SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of March 17, 2006, among XTL Biopharmaceuticals Ltd., a
public
company limited by shares organized under the laws of the State of Israel
(the
“Company”),
and
the purchasers identified on the signature pages hereto (each a “Purchaser”
and
collectively the “Purchasers”);
and
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act (as defined below), and Rule 506
promulgated thereunder, the Company desires to issue and sell to the Purchasers,
and the Purchasers, severally and not jointly, desire to purchase from the
Company (the “Offering”)
in the
aggregate, up to 46,666,670 Shares and Warrants (each as defined below) to
purchase up to an additional 23,333,335 Ordinary Shares (as defined below)
(the
“Maximum
Offering Amount”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agrees as follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms have the meanings indicated in this Section
1.1:
“Affiliate”
means
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. With respect to a
Purchaser, any investment fund or managed account that is managed on a
discretionary basis by the same investment manager as such Purchaser will be
deemed to be an Affiliate of such Purchaser.
“Business
Day”
means
any day except Saturday, Sunday and any day which shall be a federal legal
holiday or a day on which banking institutions in the State of New York are
authorized or required by law or other governmental action to close.
“Closing”
means
the closing of the purchase and sale of the Shares pursuant to this Agreement.
“Closing
Date”
means
March 22, 2006.
“Commission”
means
the Securities and Exchange Commission.
“Company
Counsel”
means
Xxxxxx & Bird LLP.
“Effective
Date”
means
the date that the Registration Statement is first declared effective by the
Commission.
“Escrow
Agent”
means
JPMorgan Chase Bank, N.A., a national banking association.
“Escrow
Agreement”
means
the Escrow Agreement, dated as of the date of the Agreement, among the Company,
the Escrow Agent, and the placement agents listed therein.
“Escrowed
Funds”
has
the
meaning ascribed to such term in Section 2.2(b)(vi) of this
Agreement.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Expiration
Date”
shall
mean March 31, 2006, or such other date within 30 days thereafter as may be
selected by the Company in its sole discretion without notice to investors.
“Israeli
Company Counsel”
means
Xxxxxx & Co.
“Liens”
means
a
lien, charge, security interest, encumbrance, right of first refusal or other
restriction.
“Material
Adverse Effect”
shall
have the meaning ascribed to such term in Section 3.1(a).
“Ordinary
Shares”
means
the Company’s ordinary shares, par value NIS 0.02.
“Per
Share Purchase Price”
equals
$0.60; equivalent to $6.00 per ADR.
“Person”
means
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.
“Placement
Agent Agreement”
means
the Placement Agent Agreement, dated March 17, 2006, between the Company and
certain placement agents listed therein.
“Placement
Agents”
means
the placement agents named in the Placement Agent Agreement.
“Registration
Statement”
means
a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Shares, the
Warrants and the Warrant Shares.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of the date of this Agreement,
among
the Company and each Purchaser, in the form of Exhibit A hereto.
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“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities”
means
the
Shares, the Warrants, and the Warrant Shares.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shares”
means
the Ordinary Shares issuable to each Purchaser pursuant to this Agreement,
excluding the Warrant Shares.
“Subscription
Amount”
means,
as to each Purchaser and the Closing, the amounts set forth below such
Purchaser’s signature block on the signature page hereto, in United States
dollars and in immediately available funds.
“Trading
Day”
means
(i) a day on which American Depositary Receipts representing Ordinary
Shares (“ADRs”),
are
traded on a Trading Market, or (ii) if the ADRs are not listed on a Trading
Market, a day on which the ADRs are traded on the over-the-counter market,
as
reported by the OTC Bulletin Board, or (iii) if the ADRs are not quoted on
the OTC Bulletin Board, a day on which the ADRs are quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding to its functions
of reporting prices); provided, that in the event that the ADRs are not listed
or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
“Trading
Market”
means
the following markets or exchanges on which the ADRs are listed or quoted for
trading on the date in question: the American Stock Exchange, the New York
Stock
Exchange, or the Nasdaq Stock Market.
“Transaction
Documents”
means
this Agreement, the Registration Rights Agreement, the Warrant, the Escrow
Agreement and any other documents or agreements executed in connection with
the
transactions contemplated hereunder.
“Warrants”
mean the
Ordinary Share Purchase Warrants, in the form of Exhibit B, issuable to the
Purchasers at Closing, which warrants shall be exercisable immediately and
have
an exercise price equal to $0.875 per ordinary share, the equivalent of $8.75
per ADR, and a term of exercise of five (5) years.
“Warrant
Shares”
means
the Ordinary Shares issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
Each
Purchaser shall purchase from the Company, and the Company shall issue, on
the
terms and conditions set forth in this Agreement, and sell to each Purchaser,
a
number of Shares equal to such Purchaser’s Subscription Amount divided by the
Per Share Purchase Price, and a number of Warrants equal to fifty percent (50%)
of the Shares to be issued to each Purchaser. Upon satisfaction of the
conditions set forth in Section 2.2, the Closing shall occur at the offices
of
the Company, or such other location as the parties shall mutually agree. The
Company may continue the Offering, in one or more Closings, until the earlier
of
the sale of the Maximum Offering Amount or until the Expiration Date. Purchasers
will be required to deliver executed, binding Securities Purchase Agreements
by
the Expiration Date, the Closing of which will only be subject to the
satisfaction of the Closing conditions in Section 2.2.
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2.2
Closing Conditions.
