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(a) | Advance Notice Procedures. At any time and from time to time during the Commitment Period, the Company may require the Investor to purchase Ordinary Shares by delivering an Advance Notice to the Investor, subject to the conditions set forth in Section 7.01, and in accordance with the following provisions: | |||
1) | Advance Notice Date. An Advance Notice shall be delivered in accordance with the instructions set forth in Annex A and may only be delivered to the Investor on any Trading Day, and only (i) after the close of regular trading hours on the TASE, and (ii) before 5:00 pm local time in New York. An Advance Notice shall be deemed valid if it has been issued by the Company in the form attached as Annex A hereof, was executed by an officer of the Company in accordance with the terms of this Agreement and all Conditions in Section 7.01 have been satisfied. | |||
2) | Settlement Document. Before 5:30 p.m. local time in New York on the Advance Notice Date, the Investor shall deliver to the Company a written document in the form attached hereto as Annex B (a “Settlement Document”), setting forth the amount of the Advance (taking into account any adjustments pursuant to the provisions of Section 2.01(b)), the Purchase Price, the total number of Shares to be purchased by the Investor (which shall be determined by dividing the amount of the Advance by the Purchase Price) and a report by Bloomberg, LP indicating the VWAP for each of the Trading Days during the Pricing Period, in each case taking into account the terms and conditions of this Agreement. No fractional shares shall be issued. Fractional shares shall be rounded down to the nearest whole number. The Settlement Document shall also indicate the number of Ordinary Shares held by the Investor and its Affiliates as of such date. Promptly after receipt of the Settlement Document the Company shall review it and cause the Underwriter to review it with the goal of approving it prior to the opening of trading on the TASE on the following Trading Day. | |||
3) | Advance Undertakings. In connection with each Advance Notice, the Company shall: | |||
(i) file an immediate report () in accordance with the Securities Regulations, regarding the delivery of the Advance Notice and the Company’s intention to file the Shelf Offering Report relating to such Advance (the “Advance Immediate Report”) immediately after receipt of the Settlement Document by the Company but before the opening of the TASE on the next Trading Day; |
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(ii) Publish a Shelf Offering Report with respect to the issuance of the Shares pursuant to the Advance Notice on the first Trading Day immediately following receipt of the Settlement Document by the Company; | ||||
(iii) Use its best efforts to obtain a Specific TASE Approval to the listing of such number of Shares covered under the Advance (the “Specific TASE Approval”); immediately prior to the publication of the Shelf Offering Report; and | ||||
(iv) Deliver all necessary documents to the Nominee Company () to effect the issuance and listing of the Shares on the TASE as soon as practically possible on the Advance Closing Date; | ||||
(the required actions described in subsection (i) through (iii) of this paragraph shall be referred to herein as the “Advance Undertakings”) for the purposes that the Shares to be issued pursuant to the Advance Notice will be listed and admitted on the TASE and will be Free no later than the Advance Closing Date. The Company acknowledges and agrees that notwithstanding anything else to the contrary in this Agreement, in the event that the Company is unable to timely comply with any of the Advance Undertakings, the Investor shall have the right to terminate the Advance, at its sole discretion, without any penalty or fee. In such case, the Company shall file an ‘immediate report’ () disclosing that the Company delivered an Advance Notice to the Investor and the Investor exercised its right to terminate the Advance, since the Company failed to comply with the Advance Undertakings. | ||||
4) | In connection with delivering an Advance Notice to the Investor, the Company shall certify that it has taken all of the necessary steps and made all necessary preparations so that it believes, with a high degree of confidence, that it will be able to timely accomplish each of the Advance Undertakings. | |||
5) | THE COMPANY SHALL NOT DISCLOSE TO THE INVESTOR ITS INTENTION TO DELIVER AN ADVANCE NOTICE UNDER THIS AGREEMENT PRIOR TO THE ACTUAL DELIEVRY OF SUCH ADVANCE NOTICE. | |||
6) | Subject to each valid Advance Notice and the conditions of this Agreement, the Investor shall be bound to purchase Shares from the Company, and the Company shall be bound to issue and sell the Shares to the Investor, in accordance with this Agreement. |
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(b) | Advance Limitations. The Advance Amount requested by the Company in each Advance Notice shall not exceed each of the following limitations, (and regardless of the Advance Amount requested by the Company in the Advance Notice, the actual amount of the Advance shall be automatically reduced to comply with these limitations): | |||
1) | The amount for each Advance as set forth by the Company in the applicable Advance Notice shall not exceed the Maximum Advance Amount. | |||
2) | The aggregate amount of the Advances pursuant to this Agreement shall not exceed the Commitment Amount. | |||
3) | Ownership Limitation. The number of Ordinary Shares issuable per each Advance Notice shall not cause the Investor and its Affiliates (that may be considered under the Securities Regulations as holders of Ordinary Shares jointly with the Investor) to exceed beneficial ownership of 4.99% of the then issued and outstanding share capital of the Company (the 4.99% limitation shall be referred to hereinafter as the “Ownership Limitation”). In respect of each Advance Notice delivered by the Company, any portion of an Advance Amount that would cause the Investor to exceed the Ownership Limitation, shall automatically be withdrawn with no further action required on behalf of either Party and the Advance Notice will remain in full force and effect with respect to the remaining portion of the Advance Amount. Upon receipt of an Advance Notice the Investor shall notify the Company of its holdings of Ordinary Shares as of the end of the day on the Advance Notice Date and the Advance Amount shall be adjusted accordingly, if necessary, to comply with the Ownership Limitation. In order to decrease the chances that the Ownership Limitation will limit the size of an Advance, the Investor will use commercially reasonable efforts to reduce its holdings in Ordinary Shares after each Advance, subject to the maintenance of orderly markets, adequate trading volume, and sufficient value of the Ordinary Shares, all as determined by the Investor in its sole discretion in good faith, and not to acquire Ordinary Shares other than pursuant to this Agreement, so as to limit the number of Shares held by the Investor and increase the likelihood that the Shares issuable to the Investor under the Advance Notice, together with any remainder of Ordinary Shares held by it at such Advance Notice’s date, shall not exceed the Ownership Limitation threshold; provided, however, that the Investor shall not be expected or obligated to sell any Ordinary Shares in a price which is lower than the Purchase Price of the most recent prior Advance (if any). Notwithstanding the forgoing, the Company acknowledges and agrees that the Investor’s ability to reduce its holdings in accordance with this paragraph may be limited by the application of the limitation set forth in Section 2.03 below. | |||
4) | Offering Limitation. In respect of each Advance Notice, any portion of the Advance Amount that would cause the aggregate number of Shares to exceed the aggregate number of Ordinary Shares available for offering under the Shelf Prospectus shall be automatically deemed to be withdrawn with no further action required on behalf of either Party and the Advance Notice will remain in full force and effect with respect to the remaining portion of the Advance Amount. |
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(a) | As early as practically possible on the Advance Closing Date, the Company shall deliver to the Nominee Company, a share certificate covering the Shares, as well as instruct the Nominee Company to deposit the Shares in a specific securities account (with a TASE member) (the “Investor’s Account”), the details of which are set forth in Annex C1 hereto and shall provide to the TASE and/or the Registration Company all the necessary forms and documents so as to facilitate the immediate deposit of the Shares in the Investor’s Account. The Investor may change the details of such securities account, by giving a written notice to the Company, no later than one trading day prior to the Advance Notice Date. Each Closing and the purchase of the Shares shall take place concurrently with, and be subject to, the Company promptly fulfilling the foregoing in full. | |
