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:
February
2011
ROSETTA
GENOMICS LTD.
(Exact
name of registrant as specified in its charter)
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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:
Ö
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.
Private
Placement
On
February 16, 2011, Rosetta Genomics Ltd. (“Rosetta” or, the “Company”) entered
into a Securities Purchase Agreement (the “Private Placement Purchase
Agreement”), pursuant to which Rosetta agreed to sell securities to various
qualified institutional buyers and accredited investors (the “Purchasers”) in a
private placement transaction (the “Private Placement”). The Private
Placement is expected to close on or about February 23, 2011, subject to the
satisfaction of customary closing conditions.
In the
Private Placement, Rosetta will sell an aggregate of 4,541,668 ordinary shares
(the “Private Placement Shares”) at a price of $0.60 per share. The
Purchasers will also receive warrants to purchase up to an aggregate of
3,406,251 ordinary shares (the “Private Placement Warrants”) at an exercise
price of $0.80 per share, subject to future adjustment for various events, such
as stock splits, combinations and reclassifications. The Private
Placement Warrants will be exercisable immediately upon issuance and will have a
term of five years.
The
Company has also entered into a Registration Rights Agreement (the “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 Private Placement Shares and the ordinary shares issuable upon exercise
of the Private Placement 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
Private Placement 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 in the Private Placement, Rodman & Renshaw, LLC
(“Rodman”) will receive cash compensation in the amount of approximately
$163,500 and a warrant to purchase 113,542 ordinary
shares on the same terms
as the Private Placement Warrants.
Copies of
the Private Placement Purchase Agreement, the Registration Rights Agreement, and
form of Private Placement Warrant are filed as exhibits 10.1, 10.2 and 4.1
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 Private Placement 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 Private Placement 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
Securities
and Exchange Commission (“SEC”).
Concurrent Registered
Offering
Also on
February 16, 2011, Rosetta entered into a Securities Purchase Agreement (the
“Registered Offering Purchase Agreement”), pursuant to which Rosetta agreed to
sell securities to various investors (the “Investors”) in a registered direct
offering
(the
“Concurrent Registered Offering”). The Concurrent Registered Offering
is expected to close on or about February 23, 2011, subject to the satisfaction
of customary closing conditions.
In the
Concurrent Registered Offering, Rosetta will sell an aggregate of 5,458,671
ordinary shares (the “Registered Offering Shares”) at a price of $0.60 per
share. The Investors will also receive warrants to purchase up to an
aggregate of 2,729,335 ordinary shares (the “Registered Offering Warrants”) at
an exercise price of $0.80 per share, subject to future adjustment for various
events, such as stock splits, combinations and reclassifications. The
Registered Offering Warrants will be exercisable immediately upon issuance and
will have a term of five years.
The
Registered Offering Shares, Registered Offering Warrants and ordinary shares
issuable upon exercise of the Registered Offering Warrants will be issued
pursuant to a prospectus supplement dated as of February 16, 2011, which was
filed with the SEC in connection with a takedown from Rosetta’s shelf
registration statement on Form F-3 (File No. 333-163063), which became
effective on November 24, 2009, and the base prospectus dated as of November 24,
2009 contained in such registration statement. A copy of the opinion of
Tulchinsky Stern Marciano Cohen Levitsky & Co. relating to the legality of
the issuance and sale of the Registered Offering Shares, Registered Offering
Warrants and ordinary shares issuable upon exercise of the Registered Offering
Warrants in the Concurrent Registered Offering is attached as Exhibit 5.1
hereto.
For its
services as placement agent in the Concurrent Registered Offering, Rodman will
receive cash compensation in the amount of approximately $196,512 and a warrant
to purchase 136,467 ordinary
shares on the same terms
as the Registered Offering Warrants, except the warrant has an exercise price of
$0.75 per share (125% of the public offering price per share) and an expiration
date of November 24, 2014 (the five year anniversary of the effective date of
the registration statement).
Copies of
the Registered Offering Purchase Agreement, the form of Registered Offering
Warrant and the form of warrant to be issued to Rodman in connection with the
Concurrent Registered Offering are filed as exhibits 10.3, 4.2 and 4.3
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 Registered Offering 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 Registered Offering 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.
The
aggregate net proceeds to Rosetta from the Private Placement and the Concurrent
Registered Offering, after deducting placement agents fees and expenses (not
including the placement agent warrants), Rosetta’s estimated offering expenses,
and excluding the proceeds, if any, from the exercise of the Private Placement
Warrants and the Registered Offering Warrants, are expected to be approximately
$5.5 million.
A copy of
the press release, dated February 17, 2011, announcing the Private Placement and
the Concurrent Registered 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, 333-163063 and 333-171203.
Exhibits
Exhibit
Number
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Description of Exhibit
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4.1
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Form
of Private Placement Warrant to be issued by Rosetta Genomics Ltd. to the
Purchasers and Rodman in the Private Placement.
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4.2
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Form
of Registered Offering Warrant to be issued by Rosetta Genomics Ltd. to
the Purchasers and Rodman in the Concurrent Registered
Offering.
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4.3
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Form
of Warrant to be issued by Rosetta Genomics Ltd. to Rodman in the
Concurrent Registered Offering.
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5.1
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Opinion
of Tulchinsky Stern Marciano Cohen Levitsky & Co.
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10.1
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Securities
Purchase Agreement, dated February 16, 2011, by and between Rosetta
Genomics Ltd. and the Purchasers in the Private
Placement.
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10.2
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Registration
Rights Agreement, dated February 16, 2011, by and between Rosetta Genomics
Ltd. and the Purchasers in the Private Placement.
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10.3
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Securities
Purchase Agreement, dated February 16, 2011, by and between Rosetta
Genomics Ltd. and the Purchasers in the Concurrent Registered
Offering.
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23.1
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Consent
of Tulchinsky Stern Marciano Cohen Levitsky & Co. (included in Exhibit
5.1).
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99.1
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Press
release dated February 17, 2011 announcing the Private Placement and the
Concurrent Registered
Offering.
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Signatures
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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Date:
February 18, 2011
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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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EXHIBIT
4.1
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.
ORDINARY
SHARES PURCHASE WARRANT
ROSETTA
GENOMICS LTD.
Warrant
Shares: ______
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Initial
Exercise Date: February __, 2011
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THIS
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 five 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 February 16, 2011, 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 $0.80, subject to adjustment hereunder (the “
Exercise
Price
”).
c)
Cashless
Exercise
. If at any time after the six (6) month anniversary
of the Initial Exercise Date, 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.
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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 and shall only be effective with
respect to such Holder. 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) [RESERVED]
c)
Subsequent Rights
Offerings
. In lieu of any adjustments pursuant to Section 3(a)
above, if at any time the Company grants, issues or sells any Ordinary Share
Equivalents or rights to purchase stock, warrants, securities or other property
pro rata to the record holders of Ordinary Shares (the “
Purchase Rights
”),
then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of Ordinary Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of Ordinary Shares are to be determined for the grant,
issue or sale of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right would result in the
Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not
be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such Ordinary Shares as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in abeyance for the
Holder until such time, if ever, as its right thereto would not result in the
Holder exceeding the Beneficial Ownership Limitation).
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, 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, or (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 (A) approved by the Board of Directors of
the Company and (B) 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 such Fundamental Transaction, but
subject, however, 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.
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ROSETTA
GENOMICS LTD.
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By:
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Name:
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Title:
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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:
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Signature of Authorized
Signatory of Investing Entity
:
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Name
of Authorized Signatory:
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Title
of Authorized Signatory:
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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
Dated: ______________,
_______
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Holder’s
Signature:
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Holder’s
Address:
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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.
EXHIBIT
4.2
ORDINARY
SHARES PURCHASE WARRANT
ROSETTA
GENOMICS LTD.
Warrant
Shares: _______
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Initial
Exercise Date: February __,
2011
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THIS
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 five 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
______ (the “
Warrant
Shares
”) of the Company’s Ordinary Shares, NIS 0.01 par value per share
(the “
Ordinary
Shares
”) at the Exercise Price per Ordinary Share as set forth in Section
2(b) below.
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 February 16, 2011, among the Company and the purchasers signatory
thereto.
Section
2
.