(a) As
a
condition to the Purchasers’ obligation to close, at the Closing (unless
otherwise specified below) the Company shall have satisfied each of the
conditions set forth below or shall deliver or cause to be delivered to each
Purchaser the items set forth below, as appropriate, any one or more of which
may be waived in writing by the Purchasers:
(i) this
Agreement duly executed by the Company;
(ii) within
five (5) Business Days of the Closing Date, a Warrant, registered in the name
of
each Purchaser, pursuant to which such Purchaser shall have the right to acquire
up to the number of Ordinary Shares equal to fifty percent (50%) of the Shares
to be issued in the name of such Purchaser at Closing;
(iii)
the
Registration Rights Agreement duly executed by the Company;
(iv) the
Escrow Agreement duly executed by the Company, the Escrow Agent and the
placement agents listed therein;
(v) a
legal
opinion of each of Company Counsel and Israeli Company Counsel, in the forms
in
Exhibit C attached hereto;
(vi) the
representations and warranties made by the Company herein shall be true and
correct in all material respects (except any representation and warranty that
is
qualified by materiality or Material Adverse Effect shall be true and correct
in
all respects) as of the date hereof and as of the Closing Date with the same
effect as if the representations and warranties were made as of the date hereof
and as of the Closing Date;
(vii) all
covenants, agreements and conditions contained in this Agreement to be performed
by the Company on or prior to the Closing shall have been performed or complied
with in all material respects;
(viii) no
statute, rule, regulation, order, decree, ruling or injunction shall have been
enacted, entered, promulgated, endorsed or threatened or is pending by or before
any governmental authority of competent jurisdiction which in any material
respect restricts, prohibits or threatens to restrict or prohibit the
consummation of any of the transactions contemplated by the Transaction
Documents;
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(ix) as
of the
Closing Date, there shall have been no Material Adverse Effect with respect
to
the Company since the date hereof;
(x) at
the
time of the execution of this Agreement, the Placement Agent shall have received
from PricewaterhouseCoopers LLP a letter, addressed to the Placement Agents
and
the Purchasers and dated such date, in form and substance reasonably
satisfactory to the Placement Agents (i) confirming that they are independent
certified public accountants with respect to the Company within the meaning
of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X
of the Commission and (ii) stating the conclusions and findings of such firm
with respect to the financial statements and certain financial information
contained or attached as exhibits to the Private Placement Memorandum;
and
(xi) with
respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding
paragraph and delivered to the Placement Agents and the Purchasers concurrently
with the execution of this Agreement (the “initial
letter”),
the
Company shall have furnished to the Placement Agents and the Purchasers a letter
(including any supplemental letter, the “bring-down
letter”)
of
such accountants, addressed to the Placement Agents and the Purchasers and
dated
the Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Private Placement Memorandum, as of a date not
more
than three days prior to the date of the bring-down letter), the conclusions
and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial
letter.
With
respect to the closing conditions listed in (vi), (vii), (viii) and (ix) above,
the Company shall deliver a certificate to such effect, in form and substance
reasonably satisfactory to the Placement Agents.
(b) As
a
condition to the Company’s obligation to close, at the Closing, each Purchaser
shall have satisfied each of the conditions set forth below or shall deliver
or
cause to be delivered to the Company the items set forth below, as appropriate,
any one or more of which may be waived in writing by the Company:
(i) this
Agreement duly executed by such Purchaser;
(ii) the
Registration Rights Agreement duly executed by such Purchaser;
(iii) the
representations and warranties made by the Purchasers herein shall be true
and
correct in all material respects (except any representation and warranty that
is
qualified by materiality or Material Adverse Effect shall be true and correct
in
all respects) as of the date hereof and as of the Closing Date with the same
effect as if the representations and warranties were made as of the date hereof
and as of the Closing Date;
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(iv) the
Escrow Agreement duly executed by the Company, the Escrow Agent and the
placement agents listed therein;
(v) each
Purchaser shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by such Purchaser at
or
before the Closing;
(vi) no
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated, endorsed or threatened or is pending
by
or before any governmental authority of competent jurisdiction which prohibits
or threatens to prohibit the consummation of any of the transactions
contemplated by the Transaction Documents; and
(vii) each
Purchaser shall have caused
such Purchaser’s Subscription Amount to be deposited by wire transfer of
immediately available funds to such non-interest bearing escrow account of
the
Escrow Agent as the Escrow Agent shall designate (the “Escrowed
Funds”),
and the
Escrow Agent shall have confirmed that it is prepared to transfer such amount
to
the Company subject only to satisfaction of the receipt of the certificate
provided in Section 2.3 hereof; and
(viii) as
of the
Closing Date, there shall have been no Material Adverse Effect with respect
to
the Company since the date hereof.
2.3 Escrow
Arrangement.
Each
Purchaser shall be deemed to have irrevocably instructed the Escrow Agent to
deliver such Purchaser’s Escrowed Funds to such bank account(s) of the Company
as the Company shall have specified to the Escrow Agent on the Effective Date,
subject only to the Escrow Agent having received
a
certificate, dated the Effective Date, executed by the Company certifying that
the Registration Statement shall have been declared effective by the Commission.
