Exhibit 4.26
SUBSCRIPTION AGREEMENT
Entera Bio Ltd.
This Subscription Agreement (this “Agreement”) has been executed by the subscriber set forth on the signature page hereof (the “Subscriber”) in connection with the private placement offering (the “Offering”) by Entera Bio Ltd., an Israeli company (the “Company”) of a minimum of Seven Million Dollars ($7,000,000) (the “Minimum Offering”) and a maximum of Fourteen Million Dollars ($14,000,000) (the “Maximum Offering”) of the Company’s ordinary shares, par value NIS 0.0000769 (the “Ordinary Shares”) and warrants in the form annexed hereto as Exhibit A (the “Warrants”), to purchase additional Ordinary Shares in an amount up to 50% of the number of Ordinary Shares purchased directly at an exercise price equal to 125% of the price at which the Ordinary Shares being purchased directly are sold in the Offering. The purchase price (the “Purchase Price”) for each Ordinary Share will be equal to the thirty- day moving average market price for the Ordinary Shares determined as of the date which is 3rd trading day prior to the date of the initial Closing (which was held on December 11, 2019). Subject to the terms and conditions of this Agreement, the Securities may be sold by the Company in one or more additional closings during the Offering Period. The Ordinary Shares and Warrants shall hereafter be referred to collectively as the “Securities.”
The minimum subscription for each Subscriber is $100,000 (the “Minimum Subscription Amount per Subscriber”). The Company may, however, accept subscriptions for less than the Minimum Subscription Amount per Subscriber in its sole discretion.
The Securities being subscribed for pursuant to this Agreement have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) in an “offshore transaction” (as defined in Regulation S) in reliance on Regulation S under the Securities Act.
The Subscriber acknowledges receipt of a copy of the Registration Rights Agreement, substantially in the form annexed hereto as Exhibit B (the “Registration Rights Agreement”).
Each closing of the Offering (a “Closing,” and the date on which such Closing occurs hereinafter referred to as the “Closing Date”) shall take place at such place as is mutually agreed to by the Company and the Placement Agent (as defined below). Notwithstanding the foregoing, an additional Closing, comprised solely of Company shareholders not purchasing through the Placement Agent (“Non- PA Subscribers”), may take place at such place elected solely by the Company. Such Closing may be the final Closing. Such a Closing shall not require the agreement of the Placement Agent but advance written notice thereof, including proof of deposit of subscription amounts by the Non-PA Subscribers, shall be provided to the Placement Agent by the Company, if requested by the Placement Agent.
The initial Closing (the “initial Closing”) will not occur unless:
| a. | funds deposited in escrow as described in Section 2(b) below and equal at least the Minimum Offering, and corresponding documentation with respect to such amounts has been delivered by the Subscriber and other “Subscribers” under Subscription Agreements of like tenor with this Agreement (collectively, the “Subscribers”) as described in Section 2(a) below; and |
| b. | the other conditions set forth in Sections 7 and 8 below shall have been satisfied. |
Thereafter, the Company may conduct one or more additional Closings for the sale of the Securities up to the Maximum Offering until the termination of the Offering. Unless terminated earlier by the Company, the Offering of at least the Minimum Offering shall continue until on or about December 6, 2019 and through January 20, 2020 with respect to the Maximum Offering, provided however that the Company and the Placement, at their sole discretion, shall be entitled to extend the Offering period for a period of an additional month until February 20, 2020 (such date, the “Offering Termination Date”).
Any written disclosure schedules or other written information documents delivered to the Subscriber prior to Subscriber’s execution of this Agreement, and any such document delivered to the Subscriber after Subscriber’s execution of this Agreement and prior to the Closing of the Subscriber’s subscription hereunder, are collectively referred to as the “Disclosure Materials.”
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
1. Subscription. The undersigned Subscriber hereby subscribes to purchase the amount of Securities as shall be calculated based on terms of this Agreement, for the aggregate Purchase Price as set forth on such Omnibus Signature Page, subject to the terms and conditions of this Agreement and on the basis of the representations, warranties, covenants and agreements contained herein.
| | o.
| No Other Representations or Information. In evaluating the suitability of an investment in the Securities, the Subscriber has not relied upon any representation or information (oral or written) with respect to the Company, or otherwise, other than as stated in this Agreement, the other Transaction Documents and the Securities. No other oral or written representations have been made, or oral or written information furnished, to the Subscriber or its Advisors, if any, in connection with the offering of the Securities. |
| | p.
| No Governmental Review. The Subscriber understands that no United States federal or state agency or any other United States or foreign government or governmental agency has passed on or made any recommendation or endorsement of the Securities, or the fairness or suitability of the Securities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities. |
| | q.
| Transfer or Resale. The Subscriber understands that: (i) the Securities and the Warrant Shares have not been and may not be registered under the Securities Act or any state securities or other foreign laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, or (B) the Subscriber shall have delivered to the Company an opinion of counsel, in a form reasonably satisfactory to the Company, to the effect that such securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration requirements; (ii) any sale of such securities made in reliance on Rule 144 under the Securities Act (or a successor rule thereto) (“Rule 144”) may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of such securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder; and (iii) except as otherwise set forth in this Agreement, the Company is not, and no other person is, under any obligation to register such securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. The Company reserves the right to place stop transfer instructions against the certificates for the Ordinary Shares and Warrant Shares to the extent specifically set forth under this Agreement. There can be no assurance that there will be an active trading market or resale for the Ordinary Shares, or Warrant Shares, nor can there be any assurance that the Ordinary Shares or Warrant Shares will be freely transferable at any time in the foreseeable future. |
| | r.
| Legends. The Subscriber understands that the certificates for the Ordinary Shares (to the extent Ordinary Shares, including those issuable upon exercise of Warrants and Broker Warrants, are issued in certificated form) shall bear a restrictive legend in substantially the form below (and a stop transfer order may be placed against transfer of such stock certificates). In addition, the Subscriber understands that the Warrants shall include a legend substantially in the form of the first page of the Form of Warrant attached hereto as Exhibit A (and a stop transfer order may be placed against transfer of such warrant certificates).
