UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

Form 8-K/A
(Amendment No. 1)

Current Report
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
 
January 13, 2017

AIT THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other
jurisdiction of incorporation)
 
333-207220
(Commission
File Number)
 
47-3812456
 (I.R.S. Employer
Identification No.)
         
2 Derech Meir Weisgal
Rehovot, 763205 Israel
(Address of principal executive offices)  (zip code)
         
+972.8.684.3313
(Registrant’s telephone number, including area code)
 
KokiCare, Inc.
26716 Via Colina
Stevenson Ranch, CA  91381
         
 (Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 

EXPLANATORY NOTE
 
On January 20, 2017, we filed a Current Report on Form 8-K reporting the Merger Agreement and Plan of Reorganization by and between us, Red Maple Ltd., an Israeli corporation and a wholly-owned subsidiary of ours, and Advanced Inhalation Therapies (AIT) Ltd., an Israeli corporation (“AIT Ltd.”), under which Red Maple Ltd. merged with and into AIT Ltd. and AIT Ltd. became our wholly-owned subsidiary.  In the Current Report on Form 8-K we provided “Form 10-type” disclosure regarding the merger transaction, our corporate and capital structure, and the business of the post-merger company, AIT Ltd.  Since that filing we became aware that the Exhibit Index included with the Current Report on Form 8-K, accidentally duplicated certain exhibit numbers causing some of the exhibits to be misidentified.  This Amendment No. 1 to Current Report on Form 8-K/A provides a correctly numbered Exhibit Index and the applicable exhibits so they show the correct exhibit number.  We have not updated any other information in this Current Report.
 
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SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
Dated:  March 15, 2017
AIT THERAPEUTICS, INC.
 
 
By: /s/ Amir Avniel  
Name:   Amir Avniel  
Title:    Chief Executive Officer  
 
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EXHIBIT INDEX
 
Exhibit
Number
 

Description
2.1
 
Agreement and Plan of Merger and Reorganization, dated December 29, 2016, by and between AIT Therapeutics, Inc. (formerly known as KokiCare, Inc.), Red Maple Ltd.., and Advanced Inhalation Therapies (AIT) Ltd.
2.2
 
Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated January 12, 2017, by and between AIT Therapeutics, Inc. (formerly known as KokiCare, Inc.) and Advanced Inhalation Therapies (AIT) Ltd.
2.3
 
Merger Completion Certificate, dated December 29, 2016, by and among Red Maple Ltd. and Advanced Inhalation Therapies (AIT) Ltd.
3.1
 
Amended and Restated Articles of Incorporation of AIT Therapeutics, Inc.
3.2
 
Amended and Restated Bylaws of AIT Therapeutics, Inc.
4.1
 
Form of Common Stock certificate.
10.1
 
Amended and Restated Agreement for the Transfer and Assumption of Obligations Under the Securities Purchase and Registration Rights Agreements, dated January 12, 2017, by and between AIT Therapeutics, Inc. (formerly known as KokiCare, Inc.) and Advanced Inhalation Therapies (AIT) Ltd.
10.2
 
Form of Securities Purchase and Registration Rights Agreement Dated December 29, 2016 by and Advanced Inhalation Therapies (AIT) Ltd. and certain purchasers
10.3
 
Form of Warrant to Purchase Common Stock by and between AIT Therapeutics, Inc. and certain purchasers
10.4
 
Advanced Inhalation Therapies (AIT) Ltd. 2013 Share Option Plan, as amended and restated as of the closing of the Merger as a Stock Incentive Plan of AIT Therapeutics, Inc.
10.5
 
Agreement, dated August 3, 2015, by and between AIT Ltd. and Ron Bentsur
10.6
 
Employment Agreement, dated September 9, 2012, by and between AIT Ltd. and Racheli Vizman
10.7
 
Addendum to Employment Agreement, dated May 30, 2013, by and between the Company and Racheli Vizman
10.8
 
Addendum to Employment Agreement, dated April 8, 2014, by and between the Company and Racheli Vizman
10. 9
 
Addendum to Employment Agreement, dated July 12, 2015, by and between the Company and Racheli Vizman
10. 10
 
License Agreement, dated November 1, 2011, by and between AIT Ltd. and the University of British Columbia
10. 11 ^
 
Non-Exclusive License Agreement, dated October 22, 2013, by and between AIT Ltd. and SensorMedics Corporation (CareFusion)
10. 12
 
Services Agreement, dated June 11, 2015, by and between AIT Ltd. and Guberman Consulting Ltd.
10. 13
 
Option Agreement, dated August 31, 2015, by and between AIT Ltd. and Pulmonox Technologies Corporation
10. 14
 
Amendment No. 10 dated December 31, 2016, to Option Agreement between AIT Ltd. and Pulmonox Technologies Corporation
10. 15
 
Agreement dated June 24, 2016 between AIT Ltd. and Steven Lisi
21.1
 
List of Subsidiaries.
99.1
 
Unaudited condensed financial statements of Advanced Inhalation Therapies (AIT) Ltd. for the nine months ended September 30, 2016 and 2015.
99.2
 
Audited financial statements of Advanced Inhalation Therapies (AIT) Ltd. for the years ended December 31, 2015 and 2014.
99.3
 
Pro forma financial information of AIT Therapeutics, Inc. and its wholly owned subsidiary Advanced Inhalation Therapies (AIT) Ltd.

^ Portions of this exhibit have been omitted pursuant to a request for confidential treatment.
 
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Exhibit 2.1
 
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
 
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (“ Agreement ”) is made and entered into as of December 29, 2016 at 1:30 pm Eastern Standard Time  (the “ Execution Date ”), by and among: AIT THERAPEUTICS, INC. , a Delaware corporation (“ Parent ”); RED MAPLE LTD. , an Israeli corporation and a wholly-owned subsidiary of Parent (“ Merger Sub ”); and ADVANCED INHALATION THERAPIES (AIT) Ltd. , an Israeli corporation (the “ Company ”).  Certain capitalized terms used in this Agreement are defined in Exhibit A .
 
Recitals
 
A.            Parent, Merger Sub and the Company intend to effect a merger of Merger Sub into the Company in accordance with this Agreement and the Israeli Companies Law (the “ Merger ”).  Upon consummation of the Merger, Merger Sub will cease to exist, and the Company (as the Surviving Corporation) will become a wholly-owned subsidiary of Parent.
 
B.            It is intended that, for United States federal income tax purposes, the Merger shall qualify as (i) a transaction described in Section 351 of the Code or (ii) a reorganization within the meaning of Section 368(a) of the Code.  The parties to this Agreement adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a).
 
C.            The respective boards of directors of Parent, Merger Sub and the Company have approved this Agreement and the Merger.
 
D.            Prior to the execution and delivery of this Agreement, (i) Parent has obtained and delivered to the Company all requisite authorizations and consents necessary to approve the filing of its Amended and Restated Certificate of Incorporation, attached hereto as Exhibit B (the “ Parent Restated Charter ”) and/or to otherwise give force to any of the Contemplated Transactions on behalf of the Parent and/or the Merger Sub, including without limitations, the written consent of the Parent's and/or Merger Sub's stockholders and board of directors, (ii) the Parent Restated Charter, has been filed with the Secretary of State of the State of Delaware and is in full force and effect, (iii) Parent has obtained and delivered to the Company letters of resignation from each of Parent’s officers and directors which shall be in effect immediately prior to the Effective Time (as defined below), (iv) the individuals set forth on Exhibit C have been appointed as the officers and/or directors of Parent effective as of the Effective Time and (v) the Company has made a cash payment to Parent in the amount of $320,000 (the “ Cash Purchase Price ”) in accordance with the Term Sheet and Escrow Agreement, each dated October 21, 2016, as amended, between the parties  in partial consideration of the Merger and Parent has distributed a portion of the Cash Purchase Price to its stockholders as a dividend and has utilized a portion of the Cash Purchase Price to redeem certain of its shares of common stock held by Jason Lane (“ Lane ”), in accordance with the terms of that certain Stock Repurchase Agreement, dated as of the date hereof, between Parent, Lane and Gilbert J. Bradshaw of Wilson & Oskam, LLP, as Escrow Agent (the “ Redemption Agreement ”)
 
E.            Immediately following the execution and delivery of this Agreement, (i) the Company shall deliver to Parent the written consent of the Company’s stockholders and/or board of directors (as applicable) necessary to adopt this Agreement and approve the Merger and the other transactions contemplated herein, in the form attached hereto as Exhibit D (the “ Company Written Consent ”), (ii) Merger Sub shall deliver to the Company the written consent of Parent, as the sole stockholder of Merger Sub, together with the requisite resolution(s) of the Merger Sub's board of directors, adopting this Agreement and approving the Merger and the other transactions contemplated herein, in the form attached hereto as Exhibit E (the “ Merger Sub Written Consent ”), and (iii) the Company and Parent shall exchange signature pages on the Assumption Agreement, as defined herein, in the form attached hereto as Exhibit F .
 

Agreement
 
The parties to this Agreement, intending to be legally bound, agree as follows:
 
SECTION 1.            DESCRIPTION OF TRANSACTION
 
1.1            The Merger .  Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub shall be merged with and into the Company.  By virtue of the Merger, at the Effective Time, the separate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation in the Merger (the “ Surviving Corporation ”); all, in accordance with the applicable provisions of the Israeli Companies Law.
 
1.2            Effects of the Merger .  The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the Israeli Companies Law.
 
1.3            Closing; Effective Times of the Merger .
 
(a)            The consummation of the Contemplated Transactions (the “ Closing ”) shall take place at the offices of Law Offices of Craig V. Butler, 300 Spectrum Center Drive, Suite 300, Irvine, California, immediately following the delivery of the Company Written Consent and the Merger Sub Written Consent by the Company and the Merger Sub, respectively.  The date on which the Closing actually takes place is referred to as the “ Closing Date .”
 
(b)            Without derogating from any other provision of this Agreement pertaining to the preconditions required to give effect of the Merger, the Merger shall not be in effect until such time as the parties have complied with all conditions pursuant to the law of the State of Israel, and all parties have executed and transferred their signatures to this Agreement, and all deliverables required hereunder the “ Effective Time ”).
 
1.4            Directors and Officers .  Unless otherwise determined by Company prior to the Effective Time:
 
(a)            the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are listed on Exhibit C .
 
1.5            Exchange of Shares and Options; Treatment of Warrants .
 
(a)            At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any shareholder of the Company:
 
(i)            subject to Sections 1.5(b), 1.5(c), 1.5(f), 1.6, and 1.7, each share of Company Share Capital outstanding immediately prior to the Effective Time shall be surrendered and transferred in return of one share of Parent Common Stock (the “ Exchange Ratio ”) to be issued to the respective holders of the outstanding Company Share Capital, such that following the transactions contemplated under this Section 1.5(a)(i), the shareholders of the Company immediately prior to the Effective Time, as evidenced by the Company's records required per the instructions of the Israeli Companies Law (the " Entitled Shareholders ") shall hold at least 99% of the Parent's issued Capital Stock (the " Goal Holdings "), whereby for the purposes of this Section, any Preferred Share issued and outstanding shall be deemed as converted into such number of the Company’s Ordinary Shares, as prescribed under the Company’s Articles of Association; and
 
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(ii)            The Merger Sub, including its Share Capital shall cease to exist, in accordance with the provisions of Section 323 of the Israeli Companies Law, as further prescribed under Section 1.6.
 
(b)            If, during the period from the date of this Agreement through the Effective Time, the outstanding shares of Parent Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, or if a stock dividend is declared by Parent during such period, or a record date with respect to any such event shall occur during such period, then appropriate adjustments shall be made to the Exchange Ratio, provided that the Goal Holdings shall be maintained.
 
(c)            No fractional shares of Parent Common Stock shall be issued in connection with the Merger.  Due to the Exchange Ratio being one-for-one there will not be any fractional shares issued in connection with the Merger.
 
(d)            At the Effective Time, each Company Option that is unexpired, unexercised and outstanding immediately prior to the Effective Time shall, on the terms and subject to the conditions set forth in this Agreement, be assumed and converted by Parent in accordance with Section 1.5(a)(i), which shall apply, mutatis mutandis .  As set forth in Section 1.5(a)(i), each assumed Company Option that immediately prior to the Effective Time was not fully vested shall be subject to the same vesting arrangements that were applicable to such Company Option immediately prior to or at the Effective Time. The applicable terms pertaining to the exercise of the Company Options (such as exercise price, etc.), shall also be adjusted accordingly to reflect the mechanism set forth under Section 1.5(a)(i)
 
(e)            Each Company Warrant outstanding at the Effective Time shall be assumed by Parent to the extent not exercised prior to the Closing.  At the Effective Time, each Company Warrant shall be converted into a warrant to acquire that number of shares of Parent Common Stock equal to the product of (x) the number of shares of Company Share Capital subject to such Company Warrant and (y) Exchange Ratio, rounded down to the nearest whole share of Parent Common Stock.  Each Company Warrant shall have a purchase price per share of Parent Common Stock equal to the quotient obtained by dividing (x) the per share purchase price of Company Share Capital subject to such Company Warrant by (y) the Exchange Ratio rounded up to the nearest whole cent.  Each Company Warrant shall otherwise be subject to the same terms and conditions (including as to vesting and exercisability) as were applicable under the respective Company Warrant immediately prior to the Effective Time.
 
(f)            Each share of Unvested Company Ordinary Shares outstanding immediately prior to the Effective Time shall be converted into the right to receive that number of shares of Parent Common Stock equal to the product of (x) the number of shares of Unvested Company Ordinary Shares and (y) the Exchange Ratio, rounded down to the nearest whole share of Parent Common Stock, and such shares of Parent Common Stock shall thereafter remain subject to the same restrictions and vesting arrangements that were applicable to such shares of Unvested Company Ordinary Shares immediately prior to or at the Effective Time.  All outstanding rights to repurchase Unvested Company Ordinary Shares that the Company may hold or similar restrictions in the Company’s favor immediately prior to the Effective Time (all such rights, the “ Repurchase Rights ”) shall be assigned to Parent in the Merger and shall thereafter be exercisable by Parent upon the same terms and subject to the same conditions that were in effect immediately prior to the Effective Time.
 
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1.6            Closing of Transfer Books .  At the Effective Time:
 
(a) With respect to the Merger Sub : all shares of Merger Sub's Share Capital outstanding immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and all holders of certificates representing shares of Merger Sub's Share Stock that were outstanding immediately prior to the Effective Time shall cease to have any rights as shareholders of the Merger Sub;
 
(b) With respect to both Company and Merger Sub : the share transfer books of shall be closed with respect to all shares of the respective corporation's Share Capital outstanding immediately prior to the Effective Time.  No further transfer of any such shares Share Capital shall be made on each such stock transfer books after the Effective Time; and,
 
(c) If, after the Effective Time, a valid certificate or any other instrument deemed adequate in accordance with the Israeli Companies Law previously representing any shares of Company Share Capital outstanding immediately prior to the Effective Time (a “ Company Share Certificate ”) is presented to the Surviving Corporation or Parent, such Company Stock Certificate shall be canceled and shall be exchanged as provided in Section 1.7.
 