(b) | On the Advance Closing Date, the Investor shall deposit with the Pricing Underwriter the amount of the Advance, as may be reduced in accordance with Section 2.01(b) above and subject to any deductions and set-off in accordance with Section 2.02 (d) herein, (such amount, the “Deposited Amount”) by wire transfer of immediately available funds to the Pricing Underwriter’s Designated Bank Account, the details of which are set forth in Annex C2 hereto (the Pricing Underwriter may change the details of such bank account by giving a written notice to the Investor, at any time prior to the Advance Closing Date with a copy to the Company). | |
(c) | The Pricing Underwriter shall act with any Deposited Amount in accordance with the Irrevocable Instructions set forth in Annex C3 hereto and shall remit the Deposited Amount to the Company’s bank account the details of which are set forth in Annex C3 hereto (the Company may change the details of such bank account by giving a written notice to the Pricing Underwriter, at any time prior to the Advance Closing Date with a copy to the Investor), promptly upon receiving a document evidencing the deposit of the Shares in the Investor’s Account. Prior to the transfer of funds to the Company, all funds in the Pricing Underwriter’s Designated Bank Account together with any amount accrued thereon, shall belong to the Investor, and the Pricing Underwriter shall act with respect to same in accordance with instructions delivered from time to time by the Investor to the Pricing Underwriter. In the event that the Pricing Underwriter does not receive a document evidencing the deposit of the Shares in the Investor’s Account within two (2) days of the Advance Closing Date, the Pricing Underwriter shall immediately notify the Investor and release the funds back to the Investor. Commencing upon the issuance of the Shares to the Investor the Pricing Underwriter shall hold the Deposited Amount in trust to the benefit of the Company. For the sake of clarity, (i) any funds left in the Pricing Underwriter’s Designated Bank Account following transfer of the Deposited Amount shall belong to the Investor, while any amounts accrued on the amount of the Deposited Amount following the date of the transfer of the Shares to the Investor’s Account shall belong to the Company; and (ii) any and all costs and expenses associated with the Pricing Underwriter’s tasks hereunder shall be borne by the Company, except any cost and expense relates to the escrow agreement in the form of Annex C5, which shall be paid by the Investor. Immediately following the Effective Date the Parties and the Pricing Underwriter shall execute an escrow agreement in the form of Annex C5 hereto. |
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(d) | The Investor may set off from any such Advance Amount any amount due to the Investor pursuant to Section 12.06 hereunder. Such deduction shall be the sole deduction/set off made by the Investor. The Advance Amount shall be paid in US$. | |
(e) | In addition, on or prior to the Advance Closing Date, the Company and the Investor shall deliver to each other all documents, instruments and writings required to be delivered by either of them pursuant to this Agreement in order to implement and effect the applicable Closing. |
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(a) | Subject to the provisions of Section 5.01(c) and Section 5.03 herein, the Company hereby undertakes to defend, protect, indemnify and hold harmless the Investor, and all of its officers, directors, partners, employees and agents (collectively, the “Investor Indemnitees”) from and against any and all actions, cause of action suits, claims, direct losses, costs, penalties, fees, liabilities and damages, and reasonable expenses in connection therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), actually incurred by the Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any misrepresentation (including failure to state a material fact required to be stated, or necessary to make the statement, in light of the circumstances under which it was made, not misleading) or breach of any representation or material warranty made by the Company in this Agreement, or any other certificate, instrument or document contemplated hereby or thereby, except insofar as such Indemnified Liabilities arise out of or are based upon (x) any untrue statement which has been made therein or upon any omission omitted therefrom in reliance upon and in conformity with the information relating to the Investor Indemnitees furnished in writing to the Company by or on behalf of the Investor Indemnitees or (y) willful, reckless, or negligent misconduct of the Investor Indemnitees or any of them; or (b) any breach by the Company of any covenant, agreement or obligation of the Company contained in this Agreement, or any other certificate, instrument or document contemplated hereby or thereby; provided, however, that the total indemnification amount available to the Investor Indemnitees in connection with Indemnified Liabilities it incurred due to this Section 5.01(a), shall not exceed the total amount of all Advance Amounts paid by the Investor to the Company under this Agreement as of such date. |
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(b) | If any action, suit, demand or proceeding (collectively “Proceeding”) shall be brought against any Investor Indemnitee, in respect of which indemnity may be sought by the Investor Indemnitee against the Company in accordance with Section 5.01(a) above, such Investor Indemnitee shall promptly notify the Company, and the Company shall have the right to assume the defense of any such Proceedings, including the employment of counsel reasonably acceptable to the Investor Indemnitee and payment of all reasonable fees and expenses of such counsel. Such Investor Indemnitee shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of such Investor Indemnitee, unless (i) the Company has agreed in writing to pay such fees and expenses, (ii) the Company has failed to assume the defense or employ counsel reasonably acceptable to the Investor Indemnitee, or (iii) the named parties to any such Proceeding (including any impleaded parties) include both Investor Indemnitee and the Company, and the representation of such indemnified party and the Company by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such Proceeding on behalf of such Investor Indemnitee). It is understood, that without prejudice to the foregoing, the Company shall, in connection with any such one Proceeding or separate or substantially similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys at any time for all such Investor Indemnitees not having actual or potential differing interests with the Company or among themselves, which firm shall be designated in writing by the Investor, and that all such fees and expenses shall be reimbursed as they are actually incurred and paid for, unless they are paid by the Company directly. If the Company assumes the defense of any Proceeding, then the Investor Indemnitees shall cooperate with and assist the Company in such defense as requested by the Company and shall make available to the Company any documents and materials in its possession or control that may reasonably be necessary therefor. The Investor Indemnitees shall use best efforts to assist the Company and make available to the Company, at the Company’s reasonable expense, such documents and materials also in the event that the Company did not assume the defense, unless such cooperation and provision of documents reasonably adversely affects its defense of any Proceeding. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent (which shall not be unreasonably withheld), but if settled with such written consent, the Company agrees to indemnify and hold harmless any Investor Indemnitee, to the extent provided in the preceding paragraph from and against any Indemnified Liability by reason of such settlement. | |
(c) | Notwithstanding any provision herein to the contrary, the provisions of Sections 5.01(a) shall not apply in the event of any liability or expense which the Company undertakes to indemnify under Section 5.01(d) herein. |
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(d) | Notwithstanding any provision herein to the contrary, subject to the provision Section 5.03, the Company hereby undertakes to indemnify and hold harmless any Investor Indemnitee from and against any and all liabilities, and expenses (as specified in sub Sections (i), (ii), and (iii) herein) incurred by any Investor Indemnitee, by virtue of, as a result of, or arising out of, or relating to any Misleading Item in any Offering Document (the “Indemnified Securities Liabilities”), to the maximum extent permitted by Law, except insofar as such Indemnified Securities Liabilities arise out of or are based upon (x) any untrue statement which has been made therein or upon any omission omitted therefrom in reliance upon and in conformity with the information relating to the Investor Indemnitees furnished in writing to the Company by or on behalf of the Investor Indemnitees or (y) willful, reckless, or negligent misconduct of the Investor, Indemnitees or any of them: | |
i) any financial liability imposed for the benefit of another person pursuant to a final and non-appealable judgment, including a judgment given in the matter of a settlement or an arbitral award approved by the court; | ||