Exercise
.
a) 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 three (3) Business Days of receipt of such
notice.
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 share of the Ordinary Shares
under this Warrant shall be $0.80, subject to adjustment hereunder (the “
Exercise
Price
”).
c)
Cashless
Exercise
. If at the time of exercise hereof (i) there is no
effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder or
(ii) all of the Warrant Shares are not then registered for resale by Holder into
the market at market prices from time to time on an effective registration
statement for use on a continuous basis (or the prospectus contained therein is
not available for use), then this Warrant may only 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:
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(A) =
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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;
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the
Exercise Price of this Warrant, as adjusted hereunder;
and
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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.
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“
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 a share of Ordinary Shares
as determined by an independent appraiser selected in good faith by the Company
and reasonably acceptable to the Holders of a majority in interest of the
Securities then outstanding, the fees and expenses of which shall be paid by the
Company.
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
”) 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 Holder or (B) this Warrant is being exercised
via cashless exercise, 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 Share
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 4.9% of the number of shares of the 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
shares of the 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 and shall only be effective with
respect to such Holder. 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 shares of
the 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)
[RESERVED]
c)
Subsequent Rights
Offerings
. In lieu of any adjustments pursuant to Section 3(a)
above, if at any time the Company grants, issues or sells any Ordinary Share
Equivalents or rights to purchase stock, warrants, securities or other property
pro rata to the record holders of Ordinary Shares (the “
Purchase Rights
”),
then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of Ordinary Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of Ordinary Shares are to be determined for the grant,
issue or sale of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right would result in the
Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not
be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such Ordinary Shares as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in abeyance for the
Holder until such time, if ever, as its right thereto would not result in the
Holder exceeding the Beneficial Ownership Limitation).
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 Holders) evidences of its indebtedness or assets (including cash and cash
dividends) or rights or warrants to subscribe for or purchase any security, 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 so distributed applicable to
one (1) outstanding share of the Ordinary Shares 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) share of Ordinary Shares. 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 or (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 acquires more than
50% of the outstanding Ordinary Shares (not including any Ordinary Shares held
by the other Person or other Persons or group 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) share of
Ordinary Shares 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 (A) approved by the Board of Directors of
the Company and (B) 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 such Fundamental Transaction, but
subject, however, 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 any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement
of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by
Holder
. If during the term in which this Warrant may be exercised (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 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 applicable securities laws, 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 issuance date set forth on the first page of this Warrant and shall
be identical with this Warrant except as to the number of Warrant Shares
issuable pursuant thereto and the Warrant number.
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)
Understandings or
Arrangements
. Such Holder is acquiring this Warrant as principal for its
own account and has no direct or indirect arrangement or understandings with any
other persons to distribute or regarding the distribution of such Warrant (this
representation and warranty not limiting such Holder’s right to sell the Warrant
pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Holder is acquiring this
Warrant hereunder in the ordinary course of its business.
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 share certificate, if mutilated, the Company will make and
deliver a new Warrant or share certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or share 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 share 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 the Holder shall operate as a waiver
of such right or otherwise prejudice the Holder’s rights, powers or
remedies. Without limiting any other provision of this Warrant or the
Purchase Agreement, if the Company willfully and knowingly fails 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 seek 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
Pages Follow)
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):
o
in lawful money of
the United States; or
o
[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:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity:
|
|
Signature of
Authorized Signatory of Investing
Entity
:
|
|
Name
of Authorized Signatory:
|
|
Title
of Authorized Signatory:
|
|
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.
EXHIBIT
4.3
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.
ORDINARY
SHARES PURCHASE WARRANT
ROSETTA
GENOMICS LTD.
Warrant
Shares: _______
|
Initial
Exercise Date: February ___, 2011
|
THIS
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 November 24, 2014 (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 ______ (the “
Warrant Shares
”) of
the Company’s Ordinary Shares, NIS 0.01 par value per share (the “
Ordinary Shares
”) at
the Exercise Price per Ordinary Share as set forth in Section 2(b)
below.
This Warrant is issued by the
Company as of the date hereof pursuant to (i) Secti
on A of the Engagement Letter
, dated
February 8,
2011, as amended on February 14, 2011
,
between the Company and Rodman & Renshaw, LLC and (ii) Section 4(2) of the
Securities Act and Rule 506 promulgated thereunder.
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 February 16, 2011, among the Company and the purchasers signatory
thereto.
Section
2
.
Exercise
.
a) 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 three (3) Business Days of receipt of such
notice.
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 share of the Ordinary Shares
under this Warrant shall be $0.75, subject to adjustment hereunder (the “
Exercise
Price
”).
c)
Cashless
Exercise
. If at the time of exercise hereof (i) there is no
effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder or
(ii) all of the Warrant Shares are not then registered for resale by Holder into
the market at market prices from time to time on an effective registration
statement for use on a continuous basis (or the prospectus contained therein is
not available for use), then this Warrant may only 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.
|
“
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 a share of Ordinary Shares
as determined by an independent appraiser selected in good faith by the Company
and reasonably acceptable to the Holders of a majority in interest of the
Securities then outstanding, the fees and expenses of which shall be paid by the
Company.
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
”) 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 Holder or (B) this Warrant is being exercised
via cashless exercise, 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 Share 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 4.9% of the number of shares of the 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
shares of the 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 and shall only be effective with
respect to such Holder. 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 shares of
the 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) [RESERVED]
c)
Subsequent Rights
Offerings
. In lieu of any adjustments pursuant to Section 3(a)
above, if at any time the Company grants, issues or sells any Ordinary Share
Equivalents or rights to purchase stock, warrants, securities or other property
pro rata to the record holders of Ordinary Shares (the “
Purchase Rights
”),
then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of Ordinary Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of Ordinary Shares are to be determined for the grant,
issue or sale of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right would result in the
Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not
be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such Ordinary Shares as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in abeyance for the
Holder until such time, if ever, as its right thereto would not result in the
Holder exceeding the Beneficial Ownership Limitation).
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 Holders) evidences of its indebtedness or assets (including cash and cash
dividends) or rights or warrants to subscribe for or purchase any security, 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 so distributed applicable to
one (1) outstanding share of the Ordinary Shares 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) share of Ordinary Shares. 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 or (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 acquires more than
50% of the outstanding Ordinary Shares (not including any Ordinary Shares held
by the other Person or other Persons or group 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) share of
Ordinary Shares 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 (A) approved by the Board of Directors of
the Company and (B) 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 such Fundamental Transaction, but
subject, however, 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 any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement
of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by
Holder
. If during the term in which this Warrant may be exercised (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 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
.
For a period of six months after the issue date of this
Warrant (which shall not be earlier than the closing date of the offering
pursuant to which this Warrant is being issued), neither this Warran
t nor any Warrant Shares issued upon exercise of this
Warrant shall be sold, transferred, assigned, pledged, or hypothecated, or be
the subject of any hedging, short sale, derivative, put, or call transaction
that would result in the effective economic di
s
position of the
securities by any person for a period of 180 days immediately following the date
of effectiveness or commencement of sales of the offering pursuant to which this
Warrant is being issued, except the transfer of any
security:
|
i.
|
by operation of
law or by reason of reorganization of the
Company;
|
|
ii.
|
to any FINRA member firm participating in the
offering and the officers or partners thereof, if all securities so
transferred remain subject to the lock-up restriction in this Section 4(a)
for the remainde
r of the time
period;
|
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iii.
|
if the aggregate amount of securities of the
Company held by the Holder or related person do not exceed 1% of the
securities being offered;
or
|
|
iv.
|
that is beneficially owned on a pro-rata basis by
all equity owners of an investment fund,
provided that no participating member manages or
otherwise directs investments by the fund, and participating members in
the aggregate do not own more than 10% of the equity in the
fund; or
|
|
v.
|
the exercise or conversion of any security, if all
securities rec
eived remain subject to
the lock-up restriction in this Section 4(a) for the remainder of the time
period.
|
Subject
to compliance with the foregoing restriction, applicable securities laws and the
conditions set forth in Section 4(d), 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 issuance date set forth on the first page of this Warrant and shall
be identical with this Warrant except as to the number of Warrant Shares
issuable pursuant thereto and the Warrant number.