1.7            Exchange of Certificates .
 
(a)           As promptly as practicable after the Effective Time (but in any event within sixty (60) days following the Effective Time), Parent shall: (i) cause the shares of Parent Common Stock issuable pursuant to Section 1.5(a)(i) to be issued in book-entry form; and (ii) make payments in lieu of fractional shares in accordance with Section 1.5(c).
 
(b)            As promptly as practicable after the Effective Time, Parent will mail or otherwise provide to the Persons who were record holders of Company Share Certificates immediately prior to the Effective Time instructions for use in effecting the surrender of Company Share Certificates in exchange for cash in respect of fractional shares pursuant to Section 1.5(c), if any, and book-entry shares representing Parent Common Stock.  Upon surrender of a Company Share Certificate to Parent for exchange, together with such other documents as may be reasonably required by Parent: (A) the holder of such Company Share Certificate shall be entitled to receive in exchange therefor,  book-entry shares representing the number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of Section 1.5(a)(i) (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)); and (B) the Company Share Certificate so surrendered shall be canceled.  Until surrendered as contemplated by this Section 1.7(b), each Company Share Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive book-entry shares of Parent Common Stock pursuant to the provisions of Section 1.5(a)(i) (and cash in lieu of any fractional share of Parent Common Stock pursuant to Section 1.5(c)).  If any Company Share Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition to the payment of any cash or the issuance of any book-entry shares representing Parent Common Stock, require the owner of such lost, stolen or destroyed Company Share Certificate to provide an appropriate lost affidavit with respect to such Company Share Certificate.
 
(c)            No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered Company Share Certificate with respect to the shares of Parent Common Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Share Certificate in accordance with this Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).
 
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(d)            Any holders of Company Share Certificates who have not surrendered their Company Share Certificates in accordance with this Section 1.7 as of the date 180 days after the date on which the Merger becomes effective shall thereafter look only to Parent for satisfaction of their claims for shares of Parent Common Stock pursuant to the provisions of Section 1.5(a)(i), cash in lieu of fractional shares of Parent Common Stock pursuant to Section 1.5(c) and any dividends or distributions with respect to shares of Parent Common Stock.
 
(e)            Subject to applicable law, each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or non-U.S. Tax law or under any other applicable Legal Requirement.  To the extent such amounts are so deducted or withheld and paid to or deposited with the appropriate Governmental Body, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.  Parent shall take commercially reasonable efforts to reduce or eliminate any required withholding.
 
(f)            Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Share Capital or to any other Person with respect to any shares of Parent Common Stock (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or other similar Legal Requirement.
 
1.8            Tax Consequences .  For federal income tax purposes, to the extent (i) not in contrary with the Israeli Companies Law and/or (ii) that no additional tax liabilities are imposed on the Company and/or its shareholders pursuant to the following, the Merger is intended to constitute (a) a transaction described in Section 351 of the Code or (b) a “reorganization” within the meaning of Section 368 of the Code, and the parties will report the Merger as such for U.S. federal, state and local income tax purposes.  None of the parties will knowingly take any action, or fail to take any action, which action or failure to act would cause the Merger neither to qualify as a transaction described in Section 351 of the Code nor to qualify as a reorganization within the meaning of Section 368 of the Code.  The parties to this Agreement adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a).
 
1.9              Assumption of Company Obligations .  Company is a party to Securities Purchase and Registration Rights Agreements dated December 29, 2016 (the “ SPAs ”) with a number of investors investing approximately $10 Million in connection with the Closing.  Pursuant to the terms of the SPA, Parent shall automatically assume all of Company’s post-Closing obligations under the SPAs, and the warrants being issued therewith, immediately following the Closing as defined herein. To that end, Parent is executing an Agreement for the Transfer and Assumption of Obligations under the Securities Purchase and Registration Rights Agreements, in form attached hereto as Exhibit F , to be delivered at Closing (the “ Assumption Agreement ”).
 
1.10            Variable Rate Transactions .  Under Section 4.7 of the SPAs, the Company agreed not to effect, or enter into any agreement to effect, any issuance of shares, options or convertible securities that would be a Variable Rate Transaction, as defined in the SPAs, until at least the one-year anniversary of the date a Registration Statement (as defined in the SPAs) is declared effective by the Securities and Exchange Commission.  Post-Closing, Parent agrees to the same prohibition on Variable Rate Transactions as the Company agreed to in the SPAs.

1.11            Further Action .  If, at any time after the Effective Time, any further action is determined by Parent or the Surviving Corporation to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full right, title and possession of and to all rights and property of Merger Sub and the Company, the officers and directors of the Surviving Corporation and Parent shall be fully authorized (in the name of Merger Sub, in the name of the Company and otherwise) to take such action.

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SECTION 2.            REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub, as of the Effective Time, as follows:

2.1            Subsidiaries; Due Organization; Etc .
 
(a)            The Company has one wholly-owned Subsidiary, namely Advanced Inhalation Therapies (AIT) Inc. (“ AIT Sub ”) and it does not own any securities of, or any equity interest of any nature in, any other Entity other than AIT Sub.  The Company has not agreed to, nor is it obligated to make, or bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity.
 
(b)            The Company is a corporation duly organized, validly existing and is in good standing under the laws of the State of Israel and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Contracts by which it is bound.
 
(c)            The Company is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification, except as would not have and would not reasonably be expected to have or result in a Company Material Adverse Effect.
 
2.2            Capitalization, Etc .
 
(a)            The authorized Share Capital of the Company consists of 100,000,000 shares of stock, consisting of (A) 93,652,473 shares of Company Ordinary Shares, of which 2,305,290 shares have been issued and are outstanding as of the date of this Agreement, plus an indeterminate number of  up to 2,000,000 Ordinary Shares being issued to investors in connection with the SPAs, and (B) 6,347,527 shares of Series A Preferred Shares, of which 759,086 shares have been issued and are outstanding as of the date of this Agreement (all shares prescribed under subsections (A) and (B) which are issued and/or otherwise issuable on the Closing pursuant to the transactions contemplated herein, shall be together referred to as the “ Company Share Capital ”).  The Company does not hold any shares of its share capital in its treasury.  All of the outstanding shares of Company Share Capital that have been actually issued (or upon their issuance in connection with the transactions contemplated herein and subject to the terms and conditions prescribed herein and therein), have been duly authorized and validly issued, and are fully paid and nonassessable.  The Company is not under any obligation, nor is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Share Capital.  Notwithstanding the above, the Company's Preferred Shares will be converted into Company Ordinary Shares in connection with the Closing on a 1:1 basis, and that an additional 1,397,068 Company Ordinary Shares will be issued at Closing to holders of convertible notes issued by the Company.
 
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(b)            As of the date of this Agreement, 538,573 shares of Company Ordinary Shares are subject to issuance pursuant to outstanding Company Options.  All outstanding Company Options were granted pursuant to the terms of the Company Option Plan.  The Company Option Plan is binding upon and enforceable by the Company against all holders of Company Options, subject to (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and the enforcement of creditors’ rights generally, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.  In addition, there will an indeterminate number of up to 2,000,000 Company Ordinary Shares subject to issuance pursuant to warrants being issued to investors in connection with the Closing within the scope of the SPAs (“ Company Warrants ”).
 
2.3            Authority; Binding Nature of Agreement .  The Company has the corporate right, power and authority to enter into and, subject to obtaining the Required Company Shareholder Vote (as defined in Section 2.4), to perform its obligations under this Agreement.  The board of directors of the Company has: (a) unanimously determined that the Merger is advisable and fair to, and in the best interests of, the Company and its shareholders; (b) unanimously authorized and approved the execution, delivery and performance of this Agreement by the Company and unanimously approved the Merger; and (c) unanimously recommended the adoption of this Agreement by the Company's shareholders.  This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; (ii) rules of law governing specific performance, injunctive relief and other equitable remedies; and (iii) the Israeli Companies Law (with respect to the Merger).
 
2.4            Vote Required . The affirmative vote of a majority of the outstanding shares of the Company, on an “as-converted” basis, which includes the affirmative votes of Mr. Rony Raved and Mr. Ari Raved, in their capacity as the Company's shareholders (the “ Required Company Shareholder Vote ”) is the only vote of the holders of any class or series of the Company’s securities necessary to adopt this Agreement.
 
SECTION 3.            REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
 
Parent and Merger Sub represent and warrant to the Company, as of the date hereof, as follows:
 
3.1            Due Organization .
 
(a)            Other than Merger Sub, Parent does not have any Subsidiaries and it does not own any capital stock of, or any equity interest of any nature in, any other Entity.  Parent has not agreed to, nor is it obligated to make, or bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity.
 
(b)            Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and Parent has all necessary power and authority: (i) to conduct their businesses in the manner in which their businesses are currently being conducted; (ii) to own and use their assets in the manner in which their assets are currently owned and used; and (iii) to perform their obligations under all Contracts by which they are bound.
 
(c)            Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Israel and Merger Sub has all necessary power and authority: (i) to conduct its businesses in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Contracts by which it is bound.
 
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(d)            Each of Parent and Merger Sub (in jurisdictions that recognize the following concepts) is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification, except as would not have and would not reasonably be expected to have or result in a Parent Material Adverse Effect.
 
3.2            Certificate of Incorporation and Bylaws.   The copy of the bylaws of Parent which is an exhibit to the Parent’s Form S-1 filed with the SEC on October 1, 2015 is a complete and correct copy of such document and contains all amendments thereto as in effect on the date of this Agreement.  The Parent Restated Charter has been filed with the Secretary of State of the State of Delaware and Parent has delivered to the Company evidence thereof. The Parent Restated Charter is in full force and effect and no amendments thereto have been effected.
 
3.3            Capitalization, Etc .
 
(a)            The authorized capital stock of Parent consists of (i) 100,000,000 shares of Parent Common Stock, and (ii) 10,000,000 shares of preferred stock (with blank check preferred rights).  After giving effect to the transactions contemplated by the Redemption Agreement, 13,200 shares of Parent Common Stock were issued and outstanding and no shares of Parent Common Stock were held by Parent in its treasury.  Such issued and outstanding shares of Parent Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and are free of preemptive rights.  During the period from October 21, 2016 to the date of this Agreement, (i) there have been no issuances by Parent of shares of capital stock of Parent and (ii) there have been no issuances of any options, warrants or other rights to acquire capital stock of Parent.  Except as expressly contemplated in the Redemption Agreement, Parent has not, subsequent to October 21, 2016, declared or paid any dividend, or declared or made any distribution on, or authorized the creation or issuance of, or issued, or authorized or effected any split-up or any other recapitalization of, any of its capital stock, or directly or indirectly redeemed, purchased or otherwise acquired any of its outstanding capital stock.  Parent has not heretofore agreed to take any such action, and there are no outstanding contractual obligations of Parent of any kind to redeem, purchase or otherwise acquire any outstanding shares of capital stock of Parent.  Other than the Parent Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of Parent may vote. Upon the consummation of the Merger and any applicable Contemplated Transactions, without derogating from any other warranty and/or representations set forth herein with respect to the Parent, the Entitled Shareholders shall hold, in the aggregate, the Parent Common Stock in an amount reflecting the Goal Holdings.
 
(b)            Except as set forth in Section 3.3(a), (i) there are no shares of capital stock or other voting securities of Parent issued, reserved for issuance or outstanding, and (ii) there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent and/or Merger Sub is a party or by which it is bound obligating Parent and/or Merger Sub to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of Parent and/or Merger Sub or obligating Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking.
 
(c)            All outstanding shares of Parent Common Stock, and all other securities of Parent and/or Merger Sub have been issued and granted in compliance with:  (i) all applicable securities laws and other applicable Legal Requirement applicable to Parent and/or Merger Sub; and (ii) all material requirements set forth in applicable Contracts to which Parent and/or Merger Sub is a party.
 
(d)            Any and all Parent Common Stock to be issued to the Entitled Shareholders and/or are otherwise issuable and/or reserved with respect to future issuance in connection with the Contemplated Transactions (including without limitations, those prescribed under Section 1.5), are (or shall be upon issuance) duly authorized and validly issued, are fully paid and nonassessable, and are free of preemptive rights, anti-dilution, right of first refusal and/or any other similar contingency.
 
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3.4            SEC Filings; Financial Statements .
 
(a)            Parent has delivered (or made available on the SEC website) to the Company accurate and complete copies of all registration statements, proxy statements and other statements, reports, schedules, forms and other documents filed by Parent with, and all Parent Certifications (as defined below) filed or furnished by Parent with or to, the SEC since the formation of Parent, including all amendments thereto (collectively, the “ Parent SEC Documents ”).  All statements, reports, schedules, forms and other documents required to have been filed or furnished by Parent with or to the SEC since the formation of Parent have been so filed or furnished on a timely basis.   As of the time it was filed with or furnished to the SEC: (i) each of the Parent SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as the case may be); and (ii) none of the Parent SEC Documents 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, except to the extent corrected by the filing or furnishing of the applicable amending or superseding Parent SEC Document.  Each of the certifications and statements relating to Parent SEC Documents required by: (1) the SEC’s Order dated June 27, 2002 pursuant to Section 21(a)(1) of the Exchange Act (File No. 4-460); (2) Rule 13a-14 or 15d-14 under the Exchange Act; or (3) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act) (collectively, the “ Parent Certifications ”) is accurate and complete, and complied as to form and content with all applicable Legal Requirements in effect at the time such Parent Certification was filed with or furnished to the SEC.
 
(b)            Parent maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act.  Such disclosure controls and procedures are designed to ensure that all material information concerning Parent required to be disclosed by Parent in the reports that it is required to file, submit or furnish under the Exchange Act is recorded, processed, summarized and reported on a timely basis to the individuals responsible for the preparation of such reports.
 
(c)            The financial statements (including any related notes) contained or incorporated by reference in the Parent SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q, Form 8-K or any successor form under the Exchange Act, and except that the unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments that will not, individually or in the aggregate, be material in amount), and (iii) fairly present in all material respects the consolidated financial position of Parent as of the respective dates thereof and the results of operations and cash flows of Parent for the periods covered thereby.
 
(d)            To the knowledge of Parent, Parent’s auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been: (i) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act); (ii) “independent” with respect to Parent within the meaning of Regulation S-X under the Exchange Act; and (iii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder.  All non-audit services (as defined in Section 2(a)(8) of the Sarbanes-Oxley Act) performed by Parent’s auditors for Parent were approved as required by Section 202 of the Sarbanes-Oxley Act.
 
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3.5            Absence of Changes.   Between April 28, 2015 and the date of this Agreement: (a) there has not been any Parent Material Adverse Effect, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Parent Material Adverse Effect; and (b) Parent has not been engaged in any business operations and has not had any products or customers and has not generated any revenues.
 