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (I) AS PART OF THEIR DISTRIBUTION AT ANY TIME OR (II) OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, EXCEPT IN EITHER CASE IN ACCORDANCE WITH REGULATION S (OR RULE 144A IF AVAILABLE) UNDER THE SECURITIES ACT EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS AN NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES FOR THE BENEFIT OF ENTERA BIO LTD. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT: (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT TO A PERSON THAT IS NOT A U.S. PERSON WHO AGREES TO RESTRICTIONS ON RESALE THAT ARE CONSISTENT WITH THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH THE PARAGRAPH ABOVE, THE COMPANY AND THE COMPANY’S TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
SECURITIES EVIDENCED HEREBY AND ORDINARY SHARES OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY. |
The Company shall use its commercially reasonable efforts to cause its transfer agent to remove the legend set forth above from the Ordinary Shares and Warrant Shares subject to the Securities Act and the applicable law and, within three (3) Business days, shall issue a certificate without such legend to the holder of such Ordinary Shares or Warrant Shares upon which it is stamped, if, unless otherwise required by state securities laws, (i) the Subscriber or its broker make the necessary representations and warranties to the transfer agent for the Ordinary Shares that it has complied with the prospectus delivery requirements in connection with a sale transaction, provided the Ordinary Shares and Warrant Shares, as applicable, are registered under the Securities Act, or (ii) in connection with an actual sale transaction, after such holder provides the Company with an opinion of counsel satisfactory to the Company, which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale, assignment or transfer of the Ordinary Shares and Warrant Shares, as applicable, may be made without registration under the Securities Act.
Notwithstanding the foregoing, in lieu of issuing the Ordinary Shares in certificated form, the Company may provide Subscribers with book entry evidence of the Ordinary Shares. Any Ordinary Shares issued in such manner would carry the same rights and limitations as those issued in certificated form.
| | s.
| Authorization, Enforcement. The Subscriber has the requisite power and authority to enter into and perform under this Agreement and the other Transaction Documents, and to purchase the Securities and underlying securities being sold to it hereunder. The execution, delivery and performance of this Agreement and the Transaction Documents by such Subscriber and the consummation by Subscriber of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or partnership action, and no further consent or authorization of such Subscriber or Subscriber’s Board of Directors, stockholders, partners, members, as the case may be, is required. This Agreement and the other Transaction Documents (to the extent the Subscriber is party thereto) have been duly authorized, executed and delivered by such Subscriber and upon execution of this Agreement and the Transaction Documents by the other parties hereto and thereto, constitute, or shall constitute when executed and delivered, a valid and binding obligation of such Subscriber enforceable against such Subscriber in accordance with the terms hereof and thereof, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. |
| | t.
| No Conflicts. The execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation by the Subscriber of the transactions contemplated hereby and thereby or relating hereto do not and will not (i) if the Subscriber is not an individual, result in a violation of the Subscriber’s charter documents or bylaws or other organizational documents or (ii) conflict with, or constitute a default (or an event which 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 of any agreement, indenture or instrument or obligation to which the Subscriber is a party or by which its properties or assets are bound, or result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to the Subscriber or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on the Subscriber). The Subscriber is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement and the other Transaction Documents or to purchase the Securities in accordance with the terms hereof, provided that for purposes of the representation made in this sentence, the Subscriber is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein. |
| | u.
| Receipt of Documents. The Subscriber, its counsel and/or its Advisors have received and read in their entirety: (i) this Agreement and each representation, warranty and covenant set forth herein; and (ii) all due diligence and other information necessary to verify the accuracy and completeness of such representations, warranties and covenants; the Subscriber has received answers to all questions the Subscriber submitted to the Company regarding an investment in the Company; and the Subscriber has relied on the information contained therein and has not been furnished any other documents, literature, memorandum or prospectus. |
| | v.
| Trading Activities. The Subscriber’s trading activities with respect to the Ordinary Shares shall be in compliance with all applicable federal and state securities laws, rules and regulations and the rules and regulations of the principal market on which the Ordinary Shares are listed or traded. Except as set forth below, the Subscriber shall not, and shall cause its affiliates not to, engage in any short sale as defined in any applicable SEC or Financial Industry Regulatory Authority (“FINRA”) rules or any hedging transactions with respect to the Common Stock until the earlier to occur of (i) the first anniversary of the initial Closing Date and (ii) the Subscriber no longer owns Ordinary Shares, Warrants or Warrant Shares. Without limiting the foregoing, the Subscriber agrees not to engage in any naked short transactions in excess of the amount of shares owned (or an offsetting long position) by the Subscriber. |
| | w.