Following
delivery to the Escrow Agent of the certificate referred to in this Section
2.3,
(i) the Escrow Agent shall promptly cause the Escrowed Funds to be sent by
wire
transfer to the bank account(s) specified by the Company in writing, and (ii)
the Company shall cause to be delivered to The Bank of New York a single
certificate for Ordinary Shares, registered in the name of The Bank of New
York
or its designee, on the Effective Date, and shall thereafter cause The Bank
of
New York to immediately issue ADRs registered in the name of such Purchaser
or
its designee, representing the number of Shares acquired by such Purchaser,
in
accordance with Section 4.10 hereof. If the Company has not delivered to the
Escrow Agent a certificate certifying that the Registration Statement shall
have
been declared effective by the Commission, on or before March 15, 2007, then
the
Company shall deliver to the Escrow Agent a notice terminating the Offering
upon
the receipt of which the Escrow Agent shall distribute the Escrowed Funds to
each Purchaser.
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2.4 Satisfaction
of Conditions.
Following the deposit of the Escrowed Funds by the Purchaser with the Escrow
Agent pursuant to Section 2.2(b)(vi), this Agreement shall become wholly
unconditional save for the satisfaction of the condition specified in Section
2.3 and shall not be capable of termination or rescission save for the
non-satisfaction of such condition.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company. The
Company and XTL Biopharmaceuticals Inc., a Delaware corporation (the
“Subsidiary”),
the
Company’s sole subsidiary, hereby make the following representations and
warranties as of the date hereof and as of the Closing Date to each Purchaser:
(a) Organization
and Qualification. Each
of
the Company and the Subsidiary is an entity duly organized, validly existing
and
in good standing under the laws of the jurisdiction of its respective
organization, with the requisite corporate power and authority to own and use
its properties and assets and to carry on its business as currently conducted.
Neither the Company nor the Subsidiary is in violation of any of the provisions
of its Memorandum and Articles of Organization, bylaws, or other organizational
documents. The Company has no wholly-owned subsidiaries other than the
Subsidiary. Each of the Company and the Subsidiary 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, would 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, properties,
business or financial condition of the Company or the Subsidiary, 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”).
(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 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 shareholders
in
connection therewith. Each Transaction Document has been (or, if executed after
the date hereof, upon delivery will be) duly executed by the Company and, when
delivered in accordance with the terms hereof, 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, and (iii) with respect to the indemnification
provisions set forth in the Registration Rights Agreement, as limited by public
policy.
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(c) No
Conflicts. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated thereby
do
not and will not (i) conflict with or violate any provision of the
Company’s or the Subsidiary’s Memorandum and Articles of Association, bylaws or
other organizational 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, 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 debt
of
the Company or the Subsidiary or otherwise) or other understanding to which
the
Company or the Subsidiary is a party or by which any property or asset of the
Company or the Subsidiary is bound or affected, or (iii) 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
Subsidiary is subject (including U.S. federal and state securities laws and
regulations and the rules and regulations of any Trading Market), or by which
any property or asset of the Company or the Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as would 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 U.S. federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company of
the
Transaction Documents, other than (i) the filing with the Commission of the
Registration Statement, and one or more Forms D with respect to the Securities
as may be required under Regulation D of the Securities Act, the
application(s) to each Trading Market for the listing of the ADRs representing
the Securities for trading thereon in the time and manner required thereby,
and
applicable Blue Sky filings, (ii) the listing of the Securities on the London
Stock Exchange, in accordance with a prospectus to be filed with the United
Kingdom Listing Authority, and (iii) such as have already been obtained or
such exemptive filings as are required to be made under applicable state and
federal securities laws.
(e) Capitalization.
As
of the
date hereof, the authorized capital stock of the Company consists of 300,000,000
Ordinary Shares, of which 173,197,930 Ordinary Shares are outstanding. All
of
the outstanding Ordinary Shares are, and all of the Shares and Warrant Shares,
when issued, will be, duly authorized, validly issued, fully paid and
nonassessable, and free and clear of all liens created by the Company, and
all
such Ordinary Shares were, and the Shares and Warrant Shares will be, issued
in
material compliance with all applicable U.S. federal and state securities laws,
including available exemptions therefrom, and none of such issuances were,
and
the issuance of the Shares and Warrant Shares will not be, made in violation
of
any pre-emptive or other rights. The Company has reserved from its duly
authorized capital stock the maximum number of Shares and Warrant Shares
issuable pursuant to this Agreement. The issuance of the Shares and Warrant
Shares will not trigger any anti-dilution rights of any existing securities
of
the Company. Except for options to purchase 42,425,205 Ordinary Shares and
warrants to purchase up to 23,000,000 Ordinary Shares, as of the Closing Date,
there will be no rights, subscriptions, warrants, options, conversion rights,
or
agreements of any kind outstanding to purchase from the Company, or otherwise
require the Company to issue, any shares of capital stock of the Company or
securities or obligations of any kind convertible into or exchangeable for
any
shares of capital stock of the Company.
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(f) Reports
and Financial Statements.
The
Company has filed all reports required to be filed by it under the Exchange
Act
on a timely basis or has received a valid extension of such time of filing
and
has filed any such reports prior to the expiration of any such extension. The
Company has made available to the Purchasers, prior to the execution of this
Agreement, a copy of the Company’s registration statement on Form 20-F filed
with the Commission on July 14, 2005, as amended, and will make available any
Current Reports on Form 6-K filed by the Company (as such documents have since
the time of their filing been amended or supplemented, and together with all
reports, documents and information filed on or after the date first written
above through the date of Closing with the Commission, including all information
incorporated therein by reference, collectively, the “SEC
Reports”).