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
or the sale of
Warrant Shares
, the transfer of this
Warrant
or the Warrant Shares, as
applicable,
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
or sale, that the Holder
provide to the Company an opinion of counsel selected by the Holder 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 or sale does not require registration of such transferred security
under the Securities Act.
e)
Representations by the
Holder
. The Holder, by the
acceptance hereof, represents and warrants
that (a) 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 viola
t
ion of the Securities Act or any applicable state
securities law, except pursuant to sales registered or exempted under the
Securities Act and (b) a
t the time the
Holder was offered this Warrant, it was, and as of the date hereof it is, and on
each date on
which it exercises this
Warrants, it will either be an “
accredited
investor”
as defined in Rule 501(a) under
the Securities Act or a “
qualified
institutional buyer”
as defined in Rule
144A(a) 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 share certificate, if mutilated, the Company will make and
deliver a new Warrant or share certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or share 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 share 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 the Holder shall operate as a waiver
of such right or otherwise prejudice the Holder’s rights, powers or
remedies. Without limiting any other provision of this Warrant or the
Purchase Agreement, if the Company willfully and knowingly fails 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 seek 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
Pages Follow)
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):
o
in lawful money of
the United States; or
o
[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:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity:
|
|
Signature of
Authorized Signatory of Investing
Entity
:
|
|
Name
of Authorized Signatory:
|
|
Title
of Authorized Signatory:
|
|
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.
Menachem
Tulchinsky, Adv.
|
Lana
Tavor, Adv.
|
לנה
תבור, עו"ד
|
מנחם
טולצ'ינסקי, עו"ד
|
Doron
Stern, Adv.
|
Galia
Suesskind-Spiegel, Adv.
|
גליה
זיסקינד-שפיגל, עו"ד
|
דורון
שטרן, עו"ד
|
Amir
Levitski, Adv.
|
Alon
Karniel, Adv.
|
אלון
קרניאל, עו"ד
|
אמיר
לויצקי, עו"ד
|
David
Cohen, Adv.
|
Ofer
Dolinsky, Adv.
|
עופר
דולינסקי, עו"ד
|
דיויד
כהן, עו"ד
|
Isaac
Marciano, Adv. (C.P.A.)
|
Talya
Michaelson, Adv.
|
טליה
מייקלסון, עו"ד
|
(יצחק
מרציאנו, עו"ד (רו"ח
|
Yossi
Ratnovsky, Adv. (C.P.A.)
|
Shimrit
Lifshitz-Shachal, Adv.
|
שימרית
ליפשיץ-שחל, עו"ד
|
(יוסי
רטנובסקי, עו"ד (רו"ח
|
Alon
Tabak, Adv. *
|
Avital
Mandel, Adv.
|
אביטל
מנדל, עו"ד
|
*
אלון טבק, עו"ד
|
Baruch
Perl, Adv.
|
Shira
Avnat, Adv.
|
שירה
אבנת, עו"ד
|
ברוך
פרל, עו"ד
|
Glenn
Shalom-Winter, Adv.*
|
Uri
Nesher, Adv.
|
אורי
נשר, עו"ד
|
*
גרשון שלום-וינטר, עו"ד
|
Uriel
Barak, Adv.*
|
Amit
Hirsch, Adv.
|
עמית
הירש, עו"ד
|
*
אוריאל ברק, עו"ד
|
Asaf
Ben-Zeev, Adv.
|
Tamar
Nesher, Adv.
|
תמר
נשר, עו"ד
|
אסף
בן-זאב, עו"ד
|
Assaf
Benmelech, Adv.
|
Avraham
Keren, Adv.
|
אברהם
קרן, עו"ד
|
אסף בנמלך,
עו"ד
|
Ayelet
Broditzky, Adv.
|
Efrat
Almog, Adv.
|
אפרת
אלמוג, עו"ד
|
אילת ברודיצקי,
עו"ד
|
Michal
Markovitz-Blachar, Adv.
|
Shadi
Menasheof, Adv.
|
שדי
מנשהאוף, עו"ד
|
מיכל
מרקוביץ-בלשר, עו"ד
|
Hadas
Poraz, Adv.
|
Jonathan
Manor, Adv.
|
יהונתן
מנור, עו"ד
|
הדס
פורז, עו"ד
|
Karen
Nitzan, Adv.
|
Aviad
Avergil, Adv.
|
אביעד
אברגיל, עו"ד
|
קרן ניצן,
עו"ד
|
Adi
Richter, Adv. *
|
Pinhas
Yair Bartal, Adv.
|
פנחס
יאיר ברטל, עו"ד
|
*
עדי ריכטר, עו"ד
|
Dafna
Achiam, Adv.
|
|
|
דפנה אחיעם,
עו"ד
|
*Member
of the N.Y. Bar Association
February
17, 2011
To:
Rosetta
Genomics Ltd.
10 Plaut
Street
Rehovot
76706
1srael
Ladies
and Gentlemen:
We have
acted as Israeli legal counsel to Rosetta Genomics Ltd., a company organized
under the laws of the State of Israel (the “
Company
”), in connection with
the execution and delivery by the Company of a Securities Purchase Agreement
dated as of February 16, 2011 (the “
Purchase Agreement
”) among the
Company and the Purchasers identified on the signature page thereto (the “
Purchasers”
) and the issuance
and sale by the Company to the Purchasers pursuant to the Purchase Agreement of
up to 5,458,671 ordinary shares (the “
Shares"
), nominal value NIS
0.01 each, of the Company (the “
Ordinary Shares”
), warrants to
purchase up to an aggregate of 2,729,335 Ordinary Shares (the “
Warrants”
) and Ordinary Shares
issuable upon exercise of the Warrants (the “
Warrant Shares”
, and together
with the Warrants and the Shares, the
“
Securities”
).
The
Securities are the subject of a Registration Statement on Form F−3, Registration
No. 333-163063 (the "
Registration Statement
"),
filed by the Company with the Securities and Exchange Commission (the “
Commission
”), a base
prospectus dated November 24, 2009 (the "
Base Prospectus
") and a
related Prospectus Supplement, dated February 16, 2011, in the form filed with
the Commission under Rule 424(b) promulgated under the Securities Act
of 1933, as amended (together with the Base Prospectus, the "
Prospectus
Supplement
").
In
connection with this opinion, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such agreements, certificates, and
other statements of corporate officers and other representatives of the Company,
and other documents provided to us by the Company, and such other documents and
corporate records, questions of law and other matters as we deemed necessary or
appropriate in order to enable us to express the opinions hereinafter set forth.
As to matters of fact relevant to our opinion, we have relied exclusively,
without independent investigation or verification, upon the Purchase Agreement,
the other documents referred to hereinabove, and upon matters of fact contained
in the representations and warranties contained in such documents.
In
rendering an opinion on the matters hereinafter set forth, we have assumed the
authenticity and completeness of all documents submitted to us as originals, the
conformity to original documents of all photocopies, conformed copies, email or
facsimiles submitted to us, the genuineness of all signatures and the legal
capacity and due authenticity of all persons executing such documents. We have
assumed the same to have been properly given and to be accurate, and we have
assumed the truth of all facts communicated to us by the Company, and have
assumed that all consents, minutes and protocols of meetings of the Company's
board of directors and shareholders which have been provided to us are true,
accurate and have been properly prepared in accordance with the Company's
incorporation documents and all applicable laws.
In
connection herewith, we have assumed that, other than with respect to the
Company, all of the documents referred to in this opinion letter have been duly
authorized by, have been duly executed and delivered by, and constitute the
valid, binding and enforceable obligations of, all of the parties to such
documents, all of the signatories to such documents have been duly authorized
and all such parties are duly organized and validly existing and have the power
and authority (corporate or other) to execute, deliver and perform such
documents.
Except to
the extent expressly set forth herein, we have not undertaken any independent
investigation to determine the existence or absence of any fact, nor examined
the records of courts, administrative tribunals, or any other similar entity in
connection with our opinions expressed herein, and no inference as to our
knowledge of the existence or absence of any fact should be drawn from our
representation of the Company or the rendering of the opinions set forth
below.
This
opinion is limited to the matters stated herein and no opinion is implied or may
be inferred beyond the matters expressly stated herein.