3.6            Liabilities .  As of the Effective Time, Parent does not have any accrued, contingent or other liabilities.
 
3.7            Absence of Material Assets. As of the Effective Time, Parent does not have any material assets.
 
3.8            Tax Matters .
 
(a)            Each of the Tax Returns required to be filed by or on behalf of Parent with any Governmental Body with respect to any taxable period ending on or before the Closing Date (the “ Parent Returns ”): (i) has been or will be filed on or before the applicable due date (including any extensions of such due date); and (ii) has been, or will be when filed, prepared in all material respects in compliance with all applicable Legal Requirements.  All Taxes of Parent, whether or not shown on the Parent Returns, due on or before the Closing Date, have been or will be paid on or before the Closing Date.
 
(b)            Schedule 3.7(b) sets forth the amount and kind of all unpaid Taxes of Parent as of the Closing (whether or not such Taxes are due or payable) that are attributable to a taxable period or portion thereof occurring prior to the Closing.
 
(c)            Neither Parent nor any Parent Return is currently being (or since April 28, 2015 has been) audited by any Governmental Body.  No extension or waiver of the limitation period applicable to any of the Parent Returns has been granted (by Parent or any other Person), and no such extension or waiver has been requested from Parent.
 
(d)            No claim or Legal Proceeding is pending or, to the knowledge of Parent, has been threatened against or with respect to Parent in respect of any material Tax.  There are no unsatisfied liabilities for material Taxes (including liabilities for interest, additions to tax and penalties thereon and related expenses) with respect to any notice of deficiency or similar document received by Parent with respect to any material Tax (other than liabilities for Taxes asserted under any such notice of deficiency or similar document which are being contested in good faith by Parent and with respect to which adequate reserves for payment have been established on the Parent September 30, 2016 Balance Sheet).
 
(e)            There are no liens for material Taxes upon any of the assets of Parent except liens for current Taxes not yet due and payable.
 
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(f)            Parent has not been, and will not be, required to include any adjustment in taxable income for any tax period (or portion thereof) pursuant to Section 481 or 263A of the Code (or any comparable provision of state or non-U.S. Tax laws) as a result of transactions or events occurring, or accounting methods employed, prior to the Closing.
 
(g)            Schedule 3.7(g) sets forth all jurisdictions in which Parent has filed a Tax Return since December 31, 2015 and the Tax Returns filed in each such jurisdiction.  Parent has delivered or otherwise made available to the Company accurate and complete copies of all Tax Returns of Parent for all Tax years or other relevant periods.
 
(h)            No written claim has ever been received by Parent from any Governmental Body in a jurisdiction where Parent does not file a Tax Return that Parent is or may be subject to taxation by that jurisdiction which has resulted or would reasonably be expected to result in an obligation by Parent to pay material Taxes.
 
(i)            Parent is not now and has never been a member of an “affiliated group of corporations” within the meaning of Section 1504 of the Code.  Parent is not now and has never been a member of any combined, unitary or consolidated or similar group for state, local or non-U.S. Tax purposes or within the meaning of any similar Legal Requirement to which Parent may be subject.
 
(j)            There are no Contracts relating to allocating or sharing of Taxes to which Parent is a party or is otherwise bound.  Parent is not liable for Taxes of any other Person.  Parent is not under any contractual obligation to indemnify any Person with respect to any amounts of such Person’s Taxes.  Parent is not a party to any Contract providing for payments by Parent with respect to any amount of Taxes of any other Person.  For the purposes of this Section 3.7(j), the following Contracts shall be disregarded: (i) commercially reasonable Contracts providing for the allocation or payment of real property Taxes attributable to real property leased or occupied by Parent and (ii) commercially reasonable Contracts for the allocation or payment of personal property Taxes, sales or use Taxes or value added Taxes with respect to personal property leased, used, owned or sold in the ordinary course of business.
 
(k)            Parent has not constituted either a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code.
 
(l)            Parent is not, and never has been, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
 
(m)            Parent has taken no position on any U.S. federal income Tax Return (whether or not such position has been disclosed on any such U.S. federal income Tax Return) that would reasonably be expected to give rise to a material understatement penalty within the meaning of Section 6662 of the Code or any similar Legal Requirement.
 
(n)            Parent is not now participating in and has never participated in a “Listed Transaction” or a “Reportable Transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).
 
(o)            The Merger will be effected for bona fide non-Tax business reasons and will be carried out strictly in accordance with the Agreement.  The terms of the Agreement and all other agreements entered into in connection therewith (the “ Transaction Documents ”) are the product of arm’s length negotiations.  The Transaction Documents represent the entire agreement among the stockholders of the Company (the “ Company Stockholders ”), Parent, Merger Sub and the Company with respect to the Merger, and there are no other written or oral agreements regarding the Merger (or any transaction related thereto) other than those expressly referred to in the Transaction Documents.
 
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(p)            In connection with the Merger, the Company Shareholders will not receive in exchange for Company Capital Stock, directly or indirectly, any consideration other than the Parent Common Stock and cash for fractional shares, if any, received in the Merger.  No shares of Merger Sub have been or will be used as consideration or issued to the Company Shareholders in the Merger.
 
(q)            Neither Parent nor any person related to Parent within the meaning of Treasury Regulation Section 1.368-1(e)(3), (e)(4) and (e)(5) (a “ Parent Related Person ”) has any plan or intention to directly or indirectly purchase, redeem, or otherwise acquire or reacquire, any of the Parent Common Stock that will be issued in exchange for Company Share Capital pursuant to the Merger.  In connection with the Merger, no Parent Related Person and no person acting as an intermediary for Parent or such a Parent Related Person will acquire any of the Parent Common Stock issued in the Merger.
 
(r)            Parent and Merger Sub have paid and will pay only their respective expenses, if any, incurred in connection with or as part of the Merger.
 
(s)            Merger Sub is a newly-formed, wholly-owned subsidiary of Parent that was created for the sole purpose of facilitating the Merger.  Merger Sub has not conducted and is not conducting any business activities, and has had no assets prior to the Effective Time (other than nominal assets contributed upon the formation of Merger Sub, which assets will be treated in accordance with the provisions of Section 323 of the Israeli Companies Law.  Prior to the Effective Time, Parent owns all of the equity interests of Merger Sub, and other than the said equity interests, there are no outstanding obligations regarding the Merger Sub's securities (including without limitations, with respect to any options, warrants, debentures and/or any other commitments and/or contingencies in connection with the Merger Sub's security interests).
 
(t)            Neither Parent nor Merger Sub is an investment company as defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code.
 
(u)            The fair market value of the assets of Parent exceeds and will exceed the sum of its liabilities, plus (without duplication) the amount of liabilities, if any, to which those assets are subject.
 
(v)            Neither Parent nor Merger Sub is or will be under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
 
(w)            Prior to the Effective Time, neither Parent, Merger Sub, nor any of their respective affiliates will take or agree to take any action that would reasonably be likely to prevent the Merger from qualifying as a reorganization under Section 368 of the Code.
 
(x)            Merger Sub will have no liabilities assumed by the Company and will not transfer to the Company any assets subject to liabilities in the Merger.
 
(y)            All Parent Common Stock exchanged in the Merger for Company Share Capital will be voting stock.
 
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(z)            To the knowledge of Parent and Merger Sub without independent verification thereof:
 
(i)            At the Effective Time, the fair market value of the consideration received by each Company Shareholder will be approximately equal to the fair market value of the Company Share Capital surrendered in exchange therefor, and the aggregate consideration received by the Company Shareholders in exchange for their Company Share Capital will be approximately equal to the fair market value of all of the outstanding shares of Company Share Capital immediately prior to the Merger.
 
(ii)            Following the Merger, neither Parent nor any Parent Related Person has any plan or intention to make any dividend or other distribution to the Company Shareholders other than regular, normal dividends or distributions made to all holders of Parent Common Stock.
 
(iii)            The Company Shareholders will surrender their Company Share Capital solely in exchange for the Parent Common Stock to be issued pursuant to the Merger under similar terms and conditions regarding their issuance and/or grant (as applicable), unless otherwise prescribed herein, the SPAs and/or the Assumption Agreement (if applicable).  No liabilities of the Company Shareholders will be assumed by Parent or Merger Sub, nor will any shares of Company Share Capital be acquired subject to any liabilities.
 
(iv)            Parent has no present plan or intention: (A) to liquidate the Company or to merge the Company into another entity; (B) to sell or otherwise dispose of any share in the Company held by Parent except in connection with a transaction described in Section 368(a)(2)(C) of the Code; or (C) to sell or otherwise dispose of, or to cause the Company to sell or otherwise dispose of, any of the Company’s assets (including any of the assets of Merger Sub acquired in the Merger), except for (x) dispositions in connection with a transaction described in Section 368(a)(2)(C) of the Code or (y) dispositions in the ordinary course of business consistent with past practices, provided that, after such dispositions in the ordinary course of business consistent with past practices, the representations set forth in Section 3.7(z)(v) would continue to be accurate.
 
(v)            Parent does not and Parent will not at the Effective Time have a plan or intention to substantially dispose of or discontinue the Company’s trade or business in a manner that would cause the requirements of Treasury Regulation Section 1.368-1(d) to fail to be satisfied.  Following the Merger, Parent, or a member of Parent’s “qualified group,” will continue the Company’s historic business or use a “significant portion” of Company’s “historic business assets” within a business (as such terms are used in Treasury Regulation Section 1.368-1(d)).
 
(vi)            Parent will own all outstanding ownership interests of the Company immediately after the Merger.  Parent has no plan or intention to cause or permit the Company to issue additional ownership interests (including options, warrants and convertible securities) to any person or entity (other than Parent or pursuant to a transaction described in Section 368(a)(2)(C) of the Code).  Immediately after the Merger, the Company will have no outstanding warrants, options, convertible securities or any other type of right pursuant to which any person could acquire interests in the Company that, if exercised or converted, would result in Parent losing control of the Company within the meaning of Section 368(c) of the Code.
 
(vii)            Neither Parent nor Merger Sub has any plan or intention to sell or otherwise dispose of any of the assets of the Company acquired in the Merger, except for dispositions made in the ordinary course of business or transfers described in Section 368(a)(2)(C) of the Code.  Parent has no plan or intention to sell or otherwise dispose of any equity interest in the Company, except for a transfer (or successive transfers) of at least 80% of the equity of the Company to a corporation controlled (within the meaning of Section 368(c) of the Code) in each case by the transferor corporation.
 
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3.9            Employee and Labor Matters; Benefit Plans .
 
(a)            Parent is not a party to or bound by, and never has been a party to or bound by, any union contract, collective bargaining agreement or similar Contract.
 
(b)            Parent is not, nor ever has been, engaged in any unfair labor practice of any nature.  There has never been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting Parent or any of its employees.  There is not now pending, and no Person has threatened to commence, any such slowdown, work stoppage, labor dispute or union organizing activity or any similar activity or dispute.  No event has occurred, and no condition or circumstance exists, that might directly or indirectly give rise to or provide a basis for the commencement of any such slowdown, work stoppage, labor dispute or union organizing activity or any similar activity or dispute.  There are no actions, suits, claims, labor disputes or grievances pending or, to the knowledge of Parent, threatened or reasonably anticipated relating to any labor, safety or discrimination matters involving any employee of Parent, including charges of unfair labor practices or discrimination complaints
 
(c)            Parent does not intend, nor has it agreed or committed, to (i) establish or enter into any new Parent Employee Plan or Parent Employee Agreement, or (ii) modify or terminate any Parent Employee Plan or Parent Employee Agreement (except to conform any such Parent Employee Plan or Parent Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to the Company in writing).
 
(d)            Parent has made available to the Company accurate and complete copies of:  (i) all documents embodying or setting forth the terms of each Parent Employee Plan and each Parent Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA, the Code or any other applicable Legal Requirement in connection with each Parent Employee Plan; (iii) for each Parent Employee Plan that is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Parent Employee Plan assets; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA with respect to each Parent Employee Plan; (v) all material written Contracts relating to each Parent Employee Plan, including administrative service agreements and group insurance contracts; (vi) all written materials provided to any Parent Associate relating to any Parent Employee Plan and any proposed Parent Employee Plan, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events that would result in any liability to Parent or any Parent Affiliate; (vii) all correspondence to or from any Governmental Body relating to any Parent Employee Plan; (viii) all COBRA forms and related notices; (ix) all insurance policies pertaining to fiduciary liability insurance covering the fiduciaries for each Parent Employee Plan; (x) all non-discrimination test reports and summaries for each Parent Employee Plan for the three most recent plan years; and (xi) the most recent IRS determination or opinion letter issued with respect to each Parent Employee Plan intended to be qualified under Section 401(a) of the Code.
 
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(e)            Parent and each Parent Affiliate have performed all material obligations required to be performed by them under each Parent Employee Plan and Parent Employee Agreement.  Neither Parent nor any Parent Affiliate is in default or violation of, and Parent has no knowledge of any default or violation by any other party to, the terms of any Parent Employee Plan or Parent Employee Agreement.  Each Parent Employee Plan and Parent Employee Agreement has been established and maintained substantially in accordance with its terms and in substantial compliance with all applicable Legal Requirements, including ERISA and the Code.  Any Parent Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and incorporates or has been amended to incorporate all provisions required to comply with the Tax Reform Act of 1986 and all subsequent legislation and/or any other rules and regulations applicable in this respect.  For each Parent Employee Plan that is intended to be qualified under Section 401(a) of the Code, there has been no event, condition or circumstance that has adversely affected or is likely to adversely affect its tax-qualified status.  No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, that is not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Parent Employee Plan.  There are no claims or Legal Proceedings pending, or, to the best knowledge of Parent, threatened or reasonably anticipated (other than routine claims for benefits), against any Parent Employee Plan or against the assets of any Parent Employee Plan.  Each Parent Employee Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to the Company, Parent or any Parent Affiliate (other than ordinary administration expenses), subject to applicable Legal Requirements.  There are no audits, inquiries or Legal Proceedings pending or, to the knowledge of Parent, threatened by the IRS, the DOL, or any other Governmental Body with respect to any Parent Employee Plan or Parent Employee Agreement.  Neither Parent nor any Parent Affiliate has ever incurred any penalty or tax with respect to any Parent Employee Plan under Section 502(i) of ERISA, under Sections 4975 through 4980 of the Code or under any other applicable Legal Requirement.  Parent and each Parent Affiliate have timely made all contributions and other payments required by and due under the terms of each Parent Employee Plan and Parent Employee Agreement.
 
(f)            Each Contract to which Parent is a party or is otherwise bound with any individual or entity that is a "nonqualified deferred compensation plan" subject to Section 409A of the Code has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code.  No stock right (as defined in U.S. Treasury Department regulation 1.409A-1(l)) has been granted to any Parent Associate that (i) has an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted, as determined by the board of directors of Parent in good faith, (ii) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights, or (iii) has been granted after December 31, 2004, with respect to any class of stock that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A of the Code).  No compensation payable by Parent or any of the Parent Affiliates shall be or has been reportable as nonqualified deferred compensation in the gross income of any individual or entity as a result of the operation of Section 409A of the Code.
 