The
SEC Reports (a) complied and will comply as to form in all material respects
with the requirements of the Securities Act and the Exchange Act, and (b) did
not, at the time of their filing, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The
financial statements included in the SEC Reports comply in all material respects
with the applicable accounting requirements and the rules and regulations of
the
SEC with respect thereto as in effect at the time of filing. The financial
statements included in the SEC Reports and the Confidential Private Placement
Memorandum, dated March 17, 2006 prepared by the Company, including all
exhibits, supplements and amendments thereto (the “Private
Placement Memorandum”),
have
been prepared in accordance with generally accepted accounting principles in
the
United States applied on a consistent basis (“GAAP”),
and
fairly represent the financial position of the Company and its Subsidiary 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,
year-end audit adjustments and the omission of certain footnotes.
(g) No
Material Change.
Since
December 31, 2005, and except as disclosed in its SEC Reports, (i) the Company
has not incurred any material liabilities or obligations, indirect, or
contingent, or entered into any material oral or written agreement or other
transaction which is not in the ordinary course of business or which could
reasonably be expected to result in a material reduction in the future earnings
of the Company; (ii) the Company has not sustained any loss or interference
with
its businesses or properties (whether or not covered by insurance) that could
reasonably be expected to have a Material Adverse Effect; (iii) the Company
has
not paid or declared any dividends or other distributions with respect to its
capital stock, or redeemed or purchased or otherwise acquired any of its stock
and the Company is not in default in the payment of principal or interest on
any
outstanding debt obligations; (iv) the Company has not changed any compensation
arrangement or agreement with any of its key employees or executive officers,
or
change the rate of pay of its employees as a group, other than in the ordinary
course of business; (v) the Company has not changed or amended any contract
by
which the Company or any of its asset are bound or subject that would have
a
Material Adverse Effect; (vi) there has not been any change in the capital
stock
of the Company other than the sale of the Securities hereunder or shares or
options issued pursuant to employee equity incentive plans or purchase plans
approved by the Company’s Board of Directors, or indebtedness not incurred in
the ordinary course of business that is material to the Company; and (vii)
there
has not been any other event which has caused, or is likely to cause, a Material
Adverse Effect.
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(h) Litigation.
Except
as
would not reasonably be expected to result in a Material Adverse Effect on
the
Company, there is no action, suit, claim, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory
organization or body pending against or, to the knowledge of the Company,
threatened against the Company or the Subsidiary. The Company is not subject
to
any order, writ, judgment, injunction, decree or award of any court or any
governmental authority which would reasonably be expected to result in a
Material Adverse Effect on the Company.
(i) Compliance.
The
Company has not been advised, nor does the Company have reason to believe,
that
it is not conducting its business in compliance with all applicable laws, rules
and regulations of the jurisdictions in which it is conducting its business,
except where failure to be so in compliance would not reasonably be expected
to
have a Material Adverse Effect.
(j) Intellectual
Property.
(i) The
Company owns or has obtained licenses or options for the inventions, patent
applications, patents, trademarks (both registered and unregistered), trade
names, copyrights and trade secrets necessary for the conduct of the Company’s
business as currently conducted (collectively, the “Intellectual
Property”);
and
(ii) (a) to the knowledge of the Company, there are no third parties who have
any ownership rights to any Intellectual Property that is owned by, or has
been
licensed to, the Company for the products described in the Private Placement
Memorandum that would preclude the Company from conducting its business as
currently conducted and have a Material Adverse Effect, except for the ownership
rights of the owners of the Intellectual Property licensed or optioned by the
Company; (b) there is no pending or, to the Company’ s knowledge, threatened
action, suit, proceeding or claim by others challenging the rights of the
Company in or to any Intellectual Property owned, licensed or optioned by the
Company, other than claims which would not reasonably be expected to have a
Material Adverse Effect; (c) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the validity
or scope of any Intellectual Property owned, licensed or optioned by the
Company, other than non-material actions, suits, proceedings and claims; and
(d)
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary right of
others, other than non-material actions, suits, proceedings and
claims.
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(k) Material
Agreements.
All
material agreements (“Material
Agreements”)
to
which the Company or the Subsidiary is a party or to which the property or
assets of the Company or the Subsidiary are subject are included as part of
or
specifically identified in the SEC Reports to the extent required by the rules
and regulations of the SEC as in effect at the time of filing. Except for the
Material Agreements, the Company has no material contracts. Neither the Company
nor, to the Company’s knowledge, any other party to the Material Agreements, is
in breach of or default under any of such contracts which would reasonably
be
expected to have a Material Adverse Effect.
(l) Taxes.
Except
as disclosed in the Private Placement Memorandum or the SEC Reports, the Company
and the Subsidiary have 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
or
might be asserted or threatened against it which might reasonably be expected
to
have a Material Adverse Effect.
(m) Governmental
Permits, Etc.
The
Company has all franchises, licenses, certificates and other authorizations
from
such federal, state or local government or governmental agency, department
or
body that are currently required for the operation of the business of the
Company as currently conducted, except where the failure to posses currently
such franchises, licenses, certificates and other authorizations is not
reasonably expected to have a Material Adverse Effect. The Company has not
received any notice of proceedings relating to the revocation or modification
of
any such permit which, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to have a Material Adverse
Effect.
(n) Conformity
of Descriptions.
The
Shares and Warrant Shares conform in all material respects to the descriptions
of the Company’s Ordinary Shares contained in the Company’s SEC Reports and
other filings with the Commission and the Private Placement
Memorandum.
(o) Statements
True and Correct. No
representation, warranty, statement, certificate, instrument, or other writing
furnished or to be furnished by the Company to Purchaser or its representatives
pursuant to this Agreement, the Private Placement Memorandum or any other
document, agreement, or instrument referred to herein contains or will contain
any untrue statement of material fact or will omit to state a material fact
necessary to make the statements therein not misleading.
