UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13A-16 OR 15D-16
UNDER
THE SECURITIES EXCHANGE ACT OF 1934
Date of
Report:
November
2010
ROSETTA
GENOMICS LTD.
(Exact
name of registrant as specified in its charter)
Israel
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(State
or Other Jurisdiction of Incorporation
|
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10
Plaut Street, Science Park
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Rehovot
76706 POB 4059
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Israel
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(Address
of Principal Executive
Offices)
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Indicate
by check mark whether the registrant files or will file annual reports under
cover of Form 20-For Form 40-F:
þ
Form
20-F
¨
Form 40-F
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule
101(b)(1):
¨
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule
101(b)(7):
¨
Indicate
by check mark whether the registrant by furnishing the information contained in
this Form is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
¨
Yes
No
¨
If “Yes”
is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b):
n/a
Rosetta
Genomics Ltd.
On
November 29, 2010, Rosetta Genomics Ltd. (“Rosetta” or, the “Company”) entered
into a Securities Purchase Agreement (the “Purchase Agreement”), pursuant to
which Rosetta agreed to sell securities to various accredited investors (the
“Purchasers”) in a private placement
(the
“Offering”). The Offering is expected to close on or about December
1, 2010, subject to the satisfaction of customary closing
conditions.
Under the
terms of the Offering, Rosetta will sell an aggregate of 2,500,000 ordinary
shares (the “Shares”) at a price of $1.00 per share. The Purchasers
will also receive warrants to purchase up to an aggregate of 1,250,000 ordinary
shares (the “Series A Warrants”) an exercise price of $1.30 per share, subject
to future adjustment for various events, such as stock splits or dilutive
issuances, and warrants to purchase up to an aggregate of 625,000 ordinary
shares (the “Series B Warrants” and together with the Series A Warrants, the
“Warrants”) at an exercise price of $0.01 per share.
The
Company has also entered into a Registration Rights Agreement with the
Purchasers pursuant to which the Company is required to file a registration
statement on Form F-3 within 20 days to cover the resale of the Shares and the
ordinary shares issuable upon exercise of the Warrants (the “Resale Registration
Statement”). The failure on the part of the Company to satisfy
certain deadlines described in the Registration Rights Agreement may subject the
Company to payment of certain monetary penalties.
The
Series A Warrants are exercisable immediately and have a term of five years.
Each Series B Warrant will be automatically exercised on a cashless basis on the
33
rd
trading day following the effective date of the Resale Registration Statement
with respect to a number of ordinary shares equal to the product of (a) the
maximum number of ordinary shares issuable under such Series B Warrant and (b)
the quotient obtained by dividing (1) the difference between (A) $1.00 and (B)
the greater of $0.80 and 80% of the average of the 10 VWAPs (as defined in the
Purchase Agreement) immediately following the effective date of the Resale
Registration Statement and (2) $0.20. In the event that 80% of the
average of the 10 VWAPs immediately following the effective date of the Resale
Registration Statement exceeds $1.00, the Series B Warrants
terminate.
The
Shares and the Warrants are being sold in transactions exempt from registration
under the Securities Act of 1933, in reliance on Section 4(2) thereof and Rule
506 of Regulation D thereunder.
For its
services as placement agent, Rodman & Renshaw, LLC (“Rodman”) will receive
cash compensation in the amount of approximately $150,000 and a warrant to
purchase up to 62,500 ordinary
shares on the same terms
as the Series A Warrants. In addition, Rodman will be reimbursed by Rosetta
for $30,000 in expenses.
Copies of
the Purchase Agreement, the Registration Rights Agreement, form of Series A
Warrant and Form of Series B Warrant are filed as exhibits 10.1, 10.2, 4.1 and
4.2 respectively, to this report and are incorporated by reference
herein. The foregoing summaries of such documents are subject to, and
qualified in their entirety by reference to, such exhibits. The Purchase
Agreement contains representations and warranties that the parties made to, and
solely for the benefit of, the other in the context of all of the terms and
conditions of that agreement and in the context of the specific relationship
between the parties. The provisions of the Purchase Agreement, including
the representations and warranties contained therein, are not for the benefit of
any party other than the parties to such agreements and are not intended as
documents for investors and the public to obtain factual information about the
current state of affairs of the parties to those documents and agreements.
Rather, investors and the public should look to other disclosures contained in
Rosetta’s filings with the SEC.
A copy of
the press release, dated November 30, 2010, announcing the offering is filed as
Exhibit 99.1 hereto and incorporated by reference herein.
The
information contained in this report (including the exhibits hereto) is hereby
incorporated by reference into the Rosetta Genomics Registration Statements on
Form F-3, File Nos. 333-159955 and 333-163063.
Exhibits
Exhibit
Number
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Description of Exhibit
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4.1
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Form
of Series A Warrant to be issued by Rosetta Genomics Ltd. to the
Purchasers and Rodman in the Offering.
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4.2
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Form
of Series B Warrant to be issued by Rosetta Genomics Ltd. to the
Purchasers in the Offering.
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10.1
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Securities
Purchase Agreement, dated November 29, 2010, by and between Rosetta
Genomics Ltd. and the Purchasers.
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10.1
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Registration
Rights Agreement, dated November 29, 2010, by and between Rosetta Genomics
Ltd. and the Purchasers.
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99.1
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Press
release dated November 30, 2010 announcing the
Offering.
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Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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ROSETTA
GENOMICS LTD.
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|
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Date:
November 30, 2010
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By:
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/s/ Tami Fishman Jutkowitz
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Tami
Fishman Jutkowitz
General
Counsel
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NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN SECURED BY SUCH SECURITIES.
SERIES
A ORDINARY SHARES PURCHASE WARRANT
ROSETTA
GENOMICS LTD.
Warrant
Shares: ______
|
Initial
Exercise Date: December 1,
2010
|
THIS
SERIES A ORDINARY SHARES PURCHASE WARRANT (the “
Warrant
”) certifies
that, for value received, _____________ or its assigns (the “
Holder
”) is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date hereof (the “
Initial Exercise
Date
”) and on or prior to the close of business on the fifth year
anniversary of the Initial Exercise Date (the “
Termination Date
”)
but not thereafter, to subscribe for and purchase from Rosetta Genomics Ltd., a
company organized under the laws of the State of Israel (the “
Company
”), up to
______ Ordinary Shares (as subject to adjustment hereunder, the “
Warrant
Shares
”). The purchase price of one Ordinary Share under this
Warrant shall be equal to the Exercise Price, as defined in Section
2(b).
Section
1
.
Definitions
. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in
that certain Securities Purchase Agreement (the “
Purchase Agreement
”),
dated November 29, 2010, among the Company and the purchasers signatory
thereto.
Section
2
.
Exercise
.
a)
Exercise of
Warrant
. Exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery to the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of the Holder
appearing on the books of the Company) of a duly executed facsimile copy of the
Notice of Exercise form annexed hereto. Within three (3) Trading Days following
the date of exercise as aforesaid, the Holder shall deliver the aggregate
Exercise Price for the shares specified in the applicable Notice of Exercise by
wire transfer or cashier’s check drawn on a United States bank unless the
cashless exercise procedure specified in Section 2(c) below is specified in the
applicable Notice of Exercise. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the
Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder
shall surrender this Warrant to the Company for cancellation within three (3)
Trading Days of the date the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have the effect
of lowering the outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares
purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise Form within two
(2) Business Days of receipt of such notice. In the event of any
dispute or discrepancy, the records of the Company shall be controlling and
determinative in the absence of manifest error.
The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the
provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder
at any given time may be less than the amount stated on the face
hereof.
b)
Exercise
Price
. The exercise price per Ordinary Share under this
Warrant shall be $1.30, subject to adjustment hereunder (the “
Exercise
Price
”).
c)
Cashless
Exercise
. If at any time after the earlier of (i) the one year
anniversary of the date of the Purchase Agreement and (ii) the completion of the
then-applicable holding period required by Rule 144, or any successor provision
then in effect, there is no effective Registration Statement registering, or no
current prospectus available for, the resale of the Warrant Shares by the
Holder, then this Warrant may also be exercised, in whole or in part, at such
time by means of a “cashless exercise” in which the Holder shall be entitled to
receive a certificate for the number of Warrant Shares equal to the quotient
obtained by dividing [(A-B) (X)] by (A), where:
(A) = the
VWAP on the Trading Day immediately preceding the date on which Holder elects to
exercise this Warrant by means of a “cashless exercise,” as set forth in the
applicable Notice of Exercise;
(B)
= the Exercise Price of this Warrant, as adjusted hereunder;
and
(X) = the
number of Warrant Shares that would be issuable upon exercise of this Warrant in
accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise.
|
d)
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Mechanics of
Exercise
.
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i.
Delivery of Certificates
Upon Exercise
. Certificates for shares purchased hereunder
shall be transmitted by the Transfer Agent to the Holder by crediting the
account of the Holder’s prime broker with The Depository Trust Company through
its Deposit or Withdrawal at Custodian system (“
DWAC
”) if the Company
is then a participant in such system and either (A) there is an effective
Registration Statement permitting the issuance of the Warrant Shares to or
resale of the Warrant Shares by the Holder or (B) the shares are eligible for
resale by the Holder without volume or manner-of-sale limitations pursuant to
Rule 144, and otherwise by physical delivery to the address specified by the
Holder in the Notice of Exercise by the date that is three (3) Trading Days
after the latest of (A) the delivery to the Company of the Notice of Exercise,
(B) surrender of this Warrant (if required), and (C) payment of the aggregate
Exercise Price as set forth above (including by cashless exercise, if permitted)
(such date, the “
Warrant Share Delivery
Date
”). This Warrant shall be deemed to have been
exercised on the first date on which all of the foregoing have been delivered to
the Company. The Warrant Shares shall be deemed to have been issued,
and Holder or any other person so designated to be named therein shall be deemed
to have become a holder of record of such shares for all purposes, as of the
date the Warrant has been exercised, with payment to the Company of the Exercise
Price (or by cashless exercise, if permitted) and all taxes required to be paid
by the Holder, if any, pursuant to Section 2(d)(vi) prior to the issuance of
such shares, having been paid.
ii.
Delivery of New Warrants
Upon Exercise
. If this Warrant shall have been exercised in
part, the Company shall, at the request of a Holder and upon surrender of this
Warrant certificate, at the time of delivery of the certificate or certificates
representing Warrant Shares, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the unpurchased Warrant Shares called for by
this Warrant, which new Warrant shall in all other respects be identical with
this Warrant.
iii.
Rescission
Rights
. If the Company fails to cause the Transfer Agent to
transmit to the Holder a certificate or the certificates representing the
Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date,
then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on
Failure to Timely Deliver Certificates Upon Exercise
. In
addition to any other rights available to the Holder, if the Company fails to
cause the Transfer Agent to transmit to the Holder a certificate or the
certificates representing the Warrant Shares pursuant to an exercise on or
before the Warrant Share Delivery Date, and if after such date the Holder is
required by its broker to purchase (in an open market transaction or otherwise)
or the Holder’s brokerage firm otherwise purchases, Ordinary Shares to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the Holder
anticipated receiving upon such exercise (a “
Buy-In
”), then the
Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
Ordinary Shares so purchased exceeds (y) the amount obtained by multiplying (1)
the number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue times (2) the price at which the
sell order giving rise to such purchase obligation was executed, and (B) at the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored (in which case
such exercise shall be deemed rescinded) or deliver to the Holder the number of
Ordinary Shares that would have been issued had the Company timely complied with
its exercise and delivery obligations hereunder. For example, if the
Holder purchases Ordinary Shares having a total purchase price of $11,000 to
cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an
aggregate sale price giving rise to such purchase obligation of $10,000, under
clause (A) of the immediately preceding sentence the Company shall be required
to pay the Holder $1,000. Notwithstanding the foregoing, the Company
shall not be required to make the payments set forth herein in the case of
uncertificated Warrant Shares if the Holder fails to timely file a request with
The Depository Trust Company to receive such uncertificated Warrant
Shares. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing Ordinary Shares upon
exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or
Scrip
. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share which the Holder would otherwise be entitled to purchase
upon such exercise, the Company shall, at its election, either pay a cash
adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the Exercise Price or round up to the next whole
share.
vi.
Charges, Taxes and
Expenses
. Issuance of certificates for Warrant Shares shall be
made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be
issued in the name of the Holder or in such name or names as may be directed by
the Holder;
provided
,
however
, that in the
event certificates for Warrant Shares are to be issued in a name other than the
name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto.
vii.
Closing of
Books
. The Company will not close its shareholder books or
records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e)
Holder’s Exercise
Limitations
. The Company shall not effect any exercise of this
Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving
effect to such issuance after exercise as set forth on the applicable Notice of
Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s
Affiliates), would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the
number of Ordinary Shares beneficially owned by the Holder and its Affiliates
shall include the number of Ordinary Shares issuable upon exercise of this
Warrant with respect to which such determination is being made, but shall
exclude the number of Ordinary Shares which would be issuable upon (i) exercise
of the remaining, nonexercised portion of this Warrant beneficially owned by the
Holder or any of its Affiliates and (ii) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the Company
(including, without limitation, any other Ordinary Shares
Equivalents) subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of its
Affiliates. Except as set forth in the preceding sentence, for purposes of
this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not
representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules
required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of
whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of
a Notice of Exercise shall be deemed to be the Holder’s determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is
exercisable, in each case subject to the Beneficial Ownership Limitation, and
the Company shall have no obligation to verify or confirm the accuracy of such
determination and shall have no liability for exercises of the Warrant that are
not in compliance with the Beneficial Ownership Limitation. In
addition, a determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. For purposes of this Section
2(e), in determining the number of outstanding Ordinary Shares, a Holder may
rely on the number of outstanding Ordinary Shares as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as
the case may be, (B) a more recent public announcement by the Company or (C) a
more recent written notice by the Company or the Transfer Agent setting forth
the number of Ordinary Shares outstanding. Upon the written or oral
request of a Holder, the Company shall within two (2) Trading Days confirm
orally and in writing to the Holder the number of Ordinary Shares then
outstanding. In any case, the number of outstanding Ordinary Shares shall
be determined after giving effect to the conversion or exercise of securities of
the Company, including this Warrant, by the Holder or its Affiliates since the
date as of which such number of outstanding Ordinary Shares was
reported. The “
Beneficial Ownership
Limitation
” shall be 4.99% of the number of Ordinary Shares outstanding
immediately after giving effect to the issuance of Ordinary Shares issuable upon
exercise of this Warrant. The Holder, upon not less than 61 days’
prior notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares
outstanding immediately after giving effect to the issuance of Ordinary Shares
upon exercise of this Warrant held by the Holder and the provisions of this
Section 2(e) shall continue to apply. Any such increase or decrease
will not be effective until the 61
st
day
after such notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of
this Warrant.
Section
3
.
Certain
Adjustments
.
a)
Stock Dividends and
Splits
. If the Company, at any time while this Warrant is outstanding:
(i) pays a stock dividend or otherwise makes a distribution or distributions on
its Ordinary Shares or any other equity or equity equivalent securities payable
in Ordinary Shares (which, for avoidance of doubt, shall not include any
Ordinary Shares issued by the Company upon exercise of this Warrant), (ii)
subdivides outstanding Ordinary Shares into a larger number of shares, (iii)
combines (including by way of reverse stock split) outstanding Ordinary Shares
into a smaller number of shares or (iv) issues by reclassification of Ordinary
Shares any shares of capital stock of the Company, then in each case the
Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of Ordinary Shares (excluding treasury shares, if any) outstanding
immediately before such event and of which the denominator shall be the number
of Ordinary Shares outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 3(a) shall
become effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b)
Subsequent Equity
Sales
. If the Company or any Subsidiary thereof, as applicable, at any
time while this Warrant is outstanding, shall sell or grant any option to
purchase, or sell or grant any right to reprice, or otherwise dispose of or
issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any Ordinary Shares or Ordinary Shares Equivalents, at an effective
price per share less than the Exercise Price then in effect (such lower price,
the “
Base Share
Price
” and such issuances collectively, a “
Dilutive Issuance
”)
(it being understood and agreed that if the holder of the Ordinary Shares or
Ordinary Shares Equivalents so issued shall at any time, whether by operation of
purchase price adjustments, reset provisions, floating conversion, exercise or
exchange prices or otherwise, or due to warrants, options or rights per share
which are issued in connection with such issuance, be entitled to receive
Ordinary Shares at an effective price per share that is less than the Exercise
Price, such issuance shall be deemed to have occurred for less than the Exercise
Price on such date of the Dilutive Issuance at such effective price), then
simultaneously with the consummation of each Dilutive Issuance the Exercise
Price shall be reduced and only reduced to equal the Base Share Price;
provided
,
however
, the number
of Warrant Shares issuable hereunder shall not be increased pursuant to this
Section 3(b);
provided
,
further
, in no event
shall the Exercise Price be reduced pursuant to this Section 3(b) to less than
$1.00, subject to adjustment for reverse and forward stock splits and the
like. Such adjustment shall be made whenever such Ordinary Shares or
Ordinary Shares Equivalents are issued. Notwithstanding the
foregoing, no adjustments shall be made, paid or issued under this Section 3(b)
in respect of an Exempt Issuance. The Company shall notify the
Holder, in writing, no later than the Trading Day following the issuance or
deemed issuance of any Ordinary Shares or Ordinary Shares Equivalents subject to
this Section 3(b), indicating therein the applicable issuance price, or
applicable reset price, exchange price, conversion price and other pricing terms
(such notice, the “
Dilutive Issuance
Notice
”). For purposes of clarification, whether or not the
Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon
the occurrence of any Dilutive Issuance, the Holder is entitled to receive a
number of Warrant Shares based upon the Base Share Price regardless of whether
the Holder accurately refers to the Base Share Price in the Notice of Exercise.