| No Legal Advice from the Company. The Subscriber acknowledges that it had the opportunity to review this Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment and tax Advisors. The Subscriber is relying solely on such Advisors and not on any statements or representations of the Company or any of its employees, representatives or agents for legal, tax, economic and related considerations or investment advice with respect to this investment, the transactions contemplated by this Agreement or the securities laws of any jurisdiction. |
| | x.
| No Group Participation. The Subscriber and its affiliates is not a member of any group, nor is the Subscriber acting in concert with any other person, including any other Subscriber, with respect to its acquisition of the Securities and underlying securities. |
| | y.
| Reliance. Any information which the Subscriber has heretofore furnished or is furnishing herewith to the Company or any Broker is complete and accurate and may be relied upon by the Company and any Broker in determining the availability of an exemption from registration under U.S. federal and state securities laws in connection with the offering of securities as described in this Agreement and the related summary term sheet and transmittal letter, if any. The Subscriber further represents and warrants that it will notify and supply corrective information to the Company immediately upon the occurrence of any change therein occurring prior to the Company’s issuance of the Securities. Within five (5) days after receipt of a request from the Company or any Broker, the Subscriber will provide such information and deliver such documents as may reasonably be necessary to comply with any and all laws and ordinances to which the Company or any Broker is subject. |
| | z.
| (For ERISA plan Subscribers only). The fiduciary of the ERISA plan represents that such fiduciary has been informed of and understands the Company’s investment objectives, policies and strategies, and that the decision to invest “plan assets” (as such term is defined in ERISA) in the Company is consistent with the provisions of ERISA that require diversification of plan assets and impose other fiduciary responsibilities. The Subscriber fiduciary or plan (a) is responsible for the decision to invest in the Company; (b) is independent of the Company or any of its affiliates; (c) is qualified to make such investment decision; and (d) in making such decision, the Subscriber fiduciary or plan has not relied primarily on any advice or recommendation of the Company or any of its affiliates. |
| | aa.
| Anti-Money Laundering; OFAC. [The Subscriber should check the Office of Foreign Assets Control (“OFAC”) website at http://www.treas.gov/ofac before making the following representations.] The Subscriber represents that the amounts invested by it in the Company in the Securities were not and are not directly or indirectly derived from activities that contravene U.S. federal or state or international laws and regulations, including anti-money laundering laws and regulations. U.S. federal regulations and executive orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at http://www.treas.gov/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists. To the best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person controlling or controlled by the Subscriber; (3) if the Subscriber is a privately-held entity, any person having a beneficial interest in the Subscriber; or (4) any person for whom the Subscriber is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on an OFAC list, or a person or entity prohibited under the OFAC Programs. Please be advised that the Company may not accept any amounts from a prospective investor if such prospective investor cannot make the representation set forth in the preceding paragraph. The Subscriber agrees to promptly notify the Company should the Subscriber become aware of any change in the information set forth in these representations. The Subscriber understands and acknowledges that, by law, the Company may be obligated to “freeze the account” of the Subscriber, either by prohibiting additional subscriptions from the Subscriber, declining any redemption requests and/or segregating the assets in the account in compliance with governmental regulations, and a Broker may also be required to report such action and to disclose the Subscriber’s identity to OFAC. The Subscriber further acknowledges that the Company may, by written notice to the Subscriber, suspend the redemption rights, if any, of the Subscriber if the Company reasonably deems it necessary to do so to comply with anti-money laundering regulations applicable to the Company or any Broker or any of the Company’s other service providers. These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs. To the best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person controlling or controlled by the Subscriber; (3) if the Subscriber is a privately-held entity, any person having a beneficial interest in the Subscriber; or (4) any person for whom the Subscriber is acting as agent or nominee in connection with this investment is a senior foreign political figure2, or any immediate family3 member or close associate4 of a senior foreign political figure, as such terms are defined in the footnotes below.
If the Subscriber is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the Subscriber receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Subscriber represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate. |
| | bb.
| Conflicts Waiver. Each PA Subscriber purchasing through GPN is aware that some of the members of Intuitive Venture Partners, LLC (“Intuitive”) are registered representatives registered with GPN, and may receive a portion of the Cash Fee and/or Broker Warrants payable to GPN, as described above. Each such PA Subscriber, for itself and on behalf of its affiliates, expressly waives any conflicts of interest or potential conflicts of interest discussed in this paragraph and agrees that neither GPN nor its affiliates, officers, directors or members shall have any liability to the Subscriber or its affiliates, and the Subscriber and its affiliates shall have no liability to GPN, or its affiliates, officers, directors or members, with respect to such conflicts of interest or potential conflicts of interest. |
| | cc.
| Funds Availability. The Subscriber has, or will have at the applicable Closing, sufficient cash, available lines of credit or other sources of immediately available funds pursuant to the Agreement, to enable it to make pursuant to the terms of this Agreement. |
1 These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs.
2 A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior executive of
a foreign government-owned corporation. In addition, a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure.
3 “Immediate family” of a senior foreign political figure typically includes the figure’s parents, siblings, spouse, children and in-laws.
4 A “close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and
international financial transactions on behalf of the senior foreign political figure.