ii) any reasonable litigation expenses, including attorney’s fees, incurred by any Investor Indemnitee, as a result of any investigation, or proceeding held by any government authority or agency so authorized to conduct any investigation or proceeding, and such proceeding or investigation against the Investor Indemnitee ended without the filing of a criminal charge (as defined in Section 260(IA) of the Companies Law), the imposition of financial penalties instead of a criminal proceeding (as defined in Section 260(IA) of the Companies Law), or ended without the filing of a criminal charge but a financial penalty was imposed on such Investor Indemnitee instead of a criminal proceeding that does not require the proof of criminal intent; and | ||
iii) any reasonable litigation expenses including attorney’s fees, incurred by any Investor Indemnitee or charged to him/her/it, in any proceeding filed against him/her/it by or on behalf of the Company or by any other person, or for a criminal charge from which he/she/it was acquitted, or for a criminal charge in which he/she/it was found guilty of an offense not requiring proof of criminal intent. | ||
The Investor shall have the right to request from the Company, in writing, to conduct, on the Investor Indemnitees’ behalf, any negotiations or defense against any suit subject to this indemnification. In the event the Company does not comply with the said request within twenty (20) days of notification, the Investor Indemnitee shall have the right to conduct such defense in any manner it chooses and reach any settlement with the plaintiff for any reasonable sum in the circumstances, and the Company shall be obligated to indemnify the Investor Indemnitee for such settlement amount, plus any other direct reasonable expenses incurred by the Investor Indemnitee for defending the suit; provided, however, that the Company receives fifteen (15) days prior notice in writing from the Investor Indemnitee of its intention to settle the suit and within such fifteen (15) days, notice period the Company has not taken over the management of the suit. If any action, suit, demand or proceeding shall be brought against any Investor Indemnitee, in respect of which indemnity may be sought against the Company pursuant to this Section 5.01(d), the provisions of Section 5.01(b) shall apply accordingly. |
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(e) | Notwithstanding any provision herein to the contrary, the entire maximum indemnification amount available to the Investor Indemnitees under Section 5.01(d) shall not exceed the total amount of all Advance Amounts paid by the Investor to the Company for the Shares issued to the Investor pursuant to the applicable Shelf Offering Report (the “Cap”); provided, however, that if in the same Shelf Offering Report the Company shall offer its securities both to the Investor and to the public, then the Cap shall be only the total amount of purchase price of such securities offered to the Investor. The Company represents and warrants to the Investor that the Cap is reasonable in the circumstances of the case. Without derogating from the maximum indemnification amount stated above, no indemnification shall be paid for any sum that is greater than the value of twenty five percent (25%) of the Company’s equity, as reported in the last consolidated, audited or reviewed financial reports published immediately prior to the Investor’s request of such indemnification pursuant to this Agreement, if there is a reasonable doubt (based on an opinion from the Company’s auditor and legal counsel) that such payment of the indemnification amount shall cause the Company to fail to repay its existing and foreseeable liabilities. | |
(f) | The Company’s indemnification for the benefit of the Investor Indemnitees for Indemnified Securities Liabilities shall be: (i) specifically stated in the Company’s Shelf Prospectus; and (ii) approved prior to the publication of the Shelf Prospectus and each Shelf Offering Report by the Company’s Board of Directors, specifically stating that the amount of indemnification for Indemnified Securities Liabilities is reasonable under the circumstances. | |
(g) | The Company shall not be liable for indemnity unless pursuant to the provisions of Section 5.01 hereof and the indemnification hereunder and the enforcement thereof shall be the sole and exclusive financial remedy available to the Investor Indemnitees against the Company (for the removal of doubt, this provision shall not affect any other non-financial remedies available to the Investor Indemnitees against the Company). |
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(a) | The Company acknowledges that under the Securities Regulations and the ISA’s requirements, each Shelf Offering Report under which the Shares will be issued to the Investor, should be signed by the Pricing Underwriter and the Investor in order for the Shares to be Free. The Company shall enter into an underwriting agreement with the Pricing Underwriter for the duration of the Commitment Period, in a form to be reasonably acceptable by the Pricing Underwriter and the Company, and the Investor (the “Underwriting Agreement”) and shall provide a copy of such agreement to the Investor prior to the publishing of the Shelf Prospectus. |
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(b) | At the Company’s expense, the Company undertakes to cooperate with the Pricing Underwriter, or with any Underwriter appointed by the Investor in accordance with the provisions of Section 6.02, as shall be required in order to enable the Pricing Underwriter or such Underwriter to take the appropriate measures to ensure that each Offering Document does not contain any Misleading Item and that is believed in good faith that it does not contain any such items, including without limitation: (i) to promptly provide all materials and information regarding the Company that the Pricing Underwriter or the Underwriter and their advisors shall reasonably request from time to time and any additional material and information regarding the Company that the Company deems helpful for taking the appropriate measures to ensure that each Offering Document does not contain any Misleading Item; (ii) to incorporate in the Offering Documents revisions and amendments reasonably requested by the Investor, the Pricing Underwriter or the Underwriter and their advisors; and (iii) to furnish to the Investor, in connection with each Shelf Offering Report to be executed by the Investor and without additional cost to the Investor, comfort letters signed by the Company, office holders in the Company and counsel to the Company in the form included in Annex E (as may be revised pursuant the agreement of the parties) and from the Company’s accountant in a form agreed upon by the Investor (the “Comfort Letters”). The Investor shall furnish to the Company for inclusion in the Offering Documents, in a certified document, all information regarding the Investor and its purchase of the Shares including the percentage holdings of the Company’s shares held by or on behalf of the Investor and any parties managed by Yorkville Advisors LLC and their Affiliates, and/or any other information that the Company and/or its counsel reasonably determine is necessary or advisable to include in the Offering Documents. | |
(c) | NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE COMPANY SHALL NOT PROVIDE THE INVESTOR WITH ANY NON-PUBLIC INFORMATION REGARDING THE COMPANY, AND SHALL NOT DISCLOSE TO THE INVESTOR ITS INTENTION TO FILE AN ADVANCE NOTICE UNDER THIS AGREEMENT, UNTIL AFTER THE DELIVERY OF SUCH ADVANCE NOTICE. | |
(d) | In the event that Company discloses to the Investor of its intention to deliver an Advance Notice under this Agreement, or learns that the Investor became aware of its intention to deliver and Advance Notice under the Agreement, the Company shall immediately file an immediate report () publicly disclosing its intention to deliver an Advance Notice under this Agreement. In connection with such report, the Investor shall promptly provide to the Company information regarding any transactions made by the Investor and its Affiliated in the Ordinary Shares on the TASE or derivatives thereof (with respect to each transaction–the number of Ordinary Shares or derivatives thereof transacted and the price per share or of the respective derivatives) from the date when the Investor first became aware of the Company’s plan to deliver an Advance, for the purposes of including such information in the immediate report. In such case, the Investor will cease to make any transaction in the Company’s securities until the lapse of 30 minutes from the publication of the immediate report. In addition, when the Company delivers such Advance Notice, the Company shall file an additional immediate report as required in this Agreement. |