If the Company enters into a Variable Rate Transaction, despite the prohibition
thereon in the Purchase Agreement, the Company shall be deemed to have issued
Ordinary Shares or Ordinary Shares Equivalents at the lowest possible conversion
or exercise price at which such securities may be converted or
exercised
c)
Subsequent Rights
Offerings
. If the Company, at any time while the Warrant is
outstanding, shall issue rights, options or warrants to all holders of Ordinary
Shares (and not to the Holder) entitling them to subscribe for or purchase
Ordinary Shares at a price per share less than the VWAP on the record date
mentioned below, then the Exercise Price shall be multiplied by a fraction, of
which the denominator shall be the number of Ordinary Shares outstanding on the
date of issuance of such rights, options or warrants plus the number of
additional Ordinary Shares offered for subscription or purchase, and of which
the numerator shall be the number of Ordinary Shares outstanding on the date of
issuance of such rights, options or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered (assuming
receipt by the Company in full of all consideration payable upon exercise of
such rights, options or warrants) would purchase at such VWAP. Such
adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the
determination of shareholders entitled to receive such rights, options or
warrants.
d)
Pro Rata
Distributions
. If the Company, at any time while this Warrant
is outstanding, shall distribute to all holders of Ordinary Shares (and not to
the Holder) evidences of its indebtedness or assets (including cash and cash
dividends) or rights or warrants to subscribe for or purchase any security other
than the Ordinary Shares (which shall be subject to Section 3(b)), then in each
such case the Exercise Price shall be adjusted by multiplying the Exercise Price
in effect immediately prior to the record date fixed for determination of
shareholders entitled to receive such distribution by a fraction of which the
denominator shall be the VWAP determined as of the record date mentioned above,
and of which the numerator shall be such VWAP on such record date less the then
per share fair market value at such record date of the portion of such assets or
evidence of indebtedness or rights or warrants so distributed applicable to one
(1) outstanding Ordinary Share as determined by the Board of Directors in good
faith. In either case the adjustments shall be described in a
statement provided to the Holder of the portion of assets or evidences of
indebtedness so distributed or such subscription rights applicable to one (1)
Ordinary Share. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date mentioned above.
e)
Fundamental
Transaction
. If, at any time while this Warrant is outstanding, (i) the
Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person, (ii) the
Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of its
assets in one or a series of related transactions, (iii) any, direct or
indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Ordinary Shares are
permitted to sell, tender or exchange their shares for other securities, cash or
property and has been accepted by the holders of 50% or more of the outstanding
Ordinary Shares, (iv) the Company, directly or indirectly, in one or more
related transactions effects any reclassification, reorganization or
recapitalization of the Ordinary Shares or any compulsory share exchange
pursuant to which the Ordinary Shares are effectively converted into or
exchanged for other securities, cash or property, (v) the Company, directly or
indirectly, in one or more related transactions consummates a stock or share
purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires
more than 50% of the outstanding Ordinary Shares (not including any Ordinary
Shares held by the other Person or other Persons making or party to, or
associated or affiliated with the other Persons making or party to, such stock
or share purchase agreement or other business combination) (each a “
Fundamental
Transaction
”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder (without regard to any
limitation in Section 2(e) on the exercise of this Warrant), the number of
Ordinary Shares of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “
Alternate
Consideration
”) receivable as a result of such Fundamental Transaction by
a holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any
limitation in Section 2(e) on the exercise of this Warrant). For
purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one (1) Ordinary Share
in such Fundamental Transaction, and the Company shall apportion the Exercise
Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate
Consideration. If holders of Ordinary Shares are given any choice as
to the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental
Transaction. Notwithstanding anything to the contrary, in the event
of a Fundamental Transaction that is (1) an all cash transaction, (2) a “Rule
13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act, or (3) a
Fundamental Transaction involving a person or entity not traded on a national
securities exchange, the Company or any Successor Entity (as defined below)
shall, at the Holder’s option, exercisable at any time concurrently with, or
within 30 days after, the consummation of the Fundamental Transaction, but
subject to the provisions of the Israeli Companies Law, 1999, with respect to
“Distributions” (as defined therein), purchase this Warrant from the Holder by
paying to the Holder an amount of cash equal to the Black Scholes Value of the
remaining unexercised portion of this Warrant on the date of the consummation of
such Fundamental Transaction. “
Black Scholes Value
”
means the value of this Warrant based on the Black and Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg, L.P. (“
Bloomberg
”)
determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate
corresponding to the U.S. Treasury rate for a period equal to the time between
the date of the public announcement of the applicable Fundamental Transaction
and the Termination Date, (B) an expected volatility equal to the greater of
100% and the 100 day volatility obtained from the HVT function on Bloomberg as
of the Trading Day immediately following the public announcement of the
applicable Fundamental Transaction, (C) the underlying price per share used in
such calculation shall be the sum of the price per share being offered in cash,
if any, plus the value of any non-cash consideration, if any, being offered in
such Fundamental Transaction and (D) a remaining option time equal to the time
between the date of the public announcement of the applicable Fundamental
Transaction and the Termination Date. The Company shall cause any
successor entity in a Fundamental Transaction in which the Company is not the
survivor (the “
Successor Entity
”) to
assume in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents in accordance with the provisions of this
Section 3(e) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the
Holder, deliver to the Holder in exchange for this Warrant a security of the
Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity)
equivalent to the Ordinary Shares acquirable and receivable upon exercise of
this Warrant (without regard to any limitations on the exercise of this Warrant)
prior to such Fundamental Transaction, and with an exercise price which applies
the exercise price hereunder to such shares of capital stock (but taking into
account the relative value of the Ordinary Shares pursuant to such Fundamental
Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the
economic value of this Warrant immediately prior to the consummation of such
Fundamental Transaction), and which is reasonably satisfactory in form and
substance to the Holder. Upon the occurrence of any such Fundamental
Transaction, the Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Fundamental Transaction, the provisions of
this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the Company
under this Warrant and the other Transaction Documents with the same effect as
if such Successor Entity had been named as the Company herein.
f)
Calculations
. All
calculations under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section 3,
the number of Ordinary Shares deemed to be issued and outstanding as of a given
date shall be the sum of the number of Ordinary Shares (excluding treasury
shares, if any) issued and outstanding.
g)
Notice to
Holder
.
i.
Adjustment to Exercise
Price
. Whenever the Exercise Price is adjusted pursuant to any provision
of this Section 3, the Company shall promptly mail to the Holder a notice
setting forth the Exercise Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by
Holder
. If, prior to the earlier of (i) the Termination Date and (ii) the
date on which this Warrant has been exercised in full, (A) the Company shall
declare a dividend (or any other distribution in whatever form) on the Ordinary
Shares, (B) the Company shall declare a special nonrecurring cash dividend on or
a redemption of the Ordinary Shares, (C) the Company shall authorize the
granting to all holders of the Ordinary Shares rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of any rights, (D)
the approval of any shareholders of the Company shall be required in connection
with any reclassification of the Ordinary Shares, any consolidation or merger to
which the Company is a party, any sale or transfer of all or substantially all
of the assets of the Company, or any compulsory share exchange whereby the
Ordinary Shares are converted into other securities, cash or property, or (E)
the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the
Company shall cause to be mailed to the Holder at its last address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of the Ordinary Shares of record to
be entitled to such dividend, distributions, redemption, rights or warrants are
to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of the Ordinary
Shares of record shall be entitled to exchange their shares of the Ordinary
Shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share exchange;
provided that the failure to mail such notice or any defect therein or in the
mailing thereof shall not affect the validity of the corporate action required
to be specified in such notice. To the extent that any notice
provided hereunder constitutes, or contains, material, non-public information
regarding the Company or any of the Subsidiaries, the Company shall
simultaneously publicly disclose such information in compliance with applicable
securities laws. The Holder shall remain entitled to exercise this
Warrant during the period commencing on the date of such notice to the effective
date of the event triggering such notice except as may otherwise be
expressly set forth herein.
Section
4
.
Transfer of
Warrant
.
a)
Transferability
. Subject
to compliance with any applicable securities laws and the conditions set forth
in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase
Agreement, this Warrant and all rights hereunder (including, without limitation,
any registration rights) are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent,
together with a written assignment of this Warrant substantially in the form
attached hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. The Warrant, if properly
assigned in accordance herewith, may be exercised by a new holder for the
purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants
. This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated
the Initial Exercise Date and shall be identical with this Warrant except as to
the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register
. The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “
Warrant Register
”),
in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
d)
Transfer
Restrictions
.
If
, at the
time of the surrender of this Warrant in connection with
any transfer of this Warrant, the transfer of this Warrant shall not be
either (i)
registered pursuant to an effective
registration
statement under the Securities
Act
and
under applicable state securities
or blue sky laws
or (ii) eligible for
resale without volume or manner-of-sale restrictions or current public
information requirements pursuant to Rule 144
, the Company may require, as a condition of allowing
such transfer
, that
the Holder or transferee of this Warrant, as the case
may be,
comply with the provisions of
Section 5.7 of the Purchase Agreement.
e)
Representation by the
Holder
. The Holder, by the acceptance hereof, represents and
warrants that it is acquiring this Warrant and, upon any exercise hereof, will
acquire the Warrant Shares issuable upon such exercise, for its own account and
not with a view to or for distributing or reselling such Warrant Shares or any
part thereof in violation of the Securities Act or any applicable state
securities law, except pursuant to sales registered or exempted under the
Securities Act.
Section
5
.
Miscellaneous
.
a)
No Rights as Shareholder
Until Exercise
. This Warrant does not entitle the Holder to
any voting rights, dividends or other rights as a shareholder of the Company
prior to the exercise hereof as set forth in Section 2(d)(i).
b)
Loss, Theft, Destruction or
Mutilation of Warrant
. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the Warrant, shall
not include the posting of any bond), and upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.
c)
Saturdays, Sundays,
Holidays, etc
. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not
be a Business Day, then, such action may be taken or such right may be exercised
on the next succeeding Business Day;
provided
,
however
, for
calculating Business Days with respect to any action to be taken by the Company
hereunder or in connection with the Warrant, Friday after 1:00 p.m. (New York
City time) shall not be considered a Business Day.
d)
Authorized
Shares
.
The
Company covenants that, during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Ordinary Shares a sufficient number of
shares to provide for the issuance of the Warrant Shares upon the exercise of
any purchase rights under this Warrant. The Company further covenants
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will
take all such reasonable action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of the Trading Market upon which the
Ordinary Shares may be listed. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant and payment for such Warrant Shares in accordance herewith, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with
such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not
by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase in
par value, (ii) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof, as may be,
necessary to enable the Company to perform its obligations under this
Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
e)
Jurisdiction
. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be determined in accordance with the provisions of the
Purchase Agreement.
f)
Restrictions
. The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered and the Holder does not utilize cashless exercise,
will have restrictions upon resale imposed by state and federal securities
laws.
g)
Nonwaiver and
Expenses
. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of
such right or otherwise prejudice the Holder’s rights, powers or remedies,
notwithstanding the fact that all rights hereunder terminate on the Termination
Date. If the Company is found by a final determination of a court of
competent jurisdiction to have willfully and knowingly failed to comply with any
provision of this Warrant, which results in any material damages to the Holder,
the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
h)
Notices
. Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered in accordance with the notice
provisions of the Purchase Agreement.
i)
Limitation of
Liability
. No provision hereof, in the absence of any
affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of the Holder for the purchase price of any
Ordinary Shares or as a shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
j)
Remedies
. The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Warrant. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law
would be adequate.
k)
Successors and
Assigns
. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of
and be binding upon the successors and permitted assigns of the Company and the
successors and permitted assigns of Holder. The provisions of this
Warrant are intended to be for the benefit of any Holder from time to time of
this Warrant and shall be enforceable by the Holder or holder of Warrant
Shares.
l)
Amendment
. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
m)
Severability
. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Warrant.
n)
Headings
. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date first above
indicated.
|
ROSETTA
GENOMICS LTD.
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
NOTICE
OF EXERCISE
TO: ROSETTA
GENOMICS LTD.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
¨
in
lawful money of the United States; or
¨
[if
permitted] the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in subsection 2(c), to exercise this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection
2(c).
(3)
Please issue a certificate or certificates representing said Warrant Shares in
the name of the undersigned or in such other name as is specified
below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number or by
physical delivery of a certificate to:
_______________________________
_______________________________
_______________________________
(4)
Accredited
Investor
. The undersigned is an “accredited investor” as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE
OF HOLDER]
Name of
Investing Entity:
________________________________________________________________________
Signature of Authorized Signatory of
Investing Entity
:
_________________________________________________
Name of
Authorized Signatory:
___________________________________________________________________
Title of
Authorized Signatory:
____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this form
and supply required information.
Do not
use this form to exercise the warrant.)
FOR VALUE
RECEIVED, [____] all of or [_______] shares of the foregoing Warrant and all
rights evidenced thereby are hereby assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________,
_______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY
SUCH SECURITIES.
SERIES
B ORDINARY SHARES PURCHASE WARRANT
ROSETTA
GENOMICS LTD.
Warrant
Shares: ______
|
Exercise
Date: December 1, 2010
|
THIS
SERIES B ORDINARY SHARES PURCHASE WARRANT (the “
Warrant
”) certifies
that, for value received, _____________ or its assigns (the “
Holder
”) is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, on the 33
rd
Trading
Day following the Effective Date (as defined in the Purchase Agreement) (the
“
Exercise
Date
”) to receive from Rosetta Genomics Ltd., a company organized under
the laws of the State of Israel (the “
Company
”), up to
______ Ordinary Shares (as subject to adjustment hereunder, the “
Warrant Shares
”)
according to the vesting schedule set forth below. The purchase price of
one Ordinary Share under this Warrant shall be equal to the Exercise Price, as
defined in Section 2(b) and shall be exercised only via cashless exercise
pursuant to Section 2(c) below. On the Exercise Date a number of Warrant
Shares shall vest under this Warrant equal to the product of (a) the maximum
number of Warrant Shares issuable under this Warrant and (b) the quotient
obtained by dividing (1) the difference between (A) $1.00 and (B) the greater of
$0.80 and 80% of the average of the 10 VWAPs immediately following the Effective
Date and (2) $0.20. In the event that 80% of the average of the 10 VWAPs
immediately following the Effective Date exceeds $1.00, no Warrant Shares shall
vest hereunder and this Warrant shall terminate. All prices and dollar
references above are subject to adjustment for reverse and forward stock splits
and the like. On the Effective Date, the Company shall notify the Holder
in writing that the Effective Date has occurred.
Section 1
.
Definitions
.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in that certain Securities Purchase Agreement (the “
Purchase Agreement
”),
dated November 29, 2010, among the Company and the purchasers signatory
thereto.
Section
2
.
Exercise
.
a)
Exercise of
Warrant
. Exercise of the purchase rights represented by this
Warrant shall be made automatically on the Exercise Date.
b)
Exercise Price
.
The exercise price per Ordinary Share under this Warrant shall be
$
0.01, subject to adjustment
hereunder (the “
Exercise
Price
”).
c)
Cashless
Exercise
. This Warrant shall be exercised by means of a “cashless
exercise” in which the Holder shall be entitled to receive a certificate for the
number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)]
by (A), where:
|
(A)
= the average of the 10 VWAPs immediately following the Effective
Date;
|
|
(B)
= the Exercise Price of this Warrant, as adjusted hereunder;
and
|
|
(X)
= the number of Warrant Shares that would be issuable upon exercise of
this Warrant in accordance with the terms of this
Warrant.
|
d)
Mechanics of
Exercise
.
i.
Delivery of Certificates
Upon Exercise
. Certificates for shares purchased hereunder shall be
transmitted by the Transfer Agent to the Holder by crediting the account of the
Holder’s prime broker with The Depository Trust Company through its Deposit or
Withdrawal at Custodian system (“
DWAC
”) by the date
that is three (3) Trading Days after the Exercise Date (such date, the “
Warrant Share Delivery
Date
”). The Warrant Shares shall be deemed to have been
issued, and Holder or any other person so designated to be named therein shall
be deemed to have become a holder of record of such shares for all purposes, as
of the Exercise Date.
ii.
Compensation for Buy-In on
Failure to Timely Deliver Certificates Upon Exercise
. In addition
to any other rights available to the Holder, if the Company fails to cause the
Transfer Agent to transmit to the Holder a certificate or the certificates
representing the Warrant Shares pursuant to an exercise on or before the Warrant
Share Delivery Date, and if after such date the Holder is required by its broker
to purchase (in an open market transaction or otherwise) or the Holder’s
brokerage firm otherwise purchases, Ordinary Shares to deliver in satisfaction
of a sale by the Holder of the Warrant Shares which the Holder anticipated
receiving upon such exercise (a “
Buy-In
”), then the
Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
Ordinary Shares so purchased exceeds (y) the amount obtained by multiplying (1)
the number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue times (2) the price at which the
sell order giving rise to such purchase obligation was executed, and (B) at the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored (in which case
such exercise shall be deemed rescinded) or deliver to the Holder the number of
Ordinary Shares that would have been issued had the Company timely complied with
its exercise and delivery obligations hereunder. For example, if the
Holder purchases Ordinary Shares having a total purchase price of $11,000 to
cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an
aggregate sale price giving rise to such purchase obligation of $10,000, under
clause (A) of the immediately preceding sentence the Company shall be required
to pay the Holder $1,000. Notwithstanding the foregoing, the Company shall
not be required to make the payments set forth herein in the case of
uncertificated Warrant Shares if the Holder fails to timely file a request with
The Depository Trust Company to receive such uncertificated Warrant
Shares. The Holder shall provide the Company written notice indicating the
amounts payable to the Holder in respect of the Buy-In and, upon request of the
Company, evidence of the amount of such loss. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing Ordinary Shares upon exercise of the Warrant as
required pursuant to the terms hereof.
iii.
No Fractional Shares or
Scrip
. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant. As to any fraction of a
share which the Holder would otherwise be entitled to purchase upon such
exercise, the Company shall, at its election, either pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price or round up to the next whole share.
iv.
Charges, Taxes and
Expenses
. Issuance of certificates for Warrant Shares shall be made
without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the Holder or in such name or names as may be directed by the
Holder;
provided
,
however
, that in the
event certificates for Warrant Shares are to be issued in a name other than the
name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental
thereto.
v.
Closing of
Books
. The Company will not close its shareholder books or records
in any manner which prevents the timely exercise of this Warrant, pursuant to
the terms hereof.
e)
Holder’s Exercise
Limitations
. The Company shall not effect any exercise of this
Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving
effect to such issuance after exercise, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with the Holder or
any of the Holder’s Affiliates), would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of Ordinary Shares beneficially owned by the
Holder and its Affiliates shall include the number of Ordinary Shares issuable
upon exercise of this Warrant with respect to which such determination is being
made, but shall exclude the number of Ordinary Shares which would be issuable
upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates and (ii) exercise or
conversion of the unexercised or nonconverted portion of any other securities of
the Company (including, without limitation, any other Ordinary Shares
Equivalents) subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of its
Affiliates. Except as set forth in the preceding sentence, for purposes of
this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not
representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules
required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder. If the Holder
determines that exercise of this Warrant in full will not be in compliance with
the limitation contained in this Section 2(e), it shall notify the Company prior
to the Exercise Date and shall instruct the Company to limit the number of
Ordinary Shares issuable to such Holder on the Exercise date to a specific
number of Ordinary Shares. Absent such notice, this Warrant shall be
exercised in full in accordance with its terms and the Company shall have no
liability for exercises of the Warrant that are not in compliance with the
limitation contained in this Section 2(e). In addition, a
determination as to any group status as contemplated above shall be determined
in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. For purposes of this Section 2(e), in
determining the number of outstanding Ordinary Shares, a Holder may rely on the
number of outstanding Ordinary Shares as reflected in (A) the Company’s most
recent periodic or annual report filed with the Commission, as the case may be,
(B) a more recent public announcement by the Company or (C) a more recent
written notice by the Company or the Transfer Agent setting forth the number of
Ordinary Shares outstanding. Upon the written or oral request of a Holder,
the Company shall within two (2) Trading Days confirm orally and in writing to
the Holder the number of Ordinary Shares then outstanding. In any case,
the number of outstanding Ordinary Shares shall be determined after giving
effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder or its Affiliates since the date as of which such
number of outstanding Ordinary Shares was reported. The “
Beneficial Ownership
Limitation
” shall be 4.99% of the number of Ordinary Shares outstanding
immediately after giving effect to the issuance of Ordinary Shares issuable upon
exercise of this Warrant. The Holder, upon not less than 61 days’ prior
notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares
outstanding immediately after giving effect to the issuance of Ordinary Shares
upon exercise of this Warrant held by the Holder and the provisions of this
Section 2(e) shall continue to apply. Any such increase or decrease will
not be effective until the 61
st
day
after such notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of
this Warrant. Notwithstanding anything herein to the contrary, in the
event that upon exercise of this Warrant in full the Beneficial Ownership
Limitation would be exceeded, to the extent that Warrant Shares cause such
limitation to be exceeded, such Warrant Shares shall be issued on the date that
the Holder notifies the Company in writing that the Warrant Shares can be issued
without exceeding such Beneficial Ownership Limiation.
Section
3
.