(p) Certain
Fees. Any
brokerage, finder’s fees or commissions that 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 this Agreement will be paid solely by the Company.
(q) Private
Placement. Neither
the Company nor any Person acting on behalf of the Company has sold or offered
to sell or solicited any offer to buy the Securities by means of any form of
general solicitation or advertising. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer, issuance and sale of the
Securities by the Company to the Purchasers as contemplated hereby. The issuance
and sale of the Securities hereunder does not contravene the rules and
regulations of any Trading Market.
-11-
(r) Offering
Materials.
The
Company has not distributed and will not distribute prior to the Closing Date
any offering material in connection with the offering and sale of the Securities
other than the Private Placement Memorandum or any amendment or supplement
thereto. Neither the Company nor any person acting on its behalf has in the
past
or will hereafter take any action independent of the placement agent to sell,
offer for sale or solicit offers to buy any securities of the Company which
would subject the offer, issuance or sale of the Securities, as contemplated
by
this Agreement, to the registration requirements of Section 5 of the Securities
Act.
(s) Investment
Company. The
Company is not, and is not an Affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(t) Application
of Takeover Protections. Assuming
the Purchasers beneficially own any Ordinary Shares prior to the date hereof,
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 charter documents)
or the laws of its jurisdiction of organization 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 the Company’s issuance of the Shares and
the Warrant Shares and the Purchasers’ ownership of the Shares and the Warrants.
(u) No
Integrated Offering. Neither
the Company, nor any of its Affiliates, nor any Person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security
or
solicited any offers to buy any security, under circumstances that would cause
this offering of the Shares and Warrants to be integrated with prior offerings
by the Company for purposes of the Securities Act or any applicable shareholder
approval provisions, including, without limitation, under the rules and
regulations of any exchange or automated quotation system on which any of the
securities of the Company are listed or designated.
(v) Listing
and Maintenance Requirements.
The
Company has been in compliance with all listing and maintenance requirements
of
each applicable Trading Market, the London Stock Exchange and the Tel Aviv
Stock
Exchange. The Company has not, in the 12 months preceding the date hereof,
received notice from any Trading Market on which the Ordinary Shares or ADRs
representing Ordinary Shares are or have been listed or quoted, the London
Stock
Exchange or the Tel Aviv Stock Exchange to the effect that the Company is not
in
compliance with the listing or maintenance requirements of such 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.
-12-
(w) Xxxxxxxx-Xxxxx;
Internal Accounting Controls.
The
Company is in material compliance with all provisions of the Xxxxxxxx-Xxxxx
Act
of 2002 which are applicable to it as of the Closing Date. The
Company has disclosure controls and procedures (as defined in Rule 13a-14 under
the Exchange Act) that are designed to ensure that material information relating
to the Company is made known to the Company’s principal executive officer and
the Company’s principal financial officer or persons performing similar
functions.
(x) Disclosure.
The
Company confirms that, neither the Company nor any other Person acting on its
behalf has provided any of the Purchasers or their agents or counsel with any
information, other than information relating to the Offering, that constitutes
or might constitute material, non-public information. The Company understands
and confirms that the Purchasers will rely on the foregoing representations
and
covenants in effecting transactions in securities of the Company. All disclosure
provided to the Purchasers regarding the Company, its business and the
transactions contemplated hereby, including the Private Placement Memorandum
and
the Exhibits to this Agreement, furnished by or on behalf of the Company with
respect to the representations and warranties made herein are true and correct
with respect to such representations and warranties and do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The Company acknowledges and agrees
that no Purchaser makes or has made any representations or warranties with
respect to the transaction contemplated hereby other than those specifically
set
forth in Section 3.2 hereof.
(y) Independent
Public Accountants.
The
Company confirms that Xxxxxxxxx
& Xxxxxxxxx, Israeli certified public accounts and a member of
PricewaterhouseCoopers International Limited, are independent public accountants
as required by the Securities Act and the rules and regulations promulgated
thereunder.
3.2 Representations
and Warranties of the Purchasers. Each
Purchaser hereby, for itself and for no other Purchaser, represents and warrants
as of the date hereof and as of the Closing Date to the Company as follows:
(a) Organization;
Authority. Such
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate, limited liability or partnership power and authority to enter into
and to consummate the transactions contemplated by the Transaction Documents
and
otherwise to carry out its obligations thereunder. The execution, delivery
and
performance by such Purchaser of the transactions contemplated by this Agreement
have been duly authorized by all necessary corporate or similar action on the
part of such Purchaser. Each Transaction Document to which it is a party has
been duly executed by such Purchaser, and when delivered by such Purchaser
in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it 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, and (iii) with respect to the indemnification
provisions set forth in the Registration Rights Agreement, as limited by public
policy.
-13-
(b) General
Solicitation. Such
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(c) No
Public Sale or Distribution. Such
Purchaser is acquiring the Securities for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the Securities
Act; provided,
however,
that by
making the representations herein, such Purchaser does not agree to hold any
of
the Securities for any minimum or other specific term and reserves the right
to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act. Such Purchaser
is acquiring the Securities hereunder in the ordinary course of its business.
Such Purchaser does not have any agreement or understanding, directly or
indirectly, with any Person to distribute any of the Securities.
(d) Accredited
Investor Status. Such
Purchaser is an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D.
(e) Reliance
on Exemptions. Such
Purchaser understands that the Securities are being offered and sold to it
in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part
upon the truth and accuracy of, and such Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Purchaser set forth herein and on the signature page hereto in order to
determine the availability of such exemptions and the eligibility of such
Purchaser to acquire the Securities.