We are
members of the Israel Bar and we express no opinion as to any matter relating to
the laws of any jurisdiction other than the laws of Israel and have not, for the
purpose of giving this opinion, made any investigation of the laws of any
jurisdiction other than the laws of Israel. The opinions set forth herein are
made as of the date hereof and are subject to, and may be limited by, future
changes in the factual matters set forth herein, and we undertake no duty to
advise you of the same. The opinions expressed herein are based upon the law in
effect (and published or otherwise generally available) on the date hereof, and
we assume no obligation to revise or supplement these opinions should such law
be changed by legislative action, judicial decision or otherwise. In rendering
our opinions, we have not considered, and hereby disclaim any opinion as to, the
application or impact of any laws, cases, decisions, rules or regulations of any
jurisdiction, court or administrative agency other than those of the State of
Israel.
Based
upon and subject to the foregoing, and subject to the assumptions, comments,
qualifications, limitations and exceptions stated herein, we are of the opinion
that:
1.
|
Following
the (i) issuance and delivery of the Shares in the manner
contemplated by the Purchase Agreement, the Registration Statement and
Prospectus Supplement and (ii) the receipt by the Company of the
consideration for the Shares specified in the resolutions of the Company's
board of directors, the Shares will be validly issued, fully paid and
non-assessable.
|
2.
|
Following
the (i) issuance, execution and delivery of the Warrants in the
manner contemplated by the Purchase Agreement, the Registration Statement
and Prospectus Supplement and (ii) the receipt by the Company of the
consideration for the Warrants specified in the resolutions of the
Company's board of directors, the Warrants will constitute valid and
binding obligations of the Company.
|
3.
|
Following
the (i) issuance, execution and delivery of the Warrants in the
manner contemplated by the Purchase Agreement, the Registration Statement
and Prospectus Supplement, (ii) the receipt by the Company of the
consideration for the Warrants specified in the resolutions of the
Company's board of directors and (iii) exercise of the Warrants pursuant
to their terms, receipt by the Company of the exercise price of the
Warrant Shares as specified in the Warrants and the issuance of the
Warrant Shares thereunder, the Warrant Shares will be validly issued,
fully paid and non-assessable.
|
The
opinions set forth above are further subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors and the availability of remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at law); (ii) the
effect of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefore may be brought; (iii) the unenforceability under
certain circumstances under law or court decisions of provisions providing for
the indemnification of, or contribution to, a party with respect to a liability
where such indemnification or contribution may be limited by Israeli or United
States federal or state securities laws and the public policy underlying such
laws; (iv) the remedies of specific performance and injunctive and other forms
of injunctive relief may be subject to equitable defenses; and (v) we
express no opinion concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws.
We hereby
consent to the filing of this opinion with the United States Securities and
Exchange Commission as an exhibit to the Company's 6-K to be dated February 17,
2011, which is incorporated by reference in the Registration Statement and the
reference to our firm in the section of the Prospectus Supplement entitled
"Legal Matters". By giving our consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended or the rules and regulations promulgated
thereunder.
This
opinion shall be governed by the laws of the State of Israel, and exclusive
jurisdiction with respect thereto under all and any circumstances, and under all
and any proceedings shall be vested only and exclusively with the courts of Tel
Aviv in the State of Israel. This opinion is rendered to you subject to, based
and in reliance on your agreement to comply with the exclusive choice of law and
jurisdiction contained herein and to refrain under all and any circumstances
from initiating any proceedings or taking any legal action relating to this
opinion outside of the State of Israel.
This
opinion is being delivered to you solely for your information in connection with
the above matter and may not be relied upon in any manner by any other person
and is not to be used, circulated, quoted or otherwise referred to for any other
purpose without our express written permission.
Yours
sincerely,
|
|
/s/
David Cohen
|
|
Tulchinsky
Stern Marciano Cohen, Levitski & Co.,
|
Law
Offices
|
EXHIBIT
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated
as of February 16, 2011, 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 (except as set forth on
Schedule 3.1(g)
), (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 as described on
Schedule 3.1(a)
, (e)
securities issued in connection with a concurrent registered offering as
described on
Schedule
3.1(g)
(“
Concurrent Registered
Offering
”) and (f) 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 $0.60, 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.
“
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.
“
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,
collectively, the 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 (as defined therein), in the form of
Exhibit B
attached
hereto.
“
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
$2,725,000,80 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
Warrant registered in the name of such Purchaser to purchase up to a number of
Ordinary Shares equal to 75% of the Shares issuable to the Purchaser on the
Closing Date, with an exercise price equal to $0.80, subject to adjustment
therein (such Warrant certificate may be delivered within three Trading Days of
the Closing Date); and
(vi) 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 when made and 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)
. Except as set forth in
Schedule 3.1(a)
, 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, assuming due authorization, execution and delivery by
the applicable Purchaser thereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in respect of such
Purchaser 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, (v)
filings required by the Israeli Registrar of Companies and (vi) filings required
by the Office of the Chief Scientist of the Israeli Ministry of Industry, Trade
and Employment (“
OCS
”) (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.
Except as set forth on
Schedule 3.1(g)
, 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, as a result of
the Concurrent Registered Offering 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. Except as set forth
on
Schedule
3.1(g)
,
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. Except as set forth on
Schedule 3.1(h)
, 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 for the
Concurrent Registered Offering 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
. 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,
except for such revocation or modification as would not have or reasonably be
expected to result in a Material Adverse Effect.
(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. Notwithstanding the above, the Company participates in a
consortium which is supported by the OCS. The consent of the OCS will be
required for the transfer of know how developed in the framework of the
consortium or rights to manufacture based on and/or incorporating such know how
to third parties who are not members of the consortium.
(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 the material terms and conditions of (i) the transactions
contemplated by the Transaction Documents and (ii) the Concurrent Registered
Offering, 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
. Based
on the financial condition of the Company as of the Closing Date, after giving
effect to the receipt by the Company of the proceeds from the sale of the
Securities hereunder and the proceeds, if any, from the Concurrent Registered
Offering, 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 3 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, (iii) not be related to any officer or director of the
Company and (iv) not hold 5% or more of the Company's issued share capital or of
the voting rights in the Company. Such Purchaser is not required to
be registered as a broker-dealer under Section 15 of the Exchange Act. In the
event that, upon the issuance of the Shares and/or the Warrant Shares to a
Purchaser, such Purchaser holds 5% or more of the Company's issued share capital
or of the voting rights in the Company, then, upon such issuance, such Purchaser
shall deliver to the Company an executed copy of an Undertaking towards the OCS
substantially in the form attached hereto as
Annex A
or in any
other form required by the OCS.
(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. Such Purchaser acknowledges that the
Company participates in a consortium supported by the OCS and therefore the
consent of the OCS will be required for the transfer of know how developed in
the framework of the consortium or rights to manufacture based on and/or
incorporating such know how to third parties who are not members of the
consortium.
(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) If
the Company fails to cause the Transfer Agent to transmit to the Purchaser a
certificate or the certificates representing the Shares or the Warrant Shares
without a restrictive legend on or before the Legend Removal Date, and if after
such date the Purchaser is required by its broker to purchase (in an open market
transaction or otherwise), or the Purchaser’s brokerage firm otherwise
purchases, Ordinary Shares to deliver in satisfaction of a sale by the Purchaser
of the Shares or the Warrant Shares which the Purchaser anticipated receiving on
or before the Legend Removal Date (a “
Delegended Shares
Buy-In
”), then the Company shall (A) pay in cash to the Purchaser the
amount, if any, by which (x) the Purchaser’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 Shares or Warrant Shares
that the Company was required to deliver to the Purchaser times (2) the price at
which the sell order giving rise to such purchase obligation was executed, and
(B) deliver to the Purchaser the number of Ordinary Shares that would have been
delivered had the Company timely complied with its delivery obligations
hereunder. The Purchaser shall provide the Company written notice
indicating the amounts payable to the Purchaser in respect of the Delegended
Shares Buy-In and, upon request of the Company, evidence of the amount of such
loss. Nothing herein shall limit a Purchaser’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 as required pursuant to the terms
hereof. Notwithstanding anything herein to the contrary, in
connection with a particular delivery by the Company of Shares or Warrant Shares
after the Legend Removal Date, the Purchaser shall be entitled to receive the
greater of (i) the amount of damages as calculated under Section 4.1(d) and (ii)
the amount of damages as calculated under this Section 4.1(e).