6. Covenants.
| | (a) | Best Efforts. Each party shall use its best efforts timely to satisfy each of the conditions to be satisfied by it as provided in Sections 7 and 8 of this Agreement. |
| | (b) | Form D and Blue Sky Laws. If the Company decides to rely on Regulation D for this offering, the Company will file a Form D, to the extent applicable, with respect to the offer and sale of the Securities. The Company shall take such actions as the Company shall reasonably determine is necessary to qualify the Securities and Warrant Shares, or obtain an exemption for the Securities and Warrant Shares for sale to the Subscribers pursuant to this Agreement, under applicable US state blue sky laws. |
| | (c) | Reporting Status; Rule 144. Through the date which is one-year after the final Closing Date, the Company shall, to the extent applicable, maintain the registration of its ordinary shares under Section 12(b) or 12(g) of the Exchange Act and file in a timely manner (or, with respect to Form 6-K Reports, shall use its commercially reasonable efforts to file in a timely manner) all reports required to be filed with the SEC thereunder, and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would otherwise permit such termination. The Company further covenants that it will take such actions which are in compliance with the applicable laws that any Subscriber may reasonably request to enable such Subscriber to sell or transfer the Securities acquired in the Offering without registration under the Securities Act, including without limitation, pursuant to Rule 144. |
| | (d) | Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities (after deducting fees and expenses (including brokerage fees, legal fees and expenses and fees payable to the Escrow Agent)) for (i) completion of P2 Osteoporosis trial and primary readouts; (ii) filing of IND for osteoporosis program; (iii) research and development efforts to further develop additional compounds and finalize Hypo formulations; and (iv) general and administrative expenses to, among other things, support the Company’s public listing and registration statement, in each case, as such use of proceeds may be amended, at the discretion of the Company’s board of directors from time to time. |
| | (e) | Survival. Notwithstanding anything to the contrary in this Agreement, the representations and warranties of the Company and the Subscriber contained in Sections 4 and 5 shall survive the final Closing for a period of one year. The covenants contained in Sections 6 and 15 shall survive for the maximum period permitted by law. Each Subscriber shall be responsible only for its own representations, warranties, agreements and covenants hereunder. |
| | (f) | Listing of Ordinary Shares. Following the Offering, the Company shall, if allowed under applicable laws or NASDAQ rules, promptly secure the listing of all Ordinary Shares (including those underlying the Warrants and Broker Warrants) on the NASDAQ National Market or such other market then constituting the Company’s principal trading market. |
7.
Conditions to Company’s Obligations at each Closing. The Company’s obligation to complete the sale and issuance of the Securities and deliver the Securities at each Closing shall be subject to the following conditions to the extent not waived by the Company:
| | a.
| Receipt of Payment. The Company shall have received payment, by certified or other bank check or by wire transfer of immediately available funds, in the full amount of the Purchase Price for the amount of Securities being purchased by such Subscriber at such Closing. |
| | b.
| Representations and Warranties. The representations and warranties made by the Subscriber in Section 5 hereof shall be true and correct in all material respects as of, and as if made on, the date of this Agreement and as of such Closing Date with the same force and effect as if they had been made on and as of said date (except in each case to the extent any such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects as so qualified). The Subscriber shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to such Closing Date. |
| | c.
| Receipt of Executed Documents. Such Subscriber shall have executed and delivered to the Company the Omnibus Signature Page, the Investor Profile, Anti-Money Laundering Form and Accredited Investor Certification. In addition, the Subscriber is furnishing to the Company an executed IRS Form W-8BEN or W-9, if either is applicable, or the correct form as described in the instructions in the attached herein as an exhibit (“Internal Revenue Service Forms”) and the instructions accompanying the applicable form. |
| | d.
| Minimum Offering. The initial Closing shall be at least for the amount of Securities in the Minimum Offering at the Purchase Price. |
| | e.
| Judgments. No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby. |
| | f.
| Foreign Investors. If the Subscriber is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code), Subscriber hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Securities or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any government or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Securities. Subscriber’s subscription and payment for and continued beneficial ownership of the Securities will not violate any applicable securities or other laws of Subscriber’s jurisdiction. |
| | g.
| Shareholder Approval. The Company shall have received any shareholder approval required under applicable law. |
8. Conditions to Subscribers’ Obligations at each Closing. Each Subscriber’s obligation to accept delivery of the Securities and to pay for the Securities at each Closing shall be subject to the following conditions to the extent not waived by the Placement Agent on behalf of the Subscribers:
| | a.
| Representations and Warranties. The representations and warranties made by the Company in Section 4 hereof shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects as so qualified) as of, and as if made on, the date of this Agreement and as of such Closing Date with the same force and effect as if they had been made on and as of said date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and in all material respects correct as of such earlier date (except in each case to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects as so qualified). The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the applicable Closing Date. |
| | b.
| Receipt of Executed Transaction Documents. The Company shall have executed and delivered to the Placement Agent the Registration Rights Agreement and the Escrow Agreement. |
| | c.
| Minimum Offering. The initial Closing shall be at least for the amount of Securities in the Minimum Offering at thePurchase Price. |
| | d.
| Judgments. No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby. |
| | e.
| Consents. The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation by the Company of the purchase and sale of the Securities and the transactions contemplated hereby or under the Transaction Documents, all of which shall be in full force and effect. |
| | g.