Certain
Adjustments
.
a)
Stock Dividends and
Splits
. If the Company, at any time while this Warrant is outstanding:
(i) pays a stock dividend or otherwise makes a distribution or distributions on
its Ordinary Shares or any other equity or equity equivalent securities payable
in Ordinary Shares (which, for avoidance of doubt, shall not include any
Ordinary Shares issued by the Company upon exercise of this Warrant), (ii)
subdivides outstanding Ordinary Shares into a larger number of shares, (iii)
combines (including by way of reverse stock split) outstanding Ordinary Shares
into a smaller number of shares or (iv) issues by reclassification of Ordinary
Shares any shares of capital stock of the Company, then in each case the
Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of Ordinary Shares (excluding treasury shares, if any) outstanding
immediately before such event and of which the denominator shall be the number
of Ordinary Shares outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 3(a) shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b)
Fundamental
Transaction
. If, at any time while this Warrant is outstanding, (i) the
Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person, (ii) the
Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of its
assets in one or a series of related transactions, (iii) any, direct or
indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Ordinary Shares are
permitted to sell, tender or exchange their shares for other securities, cash or
property and has been accepted by the holders of 50% or more of the outstanding
Ordinary Shares, (iv) the Company, directly or indirectly, in one or more
related transactions effects any reclassification, reorganization or
recapitalization of the Ordinary Shares or any compulsory share exchange
pursuant to which the Ordinary Shares are effectively converted into or
exchanged for other securities, cash or property, (v) the Company, directly or
indirectly, in one or more related transactions consummates a stock or share
purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires
more than 50% of the outstanding Ordinary Shares (not including any Ordinary
Shares held by the other Person or other Persons making or party to, or
associated or affiliated with the other Persons making or party to, such stock
or share purchase agreement or other business combination) (each a “
Fundamental
Transaction
”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, at the option of the Holder (without regard to any
limitation in Section 2(e) on the exercise of this Warrant), the number of
Ordinary Shares of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “
Alternate
Consideration
”) receivable as a result of such Fundamental Transaction by
a holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any
limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one (1) Ordinary Share
in such Fundamental Transaction, and the Company shall apportion the Exercise
Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration.
If holders of Ordinary Shares are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall be
given the same choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Fundamental Transaction.
Notwithstanding anything to the contrary, in the event of a Fundamental
Transaction that is (1) an all cash transaction, (2) a “Rule 13e-3 transaction”
as defined in Rule 13e-3 under the Exchange Act, or (3) a Fundamental
Transaction involving a person or entity not traded on a national securities
exchange, the Company or any Successor Entity (as defined below) shall, at the
Holder’s option, exercisable at any time concurrently with, or within 30 days
after, the consummation of the Fundamental Transaction, but subject to the
provisions of the Israeli Companies Law, 1999, with respect to “Distributions”
(as defined therein), purchase this Warrant from the Holder by paying to the
Holder an amount of cash equal to the Black Scholes Value of the remaining
unexercised portion of this Warrant on the date of the consummation of such
Fundamental Transaction. “
Black Scholes Value
”
means the value of this Warrant based on the Black and Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg, L.P. (“
Bloomberg
”)
determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate
corresponding to the U.S. Treasury rate for a period equal to the time between
the date of the public announcement of the applicable Fundamental Transaction
and the Termination Date, (B) an expected volatility equal to the greater of
100% and the 100 day volatility obtained from the HVT function on Bloomberg as
of the Trading Day immediately following the public announcement of the
applicable Fundamental Transaction, (C) the underlying price per share used in
such calculation shall be the sum of the price per share being offered in cash,
if any, plus the value of any non-cash consideration, if any, being offered in
such Fundamental Transaction and (D) a remaining option time equal to the time
between the date of the public announcement of the applicable Fundamental
Transaction and the Termination Date. The Company shall cause any
successor entity in a Fundamental Transaction in which the Company is not the
survivor (the “
Successor Entity
”) to
assume in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents in accordance with the provisions of this
Section 3(b) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the
Holder, deliver to the Holder in exchange for this Warrant a security of the
Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity)
equivalent to the Ordinary Shares acquirable and receivable upon exercise of
this Warrant (without regard to any limitations on the exercise of this Warrant)
prior to such Fundamental Transaction, and with an exercise price which applies
the exercise price hereunder to such shares of capital stock (but taking into
account the relative value of the Ordinary Shares pursuant to such Fundamental
Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the
economic value of this Warrant immediately prior to the consummation of such
Fundamental Transaction), and which is reasonably satisfactory in form and
substance to the Holder. Upon the occurrence of any such Fundamental
Transaction, the Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Fundamental Transaction, the provisions of
this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the Company
under this Warrant and the other Transaction Documents with the same effect as
if such Successor Entity had been named as the Company herein.
c)
Calculations
. All
calculations under this Section 3 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section 3,
the number of Ordinary Shares deemed to be issued and outstanding as of a given
date shall be the sum of the number of Ordinary Shares (excluding treasury
shares, if any) issued and outstanding.
d)
Notice to
Holder
.
i.
Adjustment
to Exercise Price
. Whenever the Exercise Price is adjusted pursuant to
any provision of this Section 3, the Company shall promptly mail to the Holder a
notice setting forth the Exercise Price after such adjustment and setting forth
a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow
Exercise by Holder
. If, prior to the earlier of (i) the Termination Date
and (ii) the date on which this Warrant has been exercised in full, (A) the
Company shall declare a dividend (or any other distribution in whatever form) on
the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash
dividend on or a redemption of the Ordinary Shares, (C) the Company shall
authorize the granting to all holders of the Ordinary Shares rights or warrants
to subscribe for or purchase any shares of capital stock of any class or of any
rights, (D) the approval of any shareholders of the Company shall be required in
connection with any reclassification of the Ordinary Shares, any consolidation
or merger to which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, or any compulsory share exchange
whereby the Ordinary Shares are converted into other securities, cash or
property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, then, in
each case, the Company shall cause to be mailed to the Holder at its last
address as it shall appear upon the Warrant Register of the Company, at least 20
calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, redemption, rights or warrants, or
if a record is not to be taken, the date as of which the holders of the Ordinary
Shares of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer or share exchange is
expected to become effective or close, and the date as of which it is expected
that holders of the Ordinary Shares of record shall be entitled to exchange
their shares of the Ordinary Shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or
share exchange; provided that the failure to mail such notice or any defect
therein or in the mailing thereof shall not affect the validity of the corporate
action required to be specified in such notice. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously publicly disclose such information in compliance with applicable
securities laws. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of
the event triggering such notice except as may otherwise be expressly
set forth herein.
Section
4
.
Transfer of
Warrant
.
a)
Transferability
.
Subject to compliance with any applicable securities laws and the conditions set
forth in Section 4(d) hereof and to the provisions of Section 4.1 of the
Purchase Agreement, this Warrant and all rights hereunder (including, without
limitation, any registration rights) are transferable, in whole or in part, upon
surrender of this Warrant at the principal office of the Company or its
designated agent, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such
payment, the Company shall execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees, as applicable, and in the denomination or
denominations specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. The Warrant, if properly
assigned in accordance herewith, may be exercised by a new holder for the
purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants
. This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated
the Initial Exercise Date and shall be identical with this Warrant except as to
the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register
. The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “
Warrant Register
”),
in the name of the record Holder hereof from time to time. The Company may
deem and treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the
contrary.
d)
Transfer
Restrictions
.
If
, at the
time of the surrender of this Warrant in connection with
any transfer of this Warrant, the transfer of this Warrant shall not be
either (i)
registered pursuant to an effective
registration
statement under the Securities
Act
and
under applicable state securities
or blue sky laws
or (ii) eligible for
resale without volume or manner-of-sale restrictions or current public
information requirements pursuant to Rule 144
, the Company may require, as a condition of allowing
such transfer
, that
the Holder or transferee of this Warrant, as the case
may be,
comply with the provisions of
Section 5.7 of the Purchase Agreement.
e)
Representation by the
Holder
. The Holder, by the acceptance hereof, represents and
warrants that it is acquiring this Warrant and, upon any exercise hereof, will
acquire the Warrant Shares issuable upon such exercise, for its own account and
not with a view to or for distributing or reselling such Warrant Shares or any
part thereof in violation of the Securities Act or any applicable state
securities law, except pursuant to sales registered or exempted under the
Securities Act.
Section
5
.
Miscellaneous
.
a)
No Rights as Shareholder
Until Exercise
. This Warrant does not entitle the Holder to any
voting rights, dividends or other rights as a shareholder of the Company prior
to the exercise hereof as set forth in Section 2(d)(i).
b)
Loss, Theft, Destruction or
Mutilation of Warrant
. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the Warrant, shall
not include the posting of any bond), and upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.
c)
Saturdays, Sundays,
Holidays, etc
. If the last or appointed day for the taking of any
action or the expiration of any right required or granted herein shall not be a
Business Day, then, such action may be taken or such right may be exercised on
the next succeeding Business Day;
provided
,
however
, for
calculating Business Days with respect to any action to be taken by the Company
hereunder or in connection with the Warrant, Friday after 1:00 p.m. (New York
City time) shall not be considered a Business Day.
d)
Authorized
Shares
.
The
Company covenants that, during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Ordinary Shares a sufficient number of
shares to provide for the issuance of the Warrant Shares upon the exercise of
any purchase rights under this Warrant. The Company further covenants that
its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of executing stock certificates to execute and issue
the necessary certificates for the Warrant Shares upon the exercise of the
purchase rights under this Warrant. The Company will take all such
reasonable action as may be necessary to assure that such Warrant Shares may be
issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Ordinary Shares may
be listed. The Company covenants that all Warrant Shares which may be
issued upon the exercise of the purchase rights represented by this Warrant
will, upon exercise of the purchase rights represented by this Warrant and
payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges created by the Company in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such
issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not
by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (ii) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof, as may be,
necessary to enable the Company to perform its obligations under this
Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
e)
Jurisdiction
. All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be determined in accordance with the provisions of the
Purchase Agreement.
f)
Restrictions
.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of
this Warrant, if not registered and the Holder does not utilize cashless
exercise, will have restrictions upon resale imposed by state and federal
securities laws.
g)
Nonwaiver and
Expenses
. No course of dealing or any delay or failure to exercise
any right hereunder on the part of Holder shall operate as a waiver of such
right or otherwise prejudice the Holder’s rights, powers or remedies,
notwithstanding the fact that all rights hereunder terminate on the Termination
Date. If the Company is found by a final determination of a court of
competent jurisdiction to have willfully and knowingly failed to comply with any
provision of this Warrant, which results in any material damages to the Holder,
the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
h)
Notices
. Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered in accordance with the notice
provisions of the Purchase Agreement.
i)
Limitation of
Liability
. No provision hereof, in the absence of any affirmative
action by the Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Holder, shall give rise to
any liability of the Holder for the purchase price of any Ordinary Shares or as
a shareholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies
. The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Warrant. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Warrant and hereby agrees to waive and not to assert
the defense in any action for specific performance that a remedy at law would be
adequate.
k)
Successors and
Assigns
. Subject to applicable securities laws, this Warrant and
the rights and obligations evidenced hereby shall inure to the benefit of and be
binding upon the successors and permitted assigns of the Company and the
successors and permitted assigns of Holder. The provisions of this Warrant
are intended to be for the benefit of any Holder from time to time of this
Warrant and shall be enforceable by the Holder or holder of Warrant
Shares.
l)
Amendment
. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
m)
Severability
.
Wherever possible, each provision of this Warrant shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings
. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date first above
indicated.
|
ROSETTA
GENOMICS LTD.
|
|
|
|
By:
|
|
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Name:
|
|
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Title:
|
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this form
and supply required information.
Do not
use this form to exercise the warrant.)
FOR VALUE
RECEIVED, [____] all of or [_______] shares of the foregoing Warrant and all
rights evidenced thereby are hereby assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________,
_______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated
as of November 29, 2010, between Rosetta Genomics Ltd., a company organized
under the laws of the State of Israel (the “
Company
”), and each
purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “
Purchaser
” and
collectively, the “
Purchasers
”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the “
Securities Act
”), and
Rule 506 promulgated thereunder, the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions
. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings set forth in this Section
1.1:
“
Acquiring Person
”
shall have the meaning ascribed to such term in Section 4.5.
“
Action
” shall have
the meaning ascribed to such term in Section 3.1(j).
“
Affiliate
” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as such terms are
used in and construed under Rule 405 under the Securities Act.
“
Board of Directors
”
means the board of directors of the Company.
“
Business Day
” means
any day except any Saturday, any Sunday, any day which is a federal legal
holiday in the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close;
provided
,
however
, for
calculating Business Days with respect to any action to be taken by the Company
hereunder, Friday after 1:00 p.m. (New York City time) shall not be considered a
Business Day.
“
Closing
” means the
closing of the purchase and sale of the Securities pursuant to Section
2.1.
“
Closing Date
” means
the Trading Day on which all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to (i)
the Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities, in each case, have been
satisfied or waived, but in no event later than the third Trading Day following
the date hereof.
“
Commission
” means the
United States Securities and Exchange Commission.
“
Company Israeli
Counsel
” means Tulchinsky Stern Marciano Cohen Levitsky & Co., with
offices located at 4 Berkowitz St., Tel Aviv 64238, Israel.
“
Company U.S. Counsel
”
means Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with offices located
at One Financial Center, Boston, MA 02111.
“
Disclosure Schedules
”
shall have the meaning ascribed to such term in Section 3.1.
“
Effective Date
” means
the earliest of the date that (a) the initial Registration Statement has been
declared effective by the Commission, (b) all of the Registrable Securities have
been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the
requirement for the Company to be in compliance with the current public
information required under Rule 144 and without volume or manner-of-sale
restrictions or (c) following the one year anniversary of the Closing Date,
provided that a holder of Registrable Securities is not an Affiliate of the
Company, all of the Registrable Securities may be sold pursuant to an exemption
from registration under Section 4(1) of the Securities Act without volume or
manner-of-sale restrictions and Company counsel has delivered to such holders a
standing written unqualified opinion that resales may then be made by such
holders of the Registrable Securities pursuant to such exemption which opinion
shall be in form and substance reasonably acceptable to such
holders.
“
Evaluation Date
”
shall have the meaning ascribed to such term in Section 3.1(r).
“
Exchange Act
” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“
Exempt Issuance
”
means the issuance of (a) Ordinary Shares or options to employees, officers,
directors or consultants of the Company pursuant to any stock or option plan
duly adopted for such purpose, by a majority of the non-employee members of the
Board of Directors or a majority of the members of a committee of non-employee
directors established for such purpose, (b) securities upon the exercise or
exchange of or conversion of any Securities issued hereunder and/or other
securities exercisable or exchangeable for or convertible into Ordinary Shares
issued and outstanding on the date of this Agreement, provided that such
securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities, (c) securities issued pursuant to stock
splits, stock dividends or distributions, recapitalizations and similar events
affecting the Ordinary Shares, (d) ordinary shares issued by the Company’s
majority owned subsidiary, Rosetta Green Ltd., in an initial public offering in
Israel under the securities laws of the State of Israel, and (e) securities
issued pursuant to mergers, acquisitions or strategic transactions approved by a
majority of the disinterested directors of the Company, provided that any such
issuance shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
“
FCPA
” means the
Foreign Corrupt Practices Act of 1977, as amended.
“
FDA
” shall have the
meaning ascribed to such term in Section 3.1(hh).
“
GAAP
” shall have the
meaning ascribed to such term in Section 3.1(h).
“
Intellectual Property
Rights
” shall have the meaning ascribed to such term in Section
3.1(o).
“
Legend Removal Date
”
shall have the meaning ascribed to such term in Section 4.1(c).
“
Liens
” means a lien,
charge, pledge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction, other than restrictions imposed by the
securities laws.
“
Material Adverse
Effect
” shall have the meaning assigned to such term in Section
3.1(b).
“
Material Permits
”
shall have the meaning ascribed to such term in Section 3.1(m).
“
Ordinary Shares
”
means the ordinary shares of the Company, par value NIS 0.01 per share, and any
other class of securities into which such securities may hereafter be
reclassified or changed.
“
Ordinary Shares
Equivalents
” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Ordinary Shares,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive,
Ordinary Shares.
“
Per Share Purchase
Price
” equals $1.00, subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar transactions of
the Ordinary Shares that occur after the date of this Agreement.
“
Person
” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“
Proceeding
” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an informal investigation or partial proceeding, such as a deposition), whether
commenced or threatened.
“
Public Information
Failure
” shall have the meaning ascribed to such term in Section
4.2(b).
“
Public Information Failure
Payments
” shall have the meaning ascribed to such term in Section
4.2(b).
“
Purchaser Party
”
shall have the meaning ascribed to such term in Section 4.8.
“
Registration Rights
Agreement
” means the Registration Rights Agreement, dated the date
hereof, among the Company and the Purchasers, in the form of
Exhibit A
attached
hereto.
“
Registration
Statement
” means a registration statement meeting the requirements set
forth in the Registration Rights Agreement and covering the resale by the
Purchasers of the Shares and the Warrant Shares.
“
Required Approvals
”
shall have the meaning ascribed to such term in Section 3.1(e).
“
Rule 144
” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“
Rule 424
” means Rule
424 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“
SEC Reports
” shall
have the meaning ascribed to such term in Section 3.1(h).
“
Securities
” means the
Shares, the Warrants and the Warrant Shares.
“
Series A Warrants
”
means, collectively, the Series A Ordinary Shares Purchase Warrants delivered to
the Purchasers at the Closing in accordance with Section 2.2(a) hereof,
which shall be exercisable immediately and have a term of exercise equal to five
years from the initial exercise date, in the form of
Exhibit B-1
attached
hereto.
“
Series B Warrants
”
means, collectively, the Series B Ordinary Shares Purchase Warrants delivered to
the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
shall be automatically exercised via cashless exercise on the 33
rd
Trading
Day following the Effective Date, in the form of
Exhibit B-2
attached
hereto.
“
Securities Act
” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“
Shares
” means the
Ordinary Shares issued or issuable to each Purchaser pursuant to this
Agreement.
“
Short Sales
” means
all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act (but shall not be deemed to include the location and/or reservation of
borrowable Ordinary Shares).
“
Subscription Amount
”
means, as to each Purchaser, the aggregate amount to be paid for Shares and
Warrants purchased hereunder as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“
Subsidiary
” means any
subsidiary of the Company as set forth on
Schedule 3.1(a)
and
shall, where applicable, also include any direct or indirect subsidiary of the
Company formed or acquired after the date hereof.
“
Trading Day
” means a
day on which the principal Trading Market is open for trading.
“
Trading Market
” means
any of the following markets or exchanges on which the Ordinary Shares are
listed or quoted for trading on the date in question: the NYSE AMEX, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange or the OTC Bulletin Board (or any successors to any of
the foregoing).
“
Transaction
Documents
” means this Agreement, the Warrants, the Registration Rights
Agreement, all exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions contemplated
hereunder.
“
Transfer Agent
” means
American Stock Transfer & Trust Company, the current transfer agent of the
Company, with a mailing address of 59 Maiden Lane New York, New York 10038 and a
facsimile number of 718-236-4588, and any successor transfer agent of the
Company.
“
Variable Rate
Transaction
” shall have the meaning ascribed to such term in Section
4.11(b).
“
VWAP
” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Ordinary Shares are then listed or quoted on a Trading Market, the
daily volume weighted average price of the Ordinary Shares for such date (or the
nearest preceding date) on the Trading Market on which the Ordinary Shares are
then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if
the OTC Bulletin Board is not a Trading Market, the volume weighted average
price of the Ordinary Shares for such date (or the nearest preceding date) on
the OTC Bulletin Board, (c) if the Ordinary Shares are not then listed or quoted
for trading on the OTC Bulletin Board and if prices for the Ordinary Shares are
then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Ordinary Shares so reported, or
(d) in all other cases, the fair market value of an Ordinary Share as
determined by an independent appraiser selected in good faith by the Purchasers
of a majority in interest of the Shares then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the
Company.