(g)            Neither Parent nor any Parent Affiliate has ever maintained, established, sponsored, participated in, or contributed to any: (i) Parent Pension Plan, including but not limited to, a plan which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) Parent Pension Plan in which stock of Parent or any Parent Affiliate is or was held as a plan asset, (iv) multiple employer plan or to any plan described in Section 413 of the Code; or (vi) self-insured plan that provides benefits to employees (including any such plan pursuant to which a stop-loss policy or contract applies).
 
(h)            Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in connection with any other event, including any termination of employment or service) will (i) result in any payment (including severance, golden parachute, bonus or otherwise), becoming due to any Parent Associate under any Parent Employee Plan or Parent Employee Agreement, (ii) result in any forgiveness of indebtedness, (iii) materially increase any benefits otherwise payable by Parent under any Parent Employee Plan or Parent Employee Agreement, (iv) result in the acceleration of the time of payment or vesting of any such benefits except as required under Section 411(d)(3) of the Code or (v) be reasonably likely to result in any payment to any Parent Associate being non-deductible by virtue of Section 280G or Section 4999 of the Code.  No Parent Employee Plan or Parent Employee Agreement gives rise to any potential “excess parachute payments” (within the meaning of Section 280G of the Code) payable Parent in connection with the transactions contemplated by this Agreement, either as a result of the transactions contemplated by this Agreement or in conjunction with any other event.
 
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(i)            No Parent Employee Plan provides (except at no cost to Parent or any Parent Affiliate), or reflects or represents any liability of any of Parent or any Parent Affiliate to provide, retiree life insurance, retiree health benefits or other retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements.  Other than commitments made that involve no future costs to Parent or any Parent Affiliate, neither Parent nor any Parent Affiliate, has ever represented, promised or contracted (whether in oral or written form) to any Parent Employee (either individually or to Parent Employees as a group) or any other Person that any such Parent Employee or other Person would be provided with retiree life insurance, retiree health benefits or other retiree employee welfare benefits, except to the extent required by applicable Legal Requirements.
 
(j)            Except as expressly required or provided by this Agreement, neither the execution or delivery of this Agreement nor the consummation of any of the Contemplated Transactions will (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Parent Employee Plan, Parent Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration of any right, obligation or benefit, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Parent Employee.
 
(k)            Neither Parent nor any Parent Affiliate: (i) has violated or otherwise failed to comply with any Legal Requirement respecting employment, employment practices, terms and conditions of employment or wages and hours, including the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of HIPAA and the provisions of any similar Legal Requirement; (ii) has failed to withhold or report any amounts required by applicable Legal Requirements or by Contract to be withheld or reported with respect to wages, salaries and other payments to Parent Employees; (iii) is liable for any arrears of wages or any taxes or any penalty for failure to comply with the Legal Requirements applicable to any of the foregoing; and (iv) is liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security or other benefits or obligations for Parent Employees (other than routine payments to be made in the normal course of business and consistent with past practice).  There are no pending or, to the knowledge of Parent, threatened or reasonably anticipated claims or Legal Proceedings against Parent or any Parent Affiliate under any worker’s compensation policy or long-term disability policy.
 
(l)            To the knowledge of Parent, no stockholder of Parent, and no current Parent Associate, is obligated under any Contract or subject to any Order that would interfere with such Person’s efforts to promote the interests of Parent or that would interfere with the businesses of Parent or any Parent Affiliate.  Neither the execution nor the delivery of this Agreement, nor the carrying on of the business of Parent or any Parent Affiliate as presently conducted nor any activity of such stockholder or current Parent Associate in connection with the carrying on of the business of Parent or any Parent Affiliate as presently conducted will, to the knowledge of Parent, conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default under, any Contract under which any of such stockholders or current Parent Associate has any rights or obligations.
 
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3.10            Legal Proceedings; Orders .
 
(a)            There is no pending Legal Proceeding, and (to the best knowledge of Parent) no Person has threatened to commence any Legal Proceeding: (i) that involves Parent and/or the Merger Sub, any business of Parent and/or the Merger Sub or any of the assets owned, leased or used by Parent and/or Merger Sub; or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Merger or any of the other Contemplated Transactions.  To the best knowledge of Parent, no event has occurred, and no claim, dispute or other condition or circumstance exists, that would reasonably be expected to give rise to or serve as a basis for the commencement of any Legal Proceeding of the type described in clause “(i)” or clause “(ii)” of the first sentence of this Section 3.10(a).
 
(b)            There is no Order to which Parent and/or the Merger Sub, or any of the assets owned or used by them, is subject.  To the best knowledge of Parent, no officer or other key employee of Parent is subject to any Order that prohibits such officer or other employee from engaging in or continuing any conduct, activity or practice relating to the business of Parent.
 
3.11            Authority; Binding Nature of Agreement .  Subject to obtaining the Required Parent Stockholder Vote (as defined in Section 3.12) and the vote of Parent as the sole stockholder of Merger Sub with respect to the Merger, each of Parent and Merger Sub has the corporate right, power and authority to enter into and to perform its obligations under this Agreement.  The board of directors of Parent (acting by written consent) as of the date of this Agreement has: (a) unanimously determined that the issuance of Parent Common Stock in the Merger and filing of the Parent Restated Charter are advisable and fair to, and in the best interests of, Parent and its stockholders; (b) unanimously authorized and approved the execution, delivery and performance of this Agreement by Parent and unanimously approved the Merger and the filing of the Parent Restated Charter; and (c) unanimously recommended the approval of the issuance of Parent Common Stock in the Merger and the Parent Restated Charter by the holders of Parent Common Stock and directed that the issuance of Parent Common Stock in the Merger be submitted for consideration by Parent’s stockholders. The board of directors of Merger Sub (by unanimous written consent) has: (i) unanimously determined that the Merger is advisable and fair to, and in the best interests of, Merger Sub and its stockholder; (ii) unanimously authorized and approved the execution, delivery and performance of this Agreement by Merger Sub and unanimously approved the Merger; and (iii) unanimously recommended the adoption of this Agreement by the stockholder of Merger Sub and directed that this Agreement and the Merger be submitted for consideration by the stockholder of Merger Sub.  This Agreement constitutes the legal, valid and binding obligation of Parent and Merger Sub, enforceable against them in accordance with its terms, subject to: (A) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (B) rules of law governing specific performance, injunctive relief and other equitable remedies.
 
3.12            Vote Required .  The only vote of Parent’s stockholders required to approve the filing of the Parent Restated Charter is the affirmative vote of a majority of the outstanding shares of Common Stock of Parent (collectively, the “ Required Parent Stockholder Vote ”), which has been obtained on or prior to the date hereof.
 
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3.13            Non-Contravention; Consents .   Neither (1) the execution, delivery or performance of this Agreement, nor (2) the consummation of the Merger or any of the other Contemplated Transactions will directly or indirectly (with or without notice or lapse of time):
 
(a)            contravene, conflict with or result in a violation of: (i) any of the provisions of the certificate of incorporation or bylaws of Parent or Merger Sub; or (ii) any resolution adopted by the stockholders, the board of directors or any committee of the board of directors of Parent or Merger Sub;
 
(b)            contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge the Merger or any of the other Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any Order to which Parent, or any of the assets owned or used by Parent, is subject;
 
(c)            contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by Parent or that otherwise relates to the business of Parent or to any of the assets owned or used by Parent (including the Merger Sub);
 
(d)            contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any material Contract to which Parent is a party or by which it is otherwise bound, or give any Person the right to:  (i) declare a default or exercise any remedy under any such material Contract; (ii) a rebate, chargeback, penalty or change in delivery schedule under any such material Contract; (iii) accelerate the maturity or performance of any such material Contract; or (iv) cancel, terminate or modify any right, benefit, obligation or other term of such material Contract; or
 
(e)            result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by Parent (except for minor liens that will not, in any case or in the aggregate, materially detract from the value of the assets subject thereto).
 
Except as may be required by the Securities Act, Exchange Act, the DGCL and the Israeli Companies Law, neither Parent nor Merger Sub was, is or will be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection with: (x) the execution, delivery or performance of this Agreement; or (y) the consummation of the Merger or any of the other Contemplated Transactions.

3.14            Financial Advisor .  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Merger or any of the other Contemplated Transactions based upon arrangements made by or on behalf of Parent.
 
3.15            Valid Issuance .  The Parent Common Stock to be issued in the Merger, including the Parent Common Stock to be issued upon the exercise of assumed and converted Company Options and Company Warrants, has been duly authorized and will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable and will not be subject to any restriction on resale under the Securities Act, other than restrictions imposed on affiliates of Parent by Rule 144 under the Securities Act.
 
3.16            Shell Status; Voluntary Filer Status .  As of the Effective Time: (i) Parent is a “shell” company as defined in Rule 12b-2 of the Exchange Act, and (ii) Parent’s reporting obligations under the Exchange Act have been automatically suspended pursuant to Section 15(d) of the Exchange Act effective June 30, 2016, and Parent has been voluntarily making periodic reports and other filings with the Commission for periods after July 1, 2016.
 
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SECTION 4.            CERTAINCOVENANTS OF THE PARTIES   
 
4.1            Company Shareholders Approval .  Immediately following the execution and delivery of this Agreement, the Company shall solicit and obtain, to the extent required to give force to the Merger and/or any Contemplated Transactions herein under the Israeli Companies Law (and to the extent not already obtained) the Required Company Shareholders Vote for purposes of, adopting this Agreement and approving the Merger, and all other Contemplated Transactions applicable to the Company.
 
SECTION 5.            MISCELLANEOUS PROVISIONS
 
5.1            Amendment .  This Agreement may be amended only by an instrument in writing signed on behalf of each Parent and the Company.
 
5.2            Waiver .
 
(a)            Subject to Sections 5.2(b) and 5.2(c), any party hereto may: (i) extend the time for the performance of any of the obligations or other acts of the other parties to this Agreement; (ii) waive any inaccuracy in or breach of any representation, warranty, covenant or obligation of the other party in this Agreement or in any document delivered pursuant to this Agreement; and (iii) waive compliance with any covenant, obligation or condition for the benefit of such party contained in this Agreement.
 
(b)            No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
 
(c)            No party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
 
5.3            No Survival of Representations and Warranties .  None of the representations and warranties contained in this Agreement shall survive the Merger.
 
5.4            Entire Agreement; Counterparts; Exchanges by Facsimile or Electronic Delivery .  This Agreement and the other agreements and exhibits referred to herein constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.  This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery shall be sufficient to bind the parties to the terms and conditions of this Agreement.
 
5.5            Applicable Law; Jurisdiction .  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.  In any action between any of the parties arising out of or relating to this Agreement or any of the Contemplated Transactions each of the parties irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the competent courts of Tel-Aviv, Israel.
 
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5.6            Expenses .   All fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Merger is consummated.
 
5.7            Attorneys’ Fees .  In any action at law or suit in equity to enforce this Agreement or the rights of any of the parties hereunder, the prevailing party in such action or suit shall be entitled to receive a reasonable sum for its attorneys’ fees and all other reasonable costs and expenses incurred in such action or suit.
 
5.8            Assignability; No Third Party Rights .  This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any party’s rights or obligations hereunder may be assigned or delegated by such party without the prior written consent of the other parties, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by any party without the prior written consent of the other parties shall be void and of no effect.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
 
5.9            Notices .  All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon receipt; (b) if sent by nationally recognized overnight air courier (such as DHL or Federal Express), two business days after sending; (c) if sent by facsimile transmission before 5:00 p.m., when transmitted and receipt is confirmed; (d) if sent by facsimile transmission after 5:00 p.m. and receipt is confirmed, on the following business day; and (e) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:
 
if to Parent or Merger Sub:
 
AIT Therapeutics, Inc.
26716 Via Colina
Stevenson Ranch, CA  91381
Attention:  Jason Lane
Facsimile:  N/A
Email:  jlane315@gmail.com

with a copy (which shall not constitute notice) to:

Wilson & Oskam, LLP
9110 Irvine Center Drive
Irvine, CA  92618
Attention: Gilbert J. Bradshaw
Facsimile: (917) 791-8877
Email:  gbradshaw@wilsonoskam.com

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if to the Company:
 
Advanced Inhalation Therapies (AIT) Ltd.
2 Derech Meir Weisgal
Rehovot, 7632605 Israel
Attention:  President & Chief Executive Officer
Facsimile:  N/A
Email:  amir@ait-pharm.com

with a copy (which shall not constitute notice) to:

Law Offices of Craig V. Butler
300 Spectrum Center Drive, Suite 300
Irvine, California 92618
Attention:  Craig V. Butler
Facsimile:  (949) 209-2545
E-mail: cbutler@craigbutlerlaw.com

5.10            Cooperation .  Each party hereto agrees to cooperate fully with each other party hereto to consummate the transactions contemplated herein and to execute and deliver such further documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested by the other party to evidence or reflect the Contemplated Transactions and to carry out the intent and purposes of this Agreement.
 
5.11            Severability.   Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.  If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified.  In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
 
5.12            Construction .
 
(a)            For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.
 
(b)            The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
 
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(c)            As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
 
(d)            Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.
 
(e)            The bold-faced headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
 
[Remainder of page intentionally left blank]
 
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IN WITNESS WHEREOF , the parties have caused this Agreement to be executed as of the date first above written.
 
 
Ait Therapeutics, Inc.
 
By:      _________________________________              
Name:
Title:
 
Red Maple Ltd.
 
By:      _________________________________
Name:
Title:
 
Advanced Inhalation Therapies (AIT) Ltd.
 
By:      _________________________________
Name:
Title:

Merger Agreement Signature Page
 
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EXHIBIT A
 
CERTAIN DEFINITIONS
 
For purposes of the Agreement (including this Exhibit A):
 
Agreement .  “Agreement” shall mean the Agreement and Plan of Merger and Reorganization to which this Exhibit A is attached, as it may be amended from time to time.
 
COBRA.   COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
 
Code. “Code” shall mean the United States Internal Revenue Code of 1986, as amended.
 
Company Ordinary Shares .  “Company Ordinary Shares” shall mean the Ordinary Shares of a nominal value of NIS 0.01 par value per share, of the Company.
 