| Officer’s Certificate. The Company shall have delivered to the Subscribers a certificate, executed on its behalf by an appropriate officer, dated as of the applicable Closing Date, certifying as to the matters set forth in Sections 8 a.-e. above, certifying the resolutions adopted by its Board of Directors approving the transactions contemplated by this Agreement, the other Transaction Documents and the issuance of the Securities, certifying that the current versions of its Articles of Association, and certifying as to the signatures and authority of persons signing this Agreement on behalf of the Company. The foregoing certificate shall only be required to be delivered on the First Closing Date, unless any information contained in the certificate has changed. |
| | h.
| Shareholder Approval. The Subscriber shall have received any shareholder approval required under applicable law. |
9. Indemnification. Subject to Section 6(e) above, the Subscriber agrees to indemnify and hold harmless the Company, the Placement Agent and any other broker, agent or finder engaged by the Company for the Offering, and their respective directors, officers, shareholders, members, partners, employees and agents (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title), each person who controls such persons (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title) of such controlling person, from and against all losses, liabilities, claims, damages, out of pocket costs, fees and expenses whatsoever (including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation commenced or threatened) based upon or arising out of the Subscriber’s actual or alleged false acknowledgment, representation or warranty, or misrepresentation or omission to state a material fact, or breach by the Subscriber of any covenant or agreement made by the Subscriber, contained herein or in any other any other documents delivered by the Subscriber to the Company in connection with the transactions contemplated by this Agreement. In the absence of fraud, the liability of the Subscriber under this paragraph shall not exceed the aggregate Purchase Price paid by the Subscriber for Securities hereunder.
Subject to Section 6(e) above, the Company agrees to indemnify and hold harmless the Subscriber, its directors, officers, shareholders, members, partners, employees and agents (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title), each person who controls such persons (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title) of such controlling person, from and against all losses, liabilities, claims, damages, costs, fees and expenses whatsoever (including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation commenced or threatened) based upon or arising out of the Company’s actual or alleged false acknowledgment, representation or warranty, or misrepresentation or omission to state a material fact, or breach by the Company of any covenant or agreement made by the Company, contained in this Agreement, the Registration Rights Agreement, the Warrants or the Escrow Agreement or in any other Transaction Document. Notwithstanding anything to the contrary in this Agreement, in the absence of fraud, (i) the liability of the Company under this Agreement shall not exceed the aggregate Purchase Price paid by each Subscriber and actually received by the Company for Securities hereunder, and (ii) The Company will have no liability with respect to the matters described in Section 9 until the total amount of all losses with respect to such matters for all Subscribers in the aggregate exceeds $150,000, at which point the Company will be obligated to indemnify for any losses from the first dollar.
10. Revocability; Binding Effect. The subscription hereunder may be revoked prior to the initial Closing, provided that written notice of revocation is sent and is received by the Company or either of the Placement Agent at least two Business Days prior to the initial Closing on such subscription. The Subscriber hereby acknowledges and agrees that this Agreement shall survive the death or disability of the Subscriber and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns. If the Subscriber is more than one person, the obligations of the Subscriber hereunder shall be joint and several and the agreements, representations, warranties and acknowledgments herein shall be deemed to be made by and be binding upon each such person and such person’s heirs, executors, administrators, successors, legal representatives and permitted assigns.
11. Immaterial Modifications to the Registration Rights Agreement. The Company may, at any time prior to the initial Closing, amend the Registration Rights Agreement, if necessary to clarify any provision therein, without first providing notice or obtaining prior consent of the Subscriber. This right shall not extend to material modifications to the Registration Rights Agreement.
12. Third-Party Beneficiary. The Placement Agent shall be an express third-party beneficiary of the representations and warranties included in this Agreement with respect to the Company and the PA Subscribers. 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 this Section 12.
13. Assignability. This Agreement and the rights, interests and obligations hereunder are not transferable or assignable by the Subscriber, and the transfer or assignment of the Securities or the Warrant Shares shall be made only in accordance with the terms and conditions of the Warrants (with respect to the Warrant) all applicable laws.
14. Applicable Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York.
15. Arbitration. The parties agree to submit all controversies to arbitration in accordance with the provisions set forth below and understand that:
| | a.
| Arbitration shall be final and binding on the parties. |
| | b.
| THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. |
| | c.
| Pre-arbitration discovery is generally more limited and different from court proceedings. |
| | d.
| The arbitrator’s award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by arbitrators is strictly limited. |
| | e.
| The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. |
| | f.
| All controversies which may arise between the parties concerning this Agreement shall be determined by arbitration pursuant to the rules then pertaining to the Financial Industry Regulatory Authority in New York City, New York. Judgment on any award of any such arbitration may be entered in the Supreme Court of the State of New York or in any other court having jurisdiction of the person or persons against whom such award is rendered. Any notice of such arbitration or for the confirmation of any award in any arbitration shall be sufficient if given in accordance with the provisions of this Agreement. The parties agree that the determination of the arbitrators shall be binding and conclusive upon them. The prevailing party, as determined by such arbitrators, in a legal proceeding shall be entitled to collect any costs, disbursements and reasonable attorney’s fees from the other party. Prior to filing an arbitration, the parties hereby agree that they will attempt to resolve their differences first by submitting the matter for resolution to a mediator, acceptable to all parties, and whose expenses will be borne equally by all parties. The mediation will be held in the County of New York, State of New York, on an expedited basis. If the parties cannot successfully resolve their differences through mediation, within sixty (60) days from the receipt of written notice of a controversy from the notifying party, the matter will be submitted for resolution by arbitration. The arbitration shall take place in the County of New York, State of New York, on an expedited basis. |
16. Exemption from Qualification. The purchase of Securities under this Agreement is expressly conditioned upon the exemption from qualification of the offer and sale of the Securities from any applicable US federal securities laws (including any rules or regulations) and foreign securities laws of any jurisdiction (including any rules and regulations). The Company shall not be required to qualify this transaction under any applicable US federal securities laws (including any rules or regulations) and any foreign securities laws of any jurisdiction (including any rules and regulations) and, should qualification be necessary, the Company shall be released from any and all obligations to maintain its offer, and may rescind any sale contracted, in such jurisdiction.