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(a) | Subject to the terms and conditions set forth in Section 6.02 and to the provisions of this Section 6.04, only if and to the extent required by the ISA for the purpose of permitting the publishing of the Shelf Offering Reports contemplated hereunder, Investor shall be responsible according to the Securities Regulations and without derogating from hereinabove to anyone who purchased the Shares from the Investor and to anyone who sold or acquired the Shares in the course of trading on the TASE or over the counter, for damage caused to them by the inclusion of a Misleading Item in the Shelf Offering Reports published by the Company hereunder and to sign each such Shelf Offering Report to evidence the assumption of such responsibility by the Investor, subject to the terms and conditions set forth herein. Subject to the Investor’s satisfaction of the contents of the applicable Offering Documents, the Investor shall sign the Shelf Offering Reports contemplated hereunder to evidence the assumption of liability for any Misleading Item in such Shelf Offering Reports. | |
(b) | The limitation period for bringing claims against the Investor in connection with the responsibilities for a Misleading Item assumed pursuant to Section 6.04 shall be equal to the limitation period pursuant to Section 31(b) of the Securities Law. | |
(c) | Investor shall not be liable in the event Investor can prove that it has taken all the appropriate measures to ensure that the applicable Offering Documents did not contain any Misleading Item, that it believed in good faith that it did not contain any such items and that it notified the ISA once it became aware of any occurrence that would cause the ISA to prohibit the publication of said Offering Documents, or would permit such publication only after corrections are made to such document. | |
(d) | Investor shall not be liable in the event Investor authorized an “Underwriter” (as such term is defined under the Securities Regulations) to lake all the appropriate measures, on behalf of the Investor as well, in order to ensure that there shall not be any Misleading Item in the applicable Offering Documents, subject to fulfillment of the following two conditions: (i) Investor believed in good faith that there was no Misleading Item in the applicable Offering Documents; and (ii) the Underwriter who was given the authority does not bear any liability for the Misleading Item, according to Section 33(I) to the Securities Law. |
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(e) | Investor shall not be liable vis-à-vis a party regarding which it established that the Shares were purchased when the party knew or should have known that the applicable Offering Documents contained a Misleading Item. | |
(f) | Investor shall not be liable when the Company has filed an immediate report as stated in Section 36(c) of the Securities Law, in which the Misleading Item was amended and the Company has published the fact of the amendment in a manner in which it published the notice concerning the applicable Offering Documents pursuant to Section 23(c)(2) of the Securities Law; such negation of liability shall apply with respect to anyone who is proved to have acquired the Shares following the aforesaid publication. | |
(g) | Investor shall not be liable in the event Investor delivered to the Company a written notice with regard to a correction of a Misleading Item, provided that such notification was sent (i) both via email and fax, or (ii) via e-mail or fax provided that the Investor confirmed with the Company the receipt of such notice; such negation of liability applies vis-à-vis anyone who is proved to have acquired the Shares after twenty four (24) hours had passed from the delivery of the notice. | |
(h) | In the event the Investor is liable for a Misleading Item and one or more Parties are liable under Sections 31 - 33 of the Securities Law, their liability shall be joint and several towards the injured party; their liability to each other shall be governed by the rules applicable to liability in tort. | |
(i) | The Company shall reimburse the Investor for any reasonable expenses incurred in the course of taking the measures pursuant to Section 6.04 except for case in which the Misleading Item caused by action or omission of the Investor. |
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(a) | The Company shall have obtained the General TASE Approval and the ISA permit for publishing the effective Shelf Prospectus and a Company’s Shelf Prospectus allowing the issuance of the Ordinary Shares to the Investor, including in their status as Free is in full force and effect. | |
(b) | The Advance Notice Date is (i) at least ten Trading Days after the Advance Notice Date of the previous Advance made by the Company (if any), and (ii) at least five Trading Days after the Shares purchased by the Investor in the prior Advance (if any) were delivered the Investor’s Account in accordance with Section 2.02. | |
(c) | The VWAP on the Advance Notice Date (i.e. the last Trading Day of the applicable Pricing Period) is not (i) the lowest daily VWAP of the Ordinary Shares during the applicable Pricing Period; or (ii) lower than 90% of the average of all the daily VWAP’s during the applicable Pricing Period. | |
Conditions Applicable to each Advance Notice Date and each Advance Closing Date: | ||
(d) | The Company shall have obtained all corporate approvals required for the offer and sale of the Shares to the Investor and the Company’s Board of Directors shall have specifically approved the indemnification for Misleading Items in the Offering Documents pursuant to Article V of this Agreement, in accordance with Section 260(b) of the Companies Law, and Section 34A of the Securities Law. | |
(e) | Neither the Company nor the Investor shall have received notice that the ISA has issued or intends to issue a stop order with respect to any applicable Offering Document or that the ISA otherwise has suspended or withdrawn the effectiveness of any applicable Offering Document, either temporarily or permanently, or intends or has threatened to do so (unless the ISA’s concerns have been addressed and the Investor is reasonably satisfied that the ISA no longer is considering or intends to take such action). | |
(f) | No event has occurred that makes any statement made in the Shelf Prospectus (including any document incorporated or deemed to be incorporated therein by reference) untrue in any material respect, including omission of a material fact, or that requires the making of any changes in the Shelf Prospectus or any of such documents incorporated by reference, unless proper amendments or updates to the Shelf Prospectus fully remedying the above can be made, and are in fact made, through disclosures included in the Shelf Offering Report. | |
(g) | Neither the Company nor the Investor shall have received a notice that the TASE has issued or intends to issue a stop order with respect to the General TASE Approval or any Specific TASE Approval or that the TASE otherwise has suspended or withdrawn the effectiveness of the General TASE Approval or any Specific TASE Approval, either temporarily or permanently, or intends or has threatened to do so (unless the TASE’s concerns have been addressed and the Investor is reasonably satisfied that the TASE no longer is considering or intends to take such action). |
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(h) | The Company and the Investor have no knowledge of any event that is likely to have the effect of (A) causing the Shelf Prospectus or the Shelf Offering Report or the TASE Approvals to be suspended or otherwise ineffective; or (B) prevent the Company from obtaining any approval that may be required for the issuance and delivery (including the deposit in the Investor’s Account) of the Shares hereunder, including the Specific TASE Approval. | |
(i) | The Underwriting Agreement shall have been executed and in full force and effect. | |
(j) | The representations and warranties of the Parties shall be true and correct in all material respects. | |
(k) | The Company shall have performed, satisfied and complied in all material respects with all representations, covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to each Condition Satisfaction Date. | |
(l) | No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits or directly and adversely affects any of the transactions contemplated by this Agreement (including adversely affect the status of the Shares as Free), and no proceeding shall have been commenced that may have the effect of prohibiting or so adversely affecting any of the transactions contemplated by this Agreement. | |
(m) | The trading of the Ordinary Shares on the TASE is not suspended or discontinued and the Company shall not have received any notice threatening the continued listing of the Shares on the TASE. The Shares have not been transferred for trading on the “Shimur list” of the TASE (as defined in the Articles of Association of the TASE), the Company shall not have received any notice regarding the TASE’s intention to transfer the shares to the “Shimur list,” and no circumstances shall exist that may trigger the transfer of the Shares for trading on the “Shimur list.” | |
(n) | The representations contained in the Advance Notice to be filed by the Company and in this Agreement shall be true and correct as of each Condition Satisfaction Date. |
(a) | Each of the Conditions Precedent applicable to each Advance Closing Date set forth in Section 7.01 above (Section 7.01(d) through 7.0 1(n)) shall remain satisfied. | |
(b) | The Company shall have accomplished each of the Advance Undertakings as of their applicable deadlines, as described in Section 2.01(a)(2). |