Company Material Adverse Effect .  “Company Material Adverse Effect” shall mean any effect, change, event or circumstance (each, an “ Effect ”) that, considered together with all other Effects, has a material adverse effect on: (a) the business, financial condition, operations or results of operations of the Company taken as a whole; provided, however , that, in no event shall any of the following, alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has occurred, a Company Material Adverse Effect: Effects resulting from (i) conditions generally affecting the industries in which the Company participates or the U.S., Israel, or global economy or capital markets as a whole, to the extent that such conditions do not have a disproportionate impact on the Company; (ii) any failure by the Company to meet internal projections or forecasts or third party revenue or earnings predictions for any period ending (or for which revenues or earnings are released) on or after the date of the Agreement (it being understood, however, that any Effect causing or contributing to such failures to meet projections or predictions may constitute a Company Material Adverse Effect and may be taken into account in determining whether a Company Material Adverse Effect has occurred); (iii) the execution, delivery, announcement or performance of the obligations under this Agreement or the announcement, pendency or anticipated consummation of the Merger; (iv) any natural disaster or any acts of terrorism, sabotage, military action or war or any escalation or worsening thereof; (v) any changes (after the date of this Agreement) in GAAP or applicable Legal Requirements; and (vi) the taking of any action required by this Agreement; (b) the ability of the Company to consummate the Merger or to perform any of its covenants or obligations under the Agreement; or (c) Parent’s ability to vote, transfer, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation.
 
Company Option Plan.  “Company Option Plan” shall mean, collectively, the Advanced Inhalation Therapies (AIT) Ltd. 2013 Incentive Option Plan .
 
Company Options.  “Company Options” shall mean options to purchase shares of Company Common Stock from the Company (whether granted by the Company pursuant to a stock option plan, assumed by the Company or otherwise).
 
Company Preferred Shares.   “Company Preferred Shares” shall mean the Preferred A Shares, nominal value NIS 0.01 per share, of the Company.
 
Consent .  “Consent” shall mean any approval, consent, ratification, permission, waiver or authorization (including any Governmental Authorization).
 

Contemplated Transactions.  “ Contemplated Transactions” shall mean the Merger and the other transactions contemplated by the Agreement.
 
Contract .  “Contract” shall mean any written, oral or other agreement, contract, subcontract, lease, understanding, arrangement, instrument, note, option, warranty, purchase order, license, sublicense, insurance policy, benefit plan or legally binding commitment or undertaking of any nature.
 
DGCL.  “DGCL” shall mean the Delaware General Corporation Law.
 
DOL.  “DOL” shall mean the United States Department of Labor.
 
Encumbrance .  “Encumbrance” shall mean any lien, pledge, hypothecation, charge, mortgage, easement, encroachment, imperfection of title, title exception, title defect, right of possession, lease, tenancy license, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).
 
Entity.   “Entity” shall mean any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity.
 
ERISA .  “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
 
Exchange Act .  “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
 
GAAP.  “GAAP” shall mean generally accepted accounting principles in the United States.
 
Governmental Authorization .  “Governmental Authorization” shall mean any:  (a) permit, license, certificate, franchise, permission, variance, clearance, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement; or (b) right under any Contract with any Governmental Body.
 
Governmental Body .  “Governmental Body” shall mean any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or Entity and any court or other tribunal); or (d) self-regulatory organization.
 
IRS.  “IRS” shall mean the United States Internal Revenue Service.
 
Israeli Companies Law. “Israeli Companies Law” shall mean Israeli Companies Law, 1999.
 
Legal Proceeding .  “Legal Proceeding” shall mean any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel.
 
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Legal Requirement .  “Legal Requirement” shall mean any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, order, award, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body.
 
Order. “Order” shall mean any order, writ, injunction, judgment or decree.
 
Parent Affiliate .  “Parent Affiliate” shall mean any Person under common control with Parent or required to be aggregated with Parent within the meaning of Section 414(b), Section 414(c), Section 414(m) or Section 414(o) of the Code, and the regulations issued thereunder.
 
Parent Associate.   “Parent Associate” shall mean any current or former officer or other employee, or current or former independent contractor, consultant or director, of or to Parent or any Parent Affiliate.
 
Parent Common Stock .  “Parent Common Stock” shall mean the Common Stock, $0.0001 par value per share, of Parent.
 
Parent Employee.   “Parent Employee” shall mean any director or any officer or other employee of any of Parent.
 
Parent Employee Agreement. “Parent Employee Agreement” shall mean any management, employment, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or expatriation agreement or other similar Contract between: (a) Parent or any Parent Affiliate; and (b) any Parent Associate, other than any such Contract that is terminable “at will” (or following a notice period imposed by applicable law) without any obligation on the part of Parent or any Parent Affiliate to make any severance, termination, change in control or similar payment or to provide any benefit, other than severance payments required to be made by Parent under applicable foreign law.
 
Parent Employee Plan.  “Parent Employee Plan” shall mean any plan, program, policy, practice or Contract providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits, retirement benefits or other benefits or remuneration of any kind, whether or not in writing and whether or not funded, including each “employee benefit plan,” within the meaning of Section 3(3) of ERISA (whether or not ERISA is applicable to such plan): (a) that is or has been maintained or contributed to, or required to be maintained or contributed to, by Parent or any Parent Affiliate for the benefit of any Parent Associate; or (b) with respect to which Parent or any Parent Affiliate has or may incur or become subject to any liability or obligation; provided, however, that a Parent Employee Agreement shall not be considered a Parent Employee Plan.
 
Parent Material Adverse Effect.  “Parent Material Adverse Effect” shall mean any Effect that, considered together with all other Effects, has a material adverse effect on: (a) the business, financial condition, operations or results of operations of Parent taken as a whole; provided, however , that, in no event shall any of the following, alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has occurred, a Parent Material Adverse Effect: Effects resulting (i) from conditions generally affecting the industries in which Parent participates or the U.S. or global economy or capital markets as a whole, to the extent that such conditions do not have a disproportionate impact on Parent; (ii) changes in the trading price or trading volume of Parent Common Stock (it being understood, however, that any Effect causing or contributing to such changes in the trading price or trading volume of Parent Common Stock may constitute a Parent Material Adverse Effect and may be taken into account in determining whether a Parent Material Adverse Effect has occurred); (iii) any failure by Parent to meet internal projections or forecasts or third party revenue or earnings predictions for any period ending (or for which revenues or earnings are released) on or after the date of the Agreement (it being understood, however, that any Effect causing or contributing to such failures to meet projections or predictions may constitute a Parent Material Adverse Effect and may be taken into account in determining whether a Parent Material Adverse Effect has occurred); (iv) the execution, delivery, announcement or performance of the obligations under this Agreement or the announcement, pendency or anticipated consummation of the Merger; (v) any natural disaster or any acts of terrorism, sabotage, military action or war or any escalation or worsening thereof; (vi) any changes (after the date of this Agreement) in GAAP or applicable Legal Requirements; and (vii) the taking of any action required by this Agreement; or (b) the ability of Parent or Merger Sub to consummate the Merger or to perform any of its covenants or obligations under the Agreement.
 
A - 3

Parent Pension Plan.   “Parent Pension Plan” shall mean each: (a) Parent Employee Plan that is an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA; or (b) other occupational pension plan, including any final salary or money purchase plan.
 
Person.   “Person” shall mean any individual, Entity or Governmental Body.
 
Sarbanes-Oxley Act .  “Sarbanes-Oxley Act” shall mean the Sarbanes-Oxley Act of 2002, as it may be amended from time to time.
 
SEC .  “SEC” shall mean the United States Securities and Exchange Commission.
 
Securities Act .  “Securities Act” shall mean the Securities Act of 1933, as amended.
 
Share Capital .  “Share Capital” shall mean (i) with respect to the Company: the Company's Ordinary Shares and the Company Preferred Shares, and (ii) with respect to the Merger Sub: the Merger Sub's Ordinary Shares.
 
Subsidiary .  An Entity shall be deemed to be a “Subsidiary” of another Person if such Person directly or indirectly owns or purports to own, beneficially or of record: (a) an amount of voting securities of or other interests in such Entity that is sufficient to enable such Person to elect at least a majority of the members of such Entity’s board of directors or other governing body; or (b) at least 50% of the outstanding equity, voting or financial interests in such Entity.
 
Tax. “Tax” shall mean any U.S. federal, state, local or non-U.S. tax (including any income tax, franchise tax, capital gains tax, gross receipts tax, value-added tax, surtax, estimated tax, unemployment tax, national health insurance tax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax, payroll tax, tariff or duty including any customs duty) and any related charge or amount (including any fine, penalty or interest), imposed, assessed or collected by or under the authority of any Governmental Body.

Tax Return .  “Tax Return” shall mean any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information, and any amendment or supplement to any of the foregoing, filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.
 
Treasury Regulation .  “Treasury Regulation” shall mean a regulation issued pursuant to the Code.
 
Unvested Company Ordinary Shares.  “Unvested Company Ordinary Shares” shall mean any Ordinary Shares of the Company that are not vested under the terms of any Contract with the Company (including any stock option agreement or stock option exercise agreement or restricted stock purchase agreement).
 
 
A - 4

 
EXHIBIT B

PARENT RESTATED CHARTER



EXHIBIT C

POST-EFFECTIVE TIME OFFICERS & DIRECTORS OF PARENT

 
Position
Name
Chief Executive Officer
Amir Avniel
Chief Financial Officer
Amir Avniel
Secretary
David Grossman
Chairman of the Board
Ron Bentzur
Member of Board of Directors
Dr. Jerome B. Zeldis
Member of Board of Directors
David Grossman
Member of Board of Directors
Amir Avniel
Member of Board of Directors
Prof. Yossef Av-Gay
Member of Board of Directors
Ari Raved
Member of Board of Directors
Steven Lisi


EXHIBIT D

COMPANY WRITTEN CONSENT



EXHIBIT E

MERGER SUB WRITTEN CONSENT



EXHIBIT F

ASSUMPTION AGREEMENT
 


 
Exhibit 2.2


AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
 
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “ Amendment ”) is made and entered into as of January 12, 2017, by and between AIT THERAPEUTICS, INC. , a Delaware corporation (“ Parent ”), and ADVANCED INHALATION THERAPIES (AIT) Ltd. , an Israeli corporation (the “ Company ”) .  Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Merger Agreement (as defined below).
 
Recitals
 
WHEREAS, Parent, Red Maple Ltd. . , an Israeli corporation and a wholly-owned subsidiary of Parent (“ Merger Sub ”) and Company are parties to that certain Agreement and Plan of Merger and Reorganization dated December 29, 2016 (the “ Merger Agreement ”), relating to a merger transaction between the parties as set forth in the Merger Agreement; and
 
WHEREAS, on December 29, 2016 Merger Sub and the Company merged, said merger being completed in Israel on December 29, 2016; and
 
WHEREAS, it was contemplated that the Closing of the transactions contemplated under the Merger Agreement would occur in connection with the closing of approximately $10 Million in financing from a number of investors (the “ Financing ”) investing pursuant to the terms of a Securities Purchase and Registration Rights Agreement dated December 29, 2016 (the “ SPA ”), as amended to extend the termination date to January 13, 2017, by and among the Company and such investors; and
 
WHEREAS, the parties to the Merger Agreement agreed to close the Merger on January 9, 2017, on the mistaken belief that at least $10 Million of the Financing had or would arrive into the escrow account contemplated SPAs on or before, and the closing of the Financing under the SPA (the “ Financing Closing ”), would occur on January 9, 2017; and
 
WHEREAS, the parties have discovered that due to certain conditions, the entire amount of the Financing was not in escrow by, and the Financing Closing did not occur on, January 9, 2017; and
 
WHEREAS, under Section 1.3 of the Merger Agreement, the Closing Date was to occur only upon the “consummation of the Contemplated Transactions” and the Effective Time was once all parties have transferred all deliverables required in the Merger Agreement; and
 
WHEREAS, under the Merger Agreement the Contemplated Transactions are “the Merger and the other transactions contemplated by this Agreement”; and
 
WHEREAS, under Section 1.11 of the Merger Agreement, if, at any time after the Effective Time, any further action is determined by Parent or Company “to be necessary or desirable to carry out the purposes of this Agreement … the officers and directors of the [Company] and Parent shall be fully authorized (in the name of Merger Sub, in the name of the Company and otherwise) to take such action”; and
 
WHEREAS, due to the mistake in when a minimum of $10 Million of the Financing would be in the escrow account under the SPA and the Financing Closing would occur and in order to consummate the Contemplated Transactions of the parties to the Merger Agreement, namely the receipt of the full amount of the Financing prior to Closing, the parties to the Merger Agreement desire to amend the Merger Agreement to extend the Closing Date and the Effective Time until the time that is one hour after Financing totaling at least $10 Million has arrived in the escrow account contemplated by the SPAs, but in no event later than 5pm Eastern Time on Friday, January 13, 2017.
 

Agreement
 
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to the Merger Agreement hereby agree as follows:
 
1.            The parties agree to modify the terms of the Merger Agreement as necessary to amend the obligations of the parties related to the Closing Date and the Effective Time (as defined in the Merger Agreement) under the Agreement.  The Parties hereby agree and amend the Merger Agreement as necessary to extend the Closing Date and the Effective Time under the Merger Agreement (for all purposes other than the merger of Merger Sub and the Company) until the time that is immediately following the Financing Closing, but in no event later than 5pm Eastern Time on Friday, January 13, 2017, while the parties hereto acknowledge that the merger of Merger Sub and the Company became effective on December 29, 2016.  The parties hereby acknowledge that, by virtue of this Amendment, each share of common stock of the Company issued in the Financing at the Financing Closing shall automatically be converted into one share of Parent Common Stock pursuant to Section 1.5(a) of the Merger Agreement, and each warrant to purchase shares of common stock of the Company issued in the Financing at the Financing Closing, shall be assumed by Parent and converted into a warrant to purchase Parent Common Stock s pursuant to Section 1.5(e) of the Merger Agreement.

2.            This Amendment is being made pursuant to Section 5.1 of the Merger Agreement.
 
3.            Scope .  This Amendment relates only to the specific matters expressly covered herein.  In all other respects, the Merger Agreement shall remain in full force and effect in accordance with its terms.
 
4.            Counterparts .  This Amendment may be executed in one or more counterparts, each of which when executed shall be deemed an original, but all of which taken together shall constitute one and the same instrument.  A signed copy of this Amendment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.  No party shall raise the use of facsimile, e-mail or other means of electronic transmission or similar format to deliver a signature page as a defense to the formation of a contract and each such party forever waives any such defense.
 
5.            Applicable Law; Jurisdiction .  This Amendment shall be governed by, and construed in accordance with, the laws of the State of Israel, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.  In any action between any of the parties arising out of or relating to this Amendment each of the parties irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the competent courts of Tel-Aviv, Israel.
 
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IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this Amendment No. 1 to the Merger Agreement as of the date first above written.
 
AIT THERAPEUTICS, INC.
 
By:______________________________           
      Name:  Jason Lane                 
      Title:  Chief Executive Officer    
ADVANCED INHALATION THERAPIES LTD.
 
By:______________________________
      Name:  Amir Avniel
      Title:  President and CEO
          
Signature Page to Amendment No. 1 to Merger Agreement
 


 
             








Exhibit 2.3
 
 
 
 
 


Exhibit 3.1

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AIT THERAPEUTICS, INC.
 
Jason Lane hereby certifies that:
 
ONE:            The original name of this company is KokiCare, Inc. and the date of filing the original Certificate of Incorporation of this company with the Secretary of State of the State of Delaware was April 28, 2015.
 