17. Use of Pronouns. All pronouns and any variations thereof used herein shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require.
18. Confidentiality. The Subscriber acknowledges and agrees that any information or data the Subscriber has acquired from or about the Company or may acquire in the future, not otherwise properly in the public domain, was received in confidence. The Subscriber agrees not to divulge, communicate or disclose, except as may be required by law or for the performance of this Agreement, or use to the detriment of the Company or for the benefit of any other person, or misuse in any way, any confidential information of the Company, including any scientific, technical, trade or business secrets of the Company and any scientific, technical, trade or business materials that are treated by the Company as confidential or proprietary, including, but not limited to, internal personnel and financial information of the Company or its affiliates, the manner and methods of conducting the business of the Company or its affiliates and confidential information obtained by or given to the Company about or belonging to third parties.
19. Potential Conflicts. The Placement Agent, its sub-agents, legal counsels to the Placement Agent, and/or their respective affiliates, principals, representatives or employees may now or hereafter own shares or other securities of the Company.
20. Independent Nature of Each Subscriber’s Obligations and Rights. For avoidance of doubt, the obligations of the Subscribers under this Agreement are several and not joint with the obligations of any other Subscribers, and each Subscriber shall not be responsible in any way for the performance of the obligations of any other Subscriber under any other Subscription Agreement. Nothing contained herein and no action taken by the Subscriber shall be deemed to constitute the Subscriber as a partnership, an association, a joint venture, or any other kind of entity, or create a presumption that the Subscribers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement and any other subscription agreements.
21. Notices. All notice and other communications hereunder which are required or permitted under this Agreement will be in writing and shall be deemed effectively given to a party by (a) the date of transmission if sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment if such notice or communication is delivered prior to 5:00 P.M., New York City time, on a Business Day, or the next Business Day after the date of transmission, if such notice or communication is delivered on a day that is not a business Day or later than 5:00 P.M., New York City time, on any Business Day; (b) seven (7) days after deposit with the United States Post Office, by certified mail, return receipt requested, first-class mail, postage prepaid; (c) on the date delivered, if delivered by hand or by messenger or overnight courier, addressee signature required (costs prepaid), to the addresses below or at such other address and/or to such other persons as shall have been furnished by the parties:
| If to the Company: | Entera Bio Ltd. |
| | 37 Walnut Street, Suite 300 |
| | Wellesley Hills, MA 02481 |
| | Attention: Adam Gridley, CEO |
| | Email: adam@enterabio.com |
| | |
| With a copy to | Herzog Fox & Neeman 4 Weizmann Street Tel Aviv 6423904 Israel Yair Geva, Adv. or Tomer Farkash, Adv. Email: gevay@hfn.co.il; farkasht@hfn.co.il Facsimile: +972 3 6966464; and |
| | Davis Polk & Wardwell LLP |
| (which shall not constitute notice) | 450 Lexington Avenue |
| | New York, NY 10017 |
| | Attention: Gil Savir, Esq. |
| | Email: gil.savir@davispolk.com |
| | |
| If to GP Nurmenkari Inc.: | GP Nurmenkari Inc. |
| | 22 Elizabeth Street |
| | SONO Square, Suite 1J |
| | Norwalk, CT 06854 |
| | Attention: Robert Fitzpatrick, CCO |
| With a copy to: | |
| (which shall not constitute notice) | Lucosky Brookman LLP |
| | 101 Wood Avenue South |
| | Woodbridge, NJ 08830 |
| | Attention: Scott Rapfogel, Esq. Email: srapfogel@lucbro.com |
22. Omnibus Signature Page. This Agreement is intended to be read and construed in conjunction with the Registration Rights Agreement and the Escrow Agreement. Accordingly, pursuant to the terms and conditions of this Agreement, the Registration Rights Agreement and the Escrow Agreement, it is hereby agreed that the execution by the Subscriber of this Agreement, in the place set forth on the applicable Omnibus Signature Page below, shall constitute agreement to be bound by the terms and conditions hereof, and the terms and conditions of the Registration Rights Agreement and the Escrow Agreement, with the same effect as if each of such separate but related agreement were separately signed.
23. Public Disclosure. The Subscriber nor any officer, manager, director, member, partner, stockholder, employee, affiliate, affiliated person or entity of the Subscriber shall make or issue any press releases or otherwise make any public statements or make any disclosures to any third person or entity with respect to the transactions contemplated herein and will not make or issue any press releases or otherwise make any public statements of any nature whatsoever with respect to the Company without the Company’s express prior approval. The Company has the right to withhold such approval in its sole discretion. Notwithstanding the foregoing, the Subscriber may disclose information with respect to the transaction contemplated herein to the extent that the Subscriber is required by any applicable governmental authority to do so; provided, however, that in such event, to the extent permitted by applicable law, the Subscriber shall notify the Company five (5) business days in advance and shall cooperate with the Company, solely at the Disclosing Party’s expense, in any attempt to contest or limit such required disclosure.
24. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
25. Participation in Future Offerings.
| | a.
| Subject to the consumption of the Initial Closing, and subject to the terms and conditions of this Section 25 and applicable securities laws, the Company agrees that each Subscriber will be entitled to purchase its pro-rata portion of the New Securities offered by the Company to investors making a cash-investment in any private placement offering of the Company of more than $2,500,000 to be closed during a period of one year following the final Closing Date of this Offering (the “Applicable Period”). The rights granted under this Section 25 to Subscribers are personal to the Subscribers and accordingly such rights cannot be transferred or assigned to any other party. |
| | b.
| The Company shall give notice (the “Offer Notice”) to each Eligible Subscriber, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities. By notification to the Company within five (5) days after the Offer Notice is given (the “Offer Period”), each Eligible Subscriber may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals to the proportion that the Securities actually purchased by such Eligible Subscriber in this Offering bears to the total Securities actually sold by the Company in this Offering. |
| | c.
| Notwithstanding any provision hereof to the contrary, in lieu of complying with the provisions of Section 25(b), the Company may elect to give notice to the Eligible Subscriber within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Eligible Subscriber shall have ten (10) days from the date notice is given according to this subsection to elect to purchase up to the number of New Securities that would, if purchased by such Eligible Subscriber, would preserve such Eligible Subscriber’s right to purchase its pro rata portion of the New Securities, calculated as set forth in Section 25(b). |
| | d.
| The covenants set forth in this Section 25 shall terminate and be of no further force or effect upon the earlier of (i) the end of the Applicable Period, (ii) liquidation of the Company or (iii) the closing of merger or consolidation of the Company in which the Company is a constituent party except any such merger or consolidation involving the Company in which the shares of capital of the Company outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation. |
| | e.
| If the offer to Eligible Subscribers under this Section 25 may, in the opinion of the Company’s counsel, constitute an offer to the public under the applicable securities laws which is subject to prospectus or other requirements, then such offer shall be limited to the type of offerees the offering to which is exempted from such prospectus requirement, and no offering shall be made to any Eligible Subscriber until such Eligible Subscriber shall have provided the Company during the Offer Period with the satisfactory evidence of its compliance with the applicable requirements under the securities laws. |
| | f.
| The Term “New Securities” shall mean the issuance and sale of the Company’s shares or equity securities or securities converted into equity securities of the Company, and shall exclude for the avoidance of doubt, any of the following securities or issuances: (i) shares, options or convertible securities of the Company issued or granted as a dividend, bonus shares, stock split, split-up or other similar distribution or recapitalization, to all shareholders or equity holders of the Company on a pro-rata basis, (ii) shares, options or convertible securities of the Company issued or granted to: (a) employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant (or any shares issued upon the exercise of such options) to the Company’s share option plans, or (b) finders, broker-dealers, underwriters, agents or other similar entities assisting the Company with the sale or issuance of the equity securities of the Company, (iii) shares, options, rights or convertible securities of the Company actually issued upon the exercise of options, warrants or shares of the Company issued upon the conversion or exchange of convertible securities existing prior to the date of the Initial Closing, in each case provided such issuance is pursuant to the terms of such options or convertible securities, (iv) shares, options or convertible securities of the Company issued as acquisition consideration pursuant to the acquisition of another corporation by the Company by merger, purchase of substantially all or majority of the assets or other reorganization or to a joint venture agreement approved by the Board, (v) shares, options or convertible securities of the Company issued in connection with sponsored research, collaboration, technology or patent license, development, OEM, marketing, settlement of claims, or other similar agreements or strategic partnerships approved by the Board, (vi) Securities issued or sold according to the terms of this Offering, or (vii) any issuance in which Eligible Subscribers purchasing 60% of the Securities purchased by the Eligible Subscribers in this Offering have agreed in writing to exclude such issuance of new securities from the right of offer under this Section 25. |
26. Miscellaneous.
| | a.
| This Agreement, together with the Registration Rights Agreement, the Securities, the Escrow Agreement, and any confidentiality agreement between the Subscriber and the Company, constitutes the entire agreement between the Subscriber and the Company with respect to the Offering and supersedes all prior oral or written agreements and understandings, if any, relating to the subject matter hereof. Any term of this Agreement may be amended and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of (i) the Company, (ii) holders of 60% of the Purchase Price by the Subscribers actually investing in this Offering, and (iii) the Placement Agent (the “Majority Subscribers”), provided however that (i) no Subscriber shall be required to increase its respective Purchase Price or to make any additional representations or warranties without its prior written consent, and (ii) any amendment or waiver that would adversely and directly affect any Subscribers in a disproportionate manner relative to other Subscribers shall not be effective against the Subscribers without the prior written consent of the Subscriber (it is agreed that the mere fact that that each Subscriber has provided the Company with a different portion of the Purchase Price, shall not be deemed by itself to adversely affect the rights of such Subscribers in the context of amendment or waiver). |
| | b.
| This Agreement may be executed in one or more original or facsimile or by an e-mail which contains a portable document format (.pdf) file of an executed signature page counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument and which shall be enforceable against the parties actually executing such counterparts. The exchange of copies of this Agreement and of signature pages by facsimile transmission or in .pdf format shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or by e- mail of a document in pdf format shall be deemed to be their original signatures for all purposes. |
| | c.