“
Warrants
” means the
Series A Warrants and the Series B Warrants.
“
Warrant Shares
” means
the Ordinary Shares issuable upon exercise of the Warrants.
“
WS
” means Weinstein
Smith LLP with offices located at 420 Lexington Avenue, Suite 2620, New York,
New York 10170-0002.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Closing
. On the
Closing Date, upon the terms and subject to the conditions set forth herein,
substantially concurrent with the execution and delivery of this Agreement by
the parties hereto, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, up to an aggregate of $2,500,000
of Shares and Warrants. Each Purchaser shall deliver to the Company, via
wire transfer, immediately available funds equal to such Purchaser’s
Subscription Amount as set forth on the signature page hereto executed by such
Purchaser, and the Company shall deliver to each Purchaser its respective Shares
and a Warrant, as determined pursuant to Section 2.2(a), and the Company and
each Purchaser shall deliver the other items set forth in Section 2.2
deliverable at the Closing. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the
offices of WS or such other location as the parties shall mutually
agree.
2.2
Deliveries
.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered
to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company U.S. Counsel, in form and substance reasonably
satisfactory to WS;
(iii) a
legal opinion of Company Israeli Counsel, in form and substance reasonably
satisfactory to WS;
(iv) a
copy of the irrevocable instructions to the Transfer Agent instructing the
Transfer Agent to deliver, on an expedited basis, a certificate evidencing a
number of Shares equal to such Purchaser’s Subscription Amount divided by the
Per Share Purchase Price, registered in the name of such Purchaser;
(v) a
Series A Warrant registered in the name of such Purchaser to purchase up to a
number of Ordinary Shares equal to 50% of the Shares issuable to the Purchaser
on the Closing Date, with an exercise price equal to $1.30, subject to
adjustment therein (such Warrant certificate may be delivered within three
Trading Days of the Closing Date);
(vi) a
Series B Warrant registered in the name of such Purchaser to purchase up to a
number of Ordinary Shares equal to 25% of the Shares issuable to the Purchaser
on the Closing Date, with an exercise price equal to $0.01 (such Warrant
certificate may be delivered within three Trading Days of the Closing Date);
and
(vii) the
Registration Rights Agreement duly executed by the Company.
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser;
(ii) such
Purchaser’s Subscription Amount by wire transfer to the account specified by the
Company; and
(iii) the
Registration Rights Agreement duly executed by such Purchaser.
2.3
Closing
Conditions
.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations and
warranties of the Purchasers contained herein (unless as of a specific date
therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and
agreements of each Purchaser required to be performed at or prior to the Closing
Date shall have been performed in all material respects; and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this
Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Company contained herein (unless as of a
specific date therein);
(ii)
all obligations, covenants and
agreements of the Company required to be performed at or prior to the Closing
Date shall have been performed in all material respects;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof; and
(v)
from the date hereof to the Closing Date, trading
in the Ordinary Shares shall not have been suspended by the Commission or the
Company’s principal Trading Market (except for any suspension of trading of
limited duration agreed to by the Company, which suspension shall be terminated
prior to the Closing), and, at any time prior to the Closing Date, trading in
securities generally as reported by Bloomberg L.P. shall not have been suspended
or limited, or minimum prices shall not have been established on securities
whose trades are reported by such service, or on any Trading Market, nor shall a
banking moratorium have been declared either by the United States or New York
State authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of such Purchaser, makes
it impracticable or inadvisable to purchase the Securities at the
Closing.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and
Warranties of the Company
. Except as disclosed in the SEC Reports or as
set forth in the Disclosure Schedules, which Disclosure Schedules shall be
deemed a part hereof and shall qualify any representation or otherwise made
herein to the extent of the disclosure contained in the corresponding section of
the Disclosure Schedules, the Company hereby makes the following representations
and warranties to each Purchaser:
(a)
Subsidiaries
.
All of the direct and indirect subsidiaries of the Company are set forth on
Schedule
3.1(a)(i)
. Except as set forth in
Schedule 3.1(a)(ii)
,
the Company owns, directly or indirectly, all of the capital stock or other
equity interests of each Subsidiary free and clear of any Liens, and all of the
issued and outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities.
(b)
Organization and
Qualification
. The Company and each of the Subsidiaries is an
entity duly incorporated or otherwise organized, validly existing and in good
standing (where such concept is recognized) under the laws of the jurisdiction
of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation nor
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each
of the Company and the Subsidiaries is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not have or reasonably be expected to result
in: (i) a material adverse effect on the legality, validity or enforceability of
any Transaction Document, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or otherwise) of
the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “
Material Adverse
Effect
”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(c)
Authorization;
Enforcement
. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and each of the other Transaction Documents and otherwise to carry out
its obligations hereunder and thereunder. The execution and delivery of
each of this Agreement and the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action on the part of the Company and no
further action is required by the Company, the Board of Directors or the
Company’s stockholders in connection herewith or therewith other than in
connection with the Required Approvals. This Agreement and each other
Transaction Document to which it is a party has been (or upon delivery will have
been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
except: (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law or public
policy.
(d)
No Conflicts
.
The execution, delivery and performance by the Company of this Agreement and the
other Transaction Documents to which it is a party, the issuance and sale of the
Securities and the consummation by it of the transactions contemplated hereby
and thereby do not and will not: (i) conflict with or violate any provision of
the Company’s or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any Lien upon any of
the properties or assets of the Company or any Subsidiary, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Company or a
Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii), such
as would not have or reasonably be expected to result in a Material Adverse
Effect.
(e)
Filings, Consents and
Approvals
. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii)
the filing with the Commission pursuant to the Registration
Rights Agreement, (iii) the notice and/or application(s) to each
applicable Trading Market for the issuance and sale of the Securities and the
listing of the Shares and Warrant Shares for trading thereon in the time and
manner required thereby, (iv) the filing of Form D with the Commission and such
filings as are required to be made under applicable state securities laws and
(v) filings required by the Israeli Registrar of Companies (collectively, the
“
Required
Approvals
”).
(f)
Issuance of the
Securities
. The Securities are duly authorized and, when issued and
paid for in accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided for in the
Transaction Documents. The Warrant Shares, when issued and paid for in
accordance with the terms of the Warrants, will be validly issued, fully paid
and nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents. The
Company has reserved from its duly authorized capital stock the maximum number
of Ordinary Shares issuable pursuant to this Agreement and the
Warrants.
(g)
Capitalization
.
The authorized capitalization of the Company is as set forth in the SEC Reports.
The Company has not issued any capital stock since its most recently filed
periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option plans, the issuance of
Ordinary Shares to employees pursuant to the Company’s employee stock purchase
plans and pursuant to the conversion and/or exercise of Ordinary Shares
Equivalents outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated by the Transaction Documents. Except as set
forth in the SEC Reports, pursuant to the Company’s stock plans and as a result
of the purchase and sale of the Securities, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe for
or acquire any Ordinary Shares, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional Ordinary Shares or Ordinary Shares Equivalents. The
issuance and sale of the Securities will not obligate the Company to issue
Ordinary Shares or other securities to any Person (other than the Purchasers)
and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under any of such securities. All
of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance
with all applicable federal and state securities laws, and none of such
outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. No further approval or
authorization of any stockholder, the Board of Directors or others is required
for the issuance and sale of the Securities. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s
stockholders.
(h)
SEC Reports; Financial
Statements
. The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company under the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Company was
required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “
SEC Reports
”) on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Exchange Act and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Company has never been an issuer subject to the
disqualification provisions of Rule 144(i) under the Securities Act. Except as
set forth on
Schedule
3.1(h)
, the financial statements of the Company included in the SEC
Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in
effect at the time of filing. Except as set forth on
Schedule 3.1(h)
, such
financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (“
GAAP
”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(i)
Material Changes;
Undisclosed Events, Liabilities or Developments
. Since the date of
the latest audited financial statements included within the SEC Reports, except
as disclosed in a subsequent SEC Report filed prior to the date hereof: (i)
there has been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any material liabilities (contingent or otherwise) other than
(A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or disclosed in
filings made with the Commission, (iii) the Company has not altered its method
of accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer,
director or Affiliate, except pursuant to existing Company stock option
plans. The Company does not have pending before the Commission any request
for confidential treatment of information. Except as set forth in
Schedule 3.1(i)
and
for the issuance of the Securities contemplated by this Agreement, no event,
liability, fact, circumstance, occurrence or development has occurred or exists,
or is reasonably expected to occur or exist, with respect to the Company or its
Subsidiaries or their respective businesses, properties, operations, assets or
financial condition, that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least 1 Trading Day prior to the
date that this representation is made.
(j)
Litigation
.
Except as set forth in
Schedule 3.1(j)
,
there is no action, suit, inquiry, notice of violation, proceeding or
investigation pending or, to the knowledge of the Company, threatened against or
affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) (collectively,
an “
Action
”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or (ii)
could, if there were an unfavorable decision, have or reasonably be expected to
result in a Material Adverse Effect. Except as set forth in
Schedule 3.1(j)
,
neither the Company nor any Subsidiary, nor, to the Company’s knowledge, any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or, to the Company’s
knowledge, any current director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
(k)
Labor
Relations
. No material labor dispute exists or, to the knowledge of
the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect.
None of the Company’s or its Subsidiaries’ employees is a member of a union that
relates to such employee’s relationship with the Company or such Subsidiary, and
neither the Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe that their
relationships with their employees are good. To the knowledge of the
Company, no executive officer of the Company or any Subsidiary is, or is now
expected to be, in violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement or
non-competition agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment of each such
executive officer does not subject the Company or any of its Subsidiaries to any
liability with respect to any of the foregoing matters. The Company and
its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(l)
Compliance
.
Neither the Company nor any Subsidiary: (i) is in default under or in violation
of (and no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any judgment,
decree, or order of any court, arbitrator or other governmental authority or
(iii) is or has been in violation of any statute, rule, ordinance or regulation
of any governmental authority, including without limitation all foreign,
federal, state and local laws applicable to its business, except in each case as
would not have or reasonably be expected to result in a Material Adverse
Effect.
(m)
Regulatory
Permits
. The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local or
foreign regulatory authorities necessary to conduct their respective businesses
as described in the SEC Reports, except where the failure to possess such
permits would not reasonably be expected to result in a Material Adverse Effect
(“
Material
Permits
”), and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any Material
Permit.
(n)
Title to
Assets
. The Company and the Subsidiaries have good and marketable
title in fee simple to all real property owned by them and good and marketable
title in all personal property owned by them that is material to the business of
the Company and the Subsidiaries, in each case free and clear of all Liens,
except for (i) Liens created under license or collaboration agreements relating
to the Company’s products or Intellectual Property Rights, (ii)Liens as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
the Subsidiaries and (iii) Liens for the payment of federal, state or other
taxes, for which appropriate reserves have been made therefor in accordance with
GAAP and the payment of which is neither delinquent nor subject to
penalties. Any real property and facilities held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are in
compliance, except where such non-compliance would not have or reasonably be
expected to result in a Material Adverse Effect.
(o)
Intellectual
Property
. The Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and
other intellectual property rights and similar rights necessary or material for
use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have a Material Adverse Effect
(collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that
any of, the Intellectual Property Rights has expired, terminated or been
abandoned, or is expected to expire or terminate or be abandoned, within two (2)
years from the date of this Agreement. Neither the Company nor any
Subsidiary has received, since the date of the latest audited financial
statements included within the SEC Reports, a written notice of a claim or
otherwise has any knowledge that the Intellectual Property Rights violate or
infringe upon the rights of any Person, except as would not have a Material
Adverse Effect. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable. The Company and its Subsidiaries have
taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(p)
Insurance
. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged. Neither the Company nor any Subsidiary has been notified that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have or reasonably
be expected to result in a Material Adverse Effect.
(q)
Transactions With Affiliates
and Employees
. Except as set forth in the SEC Reports, none of the
officers or directors of the Company or any Subsidiary and, to the knowledge of
the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, providing for
the borrowing of money from or lending of money to or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge
of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, stockholder,
member or partner, in each case in excess of $120,000 other than for: (i)
payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company and (iii) other employee
benefits, including stock option agreements under any stock option plan of the
Company.
(r)
Sarbanes-Oxley; Internal
Accounting Controls
. The Company is in material compliance with any
and all requirements of the Sarbanes-Oxley Act of 2002 that are applicable to
the Company and effective as of the date hereof, and any and all rules and
regulations promulgated by the Commission thereunder that are applicable to the
Company and effective as of the date hereof and as of the Closing Date. The
Company and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company has established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and designed such disclosure controls and procedures
to provide reasonable assurance that information required to be disclosed by the
Company in the reports it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying officers have
evaluated the effectiveness of the disclosure controls and procedures of the
Company as of the end of December 31, 2009 (such date, the “
Evaluation
Date
”). The Company presented in its Annual Report on Form 20-F for
the year ended December 31, 2009 the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no changes in the internal control over financial reporting (as such
term is defined in the Exchange Act) of the Company and its Subsidiaries that
have materially affected, or is reasonably likely to materially affect, the
internal control over financial reporting of the Company.
(s)
Certain Fees
.
Except for the fee to be paid to Rodman & Renshaw, LLC, no brokerage or
finder’s fees or commissions are or will be payable by the Company
or any Subsidiary to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by the Transaction Documents. The Purchasers
shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due from the Company in connection with the transactions
contemplated by the Transaction Documents.
(t)
Private Placement
.
Assuming the accuracy of the Purchasers’ representations and warranties set
forth in Section 3.2, no registration under the Securities Act is required for
the offer and sale of the Securities by the Company to the Purchasers as
contemplated hereby. The issuance and sale of the Securities hereunder does not
contravene the rules and regulations of the Trading Market.
(u)
Investment Company
.
The Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended. The Company shall conduct its business in a manner so that it
will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(v)
Registration
Rights
. Other than each of the Purchasers and except as set forth
on
Schedule
3.1(v)
, no Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company or any
Subsidiary.
(w)
Listing and Maintenance
Requirements
. The Ordinary Shares are registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to, or which to its knowledge is likely to have the effect of,
terminating the registration of the Ordinary Shares under the Exchange Act nor
has the Company received any notification that the Commission is contemplating
terminating such registration. Except as set forth on
Schedule 3.1(w)
, the
Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Ordinary Shares are or have been listed or
quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. Except as set forth on
Schedule 3.1(w)
, the
Company is in compliance with all such listing and maintenance
requirements.
(x)
Application of Takeover
Protections
. The Company and the Board of Directors have taken all
necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s
certificate of incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Purchasers as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.
(y)
Disclosure
.
Except with respect to (i) the material terms and conditions of the transactions
contemplated by the Transaction Documents and (ii) such information that will be
publicly disclosed no later than 9:00 a.m. (New York City time) on the Trading
Day immediately following the date hereof, the Company confirms that neither it
nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or
might constitute material, non-public information. The Company
understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the Company. All
of the disclosure furnished by or on behalf of the Company to the Purchasers
regarding the Company and its Subsidiaries, their respective businesses and the
transactions contemplated hereby, including the Disclosure Schedules to this
Agreement, is true and correct and does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. The Company acknowledges and agrees that no Purchaser
makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in
Section 3.2 hereof.
(z)
No Integrated
Offering
. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of
(i) the Securities Act which would require the registration of any such
securities under the Securities Act, or (ii) any applicable shareholder approval
provisions of any Trading Market on which any of the securities of the Company
are listed or designated.
(aa)
Solvency
. The
Company has no knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within 4 months from the Closing
Date.
(bb)
Tax Status
.
Except for matters that would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect, the Company and
each Subsidiary has filed all necessary United States federal and state income
and all foreign income and franchise tax returns and has paid or accrued all
taxes shown as due thereon. There are no unpaid taxes in any material
amount claimed to be overdue by the Company by the taxing authority of any
jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(cc)
No General
Solicitation
. Neither the Company nor any person acting on behalf
of the Company has offered or sold any of the Securities by any form of general
solicitation or general advertising. The Company has offered the
Securities for sale only to the Purchasers and other “accredited investors”
within the meaning of Rule 501 under the Securities Act.
(dd)
Foreign Corrupt
Practices.
Neither the Company nor any Subsidiary, to the knowledge
of the Company or any Subsidiary, any agent or other person acting on behalf of
the Company or any Subsidiary, has: (i) directly or indirectly, used any funds
for unlawful contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any
foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary
(or made by any person acting on its behalf of which the Company is aware) which
is in violation of law or (iv) violated in any material respect any provision of
the Foreign Corrupt Practices Act of 1977, as amended.
(ee)
Accountants
. To
the knowledge of the Company, the Company’s independent registered public
accounting firm, Kost, Forer, Gabbay & Kasierer, a member of Ernst &
Young Global: (i) is a registered public accounting firm as required by the
Exchange Act and (ii) shall express its opinion with respect to the financial
statements to be included in the Company’s Annual Report on Form 20-F for the
fiscal year ending December 31, 2010.
(ff)
No Disagreements with
Accountants and Lawyers.
There are no disagreements of any kind presently
existing, or reasonably anticipated by the Company to arise, between the Company
and the accountants and lawyers formerly or presently employed by the
Company.
(gg)
Acknowledgment Regarding
Purchasers’ Purchase of Securities
. The Company acknowledges and
agrees that each of the Purchasers is acting solely in the capacity of an arm’s
length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is
acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions
contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to the
Purchasers’ purchase of the Securities. The Company further represents to
each Purchaser that the Company’s decision to enter into this Agreement and the
other Transaction Documents has been based solely on the independent evaluation
of the transactions contemplated hereby by the Company and its
representatives.
(hh)
Acknowledgment Regarding
Purchaser’s Trading Activity.
Anything in this Agreement or
elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and
4.13 hereof), it is understood and acknowledged by the Company that: (i) none of
the Purchasers has been asked by the Company to agree, nor has any
Purchaser agreed, to desist from purchasing or selling, long and/or short,
securities of the Company, or “derivative” securities based on securities issued
by the Company or to hold the Securities for any specified term, (ii) past or
future open market or other transactions by any Purchaser, specifically
including, without limitation, Short Sales or “derivative” transactions, before
or after the closing of this or future private placement transactions, may
negatively impact the market price of the Company’s publicly-traded securities,
(iii) any Purchaser, and counter-parties in “derivative” transactions to which
any such Purchaser is a party, directly or indirectly, may presently have a
“short” position in the Ordinary Shares and (iv) each Purchaser shall not be
deemed to have any affiliation with or control over any arm’s length
counter-party in any “derivative” transaction. The Company further
understands and acknowledges that (y) one or more Purchasers may engage in
hedging activities at various times during the period that the Securities are
outstanding, including, without limitation, during the periods that the value of
the Warrant Shares deliverable with respect to Securities are being determined,
and (z) such hedging activities (if any) could reduce the value of the existing
stockholders' equity interests in the Company at and after the time that the
hedging activities are being conducted. The Company acknowledges that such
aforementioned hedging activities do not constitute a breach of any of the
Transaction Documents.
(ii)
Regulation M
Compliance.
The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay
to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii),
compensation paid to the Company’s placement agent in connection with the
placement of the Securities.
(jj)
FDA
. No
test conducted in the Company’s laboratory is currently being promoted or sold
in a manner that would require the Company to submit a premarket notice or
premarket approval application to the U.S. Food and Drug Administration
(“FDA”). There is no pending, completed or, to the Company's knowledge,
threatened, action (including any lawsuit, arbitration, or legal or
administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any
of its Subsidiaries has received any notice, warning letter or other
communication from the FDA or any other governmental entity, which alleges that
any Company test is being offered in violation of any laws, rules or
regulations. The Company has not been informed by the FDA that the FDA
will prohibit the marketing, sale, license or use in the United States of any
product proposed to be developed, produced or marketed by the
Company.