TWO:            He   is the duly elected and acting President and Chief Executive Officer of AIT Therapeutics, Inc., a Delaware corporation.
 
THREE:            The Certificate of Incorporation of this company is hereby amended and restated to read as follows:
 
I.
 
The name of this company is AIT THERAPEUTICS, INC . (the “ Company ” or the “ Corporation ”).
 
II.
 
The address of the registered office of this Corporation in the State of Delaware is 919 N. Market St., Suite 425, Wilmington, Delaware 19801, and the name of the registered agent of this Corporation in the State of Delaware at such address is InCorp Services, Inc.
 
III.
 
The purpose of this Company is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law (“ DGCL ”).
 
IV.
 
A.            This Company is authorized to issue two classes of stock to be designated, respectively, “ Common Stock ” and “ Preferred Stock .” The total number of shares which the Company is authorized to issue is 110,000,000 shares. 100,000,000 shares shall be Common Stock, each having a par value of one-hundredth of one cent ($0.0001). 10,000,000 shares shall be Preferred Stock, each having a par value of one-hundredth of one cent ($0.0001).
 
B.            The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby expressly authorized to provide for the issue of all of any of the shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such shares and as may be permitted by the DGCL. The Board of Directors is also expressly authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the stock of the corporation entitled to vote thereon, without a separate vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any certificate of designation filed with respect to any series of Preferred Stock.
 

C.            Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the corporation for their vote; provided, however , that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon by law or pursuant to this Amended and Restated Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock).
 
V.
 
For the management of the business and for the conduct of the affairs of the Company, and in further definition, limitation and regulation of the powers of the Company, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that:
 
A.            MANAGEMENT OF BUSINESS . The management of the business and the conduct of the affairs of the Company shall be vested in its Board of Directors. The number of directors which shall constitute the Board of Directors shall be fixed exclusively by resolutions adopted by a majority of the authorized number of directors constituting the Board of Directors.
 
B.            BOARD OF DIRECTORS
 
1.            Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, directors shall be elected at each annual meeting of stockholders for a term of one year.  Each director shall serve until his successor is duly elected and qualified or until his earlier death, resignation or removal.  No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
 
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2.            No stockholder entitled to vote at an election for directors may cumulate votes to which such stockholder is entitled, unless required by applicable law at the time of such election. During such time or times that applicable law requires cumulative voting, every stockholder entitled to vote at an election for directors may cumulate such stockholder’s votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which such stockholder’s shares are otherwise entitled, or distribute the stockholder’s votes on the same principle among as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholder’s votes unless (a) the names of such candidate or candidates have been placed in nomination prior to the voting and (b) the stockholder has given notice at the meeting, prior to the voting, of such stockholder’s intention to cumulate such stockholder’s votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting, the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected.
 
Notwithstanding the foregoing provisions of this section, each director shall serve until their successor is duly elected and qualified or until their earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
 
C.            REMOVAL OF DIRECTORS. Subject to any limitations imposed by applicable law, removal shall be as provided in Section 141(k) of the DGCL.
 
D.            VACANCIES. Subject to any limitations imposed by applicable law and subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders and except as otherwise provided by applicable law, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified.
 
E.            BYLAW AMENDMENTS.
 
1.            The Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws of the Company .   Any adoption, amendment or repeal of the Bylaws of the Company by the Board of Directors shall require the approval of a majority of the authorized number of directors . The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Company; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Company required by law or by this Amended and Restated Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding shares of the capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class.
 
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2.            The directors of the Company need not be elected by written ballot unless the Bylaws so provide.
 
3.            No action shall be taken by the stockholders of the Company except at an annual or special meeting of stockholders called in accordance with the Bylaws, and no action shall be taken by the stockholders by written consent or electronic transmission.
 
4.            Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Company shall be given in the manner provided in the Bylaws of the Company.
 
VI.
 
A.            The liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law.
 
B.            To the fullest extent permitted by applicable law, the Company is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Company (and any other persons to which applicable law permits the Company to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise in excess of the indemnification and advancement otherwise permitted by such applicable law. If applicable law is amended after approval by the stockholders of this Article VI to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director to the company shall be eliminated or limited to the fullest extent permitted by applicable law as so amended.
 
C.            Any repeal or modification of this Article VI shall only be prospective and shall not affect the rights or protections or increase the liability of any director under this Article VI in effect at the time of the alleged occurrence of any act or omission to act giving rise to liability or indemnification.
 
VII.
 
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Company ; (B) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company ’s stockholders; (C) any action asserting a claim against the Company arising pursuant to any provision of the DGCL, the Amended and Restated Certificate of Incorporation or the Bylaws of the Company ; or (D) any action asserting a claim against the Company governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company shall be deemed to have notice of and to have consented to the provisions of this Article VII.
 
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VIII.
 
A.            The Company reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, except as provided in paragraph B. of this Article VIII, and all rights conferred upon the stockholders herein are granted subject to this reservation.
 

B.            Notwithstanding any other provisions of this Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Company required by law or by this Amended and Restated Certificate of Incorporation or any certificate of designation filed with respect to a series of Preferred Stock, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66‑2/3%) of the voting power of all of the then outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI, VII and VIII.
 
* * * *
 
FOUR:            This Amended and Restated Certificate of Incorporation has been duly approved by the Board of Directors of the Company.
 
FIVE:            This Amended and Restated Certificate of Incorporation was approved by the holders of the requisite number of shares of said corporation in accordance with Section 228 of the DGCL. This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 and 245 of the DGCL by the stockholders of the Company.
 
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IN WITNESS WHEREOF , AIT Therapeutics, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by its President and Chief Executive Officer on January 9, 2017.
 
  AIT Therapeutics, Inc.  
       
By:
/s/ Jason Lane  
    Jason Lane,  
    President and Chief Executive Officer  
       
 
 
6


 
Exhibit 3.2
 
AMENDED AND RESTATED BYLAWS

OF

AIT THERAPEUTICS, INC.
(A DELAWARE CORPORATION)
 

 
Table of Contents
     
 
 
ARTICLE I
 
 
OFFICES
Page
 
1
Section 1.
Registered Office
1
Section 2.
Other Offices
1
ARTICLE II
CORPORATE SEAL
1
Section 3.
Corporate Seal
1
ARTICLE III
STOCKHOLDERS’ MEETINGS
1
Section 4.
Place Of Meetings
1
Section 5.
Annual Meetings
1
Section 6.
Special Meetings
5
Section 7.
Notice Of Meetings
6
Section 8.
Quorum
7
Section 9.
Adjournment And Notice Of Adjourned Meetings
7
Section 10.
Voting Rights
8
Section 11.
Joint Owners Of Stock
8
Section 12.
List Of Stockholders
8
Section 13.
Action Without Meeting
8
Section 14.
Organization
8
ARTICLE IV
DIRECTORS
9
Section 15.
Number And Term Of Office
9
Section 16.
Powers
9
Section 17.
Board of Directors.
9
Section 18.
Vacancies
10
Section 19.
Resignation
10
Section 20.
Removal
11
Section 21.
Meetings
11
Section 22.
Quorum And Voting
12
Section 23.
Action Without Meeting
12
Section 24.
Fees And Compensation
12
Section 25.
Committees
12
Section 27.
Organization
14
ARTICLE V
OFFICERS
14
 
 

Table of Contents
(continued)
 
Section 28.
Officers Designated
14
Section 29.
Tenure And Duties Of Officers
14
Section 30.
Delegation Of Authority
16
Section 31.
Resignations
16
Section 32.
Removal
16
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION
16
Section 33.
Execution Of Corporate Instruments
16
Section 34.
Voting Of Securities Owned By The Corporation
17
ARTICLE VII
SHARES OF STOCK
17
Section 35.
Form And Execution Of Certificates
17
Section 36.
Lost Certificates
17
Section 37.
Transfers
17
Section 38.
Fixing Record Dates
18
Section 39.
Registered Stockholders
18
ARTICLE III
OTHER SECURITIES OF THE CORPORATION
18
Section 40.
Execution Of Other Securities
18
ARTICLE IX
DIVIDENDS
19
Section 41.
Declaration Of Dividends
19
Section 42.
Dividend Reserve
19
ARTICLE X
FISCAL YEAR
19
Section 43.
Fiscal Year
19
ARTICLE XI
INDEMNIFICATION
20
Section 44.
Indemnification of Directors, Executive Officers, Other Officers, Employees and Other Agents
20
ARTICLE XII
NOTICES
23
Section 45.
Notices
23
ARTICLE XIII
AMENDMENTS
24
Section 46.
 
24
ARTICLE XIV
LOANS TO OFFICERS
24
Section 47.
Loans To Officers
24
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AMENDED AND RESTATED BYLAWS

OF

AIT THERAPEUTICS, INC.
(A DELAWARE CORPORATION)
 
ARTICLE I

OFFICES
 
Section 1.   Registered Office. The registered office of the corporation in the State of Delaware shall be in the City of Wilmington, County of New Castle.
 
Section 2.   Other Offices. The corporation shall also have and maintain an office or principal place of business at such place as may be fixed by the Board of Directors, and may also have offices at such other places, both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require.
 
ARTICLE II

CORPORATE SEAL
 
Section 3.   Corporate Seal. The Board of Directors may adopt a corporate seal. The corporate seal shall consist of a die bearing the name of the corporation and the inscription, “Corporate Seal-Delaware.” Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
 
ARTICLE III

STOCKHOLDERS’ MEETINGS
 
Section 4.   Place Of Meetings. Meetings of the stockholders of the corporation may be held at such place, either within or without the State of Delaware, as may be determined from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided under the Delaware General Corporation Law (“ DGCL ”).
 
Section 5.   Annual Meetings.
 
(a)   The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to time by the Board of Directors. Nominations of persons for election to the Board of Directors of the corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders: (i) pursuant to the corporation’s notice of meeting of stockholders (with respect to business other than nominations); (ii) brought specifically by or at the direction of the Board of Directors; or (iii) by any stockholder of the corporation who was a stockholder of record at the time of giving the stockholder’s notice provided for in Section 5(b) below, who is entitled to vote at the meeting and who complied with the notice procedures set forth in Section 5. For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations and submit other business (other than matters properly included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “ 1934 Act ”)) before an annual meeting of stockholders.
 
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(b)   At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law and as shall have been properly brought before the meeting.
 
(i)   For nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii) and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name, age, business address and residence address of such nominee, (2) the principal occupation or employment of such nominee, (3) the class and number of shares of each class of capital stock of the corporation which are owned of record and beneficially by such nominee, (4) the date or dates on which such shares were acquired and the investment intent of such acquisition, (5) a statement whether such nominee, if elected, intends to tender, promptly following such person's failure to receive the required vote for election or re-election at the next meeting at which such person would face election or re-election, an irrevocable resignation effective upon acceptance of such resignation by the Board of Directors, and (6) such other information concerning such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a director in an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named as a nominee and to serving as a director if elected); and (B) the information required by Section 5(b)(iv). The corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such proposed nominee.
 
(ii)   Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14(a)-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv).
 
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(iii)   To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the ninetieth (90 th ) day nor earlier than the close of business on the one hundred twentieth (120 th )   day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received not earlier than the close of business on the one hundred twentieth (120 th ) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90 th ) day prior to such annual meeting or the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made. In no event shall an adjournment or a postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice as described above.
 
(iv)   The written notice required by Section 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “ Proponent ” and collectively, the “ Proponents ”): (A) the name and address of each Proponent, as they appear on the corporation’s books; (B) the class, series and number of shares of the corporation that are owned beneficially and of record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions.
 
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For purposes of Sections 5 and 6, a “ Derivative Transaction ” means any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether record or beneficial:
 
(w)   the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the corporation,
 
(x)   which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the corporation,
 
(y)   the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or
 
(z)   which provides the right to vote or increase or decrease the voting power of, such Proponent, or any of its affiliates or associates, with respect to any securities of the corporation,
 
which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such Proponent in the securities of the corporation held by any general or limited partnership, or any limited liability company, of which such Proponent is, directly or indirectly, a general partner or managing member.
 
(c)   A stockholder providing written notice required by Section 5(b)(i) or (ii) shall update and supplement such notice in writing, if necessary, so that the information provided or required to be provided in such notice is true and correct in all material respects as of (i) the record date for the meeting and (ii) the date that is five (5) business days prior to the meeting and, in the event of any adjournment or postponement thereof, five (5) business days prior to such adjourned or postponed meeting. In the case of an update and supplement pursuant to clause (i) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of the corporation not later than five (5) business days after the record date for the meeting. In the case of an update and supplement pursuant to clause (ii) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of the corporation not later than two (2) business days prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two (2) business days prior to such adjourned or postponed meeting.
 
(d)   Notwithstanding anything in Section 5(b)(iii)   to the contrary, in the event that the number of directors of the Board of Directors of the corporation is increased and there is no public announcement of the appointment of a director, or, if no appointment was made, of the vacancy, made by the corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination in accordance with Section 5(b)(iii), a stockholder’s notice required by this Section 5 and which complies with the requirements in Section 5(b)(i), other than the timing requirements in Section 5(b)(iii), shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the corporation.
 
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(e)   A person shall not be eligible for election or re-election as a director unless the person is nominated either in accordance with clause (ii) of Section 5(a), or in accordance with clause (iii) of Section 5(a). Except as otherwise required by law, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made, or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, or the Proponent does not act in accordance with the representations in Sections 5(b)(iv)(D) and 5(b)(iv)(E), to declare that such proposal or nomination shall not be presented for stockholder action at the meeting and shall be disregarded, notwithstanding that proxies in respect of such nominations or such business may have been solicited or received.
 
(f)   Notwithstanding the foregoing provisions of this Section 5, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholders’ meeting, a stockholder must also comply with all applicable requirements of the 1934 Act and the rules and regulations thereunder. Nothing in these Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references in these Bylaws to the 1934 Act or the rules and regulations thereunder are not intended to and shall not limit the requirements applicable to proposals and/or nominations to be considered pursuant to Section 5(a)(iii) of these Bylaws.
 
(g)   For purposes of Sections 5 and 6,
 
(i)   public announcement ” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act; and
 
(ii)   affiliates ” and “ associates ” shall have the meanings set forth in Rule 405 under the Securities Act of 1933, as amended (the “ 1933 Act ”).
 
Section 6.   Special Meetings.
 
(a)   Special meetings of the stockholders of the corporation may be called, for any purpose as is a proper matter for stockholder action under Delaware law, by (i) the Chairperson of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption).
 
(b)   The Board of Directors shall determine the time and place, if any, of such special meeting. Upon determination of the time and place, if any, of the meeting, the Secretary shall cause a notice of meeting to be given to the stockholders entitled to vote, in accordance with the provisions of Section 7 of these Bylaws. No business may be transacted at such special meeting otherwise than specified in the notice of meeting.
 
