (ii) certificates representing those shares of Common Stock validly
purchased pursuant to the exercise of the Oversubscription Privilege as soon
as
practicable after the Expiration Date and after all allocations under the Basic
Subscription Privileges have been effected.
8. Holding
Proceeds of Rights Offering in Escrow.
8.1 All
proceeds received by the Agent from Medis Common Stockholders in respect of
the
exercise of Rights shall be held by the Agent, on behalf of the Company, in
a
segregated, interest-bearing account (the “Account”).
8.2 The
Agent shall distribute to the Company the funds held in the Account, including
accrued interest, as promptly as practicable after the Expiration Date, as
designated to the Agent in writing, but in no event later than ten business
days
after the Expiration Date.
9. Reports. The
Agent shall advise by facsimile transmission Xx. Xxx-Xxxx, the President of
the
Company (at the facsimile number [_______]), the Company’s legal counsel and
such other person or persons as the Company may request, daily up to and
including the Expiration Date, regarding Rights exercised, the total number
of
shares of Common Stock subscribed for, and payments received therefor, bringing
forward the figures from the previous day’s report in each case so as to show
the cumulative totals and any such other information as may be mutually
determined by the Company and the Agent.
10. Loss
or Mutilation. If any Subscription Certificate is lost, stolen,
mutilated or destroyed, the Agent may, on such terms which will indemnify and
protect the Company and the Agent as the Agent may in its discretion impose
(which shall, in the case of a mutilated Subscription Certificate, include
the
surrender and cancellation thereof), issue a new Subscription Certificate of
like denomination in substitution for the Subscription Certificate so lost,
stolen, mutilated or destroyed.
11. Compensation
for Services. The Company agrees to pay to the Agent
compensation for its services as such in accordance with its Fee Schedule to
act
as Agent, set forth hereto as Exhibit A. The Company further agrees
that it will reimburse the Agent for its reasonable out-of-pocket expenses
incurred in the performance of its duties as such.
12. Instructions
and Indemnification. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and
conditions:
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(a)
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The
Agent shall be entitled to rely upon any instructions or directions
furnished to it by an appropriate officer of the Company, whether
in
conformity with the provisions of this Agreement or constituting
a
modification hereof or a supplement hereto. Without limiting
the generality of the foregoing or any other provision of this Agreement,
the Agent, in connection with its duties hereunder, shall not be
under any
duty or obligation to inquire into the validity or invalidity or
authority
or lack thereof of any instruction or direction from an officer of
the
Company which conforms to the applicable requirements of this Agreement
and which the Agent reasonably believes to be genuine and shall not
be
liable for any delays, errors or loss of data occurring by reason
of
circumstances beyond the Agent’s
control.
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(b)
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The
Company will indemnify the Agent and its nominees against, and hold
it
harmless from, all liability and expense which may arise out of or
in
connection with the services described in this Agreement or the
instructions or directions furnished to the Agent relating to this
Agreement by an appropriate officer of the Company, except for any
liability or expense which shall arise out of the negligence, bad
faith or
willful misconduct of the Agent or such
nominees.
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13. Changes
in Subscription Certificate. The Agent may, without the consent
or concurrence of the Medis Common Stockholders in whose names Subscription
Certificates are registered, by supplemental agreement or otherwise, concur
with
the Company in making any changes or corrections in a Subscription Certificate
that it shall
3
have
been
advised by counsel (who may be counsel for the Company) is appropriate to cure
any ambiguity or to correct any defective or inconsistent provision or clerical
omission or mistake or manifest error therein contained, and which shall not
be
inconsistent with the provision of the Subscription Certificate, except insofar
as any such change may confer additional rights upon the Medis Common
Stockholders.
14. Miscellaneous
Provisions.
14.1 Assignment,
Delegation. Neither this Agreement nor any rights or obligations
hereunder may be assigned or delegated by either party without the prior written
consent of the other party.
14.2 Successors. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns. Nothing in this
Agreement is intended or shall be construed to confer upon any other person
any
right, remedy or claim or to impose upon any other person any duty, liability
or
obligation. The Agent may, without further consent on the part of the
Company, subcontract with subcontractors for systems, processing, and telephone
and mailing services as may be required from time to time; provided, however,
that the Agent shall be as fully responsible to the Company for the acts and
omissions of any subcontractor as it is for its own acts and
omissions.
14.3 Notices. Any
notice, statement or demand authorized by this Agreement to be given or made
by
the Agent or by the Company shall be sufficiently given or made if sent by
certified mail, or private courier service, postage prepaid, addressed (until
another address is filed in writing by either the Company or the Agent), as
follows:
If
to the
Company:
0
Xxxxxx
Xxxxxx
Xxx
00000
Xxxxxx
Attn:
Xx.
Xxx-Xxxx, President
With
a
copy to:
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxx
X. Xxxxxxx, Esq.
If
to the
Agent:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Compliance
Department
14.4 Applicable
law. The validity, interpretation, and performance of this
Agreement shall be governed in all respects by the laws of the State of New
York, without giving effect to conflict of laws. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any such process or summons to be served upon the
Company may be served by transmitting a copy thereof by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 8.2 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action,
proceeding or claim.
14.5 Third
Party Beneficiaries. This Agreement does not constitute an
agreement for a partnership or joint venture between the Agent and the
Company. Neither Party shall make any commitments with third parties
that are binding on the other party without the other party’s prior written
consent.
14.6 Consequential
Damages. Neither party to this Agreement shall be liable to the
other party for any consequential, indirect, special or incidental damages
under
any provisions of this Agreement or for any consequential, indirect, special
or
incidental damages arising out of any act or failure to act hereunder
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even
if
that party has been advised of or has foreseen the possibility of such
damages.
14.7 Severability. If
any provision of this Agreement shall be held invalid, unlawful, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
14.8 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall be considered one and the
same agreement.
14.9 Captions. The
captions and descriptive headings herein are for the convenience of the parties
only. They do not in any way modify, amplify, alter or give full
notice of the provisions hereof.
14.10 Term. This
agreement shall remain in effect until either party gives to the other thirty
(30) days’ written notice to such effect. Upon termination of the
Agreement, the Agent shall retain all canceled Certificates and related
documentation as required by applicable law.
14.11 Merger
of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect
to
the subject matter hereof whether oral or written.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by
their respective officers, hereunto dully authorized, as of the day
and
year first above written.
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By:
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Name:
Title:
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AMERICAN
STOCK TRANSFER & TRUST COMPANY, as Subscription Agent
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By:
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Name:
Title:
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MEDIS
TECHNOLOGIES LTD.
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By:
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Name:
Title:
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EXHIBIT
A
FEE
SCHEDULE
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$[ ]
plus expenses
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7