(kk)
Form F-3
Eligibility
. The Company is eligible to register the resale of the
Securities for resale by the Purchaser on Form F-3 promulgated under the
Securities Act.
(ll)
Office of Foreign Assets
Control
. Neither the Company nor any Subsidiary nor, to
the Company's knowledge, any director, officer, agent, employee or affiliate of
the Company or any Subsidiary is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“
OFAC
”).
(mm)
U.S. Real Property Holding
Corporation
. The Company is not and has never been a U.S. real
property holding corporation within the meaning of Section 897 of the Internal
Revenue Code of 1986, as amended, and the Company shall so certify upon
Purchaser’s request.
(nn)
Bank Holding Company
Act
. Neither the Company nor any of its Subsidiaries or Affiliates
is subject to the Bank Holding Company Act of 1956, as amended (the “
BHCA
”) and to
regulation by the Board of Governors of the Federal Reserve System (the “
Federal
Reserve
”). Neither the Company nor any of its Subsidiaries or
Affiliates owns or controls, directly or indirectly, five percent (5%) or more
of the outstanding shares of any class of voting securities or twenty-five
percent or more of the total equity of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve. Neither the Company nor
any of its Subsidiaries or Affiliates exercises a controlling influence over the
management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(oo)
Money
Laundering
. The operations of the Company and its Subsidiaries are
and have been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering
statutes and applicable rules and regulations thereunder (collectively, the
“
Money Laundering
Laws
”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company or any Subsidiary, threatened.
3.2
Representations and
Warranties of the Purchasers
. Each Purchaser, for itself and for no
other Purchaser, hereby represents and warrants as of the date hereof and as of
the Closing Date to the Company as follows (unless as of a specific date
therein):
(a)
Organization;
Authority
. Such Purchaser is either an individual or an entity duly
organized, validly existing and in good standing (where such concept is
recognized) under the laws of the jurisdiction of its organization with full
right, corporate, partnership, limited liability company or similar power and
authority to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of the Transaction Documents and
performance by such Purchaser of the transactions contemplated by the
Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the
part of such Purchaser. Each Transaction Document to which it is a party
has been duly executed by such Purchaser, and when delivered by such Purchaser
in accordance with the terms hereof, will constitute the valid and legally
binding obligation of such Purchaser, enforceable against it in accordance with
its terms, except: (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b)
No Conflicts
.
The execution, delivery and performance by such Purchaser of the Transaction
Documents and the consummation by it of the transactions contemplated hereby and
thereby to which it is a party do not and will not (i) conflict with or violate
any provision of such Purchaser’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any Lien upon any of
the properties or assets of such Purchaser, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Purchaser debt or otherwise) or other understanding to
which such Purchaser is a party or by which any property or asset of such
Purchaser is bound or affected, or (iii) conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which such Purchaser is
subject (including federal and state securities laws and regulations), or by
which any property or asset of such Purchaser is bound or affected except in the
case of each of clauses (ii) and (iii), such as would not reasonably be expected
to have a material adverse effect on such Purchaser’s ability to perform in any
material respect its obligations under any Transaction
Documents.
(c)
Own
Account
. Such Purchaser understands that the Securities are
“restricted securities” and have not been registered under the Securities Act,
the Israel Securities Law 1968, or any applicable state securities
law and is acquiring the Securities as principal for its own account and not
with a view to or for distributing or reselling such Securities or any part
thereof in violation of the Securities Act, the Israel Securities Law
1968, or any applicable state securities law, has no present
intention of distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or indirect
arrangement or understandings with any other persons to distribute or regarding
the distribution of such Securities in violation of the Securities Act, the
Israel Securities Law 1968, or any applicable state securities
law (this representation and warranty not limiting such Purchaser’s right to
sell the Securities pursuant to the Registration Statement or otherwise in
compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its
business.
(d)
Purchaser
Status
. At the time such Purchaser was offered the Securities, it
was, and as of the date hereof it is, and on the Closing date and on each date
on which it exercises any Warrants, it will (i) be an “accredited investor” as
defined in Rule 501 under the Securities Act, (ii) not be in Israel or an
Israeli citizen, corporation or resident, or controlled by an Israeli citizen,
corporation or resident, and (iii) not be related to any officer or director of
the Company. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(e)
Experience of Such
Purchaser; Information
. Such Purchaser, either alone or together
with its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Securities, and has so evaluated the
merits and risks of such investment. Such Purchaser is able to bear the
economic risk of an investment in the Securities and, at the present time, is
able to afford a complete loss of such investment. Such Purchaser and its
advisors, if any, have been furnished with all materials relating to the
business, financial condition and results of operations of the Company, and
materials relating to the offer and sale of the Securities, that have been
requested by such Purchaser or its advisors, if any. Such Purchaser
acknowledges and understands that its investment in the Securities involves a
significant degree of risk.
(f)
General
Solicitation
. Such Purchaser is not purchasing the Securities as a
result of any advertisement, article, notice or other communication regarding
the Securities published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
(g)
Certain
Transactions
and Confidentiality
. Other than consummating the transactions
contemplated hereunder, such Purchaser has not directly or indirectly, nor
has any Person acting on behalf of or pursuant to any understanding with such
Purchaser, executed any purchases or sales, including Short Sales, of the
securities of the Company during the period commencing as of the time that such
Purchaser first became aware of the transactions contemplated hereunder and
ending immediately prior to the execution hereof. Notwithstanding the
foregoing, in the case of a Purchaser that is a multi-managed investment vehicle
whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such
Purchaser’s assets, the representation set forth above shall only apply with
respect to the portion of assets managed by the portfolio manager that made the
investment decision to purchase the Securities covered by this Agreement.
Other than to other Persons party to this Agreement, such Purchaser has
maintained the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction).
Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein
shall constitute a representation or warranty, or preclude any actions, with
respect to the identification of the availability of, or securing of, available
shares to borrow in order to effect Short Sales or similar transactions in the
future.
The
Company acknowledges and agrees that the representations contained in Section
3.2 shall not modify, amend or affect such Purchaser’s right to rely on the
Company’s representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1
Transfer
Restrictions
.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement or Rule 144, to the Company or
to an Affiliate of a Purchaser or in connection with a pledge as contemplated in
Section 4.1(b), the Company may require the transferor thereof to provide to the
Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Securities under the Securities
Act. As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement and the Registration Rights
Agreement and shall have the rights and obligations of a Purchaser under this
Agreement and the Registration Rights Agreement.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1,
of a legend on any of the Securities in substantially the following
form:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH
A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement
and the Registration Rights Agreement and, if required under the terms of such
arrangement, such Purchaser may transfer pledged or secured Securities to the
pledgees or secured parties. Such a pledge or transfer would not be
subject to approval of the Company and no legal opinion of legal counsel of the
pledgee, secured party or pledgor shall be required in connection
therewith. Further, no notice shall be required of such pledge. At
the appropriate Purchaser’s expense, the Company will execute and deliver such
reasonable documentation as a pledgee or secured party of Securities may
reasonably request in connection with a pledge or transfer of the Securities,
including, if the Securities are subject to registration pursuant to the
Registration Rights Agreement, the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) under the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
Selling Stockholders (as defined in the Registration Rights Agreement)
thereunder.
(c) Certificates
evidencing the Shares and Warrant Shares shall not contain any legend (including
the legend set forth in Section 4.1(b) hereof), (i) while a registration
statement (including the Registration Statement) covering the resale of such
security is effective under the Securities Act, (ii) following any sale of such
Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant
Shares are eligible for sale under Rule 144, without the requirement for the
Company to be in compliance with the current public information required under
Rule 144 as to such Shares and Warrant Shares and without volume or
manner-of-sale restrictions, or (iv) if such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the Commission).
The Company shall cause its counsel to issue a legal opinion to the Transfer
Agent promptly after the Effective Date if required by the Transfer Agent to
effect the removal of the legend hereunder. If all or any portion of a
Warrant is exercised at a time when there is an effective registration statement
to cover the resale of the Warrant Shares, or if such Shares or Warrant Shares
may be sold under Rule 144 and the Company is then in compliance with the
current public information required under Rule 144, or if the Shares or Warrant
Shares may be sold under Rule 144 without the requirement for the Company to be
in compliance with the current public information required under Rule 144 as to
such Shares or Warrant Shares or if such legend is not otherwise required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the Commission) then
such Warrant Shares shall be issued free of all legends. The Company agrees that
following the Effective Date or at such time as such legend is no longer
required under this Section 4.1(c), it will, no later than three Trading Days
following the delivery by a Purchaser to the Transfer Agent of a certificate
representing Shares or Warrant Shares, as the case may be, issued with a
restrictive legend (such third Trading Day, the “
Legend Removal
Date
”), deliver or cause to be delivered to such Purchaser a certificate
representing such shares that is free from all restrictive and other
legends. The Company may not make any notation on its records or give
instructions to the Transfer Agent that enlarge the restrictions on transfer set
forth in this Section 4. Certificates for Securities subject to legend
removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by
crediting the account of the Purchaser’s prime broker with the Depository Trust
Company System as directed by such Purchaser.
(d)
In addition to such Purchaser’s other
available remedies, the Company shall pay to a Purchaser, in cash, as partial
liquidated damages and not as a penalty, for each $1,000 of Shares or Warrant
Shares (based on the VWAP of the Ordinary Shares on the date such Securities are
submitted to the Transfer Agent) delivered for removal of the restrictive legend
and subject to Section 4.1(c), $5 per Trading Day (increasing to $10 per Trading
Day five (5) Trading Days after such damages have begun to accrue) for each
Trading Day after the Legend Removal Date until such certificate is delivered
without a legend. Nothing herein shall limit such Purchaser’s right to pursue
actual damages for the Company’s failure to deliver certificates representing
any Securities as required by the Transaction Documents, and such Purchaser
shall have the right to pursue all remedies available to it at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief.
(e) Each
Purchaser, severally and not jointly with the other Purchasers, agrees with the
Company that such Purchaser will sell any Securities pursuant to either the
registration requirements of the Securities Act, including any applicable
prospectus delivery requirements, or an exemption therefrom, and that if
Securities are sold pursuant to a Registration Statement, they will be sold in
compliance with the plan of distribution set forth therein, and acknowledges
that the removal of the restrictive legend from certificates representing
Securities as set forth in this Section 4.1 is predicated upon the Company’s
reliance upon this understanding.
4.2
Furnishing of
Information
;
Public Information
.
(a) Until
the earliest of the time that (i) no Purchaser owns Securities or (ii) the
Warrants have expired, the Company covenants to use commercially reasonable
efforts to to timely file (or obtain extensions in respect thereof and file
within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act even if the Company
is not then subject to the reporting requirements of the Exchange
Act.
(b) At
any time during the period commencing from the six (6) month anniversary of the
date hereof and ending at such time that all of the Securities may be sold
without the requirement for the Company to be in compliance with Rule 144(c)(1)
and otherwise without restriction or limitation pursuant to Rule 144, if the
Company shall fail for any reason to satisfy the current public information
requirement under Rule 144(c) (a “
Public Information
Failure
”) then, in addition to such Purchaser’s other available remedies,
the Company shall pay to a Purchaser, in cash, as partial liquidated damages and
not as a penalty, by reason of any such delay in or reduction of its ability to
sell the Securities, an amount in cash equal to two percent (2.0%) of the
aggregate Subscription Amount of such Purchaser’s Securities on the day of a
Public Information Failure and on every thirtieth (30
th
) day
(pro rated for periods totaling less than thirty days) thereafter until the
earlier of (a) the date such Public Information Failure is cured and (b) such
time that such public information is no longer required for the Purchasers
to transfer the Shares and Warrant Shares pursuant to Rule 144. The
payments to which a Purchaser shall be entitled pursuant to this Section 4.2(b)
are referred to herein as “
Public Information Failure
Payments
.” Public Information Failure
Payments shall be paid
on the earlier of (i) the last day of the calendar month during which such
Public Information Failure
Payments are incurred
and (ii) the third (3
rd
)
Business Day after the event or failure giving rise to the Public Information
Failure
Payments is
cured. In the event the Company fails to make Public Information
Failure
Payments in
a timely manner, such Public Information Failure
Payments shall bear
interest at the rate of 1.5% per month (prorated for partial months) until paid
in full. Nothing herein shall limit such Purchaser’s right to pursue actual
damages for the Public Information Failure, and such Purchaser shall have the
right to pursue all remedies available to it at law or in equity including,
without limitation, a decree of specific performance and/or injunctive
relief.
4.3
Integration
.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the sale
of the Securities or that would be integrated with the offer or sale of the
Securities for purposes of the rules and regulations of any Trading Market such
that it would require shareholder approval prior to the closing of such other
transaction unless shareholder approval is obtained before the closing of such
subsequent transaction.
4.4
Securities Laws Disclosure;
Publicity
. The Company shall, by 9:00 a.m. (New York City time) on
the Trading Day immediately following the date hereof, issue a press release
disclosing the material terms of the transactions contemplated hereby. The
Company shall, within four Business Days following the date hereof, file a
Report on Form 6-K disclosing the material terms of the transactions
contemplated hereby, which Form 6-K shall include the Transaction Documents as
exhibits thereto. From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material,
non-public information delivered to any of the Purchasers by the Company or any
of its Subsidiaries, or any of their respective officers, directors, employees
or agents in connection with the transactions contemplated by the Transaction
Documents. The Company and each Purchaser shall consult with each other in
issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press
release nor otherwise make any such public statement without the prior consent
of the Company, with respect to any press release of any Purchaser, or without
the prior consent of each Purchaser, with respect to any press release of the
Company, which consent shall not unreasonably be withheld or delayed, except if
such disclosure is required by law, in which case the disclosing party shall
promptly provide the other party with prior notice of such public statement or
communication. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except: (a) as
required by federal securities law in connection with (i) any registration
statement contemplated by the Registration Rights Agreement and (ii) the filing
of final Transaction Documents (including signature pages thereto) with the
Commission and (b) to the extent such disclosure is required by law or Trading
Market regulations, in which case the Company shall provide the Purchasers with
prior notice of such disclosure permitted under this clause
(b).
4.5
Shareholder Rights
Plan
. No claim will be made or enforced by the Company or, with the
consent of the Company, any other Person, that any Purchaser is an “Acquiring
Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover
plan or arrangement in effect or hereafter adopted by the Company, or that any
Purchaser could be deemed to trigger the provisions of any such plan or
arrangement, solely by virtue of receiving Securities under the Transaction
Documents or under any other agreement between the Company and the
Purchasers.
4.6
Non-Public
Information
. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the
Company covenants and agrees that neither it, nor any other Person acting on its
behalf, will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have entered into a written agreement with
the Company regarding the confidentiality and use of such information. The
Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the
Company.
4.7
Use of
Proceeds
. Except as set forth on
Schedule 4.7
attached
hereto, the Company shall use the net proceeds from the sale of the Securities
hereunder for working capital purposes and shall not use such proceeds: (a) for
the satisfaction of any portion of the Company’s debt (other than payment of
trade payables in the ordinary course of the Company’s business and prior
practices), (b) for the redemption of any Ordinary Shares or Ordinary Shares
Equivalents, (c) for the settlement of any outstanding litigation or (d) in
violation of FCPA or OFAC regulations.
4.8
Indemnification of
Purchasers
. Subject to the provisions of this Section 4.8,
the Company will indemnify and hold each Purchaser and 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 Purchaser (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 persons (each, a
“
Purchaser
Party
”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur due to
a claim by a third party as a result of or relating to any action instituted
against the Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate
of such Purchaser Parties, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is based upon a breach of such
Purchaser Party’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser Parties may have
with any such stockholder or any violations by such Purchaser Parties of state
or federal securities laws or any conduct by such Purchaser Parties which
constitutes fraud, gross negligence, willful misconduct or malfeasance).
If any action shall be brought against any Purchaser Party in respect of which
indemnity may be sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and the Company shall have the right to
assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the
Company has failed after a reasonable period of time to assume such defense and
to employ counsel or (iii) in such action there is, in the reasonable opinion of
counsel, a material conflict on any material issue between the position of the
Company and the position of such Purchaser Party, in which case the Company
shall be responsible for the reasonable fees and expenses of no more than one
such separate counsel for all Purchaser Parties entitled to indemnification
hereunder. The Company will not be liable to any Purchaser Party under
this Agreement (y) for any settlement by a Purchaser Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or
delayed; or (z) to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Transaction Documents. The
indemnity agreements contained herein shall be in addition to any cause of
action or similar right of any Purchaser Party against the Company and any
liabilities that the Company may be subject to pursuant to law. The
Company will have the exclusive right to settle any claim or proceeding,
provided that the Company will not settle any such claim, action or proceeding
without the prior written consent of the Purchaser Party, which will not be
unreasonably withheld or delayed; provided, however, that such consent shall not
be required if the settlement includes a full and unconditional release
satisfactory to the Purchaser Party from all liability arising or that may arise
out of such claim or proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
Purchaser Party.
4.9
Reservation of
Ordinary Shares
. As
of the date hereof, the Company has reserved and the Company shall continue to
reserve and keep available at all times, free of preemptive rights, a sufficient
number of Ordinary Shares for the purpose of enabling the Company to issue
Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of
the Warrants.
4.10
Listing of
Ordinary Shares
. The
Company hereby agrees to use commercially reasonable efforts to maintain the
listing or quotation of the Ordinary Shares on the Trading Market on which
it is currently listed, and concurrently with the Closing, the Company shall
apply to list or quote all of the Shares and Warrant Shares on such Trading
Market and promptly secure the listing of all of the Shares and Warrant Shares
on such Trading Market. The Company further agrees, if the Company applies to
have the Ordinary Shares traded on any other Trading Market, it will then
include in such application all of the Shares and Warrant Shares, and will take
such other action as is necessary to cause all of the Shares and Warrant Shares
to be listed or quoted on such other Trading Market as promptly as
possible. The Company will then take all action reasonably necessary to
continue the listing or quotation and trading of its Ordinary Shares on a
Trading Market and will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of the Trading
Market.
4.11
Subsequent Equity
Sales.
(a) From
the date hereof until thirty (30) days after the Effective Date, neither the
Company nor any Subsidiary shall issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any Ordinary Shares or Ordinary
Shares Equivalents.
(b) From
the date hereof until 12 months following the date hereof, the Company shall be
prohibited from effecting or entering into an agreement to effect any issuance
by the Company or any of its Subsidiaries of Ordinary Shares or Ordinary Shares
Equivalents for cash consideration (or a combination of units thereof) involving
a Variable Rate Transaction. “
Variable Rate
Transaction
” means a transaction in which the Company (i) issues or sells
any debt or equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive, additional Ordinary Shares
either (A) at a conversion price, exercise price or exchange rate or other price
that is based upon, and/or varies with, the trading prices of or quotations for
the Ordinary Shares at any time after the initial issuance of such debt or
equity securities or (B) with a conversion, exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such
debt or equity security or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for
the Ordinary Shares or (ii) enters into any agreement, including, but not
limited to, an equity line of credit, whereby the Company may sell securities at
a future determined price. Any Purchaser shall be entitled to obtain
injunctive relief against the Company to preclude any such issuance, which
remedy shall be in addition to any right to collect damages
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
4.12
Equal Treatment of
Purchasers
. No consideration (including any modification of any
Transaction Document) shall be offered or paid to any Person to amend or consent
to a waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and
negotiated separately by each Purchaser, and is intended for the Company to
treat the Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Securities or otherwise.