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(c)   Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the corporation who is a stockholder of record at the time of giving notice provided for in this paragraph, who shall be entitled to vote at the meeting and who delivers written notice to the Secretary of the corporation setting forth the information required by Section 5(b)(i). In the event the corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder of record may nominate a person or persons (as the case may be), for election to such position(s) as specified in the corporation’s notice of meeting, if written notice setting forth the information required by Section 5(b)(i) of these Bylaws shall be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the later of the ninetieth (90 th ) day prior to such meeting or the tenth (10 th ) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. The stockholder shall also update and supplement such information as required under Section 5(c). In no event shall an adjournment or a postponement of a special meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice as described above.
 
(d)   Notwithstanding the foregoing provisions of this Section 6, a stockholder must also comply with all applicable requirements of the 1934 Act and the rules and regulations thereunder with respect to matters set forth in this Section 6. Nothing in these Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references in these Bylaws to the 1934 Act or the rules and regulations thereunder are not intended to and shall not limit the requirements applicable to   nominations for the election to the Board of Directors to be considered pursuant to Section 6(c) of these Bylaws.
 
Section 7.   Notice Of Meetings. Except as otherwise provided by law, notice, given in writing or by electronic transmission, of each meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, such notice to specify the place, if any, date and hour, in the case of special meetings, the purpose or purposes of the meeting, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at any such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation. Notice of the time, place, if any, and purpose of any meeting of stockholders may be waived in writing, signed by the person entitled to notice thereof, or by electronic transmission by such person, either before or after such meeting, and will be waived by any stockholder by his attendance thereat in person, by remote communication, if applicable, or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given.
 
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Section 8.   Quorum. At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of Incorporation, or by these Bylaws, the presence, in person, by remote communication, if applicable, or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of business. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairperson of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by statute or by applicable stock exchange rules, or by the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the affirmative vote of the majority of shares present in person, by remote communication, if applicable, or represented by proxy at the meeting and entitled to vote generally on the subject matter shall be the act of the stockholders. Except as otherwise provided by statute, the Certificate of Incorporation or these Bylaws, directors shall be elected by a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented by proxy at the meeting and entitled to vote generally on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by the Certificate of Incorporation or these Bylaws, a majority of the outstanding shares of such class or classes or series, present in person, by remote communication, if applicable, or represented by proxy duly authorized, shall constitute a quorum entitled to take action with respect to that vote on that matter. Except where otherwise provided by statute or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the majority (plurality, in the case of the election of directors) of shares of such class or classes or series present in person, by remote communication, if applicable, or represented by proxy at the meeting shall be the act of such class or classes or series.
 
Section 9.     Adjournment And Notice Of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned from time to time either by the chairperson of the meeting or by the vote of a majority of the shares present in person, by remote communication, if applicable, or represented by proxy at the meeting. When a meeting is adjourned to another time or place, if any, notice need not be given of the adjourned meeting if the time and place, if any, thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
 
Section 10.   Voting Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders, except as otherwise provided by law, only persons in whose names shares stand on the stock records of the corporation on the record date, as provided in Section 12 of these Bylaws, shall be entitled to vote at any meeting of stockholders. Every person entitled to vote   shall have the right to do so either in person, by remote communication, if applicable, or by an agent or agents authorized by a proxy granted in accordance with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years from its date of creation unless the proxy provides for a longer period.
 
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Section 11.   Joint Owners Of Stock. If shares or other securities having voting power stand of record in the names of two (2) or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (a) if only one (1) votes, his act binds all; (b) if more than one (1) votes, the act of the majority so voting binds all; (c) if more than one (1) votes, but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionally, or may apply to the Delaware Court of Chancery for relief as provided in the DGCL, Section 217(b). If the instrument filed with the Secretary shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of subsection (c) shall be a majority or even-split in interest.
 
Section 12.   List Of Stockholders. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. The list shall be open to examination of any stockholder during the time of the meeting as provided by law.
 
Section 13.   Action Without Meeting. No action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these Bylaws, and no action shall be taken by the stockholders by written consent or by electronic transmission.
 
Section 14.   Organization.
 
(a)   At every meeting of stockholders, the Chairperson of the Board of Directors, or, if a Chairperson has not been appointed or is absent, the Chief Executive Officer, or if no Chief Executive Officer is then serving or is absent, the President, or, if the President is absent, a chairperson of the meeting chosen by a majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act as chairperson. The Chairperson of the Board may appoint the Chief Executive Officer as chairperson of the meeting. The Secretary, or, in his or her absence, an Assistant Secretary or other officer or other person directed to do so by the chairperson of the meeting, shall act as secretary of the meeting.
 
(b)   The Board of Directors of the corporation shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairperson of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and constituted proxies and such other persons as the chairperson shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting. Unless and to the extent determined by the Board of Directors or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.
 
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ARTICLE IV

DIRECTORS
 
Section 15.   Number And Term Of Office. The authorized number of directors of the corporation shall be fixed in accordance with the Certificate of Incorporation. Directors need not be stockholders unless so required by the Certificate of Incorporation. If for any cause, the directors shall not have been elected at an annual meeting, they may be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner provided in these Bylaws.
 
Section 16.   Powers. The powers of the corporation shall be exercised, its business conducted and its property controlled by the Board of Directors, except as may be otherwise provided by statute or by the Certificate of Incorporation.
 
Section 17.   Board of Directors.
 
(a)   Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, directors shall be elected at each annual meeting of stockholders to serve until the next annual meeting of stockholders.  Each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal.  No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
 
(b)   No stockholder entitled to vote at an election for directors may cumulate votes to which such stockholder is entitled, unless required by applicable law at the time of such election. During such time or times that applicable law requires cumulative voting, every stockholder entitled to vote at an election for directors may cumulate such stockholder’s votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which such stockholder’s shares are otherwise entitled, or distribute the stockholder’s votes on the same principle among as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholder’s votes unless (i) the names of such candidate or candidates have been placed in nomination prior to the voting and (ii) the stockholder has given notice at the meeting, prior to the voting, of such stockholder’s intention to cumulate such stockholder’s votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting, the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected.
 
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Notwithstanding the foregoing provisions of this section, each director shall serve until his successor is duly elected and qualified or until his earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
 
Section 18.   Vacancies.   Unless otherwise provided in the Certificate of Incorporation, and subject to the rights of the holders of any series of Preferred Stock or as otherwise provided by applicable law, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director, and not by the stockholders, provided, however , that whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class or classes or series shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected, and not by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under this Bylaw in the case of the death, removal or resignation of any director.
 
Section 19.   Resignation. Any director may resign at any time by delivering his or her notice in writing or by electronic transmission to the Secretary, such resignation to specify whether it will be effective at a particular time. If no such specification is made, the Secretary, in his or her discretion, may either (a) require confirmation from the director prior to deeming the resignation effective, in which case the resignation will be deemed effective upon receipt of such confirmation, or (b) deem the resignation effective at the time of delivery of the resignation to the Secretary. When one or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Director so chosen shall hold office for the unexpired portion of the term of the Director whose place shall be vacated and until his successor shall have been duly elected and qualified.
 
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Section 20.   Removal. Subject to any limitations imposed by law and subject to the rights of the holders of any series of Preferred Stock, removal shall be as provided in Section 141(k) of the DGCL.
 
Section 21.   Meetings.
 
(a)   Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of Directors may be held at any time or date and at any place within or without the State of Delaware which has been designated by the Board of Directors and publicized among all directors, either orally or in writing, by telephone, including a voice-messaging system or other system designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other electronic means. No further notice shall be required for regular meetings of the Board of Directors.
 
(b)   Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of Directors may be held at any time and place within or without the State of Delaware whenever called by the Chairperson of the Board, the Chief Executive Officer or a majority of the total number of authorized directors.
 
(c)   Meetings by Electronic Communications Equipment. Any member of the Board of Directors, or of any committee thereof, may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
 
(d)   Notice of Special Meetings. Notice of the time and place of all special meetings of the Board of Directors shall be orally or in writing, by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other electronic means, during normal business hours, at least twenty-four (24) hours before the date and time of the meeting. If notice is sent by US mail, it shall be sent by first class mail, charges prepaid, at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing, or by electronic transmission, at any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
 
(e)   Waiver of Notice. The transaction of all business at any meeting of the Board of Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though it had been transacted at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present who did not receive notice shall sign a written waiver of notice or shall waive notice by electronic transmission. All such waivers shall be filed with the corporate records or made a part of the minutes of the meeting.
 
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Section 22.   Quorum And Voting.
 
(a)   Unless the Certificate of Incorporation requires a greater number, and except with respect to questions related to indemnification arising under Section 45 for which a quorum shall be one-third of the exact number of directors fixed from time to time, a quorum of the Board of Directors shall consist of a majority of the exact number of directors fixed from time to time by the Board of Directors in accordance with the Certificate of Incorporation; provided, however, at any meeting whether a quorum be present or otherwise, a majority of the directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board of Directors, without notice other than by announcement at the meeting.
 
(b)   At each meeting of the Board of Directors at which a quorum is present, all questions and business shall be determined by the affirmative vote of a majority of the directors present, unless a different vote be required by law, the Certificate of Incorporation or these Bylaws.
 
Section 23.   Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and such writing or writings or transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
 
Section 24.   Fees And Compensation. Directors shall be entitled to such compensation for their services as may be approved by the Board of Directors, including, if so approved, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of the Board of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor.
 
Section 25.   Committees.
 
(a)   Executive Committee. The Board of Directors may appoint an Executive Committee to consist of one (1) or more members of the Board of Directors. The Executive Committee, to the extent permitted by law and provided in the resolution of the Board of Directors shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any Bylaw of the corporation.
 
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(b)   Other Committees. The Board of Directors may, from time to time, appoint such other committees as may be permitted by law. Such other committees appointed by the Board of Directors shall consist of one (1) or more members of the Board of Directors and shall have such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees, but in no event shall any such committee have the powers denied to the Executive Committee in these Bylaws.
 
(c)   Term. The Board of Directors, subject to any requirements of any outstanding series of Preferred Stock and the provisions of subsections (a) or (b) of this Section 25, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of a committee member shall terminate on the date of his death or voluntary resignation from the committee or from the Board of Directors. The Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
 
(d)   Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any other committee appointed pursuant to this Section 25 shall be held at such times and places as are determined by the Board of Directors, or by any such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may be held at any place which has been determined from time to time by such committee, and may be called by any Director   who is a member of such committee, upon notice to the members of such committee of the time and place of such special meeting given in the manner provided for the giving of notice to members of the Board of Directors of the time and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing or by electronic transmission at any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends such special meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Unless otherwise provided by the Board of Directors in the resolutions authorizing the creation of the committee, a majority of the authorized number of members of any such committee shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is present shall be the act of such committee.
 
Section 26.   Duties of Chairperson of the Board of Directors. The Chairperson of the Board of Directors, if appointed and when present, shall preside at all meetings of the stockholders and the Board of Directors. The Chairperson of the Board of Directors shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time.
 
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Section 27.   Organization. At every meeting of the directors, the Chairperson of the Board of Directors, or, if a Chairperson has not been appointed or is absent, the Chief Executive Officer (if a director), or, if a Chief Executive Officer is absent, the President (if a director), or if the President is absent, the most senior Vice President (if a director), or, in the absence of any such person, a chairperson of the meeting chosen by a majority of the directors present, shall preside over the meeting. The Secretary, or in his absence, any Assistant Secretary or other officer, director or other person directed to do so by the person presiding over the meeting, shall act as secretary of the meeting.
 
ARTICLE V

OFFICERS
 
Section 28.   Officers Designated. The officers of the corporation shall include, if and when designated by the Board of Directors, the Chief Executive Officer, the President, one or more Vice Presidents, the Secretary, the Chief Financial Officer and the Treasurer. The Board of Directors may also appoint one or more Assistant Secretaries and Assistant Treasurers and such other officers and agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one time unless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall be fixed by or in the manner designated by the Board of Directors.
 
Section 29.   Tenure And Duties Of Officers.
 
(a)   General. All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly elected and qualified, unless sooner removed. Any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
 
(b)   Duties of Chief Executive Officer. The Chief Executive Officer shall preside at all meetings of the stockholders and at all meetings of the Board of Directors (if a director), unless the Chairperson of the Board of Directors has been appointed and is present. Unless an officer has been appointed Chief Executive Officer of the corporation, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. To the extent that a Chief Executive Officer has been appointed and no President has been appointed, all references in these Bylaws to the President shall be deemed references to the Chief Executive Officer. The Chief Executive Officer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time.
 
(c)   Duties of President. The President shall preside at all meetings of the stockholders and at all meetings of the Board of Directors (if a director), unless the Chairperson of the Board of Directors or the Chief Executive Officer has been appointed and is present. Unless another officer has been appointed Chief Executive Officer of the corporation, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation.   The President shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time.
 
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(d)   Duties of Vice Presidents. A Vice President may assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. A Vice President shall perform other duties commonly incident to their office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or, if the Chief Executive Officer has not been appointed or is absent, the President shall designate from time to time.
 
(e)   Duties of Secretary. The Secretary shall attend all meetings of the stockholders and of the Board of Directors and shall record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the stockholders and of all meetings of the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties provided for in these Bylaws and other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time. The Chief Executive Officer, or if no Chief Executive Officer is then serving, the President may direct any Assistant Secretary or other officer to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time.
 
(f)   Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be kept the books of account of the corporation in a thorough and proper manner and shall render statements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President. The Chief Financial Officer, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the corporation. The Chief Financial Officer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time. To the extent that a Chief Financial Officer has been appointed and no Treasurer has been appointed, all references in these Bylaws to the Treasurer shall be deemed references to the Chief Financial Officer. The President may direct the Treasurer, if any, or any Assistant Treasurer, or the controller or any assistant controller to assume and perform the duties of the Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each Treasurer and Assistant Treasurer and each controller and assistant controller shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time.
 
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(g)   Duties of Treasurer. Unless another officer has been appointed Chief Financial Officer of the corporation, the Treasurer shall be the chief financial officer of the corporation and shall keep or cause to be kept the books of account of the corporation in a thorough and proper manner and shall render statements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President, and, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the corporation.   The Treasurer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President and Chief Financial Officer (if not Treasurer) shall designate from time to time.
 
Section 30.   Delegation Of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
 
Section 31.   Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract with the resigning officer.
 
Section 32.   Removal. Any officer may be removed from office at any time, either with or without cause, by the affirmative vote of a majority of the directors in office at the time, or by the unanimous written consent of the directors in office at the time, or by any committee or by the Chief Executive Officer or by other superior officers upon whom such power of removal may have been conferred by the Board of Directors.
 
ARTICLE VI

EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES
OWNED BY THE CORPORATION
 
Section 33.   Execution Of Corporate Instruments. The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute on behalf of the corporation any corporate instrument or document, or to sign on behalf of the corporation the corporate name without limitation, or to enter into contracts on behalf of the corporation, except where otherwise provided by law or these Bylaws, and such execution or signature shall be binding upon the corporation.
 