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(c) | The Shelf Offering Report published has been signed by the Pricing Underwriter and the Investor and the Company has delivered to the Investor the Comfort Letters, dated as of the date the applicable Shelf Offering Report. | |
(d) | The Company has delivered to the Nominee Company all forms and documents necessary in order to facilitate the immediate deposit of the Shares in the Investor’s Account and the listing of the Shares on the TASE. |
(a) | The representations and warranties of the Investor shall be true and correct in all material respects. | |
(b) | The Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Closing. |
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If to the Company, to: | BiondVax Pharmaceuticals Ltd. |
Science Park, 14 Einstein Street | |
PO Box 4143 | |
Ness ziona, 74140, Israel | |
Attention: Ron Babecoff, CEO and Director | |
Telephone: + 972-8-9302529 | |
Facsimile: : + 972-8-9302531 | |
Email: Babecoff@biondvax.com | |
With a copy to: | Pearl Cohen Zedek Latzer Baratz |
Attention: Adv. Ilan Gerzi | |
1 Azrieli Center, Round Tower, 18th floor | |
Telephone: + 972-3-6073777 | |
Facsimile: : + 972-3-6073778 | |
If to the Investor(s): | YA Global Investments, L.P |
1012 Springfield Avenue | |
Mountainside, NJ 07092 | |
Attention: Mark Angelo - Portfolio Manager | |
Telephone: (201) 985-8300 |
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With a Copy to: | David Gonzalez, Esq. |
1012 Springfield Avenue | |
Mountainside. NJ 07092 | |
Telephone: (201) 985-8300 | |
Facsimile: (201) 369-7779 | |
Email: dgonzalez@yorkvilleadvisors.com | |
With Copy to: | Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. |
Attention: Aya Yoffe, Adv; Ran Madjar, Adv. | |
Email: aya@gkh-law.com; ranm@gkh-law.com | |
Telephone: + 972 (3) 607-4547 | |
Facsimile: : + 972 (3) 607-4566 |
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(a) | Advance Fee. The Company shall pay the Investor or its designee directly from the proceeds of each Advance, an advance fee in the amount of 4% of the amount of such Advance (the “Advance fee”). The Company shall pay each Advance Fee by authorizing the Investor to deduct it from any Advance payment. |
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COMPANY: | |||
[____________] | |||
By: | /s/ Avner Rotman | ||
Name: AVNER ROTMAN | |||
Title: CHAIRMAN | |||
By: | /s/ Ron Babecoff | ||
Name: RON BABECOFF | |||
Title: President & CEO | |||
YA Global Investments, L.P | |||
By: | Yorkville Advisors, LLC | ||
Its: | Investment Manager | ||
By: | /s/ David Gonzalez | ||
Name: DAVID GONZALEZ | |||
Title: General Counsel & Managing Member |
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Via email: trading@yorkvilleadvisors.com
Trading Day | Volume | VWAP | Daily Trading Value (Volume x VWAP) | ||||
T | |||||||
T-1 | |||||||
T-2 | |||||||
T-3 | |||||||
T-4 | |||||||
T-5 | |||||||
T-6 | |||||||
T-7 | |||||||
T-8 | |||||||
T-9 | |||||||
Aggregate of the Daily Value Traded: | |||||||
10% of Aggregate of the Daily Value Traded: |
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Sincerely, | ||
[___________] | ||
By: | ||
Name: | ||
Title: |
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Date: | [_____________] |
TO: | [__________] (The “Company”) |
Via email: [__________] | |
Underwriter [__________] | |
Via email: [__________] |
Below please find the settlement information with respect to the Advance Notice dated: |
1. | (a) Amount of Advance (as stated on Advance Notice): | US$ |
(b) Advance Amount (amount of Advance after adjusting for Advance Limitations in accordance with Section 2.01(b)): | US$ | |
(c) Total Advance Amount: | US$ | |
2. | Purchase Price | US$ |
3. | Number of Shares due to Investor: |
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Sincerely, | |
YA GLOBAL INVESTMENTS, L.P |
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Whereas | YA Global Investments L.P. (“Investor”) and [__________] (“Company”), are parties to a Reverse Equity Pricing Agreement dated _______________ a copy of which is attached in Annex A hereto (“Agreement”); and |
Whereas | in connection with the payment of the Advance amounts pursuant to the Agreement, the Investor shall deposit certain amounts with you to be held in trust by you as trustee, |
1. | The Investor may deposit with you certain amounts designated for the payment of Advance Amounts pursuant to the Agreement. | |
2. | With respect to such amount we hereby irrevocably instruct you as follows: | |
2.1. | You will remit the Advance Amount to the Company’s bank account the details of which are set forth in Annex C4 to the Agreement promptly upon receiving a document evidencing the deposit of the Shares in the in the Investor’s Account. The Company may change the details of such bank account by giving a written notice to you (with a copy to the Investor), at any time prior to the Advance Closing Date in accordance with the Agreement. | |
2.2. | Prior to the transfer of funds to the Company in accordance with the provisions of Section 2.1, all funds in the Designated Account together with any amount accrued thereon shall belong to the Investor and you will act with respect to same in accordance with instructions delivered to you from time to time by the Investor. In the event that you don’t receive a document evidencing the deposit of the Shares in the Investor’s Account within two (2) days of the Advance Closing Date, then you shall immediately notify the Investor and release the funds back to the Investor. Commencing upon the presentation to you of document/documents evidencing the issuance of the applicable Advance Shares to the Investor you will hold the amount of the Advance Amount in trust to the benefit of the Company. For the sake of clarity, (i) any funds left in the Designated Account following transfer of the amount of the Advance shall belong to the Investor, while any amounts accrued on the amount of the Advance following the date of the transfer of the Shares to the Investor’s Account shall belong to the Company; and (ii) in the event you do not receive a document evidencing the deposit of the Shares in the Investor’s Account within two (2) days of the Advance Closing Date, the instructions in Section 2.1 shall be deemed to have expired with respect to any outstanding Advance Notice and you will act with respect to the funds in the account solely in accordance with the Investor’s instructions. | |
3. | Subject to you having acted in accordance with the provisions of this Letter Agreement, neither the Investor nor the Company, nor anyone acting on behalf of anyone of us, shall have any claims and/or demands of any kind against you for any acts or omissions by you, or anyone acting on your behalf, in connection with the services hereunder. |
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4. | Moreover, we hereby undertake to release you, hold you harmless and immediately indemnify you from and against any and all liabilities, damages, losses, costs or expenses of any kind imposed, borne, sustained or incurred (i) in the course and/or in connection with the services hereunder; or (ii) as a result of any act or omission by you or by any person or entity acting on your behalf, and deriving from the fulfillment of your duties or execution of your powers (unless perpetrated in bad faith). | |
5. | You may act in reliance upon any document or instrument delivered to you by the Company and/or the Investor, and assume the authenticity and genuiness of any signature contained in any such document or instrument, which you, in good faith, believe to be authentic. You shall not be responsible in any manner for the sufficiency, adequacy or legal propriety of any certificate, document or instrument delivered to you pursuant to the Letter Agreement herein. | |
6. | You shall not be deemed to have any knowledge of the contents of any written notice, document or instrument, and no such written notice, document or instrument shall be deemed to have been duly given to you, unless and until you shall have actually received such written notice, document or instrument. | |
7. | The trust under this agreement and your duties as trustee on our behalf shall terminate in any of the following events: | |
7.1. | Upon the lapse of twenty one (21) days from the delivery of a written termination notice by any of the Company or you. | |
7.2. | Upon the expiration or termination of the Agreement. | |
8. | In the event that any dispute shall arise with respect to the interpretation of any provision of the Letter Agreement, the rights and/or obligations of any party hereunder or the propriety of any action contemplated by you under the Letter Agreement, then, in such event, you may, in your sole discretion, file an action in interpleader, or other appropriate proceeding before any court of competent jurisdiction. | |