(f) 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
and of the Concurrent Registered Offering. 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 and of the
Concurrent Registered Offering, 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 (i) the transactions contemplated by the Transaction Documents and
(ii) the Concurrent Registered Offering, 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) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of 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 February 25, 2011;
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: DAFNA LifeScience Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Nathan Fischel
Name of
Authorized Signatory: Nathan Fischel
Title of
Authorized Signatory: Managing Member
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $37,500
Shares:
62,500
Warrant
Shares: 46,875
[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: DAFNA LifeScience Market Neutral Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Nathan Fischel
Name of
Authorized Signatory: Nathan Fischel
Title of
Authorized Signatory: Managing Member
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $31,500
Shares:
52,500
Warrant
Shares: 39,375
[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: DAFNA LifeScience Select Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Nathan Fischel
Name of
Authorized Signatory: Nathan Fischel
Title of
Authorized Signatory: Managing Member
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $81,000
Shares:
135,000
Warrant
Shares: 101,250
[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: Highbridge International, LLC by Highbridge Capital Mgmt as Trading
Advisor
Signature of Authorized Signatory of
Purchaser
: /s/ Mark Vanacore
Name of
Authorized Signatory: Mark Vanacore
Title of
Authorized Signatory: Managing Director
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $500,000
Shares:
833,333
Warrant
Shares: 625,000
[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: Becker Drapkin Partners, LP
Signature of Authorized Signatory of
Purchaser
: /s/ Steven R. Becker
Name of
Authorized Signatory: Steven R. Becker
Title of
Authorized Signatory: Managing Partner
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $130,000
Shares:
216,667
Warrant
Shares: 162,500
[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: Becker Drapkin Partners (QP), LP
Signature of Authorized Signatory of
Purchaser
: /s/ Steven R. Becker
Name of
Authorized Signatory: Steven R. Becker
Title of
Authorized Signatory: Managing Partner
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $870,000
Shares:
1,450,000
Warrant
Shares: 1,087,500
[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: General Counsel of CNH Partners, LLC, as Investment
Manager of the Purchaser
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $23,579.40
Shares:
39,299
Warrant
Shares: 29,474
[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: General Counsel of AQR Capital Management, LLC, as
Investment Manager of the Purchaser
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $39,642
Shares:
66,070
Warrant
Shares: 49,553
[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 of AQR
Funds
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $397,569
Shares:
662,615
Warrant
Shares: 496,961
[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, solely on behalf of AST Academic Strategies
Asset Allocation Portfolio
Signature of Authorized Signatory of
Purchaser
: /s/ Brendan R. Kalb
Name of
Authorized Signatory: Brendan R. Kalb
Title of
Authorized Signatory: General Counsel of AQR Capital Management, LLC, as
Investment Manager of the Purchaser
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $39,209.40
Shares:
65,349
Warrant
Shares: 49,012
[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, L.P.
Signature of Authorized Signatory of
Purchaser
: /s/ James S. Silverman
Name of
Authorized Signatory: James S. Silverman
Title of
Authorized Signatory: President
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $120,000
Shares:
200,000
Warrant
Shares: 150,000
[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, L.P.
Signature of Authorized Signatory of
Purchaser
: /s/ Joshua Silverman
Name of
Authorized Signatory: Joshua Silverman
Title of
Authorized Signatory: Authorized Signatory
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $100,000
Shares:
166,666
Warrant
Shares: 125,000
[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: Rodman & Renshaw, LLC
Signature of Authorized Signatory of
Purchaser
: /s/ John Borer
Name of
Authorized Signatory: John Borer
Title of
Authorized Signatory: Senior Managing Director
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount: $355,000.80
Shares:
591,668
Warrant
Shares: 443,751
[SIGNATURE
PAGES CONTINUE]
ANNEX
A
To:
|
The
Research Committee
|
The
Office of the Chief Scientist
Jerusalem
Relating
to projects that have been financed by or are currently being financed by the
Office of the Chief Scientist of the Ministry of Industry, Trade and Labor (the
"
OCS
") _______________
[Please specify project title and OCS' file number] and to projects of the
Company (as this term is defined below) that may be financed by the OCS in the
future (the "
Projects
").
Undertaking
We, the
undersigned, of ____________________________________ [Foreign investor's
name] a company incorporated, organized and existing under the laws of
_______________ and whose registered office is at _________________ ("______"),
having, by an agreement dated , committed to invest in
________________________________ Ltd.
(the "
Company
"), in
exchange for [number and type of shares] ________ shares of the
Company;
Recognizing
that the Company's research and development Projects are currently, have been or
will be financially supported by the Government of the State of Israel, through
the OCS under and subject to the provisions of The Encouragement of Research and
Development in Industry Law 5744-1984 (the "
R&D Law
") and the
regulations, rules and procedures promulgated there under;
Recognizing
that the R&D Law places strict constraints on the transfer of know-how
and/or production rights, making all such transfers subject to the absolute
discretion of the OCS' research committee (the "
Research Committee
"), acting
in accordance with the aims of the R&D Law and requiring that any such
transfer receive the prior written approval of the Research
Committee;
Hereby
declare and undertake:
1.
|
To
observe strictly all the requirements of the R&D Law and the
regulations, rules and procedures promulgated there under, as applied to
the Company and as directed by the Research Committee, in particular those
requirements stipulated under Sections 19, 19A and 19B of the R&D Law
relating to the prohibitions on the transfer of know-how and/or production
rights.
|
2.
|
As
a shareholder of the Company, to make all reasonable efforts that the
Company shall observe strictly all the requirements of the R&D Law and
the regulations, rules and procedures promulgated there under, as applied
to the Company and as directed by the Research Committee, in particular
those requirements stipulated under Sections 19, 19A and 19B of the
R&D Law relating to the prohibitions on the transfer of know-how
and/or production rights.
|
Date Name
(block letters) and signature of Authorized Company Representative and Company
Seal
EXHIBIT
10.2
REGISTRATION
RIGHTS AGREEMENT
This Registration Rights Agreement
(this “
Agreement
”) is made
and entered into as of February 16, 2011, 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)
.
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. 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. Notwithstanding the foregoing, no payments shall be owed
pursuant to this Section 2(b) to a Holder with respect to any period during
which all of such Holder’s Registrable Securities may be sold by such Holder
without restriction under Rule 144 and without the need for current public
information required by Rule 144(c), provided that counsel to the Company has
delivered an opinion to the Transfer Agent, acceptable to the Transfer Agent,
that the removal of restrictive legends from such Registrable Securities is
required.
3.
Registration
Procedures
.
In connection with the Company’s
registration obligations hereunder, the Company shall:
(a) Not
less than three (3) 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 three (3) 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 second (2nd) 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
.
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
|
|
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Title: President
and CEO
|
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[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS TO ROSG RRA]
Name of
Holder: [See signatories to Exhibit 10.1]
Signature of Authorized Signatory of
Holder
: __________________________
Name of
Authorized Signatory: _________________________
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):
|
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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, provided that
the undersigned shall have no obligations to notify the Company of changes to
the undersigned’s beneficial ownership.
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.
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:
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated
as of February 16, 2011, 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
an effective registration statement under the Securities Act of 1933, as amended
(the “
Securities
Act
”), 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
”
means the Disclosure Schedules of the Company delivered concurrently
herewith.
“
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 (except as set forth on
Schedule 3.1(g)
), (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 as described on
Schedule 3.1(a)
, (e)
securities issued in connection with a concurrent private placement transaction
as described on
Schedule 3.1(g)
(the
“
Concurrent Private
Placement
”) and (f) 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.
“
FDA
” shall have the
meaning ascribed to such term in Section 3.1(gg).
“
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).
“
Liens
” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction, other than restrictions imposed by 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 Share
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
$0.60
,
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.
“
Prospectus
” means the
base prospectus included in the Registration Statement.
“
Prospectus
Supplement
” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and delivered by
the Company to each Purchaser at or prior to the Closing.