(f) Information;
Confidentiality. Such
Purchaser and its advisors, if any, have been furnished with all publicly
available materials relating to the business, finances and operations of the
Company and such other publicly available materials relating to the offer and
sale of the Securities as have been requested by such Purchaser. The Purchaser
acknowledges and understands that the fact that the Company is seeking to effect
the private placement of the Securities is itself material, non-public
information, andaccordingly,
the Purchaser agrees not to engage in disclosure
of such information or use of such information by the Purchaser or anyone
receiving such information from the Purchaser in connection with the purchase,
sale or trade of the Company’s securities (other than use by the Purchaser in
acquiring the Securities), or any hedging, derivative or similar transactions
or
activities involving the Company’s securities. Such Purchaser and its advisors,
if any, have been afforded the opportunity to ask questions of the Company.
Neither such inquiries nor any other due diligence investigations conducted
by
such Purchaser or its advisors, if any, or its representatives shall modify,
amend or affect such Purchaser’s right to rely on the Company’s representations
and warranties contained herein. Such Purchaser understands that its investment
in the Securities involves a high degree of risk. Such Purchaser has sought
such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of the Securities.
-14-
(g) No
Governmental Review. Such
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
(h) Experience
of Such Purchaser. Such
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters,
including investing in biotechnology companies, so as to be capable of
evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser
is
able to bear the economic risk of an investment in the Securities and, at the
present time, is able to afford a complete loss of such investment.
(i) Sales;
Short Selling. From
and
after the date that the Purchaser receives any information about the existence
of the Offering, and through the Closing Date, the Purchaser has not and shall
not, directly or indirectly, sell Ordinary Shares in any open Trading Market
or
elsewhere, and has not and shall not directly or indirectly, through related
parties, affiliates or otherwise sell “short” or “short against the box” (as
those terms are generally understood) any equity security of the
Company.
(j) Information
Regarding Purchaser.
Purchaser has provided the Company with true, complete, and correct information
regarding all applicable items set forth in the on the signature page to this
Agreement.
The
Company acknowledges and agrees that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this
Section 3.2.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions. The
Securities may only be disposed of in compliance with U.S. state and federal
securities laws. In connection with any transfer of Securities other than (i)
pursuant to an effective registration statement, (ii) to the Company, or (iii)
to an Affiliate of a Purchaser, the Company may require the transferor thereof
to provide to the Company an opinion of counsel selected by the transferor,
the
form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration of
such
transferred Securities under the Securities Act. As a condition of transfer,
any
such transferee shall agree in writing to be bound by the terms of this
Agreement and shall have the rights of a Purchaser under this Agreement and
the
Registration Rights Agreement.
-15-
4.2 Furnishing
of Information. During
the Effectiveness Period (as such term is defined in the Registration Rights
Agreement), the Company covenants to use its commercially reasonable efforts
to
timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to the Exchange Act. During the Effectiveness Period,
the Company further covenants to use its commercially reasonable efforts to
take
such further action as any Purchaser may reasonably request, all to the extent
required from time to time to enable such Person to sell such Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144.
4.3 Integration.
The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the
Securities Act) that would be integrated with the offer or sale of the
Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities to the Purchasers or that would be integrated
with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market.
4.4 Securities
Laws Disclosure; Publicity.
The
Company shall, by 8:30 a.m., New York City time, on the Business Day following
the Closing Date, issue a press release to be disseminated in the public domain
describing the terms of the transactions contemplated by the Transaction
Documents. Notwithstanding the foregoing, the Company shall not publicly
disclose the name of any Purchaser, or include the name of any Purchaser in
any
filing with the Commission or any regulatory agency or Trading Market, without
the prior written consent of such Purchaser, except (i) as required by
federal securities law or the Commission in connection with the registration
statement contemplated by the Registration Rights Agreement and (ii) to the
extent such disclosure is required by law or Trading Market regulations, in
which case the Company shall provide the Purchasers with prior notice of such
disclosure permitted under subclause (i) or (ii).
4.5 Shareholders
Rights Plan. No
claim
will be made or enforced by the Company or any other Person that any Purchaser
is an “Acquiring Person” under any shareholders rights plan or similar plan or
arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement,
in
each case solely by virtue of receiving Securities under the Transaction
Documents or under any other agreement between the Company and the Purchasers.
4.6 Reservation
of Ordinary Shares. As
of the
date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number
of Ordinary Shares for the purpose of enabling the Company to issue Shares
pursuant to this Agreement and Warrant Shares pursuant to the
Warrants.
-16-
4.7 Listing
of Ordinary Shares; ADR Facility. The
Company hereby agrees to use commercially reasonable efforts to maintain the
listing of ADRs representing Ordinary Shares on the Nasdaq Stock Market and
the
listing of the Ordinary Shares on the full list of the London Stock Exchange
and
on the Tel Aviv Stock Exchange. As soon as reasonably practicable following
the
Effective Date, the Company will list ADRs representing the Shares and the
Warrant Shares on the Nasdaq Stock Market. The Company further agrees, if the
Company applies to have ADRs representing Ordinary Shares traded on any other
Trading Market, it will include in such application the Shares and Warrant
Shares, and will take such other action as is necessary or desirable in the
opinion of the Purchasers to cause the Shares and Warrant Shares to be listed
on
such other Trading Market as promptly as possible. The Company will take all
action reasonably necessary to continue the listing and trading of ADRs
representing its Ordinary Shares on a Trading Market and will comply in all
respects with the Company’s reporting, filing and other obligations under the
bylaws or rules of the Trading Market. The Purchasers acknowledge that the
Shares and the Warrant Shares will not be eligible for deposit into the American
Depositary Receipt trading facility maintained by the Company at The Bank of
New
York until the Effective Date.