9. | In the event you become involved in litigation in connection with the Letter Agreement, or any transaction related in any way hereto, we shall indemnity and hold you harmless from all loss, cost, damage, expense and reasonable attorney’s fees suffered or incurred by you as a result thereof, except for any loss, cost, damage or expense resulting from your breach of the Letter Agreement or your willful misconduct or negligence. You shall promptly notify us of any such litigation or threatened litigation and we shall have the right to assume the defense thereof, including the employment of counsel reasonably acceptable to you and payment of all fees and expenses of such counsel. You shall have the right to employ separate counsel in any such litigation and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at your expense, unless (i) we have agreed in writing to pay such fees and expenses, (ii) we have failed to assume the defense or employ counsel reasonably acceptable to you, or (iii) the named parties to any such litigation (including any impleaded parties) include both you and us, and the representation you and us by the same counsel would be inappropriate due to conflict of interests between us (in which case we shall not have the right to assume the defense of such litigation on your behalf). | |
10. | The Investor undertakes to cover any and all expenses, fees, charges etc associated with the opening, maintenance, operating and closing of the Designated Account to be opened in accordance with Section 1 above (“Account Fees”), and all other expenses, fees, charges etc in connection with your duties hereunder. | |
11. | The Instructions hereunder may only be modified by a written instrument, signed by all of the parties hereto. |
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12. | This Letter Agreement hereunder shall be governed by and construed in accordance with the laws of Israel, without regard to its principles of conflicts or choice of law. Any lawsuit, dispute or claim arising out of or in connection with this Letter Agreement shall be exclusively adjudicated in the court of the State of Israel. |
13. | All notices and other communications required or desired to be given or sent by one party to the other shall be in writing, and shall be deemed to have been given at the earlier of the following dates: if sent by registered mail, 3 (three) days from the date of mailing; if delivered by hand, upon actual delivery at the address of the addressee set forth below; and on the same business day if delivered by facsimile transmission to the number set forth below: |
______________. | |
Fax: +972 3 ___________ | |
Attn: ____________ |
14. | The Company’s and the Investor’s addresses shall be as set forth in the Agreement |
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ANNEX E – 1
MANAGERS’ DECLARATION WORDING (subject to adjustments as per the request of the Investor and following due diligence)
[ Note – this is a generic version subject to adjustments and changes as per the request of the Investor,inter alia following the due diligence and agreements with the pricing underwriter]
Dear Madam/Sir,
Re: [ ] Ltd. (hereinafter referred to as the “Company”)
As part of the due diligence of the Company in connection with the draft of the Shelf Offering Report which the Company intends to publish during the month of [_________________] (hereinafter referred to as the “Shelf Offering Report”) based on the Shelf Prospectus published by the Company on [_________________] (hereinafter referred to as the “Prospectus”) and the Company reports published after the date of the Prospectus (hereinafter referred to as the “Company Reports”) and pursuant to the underwriting agreement signed between the Company and [_________________] during the month of [_________________], and pursuant to the REPA agreement signed between the Company and YA Global Investments, L.P (hereinafter referred to as the “Yorkville Fund”) on [_________________], 2013 (hereinafter referred to as the “REPA Agreement”), we hereby confirm the following:
1. | Any reference to the Company in this letter, includes as well the Company’s subsidiaries, as this term is defined in the Securities Law, 5728 – 1968 (hereinafter referred to as the “Securities Law”) and as it appears in the Company reports. |
2. | The Company is registered and operates subject to any law, and it has full authority to hold its property and manage its business pursuant to the descriptions in the Prospectus and the Shelf Offering Report. |
3. | The Company has received all approvals, permits and licenses required for its operations,inter alia as such operations are described in the Prospectus, and these remain in effect. There is no knowledge of any intention to suspend and/or revoked them, and they were correctly described in the Prospectus. |
4. | The Company certificate of incorporation and Articles of Association delivered to you (if delivered) are the Company certificate of incorporation and Articles of Association, as such are in effect on the date of this letter hereof and all the resolutions necessary in order to prescribe thereto legal validity were passed. The description of the provisions of the Company Articles of Association in the Prospectus is correct and true and was done in accordance with the requirements set in the Securities Regulations (details of the prospectus and prospectus draft – structure and form), 5739 – 1969 (hereinafter referred to as the “Prospectus Details Regulations”), and the instructions of the Israel Securities Authority in this matter. |
5. | The Company directors were duly appointed. Their names and other details regarding the Company directors are included in the Prospectus, as required by the Securities Law and the Regulations subject thereto, and to the best of our knowledge, they are true. In addition, all approvals and resolutions required by any law in order to employ Company officers were acquired. |
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6. | The Company’s share capital is registered, issued and allotted by law and in accordance with the descriptions in the Prospectus, in the Shelf Offering Report and the Company reports. In addition, to the best of our knowledge, the holdings of interested parties and others in the Company securities are in accordance with the descriptions in the Prospectus and the Shelf Offering Report. The details appearing in the Prospectus and the Shelf Offering Report pertaining to the registered, issued and allotted share capital of the Company are true. The rights attached to the Company shares, and the securities that will be issued by the Company, were correctly described in the Prospectus. The shares in the Company’s issued capital are as described in the Prospectus and the Shelf Offering Report. The securities that were issued by the Company and any right to buy shares granted by the Company were duly granted and pursuant to the descriptions in the Prospectus, the Shelf Offering Report and the Company reports. |
7. | Issuing securities subject to the Prospectus and the Shelf Offering Report, including all its conditions, was approved by the resolutions of the Company Board of Directors required in order to grant them legal validity. |
8. | The terms of employment between the Company and its employees, and the details of the senior officers, if a description thereof is necessary, were correctly described in the Prospectus, pursuant to the provisions of the Securities Law and its regulations. |
9. | There are no liens whatsoever on the Company assets and there is no undertaking for the creation thereof, whether granted in order to guarantee Company debt or to guarantee the debt of a third party, except as is described in the Prospectus, if this is necessary subject to the Securities Law and the Prospectus Details Regulations. |
10. | There are no loans and no guarantees were given in favor of the Company, except as is described in the Prospectus, if this is necessary subject to the Securities Law and the Prospectus Details Regulations. |
11. | The Company has the authority to sign an underwriting agreement. The Company Board of Directors passed the necessary resolutions for this purpose and the signed underwriting agreement obligates the Company subject to its terms. In addition, the Company Board of Directors approved that the advance undertaking amount to indemnify the underwriters and to indemnify YA Global Investments, L.P is reasonable under the circumstances, as is required subject to the Securities Law and its Regulations. |
12. | All of the details appearing in the Prospectus, the Shelf Offering Report and the Company reports regarding interested parties of the Company and their holdings in Company Securities (as this is defined in the Securities Law, 5728 – 1968) (above and hereunder: the “Interested Parties”), including with regard to Company transactions with Interested Parties, payments and benefits which the Interested Parties have received or are entitled to receive from the Company are true and the details thereof were given in the Prospectus, the Shelf Offering Report and the Company reports as required subject to the Securities Law and the Prospectus Details Regulations. All transactions with Interested Parties and senior officers were duly approved subject to the Companies Law, 5759 – 1999. |
13. | All resolution required subject to the Companies Law, 5759 – 1999 and any law were passed in order to approve the employment of an Interested Party and senior officers mentioned in the Prospectus and the Shelf Offering Report. |
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14. | All of the details appearing in the “description of the corporation’s business” chapter in the Prospectus are true and are in accordance with the Securities Law and the Prospectus Details Regulations. Subject to the reservation explicitly stated in the Prospectus and referring to the Company assessment, the Company estimates and forward-looking information and the information presented in the Prospectus and to the best of the Company's knowledge if such exist for which we declare that they are assessments and estimates that we have performed after examinations and investigations are true. |