“
Purchaser Party
”
shall have the meaning ascribed to such term in Section 4.8.
“
Registration
Statement
” means the effective registration statement with Commission
file No. 333-163063 which registers the sale of the Shares, the Warrants and the
Warrant Shares by the Purchasers.
“
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 from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same 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.
“
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 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.
“
Warrants
” means,
collectively, the Ordinary Shares purchase warrants delivered to the Purchasers
at the Closing in accordance with Section 2.2(a) hereof, which Warrants shall be
exercisable immediately and have a term of exercise equal to five years from the
date of issuance, in the form of
Exhibit A
attached
hereto.
“
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
$3,275,202.60 of Shares and Warrants (as determined in accordance with Section
2.2(a) below). Each Purchaser shall deliver to the Company, via wire
transfer or a certified check, 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 Company U.S. Counsel 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 via the Depository
Trust Company Deposit or Withdrawal at Custodian system (“
DWAC
”) 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
Warrant registered in the name of such Purchaser to purchase up to a number of
Ordinary Shares equal to 50% of such Purchaser’s Shares issuable to Purchaser on
the Closing Date, with an exercise price equal to $0.80, subject to adjustment
therein (such Warrant certificate may be delivered within three Trading Days of
the Closing Date); and
(vi) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with
Rule 172 under the Securities Act).
(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; and
(ii) such
Purchaser’s Subscription Amount by wire transfer to the account as specified in
writing by the Company.
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 when made and on the Closing Date of the
representations and warranties of the Purchasers contained herein (unless as of
a specific date therein);
(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 each 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 the Registration Statement 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)
. Except as set forth on
Schedule 3.1(a)
, 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 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 each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
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
therewith other than in connection with the Required Approvals. Each
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, assuming due authorization, execution and delivery by
the applicable Purchaser thereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in respect of such
Purchaser 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 the Transaction Documents, the issuance and sale of the Securities
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 the Company’s or any Subsidiary’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 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 of the Prospectus Supplement, (iii)
application(s) to each applicable Trading Market for the listing of the
Securities for trading thereon in the time and manner required thereby, (iv)
such filings as are required to be made under applicable state securities laws
or FINRA, (v) filings required by the Israeli Registrar of Companies and (vi)
filings required by the Office of the Chief Scientist of the Israeli Ministry of
Industry, Trade and Employment (“OCS”) (collectively, the “Required
Approvals”).
(f)
Issuance of the Securities;
Registration
. 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. The Warrant Shares, when issued 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. The Company has reserved from its duly authorized capital
stock the maximum number of Ordinary Shares issuable pursuant to this Agreement
and the Warrants. The Registration Statement was declared effective
on November 24, 2009 (the “Effective Date”), including the Prospectus, and
such amendments and supplements thereto as may have been required to the date of
this Agreement. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Prospectus
has been issued by the Commission and no proceedings for that purpose have been,
to the knowledge of the Company, instituted or are threatened by the
Commission. The Company, if required by the rules and regulations of
the Commission, proposes to file the Prospectus Supplement, with the Commission
pursuant to Rule 424(b). At the time the Registration Statement and
any amendments thereto became effective, at the date of this Agreement and at
the Closing Date, the Registration Statement and any amendments thereto
conformed and will conform in all material respects to the requirements of the
Securities Act and did not and 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 not misleading; and the Prospectus
and any amendments or supplements thereto, at the time the Prospectus or any
amendment or supplement thereto was issued and at the Closing Date, conformed
and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(g)
Capitalization
. The
authorized capitalization of the Company is as set forth in the SEC
Reports. Except as set forth on
Schedule 3.1(g)
, 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 Share 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
described in the SEC Reports and pursuant to the Company’s stock plans, as a
result of the purchase and sale of the Securities and as a result of the
Concurrent Private Placement, 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 Share
Equivalents. Except as set forth on
Schedule 3.1(g)
, 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 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. Except as set
forth on
Schedule
3.1(h)
, 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 set forth in 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
plans. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the
issuance of the Securities contemplated by this Agreement and for the Concurrent
Private Placement, no event, liability, or development has occurred or exists
with respect to the Company or its Subsidiaries or their respective business,
properties, operations 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 disclosed in the
Registration Statement and the Prospectus.
(j)
Litigation.
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 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 would 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 governmental body 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 its 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, except for such revocation or modification
as would not have or reasonably be expected to result in a Material Adverse
Effect.
(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 Liens created under license or collaboration agreements
relating to the Company’s products or Intellectual Property Rights and 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 Liens for the payment of federal, state or
other taxes, 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)
Patents and
Trademarks
. 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. Notwithstanding the above, the
Company participates in a consortium which is supported by the OCS. The consent
of the OCS will be required for the transfer of know how developed in the
framework of the consortium or rights to manufacture based on and/or
incorporating such know how to third parties who are not members of the
consortium.
(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 and, to the knowledge of the Company,
none of the employees of the Company 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, 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 or partner, that would be required
to be disclosed in the Registration Statement or the Prospectus and is not so
disclosed.
(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.
(s)
Certain
Fees
. Except as set forth in the Prospectus Supplement, no
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by 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)
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.
(u)
Registration
Rights
. No Person has the right to require registration of
Ordinary Shares or other securities of the Company or any of its Subsidiaries
because of the filing or effectiveness of the Registration Statement, except for
persons and entities who have expressly waived such right in
writing.
(v)
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(v)
, 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 in
Schedule 3.1(v)
,
Company is in compliance with all such listing and maintenance
requirements.
(w)
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
solely as a result of the Company’s issuance of the Securities and
the Purchasers’ ownership of the Securities.
(x)
Disclosure
. Except
with respect to the material terms and conditions of (i) the transactions
contemplated by the Transaction Documents and (ii) the Concurrent Private
Placement, 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 which is not otherwise disclosed in the Registration
Statement. 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, its business
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.
(y)
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
any applicable shareholder approval provisions of any Trading Market on which
any of the securities of the Company are listed or designated.
(z)
Solvency
. Based
on the financial condition of the Company as of the Closing Date after giving
effect to the receipt by the Company of the proceeds from the sale of the
Securities hereunder and the proceeds, if any, from the Concurrent Private
Placement, 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 three (3) months
from the Closing Date.
(aa)
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.
(bb)
Foreign Corrupt
Practices
. Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company, 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 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.
(cc)
Accountants
. To
the knowledge of the Company, 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 year ending December 31, 2010.
(dd)
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.
(ee)
Acknowledgement Regarding Purchaser’s Trading
Activity
. Anything in this Agreement or elsewhere herein to
the contrary notwithstanding (except for Sections 3.2(f) and 4.14 hereof), it is
understood and acknowledged by the Company that: (i) none of the Purchasers have
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, 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, presently may 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.
(ff)
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.
(gg)
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.
(hh)
Office of Foreign Assets
Control
. Neither the Company nor, to the Company's knowledge,
any director, officer, agent, employee or affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”).
(ii)
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.
(jj)
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.
(kk)
Money
Laundering
. The operations of the Company 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 with respect to the
Money Laundering Laws is pending or, to the knowledge of the Company,
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 or partnership power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery
of this Agreement and performance by such Purchaser of the transactions
contemplated by this Agreement 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, assuming due
authorization, execution and delivery by the Company thereof, 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)
Purchaser
Status
. At the time such Purchaser was offered the Securities,
it was, and as of the date hereof it is, and on each date on which it exercises
any Warrants, it will (i) be an “accredited investor” as defined in Rule 501,
(ii) not be in Israel or an Israeli citizen, corporation or resident, or
controlled by an Israeli citizen, corporation or resident, (iii) not be related
to any officer or director of the Company and (iv) not hold 5% or more of the
Company’s issued share capital or of the voting rights of the
Company. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act. In the event that
following the issuance of the Shares and/or the Warrant Shares a Purchaser will
hold 5% or more of the Company's issued share capital or of the voting rights in
the Company, then upon such issuance, such Purchaser shall deliver to the
Company an executed copy of an Undertaking towards the OCS substantially in the
form attached hereto as
Annex A
or in any
other form required by the OCS.
(d)
Experience of Such
Purchaser
. 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.