4.13
Certain
Transactions
and Confidentiality
. Each Purchaser, severally and not jointly with the
other Purchasers, covenants that neither it, nor any Affiliate acting on its
behalf or pursuant to any understanding with it will execute any purchases or
sales, including Short Sales, of any of the Company’s securities during the
period commencing with the execution of this Agreement and ending at such time
that the transactions contemplated by this Agreement are first publicly
announced pursuant to the initial press release as described in Section
4.4. Each Purchaser, severally and not jointly with the other Purchasers,
covenants that until such time as the transactions contemplated by this
Agreement are publicly disclosed by the Company pursuant to the initial press
release as described in Section 4.4, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Transaction Documents and the Disclosure
Schedules. Notwithstanding the foregoing, and notwithstanding anything
contained in this Agreement to the contrary, the Company expressly acknowledges
and agrees that (i) no Purchaser makes any representation, warranty or covenant
hereby that it will not engage in effecting transactions in any securities of
the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described
in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from
effecting any transactions in any securities of the Company in accordance with
applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the
initial press release as described in Section 4.4 and (iii) no Purchaser shall
have any duty of confidentiality to the Company or its Subsidiaries after the
issuance of the initial press release as described in Section 4.4.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above
shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by
this Agreement.
4.14
Form D; Blue Sky
Filings
. The Company agrees to timely file a Form D with respect to
the Securities as required under Regulation D and to provide a copy thereof,
promptly upon request of any Purchaser. The Company shall take such action as
the Company shall reasonably determine is necessary in order to obtain an
exemption for, or to qualify the Securities for, sale to the Purchasers at the
Closing under applicable securities or “Blue Sky” laws of the states of the
United States, and shall provide evidence of such actions promptly upon request
of any Purchaser.
4.15
Capital
Changes
. Until the one year anniversary of the Effective Date, the
Company shall not undertake a reverse or forward stock split or reclassification
of the Ordinary Shares without the prior written consent of the Purchasers
holding a majority in interest of the Shares;
provided
,
however
, that this
Section 4.15 shall not apply solely in connection with any reverse stock
split conducted to meet or maintain compliance with the listing standards of any
Trading Market.
4.16
Acknowledgment of
Dilution
. The Company acknowledges that the issuance of the
Securities may result in dilution of the outstanding Ordinary Shares, which
dilution may be substantial under certain market conditions. The Company
further acknowledges that its obligations under the Transaction Documents,
including, without limitation, its obligation to issue the Shares and Warrant
Shares pursuant to the Transaction Documents, are unconditional and absolute and
not subject to any right of set off, counterclaim, delay or reduction,
regardless of the effect of any such dilution or any claim the Company may have
against any Purchaser and regardless of the dilutive effect that such issuance
may have on the ownership of the other stockholders of the
Company.
ARTICLE
V.
MISCELLANEOUS
5.1
Termination
.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s
obligations hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before December 3, 2010;
provided
,
however
, that such
termination will not affect the right of any party to sue for any breach by any
other party (or parties).
5.2
Fees and
Expenses
. Except as expressly set forth in the Transaction
Documents to the contrary, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Purchasers.
5.3
Entire
Agreement
. The Transaction Documents, together with the exhibits
and schedules thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents, exhibits and
schedules.
5.4
Notices
. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto at or prior to 5:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number set forth on the signature pages attached hereto on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c)
the second (2
nd
)
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.
5.5
Amendments;
Waivers
. No provision of this Agreement may be waived, modified,
supplemented or amended except in a written instrument signed, in the case of an
amendment, by the Company and the Purchasers holding at least a majority in
interest of the Shares then outstanding (which amendment shall be binding on all
Purchasers) or, in the case of a waiver, by the party against whom enforcement
of any such waived provision is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right.
5.6
Headings
. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.7
Successors and
Assigns
. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser (other than by merger,
consolidation or sale of all or substantially all of the Company’s
assets). Any Purchaser may assign any or all of its rights under this
Agreement to any Person to whom such Purchaser assigns or transfers any
Securities, provided that such transferee agrees in writing to be bound, with
respect to the transferred Securities, by the provisions of the Transaction
Documents that apply to the “Purchasers.”
5.8
No Third-Party
Beneficiaries
. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.8.
5.9
Governing Law
.
All questions concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York,
without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members, employees or
agents) shall be commenced exclusively in the state and federal courts sitting
in the City of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or is an inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any other manner permitted by
law. If either party shall commence an action or proceeding to enforce any
provisions of the Transaction Documents, then in addition to the obligations of
the Company under Section 4.8, the prevailing party in such action, suit or
proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
5.10
Survival
. The
representations and warranties contained herein shall survive the Closing and
the delivery of the Securities.
5.11
Execution
. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to each
other party, it being understood that the parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
5.12
Severability
.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal
Right
. Notwithstanding anything to the contrary contained in (and
without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights;
provided
,
however
, that in the
case of a rescission of an exercise of a Warrant, the applicable Purchaser shall
be required to return any Ordinary Shares subject to any such rescinded exercise
notice concurrently with the return to such Purchaser of the aggregate exercise
price paid to the Company for such shares and the restoration of such
Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant
(including, issuance of a replacement warrant certificate evidencing such
restored right).
5.14
Replacement of
Securities
. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof (in the case of mutilation), or in lieu of and substitution therefor, a
new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction. The
applicant for a new certificate or instrument under such circumstances shall
also pay any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement Securities.
5.15
Remedies
. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Purchasers and the Company will
be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any
loss incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agree to waive and not to assert in any action
for specific performance of any such obligation the defense that a remedy at law
would be adequate.
5.16
Payment Set
Aside
. To the extent that the Company makes a payment or payments
to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or
exercises its rights thereunder, and such payment or payments or the proceeds of
such enforcement or exercise or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company,
a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
5.17
Independent Nature of
Purchasers’ Obligations and Rights
. The obligations of each
Purchaser under any Transaction Document are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in any
way for the performance or non-performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in
any other Transaction Document, and no action taken by any Purchaser pursuant
hereof or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of the other Transaction Documents, and it
shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. Each Purchaser has been
represented by its own separate legal counsel in its review and negotiation of
the Transaction Documents. For reasons of administrative convenience only,
each Purchaser and its respective counsel have chosen to communicate with the
Company through WS. WS does not represent any of the Purchasers and only
represents Rodman & Renshaw LLC. The Company has elected to
provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so
by any of the Purchasers.
5.18
Liquidated
Damages
. The Company’s obligations to pay any partial liquidated
damages or other amounts owing under the Transaction Documents is a continuing
obligation of the Company and shall not terminate until all unpaid partial
liquidated damages and other amounts have been paid notwithstanding the fact
that the instrument or security pursuant to which such partial liquidated
damages or other amounts are due and payable shall have been
canceled.
5.19
Saturdays, Sundays,
Holidays, etc.
If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not
be a Business Day, then such action may be taken or such right may be exercised
on the next succeeding Business Day.
5.20
Construction
. The
parties agree that each of them and/or their respective counsel have reviewed
and had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and Ordinary Shares in any Transaction
Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the
Ordinary Shares that occur after the date of this Agreement.
5.21
WAIVER OF
JURY TRIAL
.
IN ANY
ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN WITNESS WHEREOF, the parties hereto
have caused this Securities Purchase Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.
ROSETTA
GENOMICS LTD.
|
Address for Notice:
|
|
|
By:
|
/s/ Kenneth A.
Berlin
|
|
Rosetta
Genomics Ltd.
|
|
Name: Kenneth
A. Berlin
|
10
Plaut St.
|
|
Title: President
and CEO
|
Rehovot,
Israel 76706
|
|
Attn:
Tami Fishman Jutowitz
|
|
General Counsel
|
|
Fax:
+972-73-222-0701
|
With
a copy to (which shall not constitute notice):
|
Mintz,
Levin, Cohn, Ferris
|
|
Glovsky
and Popeo, P.C.
|
|
One
Financial Center
|
|
Boston,
MA 02111
|
|
Attn:
Brian P. Keane
|
|
Fax:
617-542-2241
|
and
to:
|
Tulchinsky
Stern Marciano
|
|
Cohen
Levitski & Co.
|
|
4
Berkowitz St.
|
|
Tel
Aviv, Israel 64238
|
|
Fax:
+972-3-607-5050
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Bristol Investment Fund, Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Paul Kessler
Name of
Authorized Signatory: Paul Kessler
Title of
Authorized Signatory: Director
Email
Address of Authorized Signatory:
pkessler@bristolcompanies.net
;
amy@bristolcompanies.net
Facsimile
Number of Authorized Signatory: (323) 960-3805
Address
for Notice to Purchaser:
|
c/o
Bristol Capital Advisors, LLC
|
|
6353
W. Sunset Blvd., Suite 4006
|
|
Hollywood,
California 90028
|
|
Attn:
Amy Wang, Esq.
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $300,000
Shares: 300,000
Series A
Warrant Shares: 150,000
Series B
Warrant Shares: 75,000
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: RRC Bio Fund, LP
Signature of Authorized Signatory of
Purchaser
: /s/ James Silverman
Name of
Authorized Signatory: James Silverman
Title of
Authorized Signatory: President
Email
Address of Authorized Signatory: jim@rrcbio.com
Facsimile
Number of Authorized Signatory: (617) 812-0515
Address
for Notice to Purchaser:
|
c/o
James Silverman
|
|
RRC
Management
|
|
217R
Concord Ave.
|
|
Cambridge,
MA 02138
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $250,000
Shares:
250,000
Series A
Warrant Shares: 125,000
Series B
Warrant Shares: 62,500
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Capital Ventures International by Heights Capital
Management, Inc. its authorized agent
Signature of Authorized Signatory of
Purchaser
: /s/ Michael L. Spolan
Name of
Authorized Signatory: Michael L. Spolan
Title of
Authorized Signatory: General Counsel – Heights Capital Management,
Inc. as authorized agent
Email
Address of Authorized Signatory:
Kobinger@sig.com
and
winer@sig.com
Facsimile
Number of Authorized Signatory: (415) 403-6525
Address
for Notice to Purchaser:
|
c/o
Heights Capital Management
|
|
101
California Street, Suite 3250
|
|
San
Francisco, CA 94111
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $200,000
Shares: 200,000
Series A
Warrant Shares: 100,000
Series B
Warrant Shares: 50,000
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: GCA Strategic Investment Fund Limited
Signature of Authorized Signatory of
Purchaser
: /s/ Lewis N. Lester, Sr.
Name of
Authorized Signatory: Lewis N. Lester, Sr.
Title of
Authorized Signatory: Director
Email
Address of Authorized Signatory: llester@gcaltd.com
Facsimile
Number of Authorized Signatory: (340) 719-3974
Address
for Notice to Purchaser:
|
GCA
Strategic Investment Fund Limited
|
|
c/o
Global Capital Advisors
|
|
P.O.
Box 457, Estate Manning Bay
|
|
Frederiksted
USV1 00841
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
If
by DWAC:
|
JP
Morgan Clearing Corp.
|
|
DTC#
0352
|
|
Name:
GCA Strategic Investment Fund Limited
|
|
Acct#: 610-28035-CPF
|
|
|
Warrant
and/or Physical Certificate:
|
GCA
Strategic Investment Fund Limited
|
|
c/o
Colony Park Financial Services, LLC, Bjorn Jordan
|
|
4350
Georgetown Square, Suite 757
|
|
Dunwoody,
CA 30338
|
Subscription
Amount: $300,000
Shares: 300,000
Series A
Warrant Shares: 150,000
Series B
Warrant Shares: 75,000
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Advanced Series Trust – AST Academic Strategies
Portfolio
Signature of Authorized Signatory of
Purchaser
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title
of Authorized Signatory:
|
Vice
President & Co-General Counsel of AQR Capital Management, LLC, the
Investment Manager to the Diversified Arbitrage
Sleeve
|
Email
Address of Authorized Signatory: Brendan.kalb@aqr.com
Facsimile
Number of Authorized Signatory: (203) 742-3105
Address
for Notice to Purchaser:
|
Attn:
Brendan R. Kalb
|
|
c/o
AQR Capital Management, LLC
|
|
Two
Greenwich Plaza, 3
rd
Floor
|
|
Greenwich,
CT 06830
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $43,750
Shares: 43,750
Series A
Warrant Shares: 21,875
Series B
Warrant Shares: 10,937.5
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: AQR Opportunistic Premium Offshore Fund, L.P.
Signature of Authorized Signatory of
Purchaser
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: Vice President & Co-General Counsel, AQR
Capital Management, LLC
Email
Address of Authorized Signatory: Brendan.kalb@aqr.com
Facsimile
Number of Authorized Signatory: (203) 742-3105
Address
for Notice to Purchaser:
|
Attn:
Brendan R. Kalb
|
|
c/o
AQR Capital Management, LLC
|
|
Two
Greenwich Plaza, 3
rd
Floor
|
|
Greenwich,
CT 06830
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $46,250
Shares: 46,250
Series A
Warrant Shares: 23,125
Series B
Warrant Shares: 11,562.5
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: CNH Diversified Opportunities Master Account,
L.P.
Signature of Authorized Signatory of
Purchaser
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title
of Authorized Signatory:
|
Vice
President & Co-General Counsel, CNH Partners, LLC investment adviser
to CNH Diversified Opportunities Master
Account,
L.P.
|
Email
Address of Authorized Signatory: Brendan.kalb@aqr.com
Facsimile
Number of Authorized Signatory: (203) 742-3105
Address
for Notice to Purchaser:
|
Attn:
Brendan R. Kalb
|
|
c/o
CNH Partners, LLC
|
|
Two
Greenwich Plaza, 1
st
Floor
|
|
Greenwich,
CT 06830
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $27,500
Shares: 27,500
Series A
Warrant Shares: 13,750
Series B
Warrant Shares: 6,875
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: AQR Funds – AQR Diversified Arbitrage Fund
Signature of Authorized Signatory of
Purchaser
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: Executive Vice President & Secretary, AQR
Funds
Email
Address of Authorized Signatory: Brendan.kalb@aqr.com
Facsimile
Number of Authorized Signatory: (203) 742-3105
Address
for Notice to Purchaser:
|
Attn:
Brendan R. Kalb
|
|
c/o
AQR Capital Management, LLC
|
|
Two
Greenwich Plaza, 3
rd
Floor
|
|
Greenwich,
CT 06830
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $382,500
Shares: 382,500
Series A
Warrant Shares: 191,250
Series B
Warrant Shares: 95,625
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Iroquois Master Fund Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Joshua Silverman
Name of
Authorized Signatory: Joshua Silverman
Title of
Authorized Signatory: Authorized Signatory
Email
Address of Authorized Signatory: jsilverman@icfund.com
Facsimile
Number of Authorized Signatory: (212) 207-3452
Address
for Notice to Purchaser:
|
641
Lexington Ave.
|
|
26
th
Floor
|
|
New
York, NY 10022
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $125,000
Shares: 125,000
Series A
Warrant Shares: 62,500
Series B
Warrant Shares: 31,250
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Next View Capital, LP
Signature of Authorized Signatory of
Purchaser
: /s/ Stewart Flink
Name of
Authorized Signatory: Stewart Flink
Title of
Authorized Signatory: Manager
Email
Address of Authorized Signatory: stewart@nextviewcap.com
Facsimile
Number of Authorized Signatory: (847) 374-1715
Address
for Notice to Purchaser:
|
180
Crestview Drive
|
|
Deerfield,
IL 60015
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $200,000
Shares: 200,000
Series A
Warrant Shares: 100,000
Series B
Warrant Shares: 50,000
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Far West Capital Partners LP
Signature of Authorized Signatory of
Purchaser
: /s/ Robert G. Schiro
Name of
Authorized Signatory: Robert G. Schiro
Title of
Authorized Signatory: General Partner
Email
Address of Authorized Signatory: bob@fwcm.com
Facsimile
Number of Authorized Signatory: (415) 662-6190
Address
for Notice to Purchaser:
|
4749
Nicasio Valley Road
|
|
Nicasio,
CA 94946
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Deliver
Via DTC #0352/JP Morgan
For
Credit to 709-11176
(Not to
exceed 10% of total deal)
Subscription
Amount: $187,500
Shares: 187,500
Series A
Warrant Shares: 93,750
Series B
Warrant Shares: 46,875
EIN
Number:
[PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Robert G. Schiro 2001 Trust
Signature of Authorized Signatory of
Purchaser
: /s/ Robert G. Schiro
Name of
Authorized Signatory: Robert G. Schiro
Title of
Authorized Signatory: Trustee/Investment Manager
Email
Address of Authorized Signatory: bob@fwcm.com
Facsimile
Number of Authorized Signatory: (415) 662-6190
Address
for Notice to Purchaser:
|
4749
Nicasio Valley Road
|
|
Nicasio,
CA 94946
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Deliver
Via DTC #0352/JP Morgan
For
Credit to 709-11199
(Not to
exceed 10% of total deal)
Subscription
Amount: $50,000
Shares: 50,000
Series A
Warrant Shares: 25,000
Series B
Warrant Shares: 12,500
EIN
Number:
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[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Endurance Fund
Signature of Authorized Signatory of
Purchaser
: /s/ Robert G. Schiro
Name of
Authorized Signatory: Robert G. Schiro
Title of
Authorized Signatory: Trustee/Investment Manager
Email
Address of Authorized Signatory: bob@fwcm.com
Facsimile
Number of Authorized Signatory: (415) 662-6190
Address
for Notice to Purchaser:
|
4749
Nicasio Valley Road
|
|
Nicasio,
CA 94946
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Deliver
Via DTC #0352/JP Morgan
For
Credit to 709-11177
(Not to
exceed 10% of total deal)
Subscription
Amount: $12,500
Shares: 12,500
Series A
Warrant Shares: 6,250
Series B
Warrant Shares: 3,125
EIN
Number:
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[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Cranshire Capital LP
Signature of Authorized Signatory of
Purchaser
: /s/ Mitchell D. Kopin
Name of
Authorized Signatory: Mitchell D. Kopin
Title of
Authorized Signatory: President, Downsview Capital, Inc., The General
Partner
Email
Address of Authorized
Signatory: mkopin@cranshirecapital.com
Facsimile
Number of Authorized Signatory: (847) 562-9031
Address
for Notice to Purchaser:
|
Cranshire
Capital, L.P.
|
|
3100
Dundee Road, Suite 703
|
|
Northbrook,
IL 60062
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $237,500
Shares: 237,500
Series A
Warrant Shares: 118,750
Series B
Warrant Shares: 59,375
EIN
Number:
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[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Freestone Advantage Partners, LP
Signature of Authorized Signatory of
Purchaser
: /s/ Mitchell Kopin
Name of
Authorized Signatory: Mitchell Kopin
Title of
Authorized Signatory: Manager
Email
Address of Authorized
Signatory: mkopin@cranshirecapital.com
Facsimile
Number of Authorized Signatory: (847) 562-9031
Address
for Notice to Purchaser:
|
3100
Dundee #703
|
|
Northbrook,
IL 60062
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $12,500
Shares: 12,500
Series A
Warrant Shares: 6,250
Series B
Warrant Shares: 3,125
EIN
Number:
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PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Warberg Opportunistic Trading Fund L.P.
Signature of Authorized Signatory of
Purchaser
: /s/ Daniel I. Warsh
Name of
Authorized Signatory: Daniel I. Warsh
Title of
Authorized Signatory: Manager
Email
Address of Authorized Signatory: dwarsh@warbergam.com
Facsimile
Number of Authorized Signatory:
|
847-559-5807
|
|
|
Address
for Notice to Purchaser:
|
716
Oak St.