4.8 Subsequent
Financings Prior to Effective Date. From
the
date hereof until 90 days after the Effective Date, other than as contemplated
by this Agreement, neither the Company nor any Subsidiary shall issue or sell
any Ordinary Shares, excluding the issuance of securities issued upon the
exercise of currently outstanding options and warrants.
4.9 Non-Public
Information.
The
Company covenants and agrees that neither it nor any other Person acting on
its
behalf will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have executed a written agreement regarding
the confidentiality and use of such information. The Company understands and
confirms that each Purchaser shall be relying on the foregoing representations
in effecting transactions in securities of the Company.
4.10 Delivery
of ADRs. On
the
Effective Date, the Company shall deliver the Shares to The Bank of New York,
and shall cause The Bank of New York to immediately deliver to each Purchaser
ADRs representing a number of Shares equal to such Purchaser’s Subscription
Amount divided by the Per Share Purchase Price, registered in the name of such
Purchaser.
ARTICLE
V.
MISCELLANEOUS
5.1 Fees
and Expenses. Except
as
set forth in Section 3.1(p) and in the Placement Agent Agreement, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all stamp and other taxes and duties levied in connection
with the sale of the Securities.
-17-
5.2 Entire
Agreement. The
Transaction Documents, together with the exhibits and schedules thereto, the
Private Placement Memorandum and the Placement Agent Agreement, contain the
entire understanding of the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.
5.4 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 Trading Day, (b) the next Trading 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 Trading
Day
or later than 6:30 p.m. (New York City time) on any Trading Day,
(c) the Trading 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 attached
hereto.
5.5 Amendments;
Waivers. No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each
Purchaser or, in the case of a waiver, by the party against whom enforcement
of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be
a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
5.6 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
5.7 Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser. Any Purchaser may assign any or all of its rights
under this Agreement to any Person, provided such transferee agrees in writing
to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.1.
-18-
5.9 Governing
Law. All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of New York, without regard
to
the principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state or federal courts sitting in the City of New York. Each party hereto
hereby irrevocably submits to the jurisdiction of the state and federal courts
sitting in the City of New York, New York, exclusive of all other jurisdictions,
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. 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.
5.10 Survival.
The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and delivery of the Shares.
5.11 Execution.
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, 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 signature page were an original thereof.
5.12 Severability.
If
any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
5.13 Replacement
of Shares. If
any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested.
-19-
5.14 Independent
Nature of Purchasers’ Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and
not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out
of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate legal counsel
in their review and negotiation of the Transaction Documents.
(Signature
Page Follows)
-20-
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
|
By:
____________________________________________________
Name: Xxx
Xxxxxxx
Title: Chief
Executive Officer
|
Address
for Notice:
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxx Xxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
With
copy to (which shall not constitute notice):
|
|
|
Xxxxxx
& Bird LLP
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx X. XxXxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
(Signature
Page Continues)
[PURCHASER
SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
|
[NAME]
|
|
By:
|
__________________________
Name:
Title:
|
Date:
______________________, 2006
|
NUMBER
OF ORDINARY SHARES SUBSCRIBED FOR
|
PRICE
PER SHARE
|
TOTAL
PURCHASE PRICE
|
||
|
[$ ]
|
[$ ]
|
The
above-signed Purchaser hereby provides the following information to the
Company:
1. Please
provide the following information regarding the Purchaser:
|
Purchaser
Name and Address:
|
|
______________________________________________
______________________________________________
______________________________________________
|
|
Telephone:
( ) ______-________
Facsimile:
( ) ______-_________
Email:
_______________________
Tax
ID #:_____________________
|
2. If
different from the information provided in Item 1 above, please provide the
exact name that the Purchaser’s Shares are to be registered in (this is the name
that will appear on the share certificate(s)) and/or to whom the Purchaser’s
Warrants will be issued (the “Registered
Holder”).
The
Purchaser may use a nominee name if appropriate:
|
Registered
Holder of the Shares and Warrants Name and Address:
|
|
______________________________________________
______________________________________________
______________________________________________
|
|
Facsimile:
(
) ______-_________
|
3. Please
describe the relationship between the Purchaser of the Shares and the Registered
Holder of the Shares listed in response to Item 2 above, if
different:
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
4. If
different from the information provided in Item 1 above, please provide the
mailing address of the Registered Holder of the Shares listed in response to
Item 2 above:
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
5. If
different from the information provided above, please provide the number of
Ordinary Shares beneficially owned (as determined in accordance with SEC Rule
13d-3 under the Exchange Act) by the Purchaser immediately after Closing.
Explain the nature of such beneficial ownership, including Ordinary Shares
not
held of record by the Purchaser. Disclose the details of any rights to acquire
Ordinary Shares.
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
6. Describe
any position, office or other material relationship within the past three years
that the Purchaser has, or has had, with the Company or its Affiliates other
than as disclosed in the Registration Statement? If none, please state “Not
Applicable.”
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
| _____________________________________________________________________________________________ |
Please
note that it is the Purchaser’s obligation to advise the Company promptly if any
of the foregoing information changes during the effectiveness of the
Registration Statement (except due to sales of Ordinary Shares pursuant
thereto).
Exhibit
C
Form
of Opinion of Xxxxxx & Co.