(e)
Information
. 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. Such Purchaser acknowledges that the
Company participates in a consortium supported by the OCS and therefore the
consent of the OCS will be required for the transfer of know how developed in
the framework of the consortium or rights to manufacture based on and/or
incorporating such know how to third parties who are not members of the
consortium.
(f)
Certain Transactions and
Confidentiality
. Other than consummating the transactions
contemplated hereunder, such Purchaser has not, nor has any Person acting on
behalf of or pursuant to any understanding with such Purchaser, directly or
indirectly 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
Warrant
Shares
. If all or any portion of a Warrant is exercised at a
time when there is an effective registration statement to cover the issuance or
resale of the Warrant Shares or if the Warrant is exercised via cashless
exercise, the Warrant Shares issued pursuant to any such exercise shall be
issued free of all legends. If at any time following the date hereof
the Registration Statement (or any subsequent registration statement registering
the sale or resale of the Warrant Shares) is not effective or is not otherwise
available for the sale or resale of the Warrant Shares, the Company shall
immediately notify the holders of the Warrants in writing that such registration
statement is not then effective and thereafter shall promptly notify such
holders when the registration statement is effective again and available for the
sale or resale of the Warrant Shares (it being understood and agreed that the
foregoing shall not limit the ability of the Company to issue, or any Purchaser
to sell, any of the Warrant Shares in compliance with applicable federal and
state securities laws). The Company shall use best efforts to keep a
registration statement (including the Registration Statement) registering the
issuance or resale of the Warrant Shares effective during the term of the
Warrants.
4.2
Furnishing of
Information
. 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 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.
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 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 9:30 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
and of the Concurrent Private Placement. 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 and of the Concurrent
Private Placement, which Form 6-K shall include the Transaction Documents as
exhibits thereto. From and after the issuance of such press release,
the Company 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 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 (i) the transactions contemplated by the Transaction Documents and
(ii) the Concurrent Private Placement, the Company covenants and agrees that
neither it, nor any other Person acting on its behalf will provide any Purchaser
or its agents or counsel with any information that the Company believes
constitutes material non-public information, unless prior thereto such Purchaser
shall have executed a written agreement 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
. The Company shall use the net proceeds from the sale
of the Securities hereunder substantially as set forth in the Registration
Statement and the Prospectus Supplement.
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 a Purchaser 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, with respect to any of the transactions contemplated by the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with any
such stockholder or any violations by such Purchaser of state or federal
securities laws or any conduct by such Purchaser 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 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 list or quote all of the Shares and Warrant Shares on the Trading Market and
promptly secure the listing of all of the Shares and Warrant Shares on the
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 reasonably 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 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 [RESERVED]
4.12
Subsequent Equity
Sales
.
(a) From
the date hereof until 60 days
after the Closing 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 Share Equivalents.
(b) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt
Issuance.
4.13
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.
4.14
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 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.
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 February 25, 2011;
provided
,
however
, that no such
termination will affect the right of any party to sue for any breach by the
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, the Prospectus and the Prospectus Supplement,
contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, with respect to such matters, which the parties acknowledge have been
merged into such documents, exhibits and schedules.
5.4
Notices
. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto 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,
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 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 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.
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 and customary and
reasonable indemnity or security, if required. The applicant for a
new certificate or instrument under such circumstances shall also pay any
reasonable third-party costs (including any such customary indemnity or
security) 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
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 their 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 placement agent. 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
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.
5.19
Construction
. The
parties agree that each of them and/or their respective counsel has 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 hereto. 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.
5.20
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 Jutkowitz
|
|
|
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 RD 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: Brio Capital LP
Signature of Authorized Signatory of
Purchaser
: /s/ Shaye Hirsch
Name of
Authorized Signatory: Shaye Hirsch
Title of
Authorized Signatory: Managing Partner
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $200,000.40
Shares:
333,334
Warrant
Shares: 166,667
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $150,000
Shares:
250,000
Warrant
Shares: 125,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Iguana Healthcare Master Fund, Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Norman Schleifer
Name of
Authorized Signatory: Norman Schleifer
Title of
Authorized Signatory: CFO
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $249,999.60
Shares:
416,666
Warrant
Shares: 208,333
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Rockmore Investment Master Fund Ltd.
Signature of Authorized Signatory of
Purchaser
: /s/ Michael DiLernia
Name of
Authorized Signatory: Michael DiLernia
Title of
Authorized Signatory: Authorized Signatory
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $150,000
Shares:
250,000
Warrant
Shares: 125,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: JMM Trading LP (please register the warrants as “RBC Dominion
Securities Inc, ITF JMM Trading LP A/C 475 80060 29”)
Signature of Authorized Signatory of
Purchaser
: /s/ Glenn Hunt
Name of
Authorized Signatory: Glenn Hunt
Title of
Authorized Signatory: Partner
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $300,000
Shares:
500,000
Warrant
Shares: 250,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $99,996
Shares:
166,660
Warrant
Shares: 83,330
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: MJFIL Investments LLC
Signature of Authorized Signatory of
Purchaser
: /s/ Daniel I. Warsh
Name of
Authorized Signatory: Daniel I. Warsh
Title of
Authorized Signatory: Authorized Signatory
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $25,002
Shares:
41,670
Warrant
Shares: 20,835
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Option Opportunities Corp.
Signature of Authorized Signatory of
Purchaser
: /s/ Daniel Warsh
Name of
Authorized Signatory: Daniel Warsh
Title of
Authorized Signatory: Authorized Signatory
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $50,004
Shares:
83,340
Warrant
Shares: 41,670
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Lincoln Park Capital Fund, LLC By: Lincoln Park Capital LLC, By:
Rockledge Capital Corporation
Signature of Authorized Signatory of
Purchaser
: /s/ Joshua Scheinfeld
Name of
Authorized Signatory: Joshua Scheinfeld
Title of
Authorized Signatory: President
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $250,000.20
Shares:
416,667
Warrant
Shares: 208,333
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $180,000
Shares:
300,000
Warrant
Shares: 150,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Midsummer Ventures, LP
Signature of Authorized Signatory of
Purchaser
: /s/ Alan Benaim
Name of
Authorized Signatory: Alan Benaim
Title of
Authorized Signatory: Authorized Signatory
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $270,000
Shares:
450,000
Warrant
Shares: 225,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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/ Keith Goodman
Name of
Authorized Signatory: Keith Goodman
Title of
Authorized Signatory: COO – Downsview Capital Inc. – The GP
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $297,500.40
Shares:
495,834
Warrant
Shares: 247,917
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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/ Keith Goodman
Name of
Authorized Signatory: Keith Goodman
Title of
Authorized Signatory: Authorized Signatory
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $52,500
Shares:
87,500
Warrant
Shares: 43,750
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Daniel B. Ahlberg TTEE/Linda O. Ahlberg TTEE Ahlberg Joint Revocable
Trust/U/A DTD 8/24/06
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Alice Ann Corporation
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $45,000
Shares:
75,000
Warrant
Shares: 37,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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. Allison
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $103,200
Shares:
172,000
Warrant
Shares: 86,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Anchor Scientific, Inc. Profit Sharing
Plan & Trust
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $42,000
Shares:
70,000
Warrant
Shares: 35,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Glenn P. Baron
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $9,000
Shares:
15,000
Warrant
Shares: 7,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: William H. Baxter TTEE/FBO William H. Baxter Rev. Tr U/A DTD
7/3/96
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc., Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO William H. Baxter IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Harold C. Becker IRA
Rollover
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $6,000
Shares:
10,000
Warrant
Shares: 5,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Gary A. Bergren
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $42,000
Shares:
70,000
Warrant
Shares: 35,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: David C. Brown TTEE/Carole A. Brown TTEE David C/Carole A Brown Rev
Tr / U/A DTD 10/23/97
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Craig L. Campbell IRA
Rollover
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Anne S. Chudnofsky
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Barry S. Chudnofsky DMD/Pro Shar Pl U/A DTD 4/1/86
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $24,000
Shares:
40,000
Warrant
Shares: 20,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Robert H. Clayburgh IRA
Rollover
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $42,000
Shares:
70,000
Warrant
Shares: 35,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Gary E. Clipper and Leslie J. Clipper Joint
Account
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Bradley A. Erickson IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Judith Lynne Feist
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $6,000
Shares:
10,000
Warrant
Shares: 5,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Thomas Franta
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $9,000
Shares:
15,000
Warrant
Shares: 7,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO P. Dan Gilbert SEP/IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $9,000
Shares:
15,000
Warrant
Shares: 7,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Dennis D. Gonyea
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $42,000
Shares:
70,000
Warrant
Shares: 35,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Dorothy J. Hoel
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $42,000
Shares:
70,000
Warrant
Shares: 35,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Richard A. Hoel
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: James E. and Eleanor Keiper Joint Account
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $9,000
Shares:
15,000
Warrant
Shares: 7,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Elizabeth J. Kuehne IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Elizabeth J. Kuehne TTEE/John E. Romundstad TTEE
Kuehne-Romundstad-Kuestad Fam/ U/A DTD 08/12/2008
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $21,000
Shares:
35,000
Warrant
Shares: 17,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Duane L. Lee IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $9,000
Shares:
15,000
Warrant
Shares: 7,500
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Michael E.