15. | All contracts, agreements and details described in the Prospectus, in the Shelf Offering Report and the Company reports as required by the Securities Law and its regulations and which the Company is a party thereto (hereinafter and for the purpose of this section only referred to as the “Agreements”), are correctly mentioned and described in the Prospectus and the Shelf Offering Report and apart from them there are no Agreements and/or contracts and/or other details which should be described as aforementioned. The aforementioned description of the Agreements includes all of the information required subject to the Securities Law and the Prospectus Details Regulations. |
16. | All of the Company’s intellectual property (if any) described in the Prospectus andinter alia, registered patents and those in the process of registration, were correctly described including the relevant approvals given therefor. |
17. | The discussed issue, including all its terms, as specified in the Prospectus and the Shelf Offering Report, does not contradict the certificate of incorporation or the Company Articles of Association, and does not infringe upon any contract whatsoever, or any other material document or agreement which the Company is party thereto, which the Company is obligated thereto. |
18. | There are no legal, quasi-legal proceedings or demands, including material and/or pending proceedings which the Company is party thereto. There Company is not aware of any intention to carry out such proceedings and there is no investigation, arbitration or process in Israel or abroad, pertaining to the Company, and as per the Company’s estimate the Company has no material exposure as a result of the aforementioned actions and/or omissions. |
19. | The Company has received in principle consent to grant all of the approvals required in order to publish the Shelf Offering Report and issue the securities subject thereto. |
20. | With regard to the laws, regulations and orders applicable to the Company, as of the date of this letter hereof, the Company fulfills its duties subject to any law including the provisions of the various laws and regulations specified in the “description of the Company business” chapter in the Prospectus, including all their amendments and the orders and regulations subject thereto, as well as the provisions of the various memorandums issued by the authorities, pertaining to the Company business and activities, unless there is no material influence on the Company. |
21. | The Company has received all of the approvals (including permits and licenses) required for its business operations and it acts in accordance with its certificate of incorporation and Articles of Association, as the case may be. |
22. | The Company is not in breach of its documents of incorporation and is not in breach of any material undertaking and/or material agreement whatsoever, whereas such breach may have a material influence on the Company. |
23. | The REPA agreement, including all its conditions, was approved by proper resolutions of the Company’s authorized organs. All of the Company and/or Company Board of Directors resolutions as aforesaid were duly passed. |
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24. | The REPA agreement, including all its conditions, does not contradict the Company’s documents of incorporation and does not infringe upon any undertaking or agreement, or any other document which the Company is a party thereto or is obligated thereby. |
25. | The Company Board of Directors has approved the Company’s REPA agreement with the Yorkville Fund, and as well approved that the advance undertaking amount to indemnify the Yorkville Fund is reasonable under the circumstances. |
26. | The Company has the authority to offer and issue the securities offered subject to the Prospectus in the manner and amounts described in the Prospectus and all subject to the Shelf Offering Report, which will be published by the Company. |
27. | The Tel Aviv Stock Exchange Ltd. has granted approval in principle to list thereon for trade the securities of the Company capital, the securities offered subject to the Shelf Offering Report. |
28. | The Company did not carry out any arrangements not stated in the Prospectus in connection with the offering of securities and their distribution among the public. |
29. | The Prospectus and/or Shelf Offering Report do not contain a “misleading item” as this is defined in the Securities Law, and they include any detail which may be important to a reasonable investor who is considering to purchase the securities offered in the Shelf Offering Report, or any other material thing the absence of which may mislead a reasonable investor. |
30. | The explanations of the Board of Directors for the _______________ reports, incorporated by means of reference, with regard to the state of the Company affairs, the results of its activity, its equity, and its cash flows, are correct and properly represent the developments in the Company affairs. |
31. | Since the dates subject to which any information was granted in the Prospectus and the Shelf Offering Report and until the date of this declaration herein, no adverse material change has occurred in the status of the Company and its business results. |
32. | The declarations, estimates, assessments, data, calculations, allowances, and forecasts included in the Prospectus, the Shelf Offering Report and the most updated financial statements included therein were made inbona fide and after proper and appropriate examination and assessment. The Company’s assessment of the risk factors influencing its operations and business and their possible influences was done after an in-depth and proper examination and the description of such matters in the Prospectus and the Shelf Offering Report is in accordance with the Securities Law and the Prospectus Details Regulations. |
33. | We hereby confirm that the documents delivered to you by the Company and/or its legal advisors, constitute all of the material documents in our possession and/or in the possession of our legal counsel in connection with the description of the Company in the Prospectus and the Company reports and as well material matters pertaining to the Company. We have no document or agreement which, to the best of our understanding, you would require for your examination and investigation in connection with the abovementioned and/or which we are aware of their existence and which may materially influence the Company and which were not delivered to you for your review. |
34. | Without derogating from our letter above, we hereby confirm that the Prospectus and the Shelf Offering Report specify the main details and descriptions required subject to the Securities Law and its regulations, and as is required by the Tel Aviv Stock Exchange Ltd. and the Israel Securities Authority. |
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35. | We are not aware that the Company is in breach of its certificate of incorporation, its Articles of Association or any material undertaking subject to any agreement whatsoever, in a manner which may materially influence the Company. |
36. | We hereby undertake that if during the period between the date of publishing the Shelf Offering Report and until the date of closing the list of signatures, any event shall occur or we should become aware of any details or fact which may cause the content of the Prospectus and/or Shelf Offering Report and/or Company reports to include at that time a misleading item as this defined in the Securities Law, or that at the time they will be missing any details the absence of which may mislead a reasonable investor and/or we are informed about the occurrence of an event and/or details and/or facts of any kind which may cause the content of this letter hereof to become untrue or imprecise, we will notify you of this immediately. |
37. | We have no objection that as per request you will deliver this letter to the representatives of the Israel Securities Authority and the Tel Aviv Stock Exchange Ltd. and any other person which will be entitled by law to demand that it be presented thereto. |
38. | This letter is granted subject to the fact that any matter or affair pertaining thereto shall be governed by Israeli Law only, and the Tel Aviv – Jaffa Court only shall have exclusive jurisdiction in any proceeding pertaining thereto, and this letter cannot be relied upon in connection with any other proceeding subject to any other law or jurisdiction. |
___________________ ___________________ ___________________
___________________, CEO ___________________, Chairperson of the Board of Directors
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WORDING OF THE COMFORT LETTER FROM THE COMPANY ATTORNEY (subject to adjustments as per the request of the Investor and following due diligence)
[ Note – this is a generic version subject to adjustments and changes as per the request of the Investor,inter alia following the due diligence and agreements with the pricing underwriter]
Re:Shelf Offering Report of [ ] Ltd.