1. The
Company is a corporation, validly existing and in good standing under the laws
of the State of Israel, and
has
the
corporate power and authority to carry on its business and to own, lease and
operate its properties and assets as described in the Private Placement
Memorandum. Except for the Subsidiary, the Company does not have any
subsidiaries and does not own more than fifty percent (50%) of the outstanding
capital stock of or control any other business entity.
2. The
Company has the corporate power and authority to enter into and perform its
obligations under the Transaction Documents and to issue the Shares, the
Warrants and the Warrant Shares. The execution and delivery of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary corporate action
of the Company.
3. The
Transaction Documents have been duly executed and delivered by the
Company.
4. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated thereby,
including, without limitation, the issuance of the Shares, the Warrants and
the
Warrant Shares, do not and will not result in a violation of the Company’s
Memorandum and Articles of Organization or bylaws.
5. The
Company has the authorized capitalization as set forth in the Private Placement
Memorandum. The issuance of the Shares and the Warrants (and the issuance of
the
Warrant Shares upon exercise of the Warrants) by the Company in accordance
with
the Agreement is exempt from registration under the Securities Act of 1933,
as
amended. When so issued, when certificates representing such Shares and Warrant
Shares have been duly executed, countersigned, registered and delivered in
accordance with the Agreement, upon payment of the consideration therefor
provided therein, the Shares and the Warrant Shares will be duly and validly
authorized and issued, fully paid and nonassessable, free of any liens or
encumbrances, or preemptive or similar rights, contained in the Company’s
Memorandum and Articles of Organization or bylaws or any other instrument known
to us and will conform to the description thereof contained in the Private
Placement Memorandum.
Form
of Opinion of Xxxxxx & Bird LLP
1. The
Company is
duly
qualified to do business and is in good standing as a foreign corporation in
all
U.S. jurisdictions in which the character of the property owned or leased or
the
nature of the business transacted by it makes qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
would not have or reasonably be expected to result in Material Adverse Effect.
2. The
Subsidiary is a corporation, validly existing and in good standing under the
laws of the State of Delaware, is
duly
qualified to do business and is in good standing as a foreign corporation in
all
jurisdictions in which the character of the property owned or leased or the
nature of the business transacted by it makes qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
would not have or reasonably be expected to result in Material Adverse Effect,
and has
the
corporate power and authority to carry on its business and to own, lease and
operate its properties and assets as described in the Private Placement
Memorandum.
3. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated thereby,
including, without limitation, the issuance of the Shares, the Warrants and
the
Warrant Shares, do not and will not (i) result in a violation of the
Subsidiary’s Certificate of Incorporation or bylaws; (ii) conflict with, or
constitute a material default (or an event that with notice or lapse of time
or
both would become a default) under, require a consent under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
Material Agreement; (iii) result in a violation of any law, rule or regulation
of the United States or the State of New York; or (iv) to our knowledge, violate
any judgment, order or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets
4. Except
for the registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may
be
required under applicable state securities laws in connection with the purchase
and distribution of the Securities, no consent, approval, authorization or
order
of, or filing or registration with, any court, governmental agency or
governmental body is required for the execution, delivery and performance of
the
Transaction Documents by the Company and the consummation by the Company of
the
transactions contemplated thereby.
5.
To
our
knowledge, no person or entity has the right to require registration of Ordinary
Shares or other securities of the Company because of the filing or effectiveness
of the Registration Statement, the consummation of the transactions contemplated
in the Transaction Documents or otherwise, except for persons and entities
who
have expressly waived such right or who have been given proper notice and have
failed to exercise such right within the time or times required under the terms
and conditions of such
right.
6. The
statements in the Private Placement Memorandum (other than the financial
statements and related schedules and other financial and statistical data
contained therein, as to which we express no opinion) under the headings "Risk
Factors," "Business—Intellectual Property and Patents," "Business—Government and
Industry Regulation," and "Business—Material Contracts" to the extent that they
constitute summaries of matters of law or regulation or legal conclusions,
have
been reviewed by us and fairly summarize the matters described therein in all
material respects
7. To
our
knowledge and other than as set forth in the Private
Placement Memorandum,
there
are no legal or governmental proceedings pending to which the Company is a
party
or of which any property or asset of the Company is the subject which,
singularly or in the aggregate, if determined adversely to the Company, would
prevent or adversely affect the ability of the Company to perform its
obligations under the Transaction Documents; and, to our knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
Xxxxxx
& Bird to also confirm:
We
have
reviewed certain corporate records and other documents of the Company and its
subsidiary and have participated in conferences with officers and other
representatives of the Company, its subsidiary, your representatives, your
counsel and the Company’s independent public accountants at which the contents
of the Private Placement Memorandum and the Transaction Documents and related
matters were discussed. Because of the inherent limitations in the independent
verification of factual matters and because of the inherent limitations involved
in the preparation of registration statements under the Securities Act, we
are
not passing upon and do not assume any responsibility for, and make no
representation that we have independently verified, the accuracy, completeness
or fairness of the information and statements contained in the Private Placement
Memorandum and the Transaction Documents. We have no reason to believe that
on
the date of issuance of the Private Placement Memorandum, or the date hereof,
the Private Placement Memorandum and the Transaction Documents contained an
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Private Placement Memorandum as of its date and the
Private Placement Memorandum and the Transaction Documents on the date hereof
included or includes any untrue statement of a material fact or omitted or
omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (in each case,
other than the financial statements and other financial information contained
therein, as to which we express no opinion).