McElligott Profit Sharing Plan
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $18,000
Shares:
30,000
Warrant
Shares: 15,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Charles W. Pappas IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $18,000
Shares:
30,000
Warrant
Shares: 15,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Pioneer Mailroom Equipment Inc/Pro Shar Pln DTD 4/28/94
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $24,000
Shares:
40,000
Warrant
Shares: 20,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: John T. Potter
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Preventive Cardiovascular Nurses Association
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $84,000
Shares:
140,000
Warrant
Shares: 70,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Carolyn Salon
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Joel A. Salon
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Dr. Paul C. Seel and Nancy S. Seel Joint
Account
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $30,000
Shares:
50,000
Warrant
Shares: 25,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: E. Terry Skone TTEE/2005 Amendment & Restatement E. Terry Skone
Rev. Trust / U/A DTD 11/30/05
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $24,000
Shares:
40,000
Warrant
Shares: 20,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Mary T. Strickland IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Piper Jaffray as Custodian FBO Scott E. Strickland IRA
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Stephen P. Vertin
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $12,000
Shares:
20,000
Warrant
Shares: 10,000
[SIGNATURE
PAGES CONTINUE]
[PURCHASER
SIGNATURE PAGES TO ROSG RD 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: Donald O. Voight TTEE/Janet M. Voight TTEE Janet M. Voight Tr / U/A
DTD 8/29/96
Signature of Authorized Signatory of
Purchaser
: /s/ Richard C. Perkins
Name of
Authorized Signatory: Richard C. Perkins, Executive Vice President
Title of
Authorized Signatory: Perkins Capital Management Inc.,
Attorney-In-Fact
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $24,000
Shares:
40,000
Warrant
Shares: 20,000
[SIGNATURE
PAGES CONTINUE]
ANNEX
A
To:
|
The
Research Committee
|
The
Office of the Chief Scientist
Jerusalem
Relating
to projects that have been financed by or are currently being financed by the
Office of the Chief Scientist of the Ministry of Industry, Trade and Labor (the
"
OCS
") _______________
[Please specify project title and OCS' file number] and to projects of the
Company (as this term is defined below) that may be financed by the OCS in the
future (the "
Projects
").
Undertaking
We, the
undersigned, of
[Foreign investor's name] a company incorporated, organized and
existing under the laws of _________________ and whose registered office is at
_________________ ("______"), having, by an agreement dated
, committed to invest in
Ltd. (the "
Company
"), in
exchange for [number and type of shares] ________ shares of the
Company;
Recognizing
that the Company's research and development Projects are currently, have been or
will be financially supported by the Government of the State of Israel, through
the OCS under and subject to the provisions of The Encouragement of Research and
Development in Industry Law 5744-1984 (the "
R&D Law
") and the
regulations, rules and procedures promulgated there under;
Recognizing
that the R&D Law places strict constraints on the transfer of know-how
and/or production rights, making all such transfers subject to the absolute
discretion of the OCS' research committee (the "
Research Committee
"), acting
in accordance with the aims of the R&D Law and requiring that any such
transfer receive the prior written approval of the Research
Committee;
Hereby
declare and undertake:
1.
|
To
observe strictly all the requirements of the R&D Law and the
regulations, rules and procedures promulgated there under, as applied to
the Company and as directed by the Research Committee, in particular those
requirements stipulated under Sections 19, 19A and 19B of the R&D Law
relating to the prohibitions on the transfer of know-how and/or production
rights.
|
2.
|
As
a shareholder of the Company, to make all reasonable efforts that the
Company shall observe strictly all the requirements of the R&D Law and
the regulations, rules and procedures promulgated there under, as applied
to the Company and as directed by the Research Committee, in particular
those requirements stipulated under Sections 19, 19A and 19B of the
R&D Law relating to the prohibitions on the transfer of know-how
and/or production rights.
|
_____________________
_________________________________
Date
Name (block letters) and signature of Authorized Company Representative and
Company Seal
EXHIBIT
99.1
News
Release
Rosetta
Genomics to Raise $6.0 Million in
Concurrent
Private Placement and Registered Direct Offerings
PHILADELPHIA and REHOVOT, Israel
(February 17, 2011)
–
Rosetta Genomics, Ltd.
(“Rosetta”) (NASDAQ: ROSG), a leading developer and provider of microRNA-based
molecular diagnostics, today announced it has entered into definitive agreements
with investors to purchase an aggregate of $6.0 million in securities in
concurrent private placement and registered direct offerings. The closings of
the offerings are expected to occur on or about February 23, 2011 and are
subject to the satisfaction of customary closing conditions.
Under the
terms of the private placement, Rosetta will sell an aggregate of 4,541,668
ordinary shares at a price of $0.60 per share. The purchasers in the
private placement will also receive warrants to purchase up to an aggregate of
3,406,251 ordinary shares at an exercise price of $0.80 per share (the “Private
Placement Warrants”). The Private Placement Warrants will be exercisable
immediately upon issuance and will have a term of five years. Rosetta is
required to file a resale registration statement on Form F-3 within 20 days
following the closing of the private placement that covers the resale by the
purchasers of the ordinary shares and the ordinary shares issuable upon exercise
of the Private Placement Warrants issued in the private placement.
Under the
terms of the registered direct offering, Rosetta will sell an aggregate of
5,458,671 ordinary shares at a price of $0.60 per share. The purchasers in
the registered direct offering will also receive warrants to purchase up to an
aggregate of 2,729,335 ordinary shares at an exercise price of $0.80 per share
(the “Registered Direct Warrants”). The Registered Direct Warrants
will be exercisable immediately upon issuance and will have a term of five
years.
Rodman
& Renshaw, LLC, a wholly-owned subsidiary of Rodman & Renshaw Capital
Group, Inc. (NASDAQ: RODM), acted as the exclusive placement agent for both
offerings.
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.
A shelf registration statement relating
to the securities offered and sold in the registered direct offering has been
filed with the Securities and Exchange Commission (the “SEC”) and has been
declared effective. A prospectus supplement relating to the
registered direct offering will be filed by Rosetta with the
SEC. Copies of the prospectus supplement and accompanying prospectus
may be obtained directly from Rosetta by contacting Rosetta Genomics Ltd., 10
Plaut Street, Science Park, Rehovot 76706 POB 4059 Israel or via Telephone at
(646) 509-1893 or via email at
investors@rosettagenomics.com
or from Rodman & Renshaw, LLC by
request to
info@rodm.com
or (212) 356-0549.
This
announcement is neither an offer to sell nor a solicitation of an offer to buy
any securities of Rosetta.
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 microRNA-based tests, miRview™
squamous, miRview™ mets, miRview™ mets
2
and
miRview™ meso, are commercially available through its Philadelphia-based
CAP-accredited, CLIA-certified lab.
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
closings of the offerings 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
|
Ken
Berlin, President & CEO
|
Anne
Marie Fields
|
(215)
382-9000 ext. 326
|
(212)
738-3777
|
investors@rosettagenomics.com
|
afields@lhai.com
|
|
or
|
|
Bruce
Voss
|
|
(310)
691-7100
|
|
bvoss@lhai.com
|
#
# #