Winnetka, IL
60093
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $75,000
Shares: 75,000
Series A
Warrant Shares: 37,500
Series B
Warrant Shares: 18,750
EIN
Number:
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[PURCHASER
SIGNATURE PAGES TO ROSG SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Uri D. Herscher
Signature of Authorized Signatory of
Purchaser
: /s/ Uri D. Herscher
Name of
Authorized Signatory: Uri D. Herscher
Title
of Authorized Signatory:
|
|
Email
Address of Authorized Signatory: uherscher@skirball.org
Facsimile
Number of Authorized Signatory: (818) 995-6377
Address
for Notice to Purchaser:
|
3276
Lougridge Ave
|
|
Sherman
Oaks, CA 91423
|
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $50,000
Shares: 50,000
Series A
Warrant Shares: 25,000
Series B
Warrant Shares: 12,500
EIN
Number:
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EXHIBIT
10.2
REGISTRATION
RIGHTS AGREEMENT
This Registration Rights Agreement
(this “
Agreement
”) is made
and entered into as of November 29, 2010, between Rosetta Genomics Ltd., a
company organized under the laws of the State of Israel (the “
Company
”), and each
of the several purchasers signatory hereto (each such purchaser, a “
Purchaser
” and,
collectively, the “
Purchasers
”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of the
date hereof, between the Company and each Purchaser (the “
Purchase
Agreement
”).
The
Company and each Purchaser hereby agrees as follows:
1.
Definitions
.
Capitalized terms used and not
otherwise defined herein that are defined in the Purchase Agreement shall have
the meanings given such terms in the Purchase Agreement.
As used in this
Agreement, the following terms shall have the following meanings:
“
Advice
” shall have
the meaning set forth in Section 6(d).
“
Effectiveness Date
”
means, with respect to the Initial Registration Statement required to be filed
hereunder, the 60
th
calendar day following the date hereof (or, in the event of a review by the
Commission, the 120
th
calendar day following the date hereof) and with respect to any additional
Registration Statements which may be required pursuant to Section 3(c), the
60
th
calendar day following the date on which an additional Registration Statement is
required to be filed hereunder;
provided
,
however
, that in the
event the Company is notified by the Commission that one or more of the above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates otherwise required above.
“
Effectiveness Period
”
shall have the meaning set forth in Section 2(a).
“
Event
” shall have the
meaning set forth in Section 2(b).
“
Event Date
” shall
have the meaning set forth in Section 2(b).
“
Filing Date
” means,
with respect to the Initial Registration Statement required hereunder, the
20
th
calendar day following the date hereof and, with respect to any additional
Registration Statements which may be required pursuant to Section 3(c), the
earliest practical date on which the Company is permitted by SEC Guidance to
file such additional Registration Statement related to the Registrable
Securities.
“
Holder
” or “
Holders
” means the
holder or holders, as the case may be, from time to time of Registrable
Securities.
“
Indemnified Party
”
shall have the meaning set forth in Section 5(c).
“
Indemnifying Party
”
shall have the meaning set forth in Section 5(c).
“
Initial Registration
Statement
” means the initial Registration Statement filed pursuant to
this Agreement.
“
Initial Shares
” means
a number of Registrable Securities equal to the lesser of (a) the total number
of Registrable Securities and (b) one-third of the number of issued and
outstanding shares of Ordinary Shares that are held by non-Affiliates of the
Company on the day immediately prior to the filing date of the Initial
Registration Statement.
“
Losses
” shall have
the meaning set forth in Section 5(a).
“
Plan of Distribution
”
shall have the meaning set forth in Section 2(a).
“
Prospectus
” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated by the Commission pursuant to the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
“
Registrable
Securities
” means, as of any date of determination, (a) all Shares, (b)
all Warrant Shares then issuable upon exercise of the Warrants (assuming on such
date the Warrants are exercised in full without regard to any exercise
limitations therein) and (c) any securities issued or then issuable upon any
stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing;
provided,
however
, that any
such Registrable Securities shall cease to be Registrable Securities (and the
Company shall not be required to maintain the effectiveness of any, or file
another, Registration Statement hereunder with respect thereto) for so long as
(a) a Registration Statement with respect to the sale of such Registrable
Securities is declared effective by the Commission under the Securities Act and
such Registrable Securities have been disposed of by the Holder in accordance
with such effective Registration Statement, (b) such Registrable Securities have
been previously sold in accordance with Rule 144, or (c) such securities become
eligible for resale without volume or manner-of-sale restrictions and without
current public information pursuant to Rule 144 (assuming that such securities
and any securities issuable upon exercise, conversion or exchange of which, or
as a dividend upon which, such securities were issued or are issuable, were at
no time held by any Affiliate of the Company, and all Warrants are exercised by
“cashless exercise” as provided in Section 2(c) of each of the Warrants), as
reasonably determined by the Company, upon the advice of counsel to the
Company.
“
Registration
Statement
” means any registration statement required to be filed
hereunder pursuant to Section 2(a) and any additional registration statements
contemplated by Section 3(c), including (in each case) the Prospectus,
amendments and supplements to any such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference in
any such registration statement.
“
Rule 415
” means Rule
415 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“
Rule 424
” means Rule
424 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“
Selling Stockholder
Questionnaire
” shall have the meaning set forth in Section
3(a).
“
SEC Guidance
” means
(i) any publicly-available written or oral guidance of the Commission staff, or
any comments, requirements or requests of the Commission staff and (ii) the
Securities Act.
2.
Shelf
Registration
.
(a) On
or prior to each Filing Date, the Company shall prepare and file with the
Commission a Registration Statement covering the resale of all or such maximum
portion of the Registrable Securities as permitted by SEC Guidance (provided
that, the Company shall use diligent efforts to advocate with the Commission for
the registration of all of the Registrable Securities in accordance with the SEC
Guidance, including without limitation, Compliance and Disclosure Interpretation
612.09) that are not then registered on an effective Registration Statement for
an offering to be made on a continuous basis pursuant to Rule
415. Each Registration Statement filed hereunder shall be on Form F-3
(except if the Company is not then eligible to register for resale the
Registrable Securities on Form F-3, in which case such registration shall be on
another appropriate form in accordance herewith) and shall contain (unless
otherwise directed by at least a majority in interest of the Holders)
substantially the “
Plan of Distribution
”
attached hereto as
Annex
A
. Subject to the terms of this Agreement, the Company shall
use its reasonable best efforts to cause a Registration Statement filed
hereunder to be declared effective under the Securities Act as promptly as
reasonably practicable after the filing thereof, but in any event prior to the
applicable Effectiveness Date, and shall use its reasonable best efforts to keep
such Registration Statement continuously effective under the Securities Act
until all Registrable Securities covered by such Registration Statement (i) have
been sold, thereunder or pursuant to Rule 144, or (ii) (A) may be sold without
volume or manner-of-sale restrictions pursuant to Rule 144 and (B) (I) may be
sold without the requirement for the Company to be in compliance with the
current public information requirement under Rule 144 or (II) the Company is in
compliance with the current public information requirement under Rule 144 (the
“
Effectiveness
Period
”). The Company shall telephonically request
effectiveness of a Registration Statement as of 5:00 p.m. New York City time on
a Trading Day. The Company shall immediately notify the Holders
via facsimile or by e-mail of the effectiveness of a Registration Statement on
the same Trading Day that the Company telephonically confirms effectiveness with
the Commission, which shall be the date requested for effectiveness of such
Registration Statement. The Company shall, by 9:30 a.m. New York City
time on the Trading Day after the effective date of such Registration Statement,
file a final Prospectus with the Commission as required by Rule
424. Failure to so notify the Holder within one (1) Trading Day of
such notification of effectiveness or failure to file a final Prospectus as
foresaid shall be deemed an Event under Section 2(b).
Notwithstanding any other provision of this Agreement
and subject to the
payment of liquidated
damages pursuant to
Section 2(b), if any
SEC Gui
dance sets forth a limitation
on
the number of Registrable Securities
permitted
to be registered on a particular Registration Statement
(and notwithstanding that the Company used
diligent efforts
to
advocate with the Commission for the registr
ation of all or a greater portion
of Registrable Securities), unless otherwise directed
in writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration Statement will
first be reduced by Registrable Securities represented by Warrant Shares
(applied, in the case that some Warrant Shares may be registered, to the Holders
on a pro rata basis based on the total number of unregistered Warra
nt Shares held by such Holders);
provided
,
however
, that, prior to any reduction in the number of
Registrable Securities included in a Registration Statement as set forth in this
sentence, all Ordinary Shares set forth on
Schedule 3.1(v)
of
the Disclosure Schedules
shall be reduced
first.
In the event of a cutback hereunder,
the Company shall give the Holder at least five (5) Trading Days prior written
notice along with the calculations as to such Holder’s
allotment.
(b) If:
(i) the Initial Registration Statement is not filed on or prior to its Filing
Date (if the Company files the Initial Registration Statement without affording
the Holders the opportunity to review and comment on the same as required by
Section 3(a) herein, the Company shall be deemed to have not satisfied this
clause (i)), or (ii) the Company fails to file with the Commission a request for
acceleration of a Registration Statement in accordance with Rule 461 promulgated
by the Commission pursuant to the Securities Act, within five Trading Days of
the date that the Company is notified (orally or in writing, whichever is
earlier) by the Commission that such Registration Statement will not be
“reviewed” or will not be subject to further review, or (iii) prior to the
effective date of a Registration Statement, the Company fails to file a
pre-effective amendment and otherwise respond in writing to comments made by the
Commission in respect of such Registration Statement within twenty (20) calendar
days after the receipt of comments by or notice from the Commission that such
amendment is required in order for such Registration Statement to be declared
effective, or (iv) as to, in the aggregate among all Holders on a pro-rata basis
based on their purchase of the Securities pursuant to the Purchase Agreement, a
Registration Statement registering for resale all of the Initial Shares is not
declared effective by the Commission by the Effectiveness Date of the Initial
Registration Statement, or (v) after the effective date of a Registration
Statement, such Registration Statement ceases for any reason to remain
continuously effective as to all Registrable Securities included in such
Registration Statement, or the Holders are otherwise not permitted to utilize
the Prospectus therein to resell such Registrable Securities, for more than ten
(10) consecutive calendar days or more than an aggregate of fifteen (15)
calendar days (which need not be consecutive calendar days) during any 12-month
period, or (vi) the Company shall fail for any reason to satisfy the current
public information requirement under Rule 144 as to the applicable Registrable
Securities (any such failure or breach being referred to as an “
Event
”, and for
purposes of clauses (i), (iv), and (vi), the date on which such Event occurs,
and for purpose of clause (ii) the date on which such five (5) Trading Day
period is exceeded, and for purpose of clause (iii) the date which such twenty
(20) calendar day period is exceeded, and for purpose of clause (v) the date on
which such ten (10) or fifteen (15) calendar day period, as applicable, is
exceeded being referred to as “
Event Date
”), then,
in addition to any other rights the Holders may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of each
such Event Date (if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, the Company shall pay to each Holder an
amount in cash, as partial liquidated damages and not as a penalty, equal to 1%
of the aggregate purchase price paid by such Holder pursuant to the Purchase
Agreement for any unregistered Registrable Securities then held by such Holder;
provided
,
however
, that the
Company shall not be required to pay partial liquidated damages to such Holder
under this Section 2(b) in an aggregate amount in excess of 4% of the aggregate
Subscription Amount paid by such Holder pursuant to the Purchase
Agreement. The parties agree that the Company shall not be liable for
liquidated damages under this Agreement with respect to any unexercised Warrants
or Warrant Shares. If the Company fails to pay any partial liquidated
damages pursuant to this Section in full within seven days after the date
payable, the Company will pay interest thereon at a rate of 18% per annum (or
such lesser maximum amount that is permitted to be paid by applicable law) to
the Holder, accruing daily from the date such partial liquidated damages are due
until such amounts, plus all such interest thereon, are paid in full. The
partial liquidated damages pursuant to the terms hereof shall apply on a daily
pro rata basis for any portion of a month prior to the cure of an
Event.
3.
Registration
Procedures
.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Not
less than five (5) Trading Days prior to the filing of each Registration
Statement and not less than one (1) Trading Day prior to the filing of any
related Prospectus or any amendment or supplement thereto (including any
document that would be incorporated or deemed to be incorporated therein by
reference, but not including (i) any Exchange Act filing or (ii) any supplement
or post-effective amendment to a registration statement that is not related to
such Holder’s Registrable Securities), the Company shall (i) furnish to each
Holder copies of all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by reference) will be
subject to the review of such Holders, and (ii) cause its officers and
directors, counsel and independent registered public accountants to respond to
such inquiries as shall be necessary, in the reasonable opinion of respective
counsel to each Holder, to conduct a reasonable investigation within the meaning
of the Securities Act. The Company shall not file a Registration Statement or
any such Prospectus or any amendments or supplements thereto to which the
Holders of a majority of the Registrable Securities shall reasonably object in
good faith, provided that, the Company is notified of such objection in writing
no later than five (5) Trading Days after the Holders have been so furnished
copies of a Registration Statement or one (1) Trading Day after the Holders have
been so furnished copies of any related Prospectus or amendments or supplements
thereto. In the event that the Company is prevented from making such filing on
account of the objections described in the previous sentence (provided that the
Company uses reasonable best efforts to address the objections described in the
previous sentence and to promptly file thereafter), the failure of the Company
to make such filing shall not be deemed a breach or default hereunder or
otherwise with respect to the Securities. Each Holder agrees to
furnish to the Company a completed questionnaire in the form attached to this
Agreement as
Annex
B
(a “
Selling
Stockholder Questionnaire
”) on a date that is not less than two (2)
Trading Days prior to the Filing Date or by the end of the fourth (4
th
)
Trading Day following the date on which such Holder receives draft materials in
accordance with this Section.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective (subject to any requirement that a post-effective amendment be
declared effective by the Commission) as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission
such additional Registration Statements in order to register for resale under
the Securities Act all of the Registrable Securities subject to any SEC Guidance
that sets forth a limitation on the number of Registrable Securities permitted
to be registered on a particular Registration Statement, (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement
(subject to the terms of this Agreement), and, as so supplemented or amended, to
be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible
to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto and, if requested by a Holder, provide as
promptly as reasonably possible to such Holder true and complete copies of all
written correspondence from and to the Commission relating to a Registration
Statement (provided that, the Company may excise any information contained
therein which would constitute material non-public information as to any Holder
which has not executed a confidentiality agreement with respect thereto with the
Company), and (iv) comply in all material respects with the applicable
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by a Registration Statement
during the applicable period in accordance (subject to the terms of this
Agreement) with the intended methods of disposition by the Holders thereof set
forth in such Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) If
during the Effectiveness Period, the number of Registrable Securities at any
time exceeds 100% of the number of Ordinary Shares then registered in a
Registration Statement, then the Company shall file as soon as reasonably
practicable, but in any case prior to the applicable Filing Date, an additional
Registration Statement covering the resale by the Holders of not less than the
number of such Registrable Securities.
(d) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (iii) through (vi) hereof, be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made) as
promptly as reasonably possible (and, in the case of (i)(A) below, not less than
one (1) Trading Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one (1) Trading Day following the
day (i)(A), when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed (but not including
(i) any Exchange Act filing or (ii) any supplement or post-effective amendment
to a registration statement that is not related to such Holder’s Registrable
Securities), (B) when the Commission notifies the Company whether there will be
a “review” of such Registration Statement and whenever the Commission comments
in writing on such Registration Statement, and (C) with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information, (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose, (v) of the occurrence of any
event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made in
a Registration Statement or Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires any revisions to a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus, as
the case may be, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading and (vi) of the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes may
be material and that, in the determination of the Company, makes it not in the
best interest of the Company to allow continued availability of a Registration
Statement or Prospectus, provided that, any and all of such information shall
remain confidential to each Holder until such information otherwise becomes
public, unless disclosure by a Holder is required by law;
provided
,
further
, that
notwithstanding each Holder’s agreement to keep such information confidential,
each such Holder makes no acknowledgement that any such information is material,
non-public information.
(e) Use
its reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order stopping or suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(f) Furnish
to each Holder, upon request, without charge, at least one conformed copy of
each such Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by such Person, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission; provided, that any such item which is available
on the EDGAR system (or successor thereto) need not be furnished in physical
form.
(g) Subject
to the terms of this Agreement, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except after
the giving of any notice pursuant to Section 3(d).
(h)
The Company shall cooperate with any broker-dealer through which a Holder
proposes to resell its Registrable Securities in effecting a filing with the
FINRA Corporate Financing Department pursuant to FINRA Rule 5110, as requested
by any such Holder.
(i) Prior
to any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that, the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(j) If
requested by a Holder, cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement,
of all restrictive legends, and to enable such Registrable Securities to be in
such denominations and registered in such names as any such Holder may
request.
(k) Upon
the occurrence of any event contemplated by Section 3(d), as promptly as
reasonably possible under the circumstances taking into account the Company’s
good faith assessment of any adverse consequences to the Company and its
stockholders of the premature disclosure of such event, prepare a supplement or
amendment, including a post-effective amendment, to a Registration Statement or
a supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
If the Company notifies the
Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to
suspend the use of any Prospectus until the requisite changes to such Prospectus
have been made, then the Holders shall suspend use of such
Prospectus. The Company will use its reasonable best efforts to
ensure that the use of the Prospectus may be resumed as promptly as is
practicable. The Company shall be entitled to exercise its right
under this Section 3(k) to suspend the availability of a Registration Statement
and Prospectus, subject to the payment of partial liquidated damages otherwise
required pursuant to Section 2(b), for a period not to exceed 60 calendar days
(which need not be consecutive days) in any 12-month period
.
(l) Comply
with all applicable rules and regulations of the Commission in connection with
obtaining and maintaining the effectiveness of any Registration Statement
required to be filed and maintained with the Commission hereunder.
(m) The
Company may require each selling Holder to furnish to the Company a certified
statement as to the number of Ordinary Shares beneficially owned by such Holder
and, if required by the Commission, the natural persons thereof that have voting
and dispositive control over such shares. During any periods that the Company is
unable to meet its obligations hereunder with respect to the registration of the
Registrable Securities solely because any Holder fails to furnish such
information within three Trading Days of the Company’s request, any liquidated
damages that are accruing at such time as to such Holder only shall be tolled
and any Event that may otherwise occur solely because of such delay shall be
suspended as to such Holder only, until such information is delivered to the
Company.
4.
Registration
Expenses
. All fees and expenses incident to the performance of or
compliance with, this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses of the Company’s counsel and independent
registered public accountants) (A) with respect to filings made with the
Commission, (B) with respect to filings required to be made with any Trading
Market on which the Ordinary Shares are then listed for trading and (C) in
compliance with applicable state securities or Blue Sky laws reasonably agreed
to by the Company in writing (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the
Company shall be responsible for all of its internal expenses incurred in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder. In no event shall the Company be responsible for any
broker or similar commissions of any Holder or, except to the extent provided
for in the Transaction Documents, any legal fees or other costs of the
Holders.
5.
Indemnification
.
(a)
Indemnification by the
Company
. The Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless each Holder, the officers, directors,
members, partners, agents, brokers (including brokers who offer and sell
Registrable Securities as principal as a result of a pledge or any failure to
perform under a margin call of Ordinary Shares), investment advisors and
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
each of them, each Person who controls any such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, members, stockholders, partners, agents and 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 each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses (collectively,
“
Losses
”), as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading or (2) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or any state securities law, or any rule or
regulation thereunder, in connection with the performance of its obligations
under this Agreement, except to the extent, but only to the extent, that (i)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in a
Registration Statement, such Prospectus or in any amendment or supplement
thereto (it being understood that the Holder has approved Annex A hereto for
this purpose) or (ii) in the case of an occurrence of an event of the type
specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated,
defective or otherwise unavailable Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated, defective or otherwise
unavailable for use by such Holder and prior to the receipt by such Holder of
the Advice contemplated in Section 6(d). The Company shall notify the
Holders promptly of the institution, threat or assertion of any Proceeding
arising from or in connection with the transactions contemplated by this
Agreement of which the Company is aware.