1. | Pursuant to the underwriting agreement signed between [_________________] (hereinafter referred to as “the Company”) and [_________________] on [_________________] 2013 (hereinafter referred to as the “Underwriting Agreement”), and pursuant to the REPA agreement signed between the Company and YA Global Investments, L.P on [_________________] , 2013, and in connection with the Company Shelf Prospectus dated [_________________] (hereinafter referred to as the “Prospectus”), and in connection with the Shelf Offering Report, which the Company intends to publish in connection with the Prospectus (hereinafter referred to as the “Shelf Offering Report”), we hereby confirm the following: |
1.1 | Any reference to the Company in this letter, includes as well the Company’s subsidiaries, as this term is defined in the Securities Law, 5728 – 1968 (hereinafter referred to as the “Securities Law”) and as it appears in the Company reports. |
1.2 | As part of our duties as the attorneys of the issue, we are familiar with the contents of the Prospectus and the draft of the Shelf Offering Report. In addition we are familiar with the Company’s documents of incorporation and we have reviewed all of the minutes of the meetings of the audit committee and the Company Board of Directors held during the period of 36 months preceding the date of our letter hereof; and all of the legal proceedings and agreements described in the Prospectus and the Shelf Offering Report, including agreements with interested parties, which the Company is a party thereto, and the specification of legal proceedings, if any, pending against the Company and other documents, which the Company is a party thereto and which were presented to us, and the rest of the documents which we deemed necessary to review, in order to grant our opinion herein. |
1.3 | In addition, we have spoken with the Company CEO and the Company CFO and with its auditor with regard to any fact material to our approval herein, which we have not verified and reviewed ourselves, and we received from them satisfactory explanations on which we have relied as we have deemed fit and necessary. |
1.4 | During the aforementioned conversations we have not been informed of anything which would indicate that the declarations, representations and documents given to us are incomplete, invalid and/or misleading. |
1.5 | Upon preparing this letter, we have assumed that all signatures on the documents delivered to us are original, the documents are complete, and all the people acting on behalf of any party to a contract have received approval necessary for this purpose, except if otherwise declared. In addition, we assumed that unless if otherwise declared, all agreements delivered are in effect and were not breached. |
1.6 | This letter refers only to matters pertaining to Israeli Law and was prepared without any knowledge and/or reference to any other law. |
2. | Based on the abovementioned, we hereby approve as follows: |
2.1 | The Company is registered and operates by law, and it has full authority to hold its property and manage its business pursuant to the descriptions in the Prospectus and the Shelf Offering Report. |
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2.2 | The Company documents of incorporation as delivered to you, if delivered, are complete and updated, in effect as of the date of our letter hereof and all resolutions necessary in order to grant them legal validity were passed. The description in the Prospectus of the provisions of the Company Articles of Association is true and correct and was done in accordance with the requirements of the Securities Regulations (details of the prospectus and draft of the prospectus – structure and form), 5729 – 1969 (hereinafter referred to as the “Prospectus Details Regulations”). |
2.3 | The Company directors serving as of the date of the Prospectus on the Company Board of Directors were duly appointed. Their names and other details regarding the Company directors (as delivered and approved thereby) are included in the Prospectus, as required by the Securities Law 5728 – 1968 (hereinafter referred to as the “Securities Law”) and its Regulations. |
2.4 | To the best of our knowledge, the Company’s share capital was duly issued in accordance with the description in the Prospectus and the Shelf Offering Report. The details appearing in the Prospectus and the Shelf Offering Report pertaining to the registered and issued share capital of the Company are correctly described in the Prospectus and the Shelf Offering Report. To the best of our knowledge, the Company’s issued and paid-up shares are held as is described in the Prospectus and the Shelf Offering Report and the rights attached to the offered securities are correctly described in the Prospectus. |
2.5 | All of the resolutions of the Company Board of Directors mentioned in the Prospectus were duly passed and are in effect, and the issue of securities subject to the Prospectus and the Shelf Offering Report, including all its conditions, was approved by the Company Board of Directors as necessary in order to grant it legal validity. |
2.6 | To the best of our knowledge, the terms of employment between the Company and its employees, and the details of the senior officers, if described in the Prospectus, were correctly described in the Prospectus, pursuant to the provisions of the Securities Law and its regulations. |
2.7 | We hereby confirm, relying on the records of the Companies Registrar and documents and declarations brought to our attention by the Company, there are no material liens whatsoever and there is no undertaking for the creation thereof, whether granted in order to guarantee Company debt or to guarantee the debt of a third party, there are no material loans and no material guarantees were given in favor of the Company, except as is described in the Prospectus; the guarantees and loans given in favor of the Company and/or thereby are properly described in the Prospectus, subject to the Securities Law and the Prospectus Details Regulations. |
2.8 | The Company has the authority to sign an underwriting agreement. The Company Board of Directors passed the necessary resolutions for this purpose and the signed underwriting agreement obligates the Company subject to its terms. In addition, the Company Board of Directors approved that the advance undertaking amount to indemnify the underwriters and to indemnify YA Global Investments, L.P is reasonable under the circumstances, as is required under the circumstances. |
2.9 | Based on the information given to us by the Company and the interested parties of the Company, all of the details appearing in the Prospectus and the Shelf Offering Report regarding interested parties of the Company, as this is defined in the Securities Law (above and hereunder: the “Interested Parties”) and their holdings, and Company or subsidiary or affiliated companies transactions with Interested Parties, or which the Interested Parties have a personal interest therein, and payments and benefits to the abovementioned Interested Parties, are properly described subject to the Prospectus Details Regulations and all resolutions required by law in order to approve them were passed. |
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2.10 | To the best of our knowledge, all resolution required subject to the Companies Law, 5759 – 1999 and any law were passed in order to approve the employment of an Interested Party and senior officers mentioned in the Prospectus and the Shelf Offering Report. |
2.11 | To the best of our knowledge, all agreements which the Company is a party thereto including lien agreements or undertaking to register a lien or guarantee agreements, which the Company is a party thereto, and the description thereof in the Prospectus and Shelf Offering Report are required subject to the Securities Law and its regulations (hereinafter referred to as and for the purpose of this section only the “Agreements”) are mentioned and/or described in the Prospectus and Shelf Offering Report as is required subject to the Securities Law and the Prospectus Details Regulations. |
Apart from that which is described in the Prospectus and the Shelf Offering Report, within the framework of our examination we were not informed that the Company is a party to additional Agreements (including lien agreements or guarantee agreements) which by law must be described in the Prospectus.
2.12 | The discussed issue, including all its terms, as specified in the Prospectus and the Shelf Offering Report, does not contradict the certificate of incorporation or the Company Articles of Association, and to the best of our knowledge does not infringe upon any contract whatsoever, or any other material document or agreement which the Company is party thereto, which the Company and/or subsidiary are obligated thereto. |
2.13 | Except that which is described in the Prospectus, we have not been made aware of any legal, quasi-legal proceedings or demands, or investigation or arbitration or any other process material to the Company – being held or that are expected to be held before any public authority in Israel or abroad and it has not been brought to our attention that warnings were received regarding such proceedings against the Company, and which were not mentioned in the Prospectus or Shelf Offering Report that are expected to have a material influence on the Company and/or which may influence the course of its business. |
2.14 | The Company has received the consent and approvals necessary in order to publish the Shelf Offering Report including the approval of the Tel Aviv Stock Exchange Ltd. to list the securities offered subject to the Shelf Offering Report. |
2.15 | To the best of our knowledge, the Company has received all of the approvals (including permits and licenses) required for its business operations and to the best of our knowledge it acts in accordance with its certificate of incorporation and Articles of Association, as the case may be. |
2.16 | Nothing has been brought to our attention that would indicate that the Prospectus and/or Shelf Offering Report contain a “misleading item” as this is defined in the Securities Law, or that they include any detail which may be important to a reasonable investor who is considering to purchase the securities offered in the Prospectus and Shelf Offering Report, or any other material thing the absence of which may mislead a reasonable investor. |
3. | Without derogating from our letter above, we hereby confirm that to the best of our knowledge the Prospectus and the Shelf Offering Report (including by incorporation by means of reference) specify the main data, details and descriptions required by the Tel Aviv Stock Exchange Ltd. and the Israel Securities Authority. |
4. | We are not aware that the Company is in breach of its certificate of incorporation, its Articles of Association or any material undertaking subject to any agreement whatsoever, in a manner which may materially influence the Company. |
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5. | If during the period between the date of publishing the Shelf Offering Report and until the date of closing the list of signatures subject to the Shelf Offering Report, any event shall be brought to our attention which may cause the content of the our letter to be incorrect at that time, we will notify you of this immediately after the event occurs or after the information above is brought to our attention. |
6. | You may rely on our opinion included in the Shelf Offering Report. |
7. | Our letter hereof will be held by YA Global Investments only, and its presentation will be possible in connection with the Prospectus, including for the purpose of delivering it to the representatives of the Israel Securities Authority, the Tel Aviv Stock Exchange Ltd., or any other authority as per its request subject to the provisions of the law. Our letter hereof may not be used, distributed, quoted, or referred to for any other purpose that is not specified above, without our explicit, written consent given in advance. |
Sincerely,
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