| Each provision of this Agreement shall be considered separable and, if for any reason any provision or provisions hereof are determined to be invalid or contrary to applicable law, such invalidity or illegality shall not impair the operation of or affect the remaining portions of this Agreement. |
| | d.
| Paragraph titles are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. |
| | e.
| The Subscriber understands and acknowledges that there may be multiple Closings for the Offering. |
| | f.
| The Subscriber hereby agrees to furnish the Company such other information as the Company may request prior to the applicable Closing or reasonably request following post the request Closing with respect to its subscription hereunder. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has duly executed this Subscription Agreement as of the 13th day of December, 2019.
| | ENTERA BIO LTD |
| | By: /s/ Adam Gridley |
| | Name: Adam Gridley Title: Chief Executive Officer |
[Signature Page to Subscription Agreement]
[How to subscribe for Securities in the private offering of Entera Bio Ltd:]
| 1. | Date and Fill in the dollar amount of Securities being purchased and complete and sign the Omnibus Signature Page. |
| 2. | Initial the Accredited Investor Certification in the appropriate place or places. |
| 3. | Complete and sign the Investor Profile. |
| 4. | Complete and sign the Anti-Money Laundering Information Form. |
| 5. | Date and sign the Confidentiality Agreement. |
| 6. | Fax or email all forms and then send all signed original documents to your registered representatives office: |
GP Nurmenkari Inc.
Attn: Aaron Segal
122 East 42nd Street, Suite 1616 New York, NY 10168
Facsimile Number: 212.661.8786
Telephone Number: 212.612.3219
E-mail address: ams@intuitivevp.com
| 7. | If you are paying the Purchase Price by check, a certified or other bank check for the exact dollar amount of the Purchase Price for the Securities you are purchasing should be made payable to the order of “Delaware Trust Company, as Escrow Agent for Entera Bio Ltd. – Biomedical Solutions, Acct. # *******” and should be sent directly to Delaware Trust Company, 251 Little Falls Drive, Wilmington, DE 19808, Attn: Trust Administration.
Checks take up to 5 business days to clear. A check must be received by the Escrow Agent at least 6 business days before the closing date. |
| 8. | If you are paying the Purchase Price by wire transfer, you should send a wire transfer for the exact dollar amount of the Purchase Price for the Notes you are purchasing according to the following instructions: |
| Bank: | US Bank 5065 Wooster Road Cincinnati, OH 45226 |
| ABA Routing #: | ************** |
| SWIFT CODE: | ************** |
| Account Name: | Delaware Trust Company |
| Account #: | ************** |
| Reference: | *************** [INSERT SUBSCRIBER’S NAME]” ______________________________
|
Thank you for your interest.
OMNIBUS SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT, REGISTRATION
RIGHTS AGREEMENT AND ESCROW AGREEMENT
The undersigned, desiring to: (i) enter into the Subscription Agreement, dated as of December 13, 2019 (the “Subscription Agreement”), between the undersigned, Entera Bio Ltd., an Israeli corporation (the “Company”), and the other parties thereto, in or substantially in the form furnished to the undersigned (ii) purchase Securities of the Company as set forth in the Subscription Agreement, (iii) enter into the Registration Rights Agreement (the “Registration Rights Agreement”), among the undersigned, the Company and the other parties thereto, in or substantially in the form furnished to the undersigned, and (iv) enter into the Escrow Agreement (the “Escrow Agreement”) among the undersigned, the Company, Entera Bio Ltd, GPN Nurmenkari Inc. and the other parties thereto, in or substantially in the form furnished to the undersigned, hereby agrees to purchase such securities from the Company and further agrees to join the Private Placement Offering Master Agreement, the Registration Rights Agreement (if applicable to the Subscriber) and the Escrow Agreement as a party thereto, with all the rights and privileges appertaining thereto, and to be bound in all respects by the terms and conditions thereof. The undersigned specifically acknowledges having read the representations section in the Private Placement Offering Master Agreement entitled “Representations, Warranties and Agreements of the Subscriber” and hereby represents that the statements contained therein are complete and accurate with respect to the undersigned as a Subscriber.
IN WITNESS WHEREOF, the Subscriber hereby executes this Agreement, the Registration Rights Agreement and the Escrow Agreement. Dated: December 13, 2019
| | | $800,000 Total Purchase Price |
| | | |
SUBSCRIBER (individual) | | SUBSCRIBER (entity) |
| | | D.N.A Biomedical Solutions Ltd. |
| Signature | | Name of Entity |
| | | By: /s/ Yonatan Malca /s/ Tony Klein |
| Print Name | | Signature |
| | | Print Name: Yonatan Malca Tony Klein |
| Signature (if Joint Tenants or Tenants in Common) | | Title: CEOCFO |
| Address of Principal Residence: | | Address of Executive Offices: |
| | | ************************___________________________ |
| | |
| | | |
Social Security Number(s): | | IRS Tax Identification Number: |
Telephone Number: | | Telephone Number: |
| | | *************** |
Facsimile Number: | | Facsimile Number: |
E-mail Address: | | E-mail Address: ************* |
| | | Please also execute the incumbency certificate attached hereto as Schedule 5 |
1 Will reflect the Closing Date. Not to be completed by Subscriber.
26