(b)
Indemnification by
Holders
. Each Holder shall, severally and not jointly, indemnify and hold
harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the extent arising
out of or based solely upon: (x) such Holder’s failure to comply with the
prospectus delivery requirements of the Securities Act or (y) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein (in the case of any
Prospectus or supplement thereto, in light of the circumstances under which they
were made) or necessary to make the statements therein not misleading (i) to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such Holder to the
Company specifically for inclusion in such Registration Statement or such
Prospectus or (ii) to the extent that such information relates to such Holder’s
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use in a Registration
Statement (it being understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or in any amendment or supplement thereto or (ii)
in the case of an occurrence of an event of the type specified in Section
3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise
unavailable Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated, defective or otherwise unavailable for use by
such Holder and prior to the receipt by such Holder of the Advice contemplated
in Section 6(d). In no event shall the liability of any selling
Holder under this Section 5(b) be greater in amount than the dollar amount of
the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c)
Conduct of Indemnification
Proceedings
. If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an “
Indemnified Party
”),
such Indemnified Party shall promptly notify the Person from whom indemnity is
sought (the “
Indemnifying Party
”)
in writing, and the Indemnifying Party shall have the right to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses reasonably
incurred in connection with defense thereof; provided that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only)
to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have materially prejudiced the Indemnifying
Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses, (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding, or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and counsel to the
Indemnified Party shall reasonably believe that a material conflict of interest
is likely to exist if the same counsel were to represent such Indemnified Party
and the Indemnifying Party (in which case, if such Indemnified Party notifies
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of no
more than one separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement
of any such Proceeding effected without its written consent, which consent shall
not be unreasonably withheld or delayed. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that, the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is judicially
determined not to be entitled to indemnification hereunder.
(d)
Contribution
. If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses, then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations
set forth in this Agreement, any reasonable attorneys’ or other fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
Holder shall be required to contribute pursuant to this Section 5(d), in the
aggregate, any amount in excess of the amount by which the net proceeds actually
received by such Holder from the sale of the Registrable Securities subject to
the Proceeding exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties, provided that no amount shall be reimbursed twice in any
event.
6.
Miscellaneous
.
(a)
Remedies
. In
the event of a breach by the Company or by a Holder of any of their respective
obligations under this Agreement, each Holder or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, shall be entitled to
specific performance of its rights under this Agreement. Each of the
Company and each Holder agrees that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall not assert
or shall waive the defense that a remedy at law would be adequate.
(b)
No Piggyback on
Registrations; Prohibition on Filing Other Registration Statements
.
Except as set forth on
Schedule 3.1(v)
of
the Disclosure Schedules, neither the Company nor any of its security holders
(other than the Holders in such capacity pursuant hereto) may include securities
of the Company in any Registration Statements other than the Registrable
Securities. The Company shall not file any other registration
statements until all Registrable Securities are registered pursuant to a
Registration Statement that is declared effective by the Commission, provided
that this Section 6(b) shall not prohibit the Company from filing supplements or
amendments to registration statements filed prior to the date of this Agreement
or from filing any registration statements on Form S-8.
(c)
Compliance
. Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to a Registration Statement.
(d)
Discontinued
Disposition
. By its acquisition of Registrable Securities,
each Holder agrees that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(d)(iii) through (vi),
such Holder will forthwith discontinue disposition of such Registrable
Securities under a Registration Statement until it is advised in writing (the
“
Advice
”) by
the Company that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus may be resumed
as promptly as is practicable. The Company agrees and acknowledges
that any periods during which the Holder is required to discontinue the
disposition of the Registrable Securities hereunder shall be subject to the
provisions of Section 2(b).
(e)
Piggy-Back
Registrations
. If, at any time during the Effectiveness Period, there is
not an effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with the Company’s stock option or
other employee benefit plans, then the Company shall deliver to each Holder a
written notice of such determination and, if within fifteen days after the date
of the delivery of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities such Holder requests to be registered;
provided
,
however
, that the
Company shall not be required to register any Registrable Securities pursuant to
this Section 6(e) that are eligible for resale pursuant to Rule 144 promulgated
by the Commission pursuant to the Securities Act or that are the subject of a
then effective Registration Statement.
(f)
Amendments and
Waivers
. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company and the Holders of a majority
or more of the then outstanding Registrable Securities (including, for this
purpose any Registrable Securities issuable upon exercise or conversion of any
Security). If a Registration Statement does not register all of the
Registrable Securities pursuant to a waiver or amendment done in compliance with
the previous sentence, then the number of Registrable Securities to be
registered for each Holder shall be reduced pro rata among all Holders and each
Holder shall have the right to designate which of its Registrable Securities
shall be omitted from such Registration Statement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of a Holder or some Holders
and that does not directly or indirectly affect the rights of other Holders may
be given by such Holder or Holders of all of the Registrable Securities to which
such waiver or consent relates;
provided
,
however
, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this
Section 6(f).
(g)
Notices
. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be delivered as set forth in the Purchase
Agreement.
(h)
Successors and
Assigns
. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties and shall inure to
the benefit of each Holder. The Company may not assign (except by merger) its
rights or obligations hereunder without the prior written consent of all of the
Holders of the then outstanding Registrable Securities. Each Holder
may assign their respective rights hereunder in the manner and to the Persons as
permitted under Section 5.7 of the Purchase Agreement.
(i)
No Inconsistent
Agreements
. Neither the Company nor any of its Subsidiaries has entered,
as of the date hereof, nor shall the Company or any of its Subsidiaries, on or
after the date of this Agreement, enter into any agreement with respect to its
securities, that would have the effect of impairing the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. Except as set forth on
Schedule 3.1(v)
of
the Disclosure Schedules, neither the Company nor any of its Subsidiaries has
previously entered into any agreement granting any registration rights with
respect to any of its securities to any Person that have not been satisfied in
full.
(j)
Execution and
Counterparts
. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a “.pdf” format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
(k)
Governing
Law
. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Purchase Agreement.
(l)
Cumulative Remedies
.
The remedies provided herein are cumulative and not exclusive of any other
remedies provided by law.
(m)
Severability
. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(n)
Headings
. The
headings in this Agreement are for convenience only, do not constitute a part of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(o)
Independent Nature of
Holders’ Obligations and Rights
. The obligations of each Holder hereunder
are several and not joint with the obligations of any other Holder hereunder,
and no Holder shall be responsible in any way for the performance of the
obligations of any other Holder hereunder. Nothing contained herein or in any
other agreement or document delivered at any closing, and no action taken by any
Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as
a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Holders are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Holder shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Holder to be joined as an additional party in any
proceeding for such purpose.
********************
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
|
ROSETTA
GENOMICS LTD.
|
|
|
|
|
By:
|
/s/ Kenneth
A. Berlin
|
|
|
Name: Kenneth
A. Berlin
|
|
|
Title: President
and CEO
|
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Bristol Investment Fund, Ltd.
Signature of Authorized Signatory of
Holder
: /s/ Paul Kessler
Name of
Authorized Signatory: Paul Kessler
Title of
Authorized Signatory: Director
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: RRC Bio Fund, LP
Signature of Authorized Signatory of
Holder
: /s/ James Silverman
Name of
Authorized Signatory: James Silverman
Title of
Authorized Signatory: President
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Capital Ventures International by: Heights Capital
Management, Inc. its authorized agent
Signature of Authorized Signatory of
Holder
: /s/ Michael L. Spolan
Name of
Authorized Signatory: Michael L. Spolan
Title of
Authorized Signatory: General Counsel, Heights Capital Management,
Inc. as authorized agent
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: GCA Strategic Investment Fund Limited
Signature of Authorized Signatory of
Holder
: /s/ Lewis N. Lester, Sr.
Name of
Authorized Signatory: Lewis N. Lester, Sr.
Title of
Authorized Signatory: Director
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Advanced Series Trust – AST Academic Strategies
Portfolio
Signature of Authorized Signatory of
Holder
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: Vice President & Co-General Counsel of AQR
Capital Management, LLC, the Investment Manager to the Diversified Arbitrage
Sleeve
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: AQR Opportunistic Premium Offshore Fund, L.P.
Signature of Authorized Signatory of
Holder
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: Vice President & Co-General Counsel, AQR
Capital Management, LLC investment adviser to AQR Opportunistic Premium Offshore
Fund, L.P.
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: CNH Diversified Opportunities Master Account,
L.P.
Signature of Authorized Signatory of
Holder
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: Vice President & Co-General Counsel, CNH
Partners, LLC investment adviser to CNH Diversified Opportunities Master
Account, L.P.
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: AQR Funds – AQR Diversified Arbitrage Fund
Signature of Authorized Signatory of
Holder
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: Executive Vice President & Secretary, AQR
Funds
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Iroquois Master Fund Ltd.
Signature of Authorized Signatory of
Holder
: /s/ Joshua Silverman
Name of
Authorized Signatory: Joshua Silverman
Title of
Authorized Signatory: Authorized Signatory
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Next View Capital, LP
Signature of Authorized Signatory of
Holder
: /s/ Stewart Flink
Name of
Authorized Signatory: Stewart Flink
Title of
Authorized Signatory: Manager
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Far West Capital Partners LP
Signature of Authorized Signatory of
Holder
: /s/ Robert G. Schiro
Name of
Authorized Signatory: Robert G. Schiro
Title of
Authorized Signatory: General Partner
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Robert G. Schiro 2001 Trust
Signature of Authorized Signatory of
Holder
: /s/ Robert G. Schiro
Name of
Authorized Signatory: Robert G. Schiro
Title of
Authorized Signatory: Trustee/Investment Manager
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Endurance Fund
Signature of Authorized Signatory of
Holder
: /s/ Robert G. Schiro
Name of
Authorized Signatory: Robert G. Schiro
Title of
Authorized Signatory: Trustee/Investment Manager
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Cranshire Capital LP
Signature of Authorized Signatory of
Holder
: /s/ Mitchell D. Kopin
Name of
Authorized Signatory: Mitchell D. Kopin
Title of
Authorized Signatory: President – Downsview Capital, Inc. The General
Partner
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Freestone Advantage Partners, LP
Signature of Authorized Signatory of
Holder
: /s/ Mitchell D. Kopin
Name of
Authorized Signatory: Mitchell D. Kopin
Title of
Authorized Signatory: President – Downsview Capital, Inc. The General
Partner
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Warberg Opportunistic Trading Fund L.P.
Signature of Authorized Signatory of
Holder
: /s/ Daniel I. Warsh
Name of
Authorized Signatory: Daniel I. Warsh
Title of
Authorized Signatory: Manager
[SIGNATURE
PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: Uri D. Herscher
Signature of Authorized Signatory of
Holder
: /s/ Uri D. Herscher
Name of
Authorized Signatory: Uri D. Herscher
Title of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
Annex A
Plan of
Distribution
Each
Selling Stockholder (the “
Selling
Stockholders
”) of the Ordinary Shares and any of their pledgees,
assignees and successors-in-interest may, from time to time, sell any or all of
their Ordinary Shares covered hereby on the Nasdaq Capital Market or any other
stock exchange, market or trading facility on which the shares are traded or in
private transactions. These sales may be at fixed or negotiated
prices. A Selling Stockholder may use any one or more of the
following methods when selling shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
|
·
|
in
transactions through broker-dealers that agree with the Selling
Stockholders to sell a specified number of such shares at a stipulated
price per share;
|
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
|
·
|
a
combination of any such methods of sale;
or
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “
Securities Act
”), if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an
agency transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal transaction a
markup or markdown in compliance with FINRA IM-2440.
In
connection with the sale of the Ordinary Shares or interests therein, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of the
Ordinary Shares in the course of hedging the positions they
assume. The Selling Stockholders may also sell Ordinary Shares short
and deliver these securities to close out their short positions, or loan or
pledge the Ordinary Shares to broker-dealers that in turn may sell these
securities. The Selling Stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions or create
one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling
Stockholder has informed the Company that it does not have any written or oral
agreement or understanding, directly or indirectly, with any person to
distribute the Ordinary Shares. In no event shall any broker-dealer receive
fees, commissions and markups which, in the aggregate, would exceed eight
percent (8%).
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to
indemnify the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act including Rule 172 thereunder. The Selling
Stockholders have advised us that there is no underwriter or coordinating broker
acting in connection with the proposed sale of the resale shares by the Selling
Stockholders.
We agreed
to keep this prospectus effective until the earlier of (i) the date on which the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume or manner-of-sale limitations by reason of Rule
144, without the requirement for the Company to be in compliance with the
current public information under Rule 144 under the Securities Act or any other
rule of similar effect or (ii) all of the shares have been sold pursuant to this
prospectus or Rule 144 under the Securities Act or any other rule of similar
effect. The resale shares will be sold only through registered or
licensed brokers or dealers if required under applicable state securities laws.
In addition, in certain states, the resale shares of Ordinary Shares covered
hereby may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the Ordinary Shares for the applicable
restricted period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of Ordinary Shares by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the
Selling Stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
Annex
B
ROSETTA
GENOMICS LTD.
Selling
Stockholder Notice and Questionnaire
The
undersigned beneficial owner of ordinary shares (the “
Registrable
Securities
”) of Rosetta Genomics Ltd., a
company organized under the laws of the
State of Israel
(the “
Company
”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “
Commission
”) a
registration statement (the “
Registration
Statement
”) for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the “
Securities Act
”), of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement (the “
Registration Rights
Agreement
”) to which this document is annexed. A copy of the
Registration Rights Agreement is available from the Company upon request at the
address set forth below. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Certain
legal consequences arise from being named as a selling stockholder in the
Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling stockholder in the Registration Statement and the
related prospectus.
NOTICE
The
undersigned beneficial owner (the “
Selling Stockholder
”)
of Registrable Securities hereby elects to include the Registrable Securities
owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
|
(a)
|
Full
Legal Name of Selling Stockholder
|
|
|
|
|
|
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities are held:
|
|
|
|
|
|
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose
of the securities covered by this Questionnaire):
|
|
|
|
|
|
|
2. Address
for Notices to Selling Stockholder:
|
|
|
Telephone:_________________________________________________________________________________________
|
Fax:______________________________________________________________________________________________
|
Contact
Person:_____________________________________________________________________________________
|
|
(a)
|
Are
you a broker-dealer?
|
Yes
¨
No
¨
|
(b)
|
If
“yes” to Section 3(a), did you receive your Registrable Securities as
compensation for investment banking services to the
Company?
|
Yes
¨
No
¨
|
Note:
|
If
“no” to Section 3(b), the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
|
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
¨
No
¨
|
(d)
|
If
you are an affiliate of a broker-dealer, do you certify that you purchased
the Registrable Securities in the ordinary course of business, and at the
time of the purchase of the Registrable Securities to be resold, you had
no agreements or understandings, directly or indirectly, with any person
to distribute the Registrable
Securities?
|
Yes
¨
No
¨
|
Note:
|
If
“no” to Section 3(d), the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
|
4. Beneficial
Ownership of Securities of the Company Owned by the Selling
Stockholder.
Except
as set forth below in this Item 4, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the securities
issuable pursuant to the Purchase Agreement.
|
(a)
|
Type
and Amount of other securities beneficially owned by the Selling
Stockholder:
|
|
|
|
|
|
|
|
|
|
5. Relationships
with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
|
State
any exceptions here:
|
|
|
|
|
|
|
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 5 and the inclusion of such
information in the Registration Statement and the related prospectus
and any amendments or supplements
thereto
. The undersigned understands that such information
will be relied upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related prospectus and any
amendments or supplements thereto.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Date:
__________________________
|
Beneficial
Owner: ___________________________________
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
PLEASE
FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
EXHIBIT
99.1
News
Release
Rosetta
Genomics Announces $2.5 Million Private Placement
REHOVOT, Israel and PHILADELPHIA
(November 30, 2010)
–
Rosetta Genomics, Ltd.
(“Rosetta”) (NASDAQ: ROSG), a leading developer and provider of microRNA-based
molecular diagnostics, today announced it entered into a definitive agreement on
November 29, 2010, to sell securities to institutional investors in a private
placement for aggregate gross proceeds of approximately $2.5 million. The
closing of the offering is expected to occur on or about December 1, 2010 and is
subject to the satisfaction of customary closing conditions.
Under the
terms of the offering, Rosetta will sell an aggregate of 2,500,000 ordinary
shares at a price of $1.00 per share. The purchasers will also
receive warrants to purchase up to an aggregate of 1,250,000 ordinary shares at
an exercise price of $1.30 per share (the “Series A Warrants”) and warrants to
purchase up to an aggregate of 625,000 ordinary shares at an exercise price of
$0.01 per share (the “Series B Warrants”). Rosetta is required to
file a resale registration statement on Form F-3 within 20 days following the
closing that covers the resale by the purchasers of the shares and the shares
issuable upon exercise of the Series A Warrants and Series B
Warrants.
The
Series A Warrants are exercisable immediately, have a term of five years, and
the exercise price is subject to future adjustment for various events, such as
stock splits or dilutive issuances. The Series B Warrants will be
automatically exercised on a cashless basis on the 33
rd
trading
day following the effective date of the resale registration statement pursuant
to a formula set forth in the Series B Warrant, but only in the event that 80%
of the average of the volume weighted average price of the ordinary shares for
the 10 days following the effective date of the resale registration statement is
less than $1.00.
Rosetta
Genomics intends to use the proceeds of the private placement for working
capital purposes.
Rodman
& Renshaw, LLC, a wholly-owned subsidiary of Rodman & Renshaw Capital
Group, Inc. (NASDAQ: RODM), acted as the exclusive placement agent for the
offering.
This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy securities. The securities offered and sold in the private
placement have not been registered under the Securities Act of 1933, as amended,
or any state securities laws, and may not be offered or sold in the United
States absent registration, or an applicable exemption from registration under
the Securities Act and applicable state securities laws.
About
Rosetta Genomics
Rosetta
Genomics is a leading developer of microRNA-based molecular diagnostics. Founded
in 2000, the company’s integrative research platform combining bioinformatics
and state-of-the-art laboratory processes has led to the discovery of hundreds
of biologically validated novel human microRNAs. Building on its strong patent
position and proprietary platform technologies, Rosetta Genomics is working on
the application of these technologies in the development of a full range of
microRNA-based diagnostic tools. The company’s first three microRNA-based tests,
miRview™ squamous, miRview™ mets and miRview™ meso, are commercially available
through its Philadelphia-based CAP-accredited, CLIA-certified lab. To learn
more, please visit
www.rosettagenomics.com
.
Forward-Looking Statement
Disclaimer
Various
statements in this release concerning Rosetta’s future expectations, plans and
prospects, including without limitation, statements relating to the expected
closing of the private placement constitute forward-looking statements for the
purposes of the safe harbor provisions under The Private Securities Litigation
Reform Act of 1995. Actual results may differ materially from those indicated by
these forward-looking statements as a result of various important factors,
including those risks more fully discussed in the "Risk Factors" section of
Rosetta’s Annual Report on Form 20-F for the year ended December 31, 2009 as
filed with the Securities and Exchange Commission. In addition, any
forward-looking statements represent Rosetta’s views only as of the date of this
release and should not be relied upon as representing its views as of any
subsequent date. Rosetta does not assume any obligation to update any
forward-looking statements unless required by law.
Company
Contact:
|
Investor
Contacts:
|
Rosetta
Genomics
|
Lippert/Heilshorn
& Associates
|
Ron
Kamienchick
|
Anne
Marie Fields
|
+972
73 222 0700
|
(212)
738-3777
|
investors@rosettagenomics.com
|
afields@lhai.com
|
|
or
|
|
Bruce
Voss
|
|
(310)
691-7100
|
|
bvoss@lhai.com
|
# # #