All checks and drafts drawn on banks or other depositaries on funds to the credit of the corporation or in special accounts of the corporation shall be signed by such person or persons as the Board of Directors shall authorize so to do.
 
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Unless authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
 
Section 34.   Voting Of Securities Owned By The Corporation. All stock and other securities of other corporations owned or held by the corporation for itself, or for other parties in any capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by resolution of the Board of Directors, or, in the absence of such authorization, by the Chairperson of the Board of Directors, the Chief Executive Officer, the President, or any Vice President.
 
ARTICLE VII

SHARES OF STOCK
 
Section 35.   Form And Execution Of Certificates. The shares of the corporation shall be represented by certificates, or shall be uncertificated if so provided by resolution or resolutions of the Board of Directors. Certificates for the shares of stock, if any, shall be in such form   as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock in the corporation represented by certificate   shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson of the Board of Directors, or the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number of shares owned by him in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.
 
Section 36.   Lost Certificates. A new certificate or certificates shall be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates, or the owner’s legal representative, to agree to indemnify the corporation in such manner as it shall require or to give the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen, or destroyed.
 
Section 37.   Transfers.
 
(a)   Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, and, in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates for a like number of shares.
 
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(b)   The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
 
Section 38.   Fixing Record Dates.
 
(a)   In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, subject to applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
 
(b)   In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
 
Section 39.   Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
 
ARTICLE VIII

OTHER SECURITIES OF THE CORPORATION
 
Section 40.   Execution Of Other Securities. All bonds, debentures and other corporate securities of the corporation, other than stock certificates (covered in Section 36), may be signed by the Chairperson of the Board of Directors, the President or any Vice President, or such other person as may be authorized by the Board of Directors, and the corporate seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an Assistant Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided, however, that where any such bond, debenture or other corporate security shall be authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the corporation or such other person as may be authorized by the Board of Directors, or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be such officer before the bond, debenture or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless may be adopted by the corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer of the corporation.
 
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ARTICLE IX

DIVIDENDS
 
Section 41.   Declaration Of Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation and applicable law, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and applicable law.
 
Section 42.   Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
 
ARTICLE X

FISCAL YEAR
 
Section 43.   Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.
 
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ARTICLE XI

INDEMNIFICATION
 
Section 44.   Indemnification of Directors, Executive Officers, Other Officers, Employees and Other Agents.
 
(a)   Directors and executive officers . The corporation shall indemnify its directors and executive officers (for the purposes of this Article XI, “ executive officers ” shall have the meaning defined in Rule 3b-7 promulgated under the 1934 Act) to the extent not prohibited by the DGCL or any other applicable law; provided, however, that the corporation may modify the extent of such indemnification by individual contracts with its directors and executive officers; and, provided, further, that the corporation shall not be required to indemnify any director or executive officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the DGCL or any other applicable law or (iv) such indemnification is required to be made under subsection (d).
 
(b)   Other Officers, Employees and Other Agents. The corporation shall have power to indemnify its other officers, employees and other agents as set forth in the DGCL or any other applicable law. The Board of Directors shall have the power to delegate the determination of whether indemnification shall be given to any such person except executive officers to such officers or other persons as the Board of Directors shall determine.
 
(c)   Expenses. The corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or executive officer, of the corporation, or is or was serving at the request of the corporation as a director or executive officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any director or executive officer in connection with such proceeding provided, however, that if the DGCL requires, an advancement of expenses incurred by a director or executive officer in his or her capacity as a director or executive officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking (hereinafter an “ undertaking ”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “ final adjudication ”) that such indemnitee is not entitled to be indemnified for such expenses under this section or otherwise.
 
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this section, no advance shall be made by the corporation to an executive officer of the corporation (except by reason of the fact that such executive officer is or was a director of the corporation in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of directors who were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation.
 
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(d)   Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and executive officers under this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation and the director or executive officer. Any right to indemnification or advances granted by this section to a director or executive officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. To the extent permitted by law, the claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim for indemnification, the corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the DGCL or any other applicable law for the corporation to indemnify the claimant for the amount claimed. In connection with any claim by an executive officer of the corporation (except in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such executive officer is or was a director of the corporation) for advances, the corporation shall be entitled to raise a defense as to any such action clear and convincing evidence that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause to believe that his conduct was lawful. Neither the failure of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. In any suit brought by a director or executive officer to enforce a right to indemnification or to an advancement of expenses hereunder, the burden of proving that the director or executive officer is not entitled to be indemnified, or to such advancement of expenses, under this section or otherwise shall be on the corporation.
 
(e)   Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person may have or hereafter acquire under any applicable statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL, or by any other applicable law.
 
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(f)   Survival of Rights. The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a director or executive officer or officer, employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
 
(g)   Insurance. To the fullest extent permitted by the DGCL or any other applicable law, the corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this section.
 
(h)   Amendments. Any repeal or modification of this section shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation.
 
(i)   Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director and executive officer to the full extent not prohibited by any applicable portion of this section that shall not have been invalidated, or by any other applicable law. If this section shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify each director and executive officer to the full extent under any other applicable law.
 
(j)   Certain Definitions. For the purposes of this Bylaw, the following definitions shall apply:
 
(i)   The term “ proceeding ” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
 
(ii)   The term “ expenses ” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding.
 
(iii)   The term the “ corporation ” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
 
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(iv)   References to a “ director ,” “ executive   officer ,” “ officer ,” “ employee ,” or “ agent ” of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation as, respectively, a director, executive officer, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.
 
(v)   References to “ other   enterprises ” shall include employee benefit plans; references to “ fines ” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “ serving at the request of the corporation ” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “ not opposed to the best interests of the corporation ” as referred to in this section.
 
ARTICLE XII

NOTICES
 
Section 45.   Notices.
 
(a)   Notice To Stockholders. Written notice to stockholders of stockholder meetings shall be given as provided in Section 7 herein. Without limiting the manner by which notice may otherwise be given effectively to stockholders under any agreement or contract with such stockholder, and except as otherwise required by law, written notice to stockholders for purposes other than stockholder meetings may be sent by US mail or nationally recognized overnight courier, or by facsimile, telegraph or telex or by electronic mail or other electronic means.
 
(b)   Notice To Directors. Any notice required to be given to any director may be given by the method stated in subsection (a), as otherwise provided in these Bylaws with notice other than one which is delivered personally to be sent to such address as such director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known address of such director.
 
(c)   Affidavit Of Mailing. An affidavit of mailing, executed by a duly authorized and competent employee of the corporation or its transfer agent appointed with respect to the class of stock affected, or other agent, specifying the name and address or the names and addresses of the stockholder or stockholders, or director or directors, to whom any such notice or notices was or were given, and the time and method of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein contained.
 
(d)   Methods of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients of notice, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in respect of any other or others.
 
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(e)   Notice To Person With Whom Communication Is Unlawful. Whenever notice is required to be given, under any provision of law or of the Certificate of Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
 
(f)   Notice to Stockholders Sharing an Address. Except as otherwise prohibited under DGCL, any notice given under the provisions of DGCL, the Certificate of Incorporation or the Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Such consent shall have been deemed to have been given if such stockholder fails to object in writing to the corporation within sixty (60) days of having been given notice by the corporation of its intention to send the single notice. Any consent shall be revocable by the stockholder by written notice to the corporation.
 
ARTICLE XIII

AMENDMENTS
 
Section 46.   Subject to the limitations set forth in Section 45(h) of these Bylaws or the provisions of the Certificate of Incorporation, the Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws of the corporation. Any adoption, amendment or repeal of the Bylaws of the corporation by the Board of Directors shall require the approval of a majority of the authorized number of directors. The stockholders also shall have power to adopt, amend or repeal the Bylaws of the corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of the corporation required by law or by the Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of the capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class.
 
ARTICLE XIV

LOANS TO OFFICERS
 
Section 47.   Loans To Officers. Except as otherwise prohibited by applicable law, the corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiaries, including any officer or employee who is a director of the corporation or its subsidiaries, whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without interest and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in these Bylaws shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
 
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Exhibit 4.1
 
(GRAPHIC)
 
INCORPORATED UNDER THE LAWS OF DELAWARE NUMBER SHARES AIT THERAPEUTICS, INC. Fully Paid Non Assessable $0.0001 Par Value COMMON STOCK CUSIP NO. 001448 109 THIS CERTIFIES THAT   IS THE RECORD HOLDER OF Shares of AIT THERAPEUTICS, INC. Capital Stock transferable on the books of the Corporation by the holder in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. WITNESS the facsimile seal of the Corporation and the facsimile signature of its duly authorized officers. Dated: COUNTERSIGNED AND REGISTERED ACTION STOCK TRANSFER CORP. 2469 E Ft. Union Blvd., #214, Salt Lake City, UT 84121 By: TRANSFER AGENT-AUTHORIZED SIGNATURE PRESIDENT SECRETARY AIT THERAPEUTICS, INC. SEAL DELAWARE

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
         
TEN COM    -    as tenants in common UNIF GIFT MIN ACT  - __________ Custodian __________
TEN ENT - as tenants by the entireties        (Cust)                                (Minor)
JT TEN - as joint tenants with rights of   under Uniform Gifts to Minors
    survivorship and not as tenants in   Act __________________________
    common  
(State)
    UNIF TRF MIN ACT  - __________ Custodian (until age ____)
             (Cust)
        ________under Uniform Transfers
       
(Minor)
        to Minors Act______________
       
(State)

Additional abbreviations may also be used though not in the above list. 

 

FOR VALUE RECEIVED, ____________________________ hereby sell, assign and transfer unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE ____________________________
 

(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
 


 


 


Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
 

Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.

 

Dated    
   
(GRAPHIC)    
   
(GRAPHIC)    
   
NOTICE:
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
 


 
Exhibit 10.1

AMENDED AND RESTATED
AGREEMENT FOR THE TRANSFER AND ASSUMPTION OF OBLIGATIONS
UNDER THE SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENTS
 
THIS AMENDED AND RESTATED AGREEMENT FOR THE TRANSFER AND ASSUMPTION OF OBLIGATIONS UNDER THE SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENTS (“ Agreement ”) is made and entered into as of January 12, 2017  (the “ Execution Date ”), by and among: AIT THERAPEUTICS, INC. , a Delaware corporation (“ Parent ”); and ADVANCED INHALATION THERAPIES (AIT) Ltd. , an Israeli corporation (the “ Company ”).
 
Recitals
 
A.            The parties hereto are parties an Agreement for the Transfer and Assumption of Obligations Under the Securities and Purchase and Registration Rights Agreements dated January 9, 2017 at 2:30 pm Eastern Standard Time (the “ Prior Agreement ”).  This Agreement amends and restates the Prior Agreement in all respects and replaces it in full.
 
B.            The Company is a party to that certain Securities Purchase and Registration Rights Agreement dated December 29, 2016, as amended (the “ SPA ”), with a number of investors (the “ Investors ”) investing approximately $10 Million (the “ Financing ”) in connection with the closing of a merger transaction set forth in that certain Agreement and Plan of Merger and Reorganization entered into by and between Parent, Company, and Red Maple Ltd., an Israeli corporation dated December 29, 2016, as amended by that certain Amendment No. 1 between Parent and Company dated January 12, 2017, under which the Company will become a wholly-owned subsidiary of Parent (the “ Merger Agreement ”).
 
C.            Under the terms of the SPAs, the Investors are acquiring Ordinary Shares and warrants to purchase Ordinary Shares of the Company immediately prior to the Effective Time under the Merger Agreement, which Ordinary Shares and warrants will be exchanged for shares of common stock of Parent (the “ Parent Common Shares ”) and warrants to purchase shares of common stock of Parent (the “ Parent Warrants ”), respectively.
 
D.            Under the SPA, one of the conditions to the consummation by the Investors of the Financing (the “ Financing Closing ”) is that Parent has assumed all the Company’s post-closing obligations under the SPA and the warrants issued thereunder (the “ Company Warrants ”).
 
E.            The Company has determined that it is advisable and in the best interest of its shareholders to assign all its rights and transfer all its obligations under the SPA to Parent; and Parent has determined that it is advisable and in the best interests of its shareholders to accept such assignment and transfer.
 
AGREEMENT
 
NOW, THEREFORE, in consideration of the mutual consents and undertakings contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 
1.
Assignment and Assumption . Subject to the condition precedent in Section 2 herein, the Company does hereby assign, transfer and convey to Parent, and Parent does hereby accept and assume, all of the Company’s rights and obligations, whether accrued as of the date hereof or hereafter arising, under the SPA.
 


 
 
2.
Condition Precedent . This Agreement shall become effective immediately upon the Effective Time of the Merger Agreement (which shall occur immediately following the Financing Closing), as  set forth on the Merger Agreement (the “ Effective Date ”).

 
 
3.
Representation and Warranty of Parent .  Parent represents and warrants, as of the Effective Date, as follows:
 
a.
Parent has full power and authority, and has obtained all necessary consents and approvals to enter into this Agreement and to exercise its rights and perform its obligations hereunder, and all corporate and other actions required to authorize its execution of this Agreement and the performance of its obligations hereunder have been duly taken.
 
b.
The Merger Agreement, as amended, and the Amendment No. 1 to the Merger Agreement are in full force and effect and enforceable against Parent.
 
c.
When issued, the Parent Common Shares and the Parent Warrants issued to the Investors upon submission of their Ordinary Shares of the Company and Company Warrants by the Company, and the Parent Common Shares issued to the Investors upon exercise of the Parent Warrants, will be duly authorized and validly issued, and (other than in the case of the Parent Warrants) fully paid and non-assessable.

 
d.
When issued, the Parent Warrants will be duly executed and delivered by, and will binding on, and enforceable against, Parent.
 
4.
Representations and Warranty of the Company .  The Company represents and warrants, as of the Effective Date, as follows:
 
a.
The Company has full power and authority, and has obtained all necessary consents and approvals to enter into this Agreement and to exercise its rights and perform its obligations hereunder, and all corporate and other actions required to authorize its execution of this Agreement and the performance of its obligations hereunder have been duly taken.
 
b.
The Merger Agreement, as amended, and the Amendment No. 1 to the Merger Agreement are in full force and effect and enforceable against the Company.
 
c.
When issued, the Ordinary Shares of the Company and Company Warrants issued by the Company to the Investors will be duly authorized, validly issued, fully paid and non-assessable.
 
d.
 When issued, the Company Warrants issued by the Company will be duly executed and delivered and will binding on, and enforceable against Company.
 
5.
Obligations of the Company . Other than as specifically provided herein, the provisions of this Agreement shall not be construed, interpreted or applied as releasing or restricting the obligations of the Company under the SPAs.


 
6.
Miscellaneous .
 
a.
Parent shall do, execute and perform and to procure to be done, executed and performed all such further acts, deeds, documents and things as the Investors under the SPA may require from time to time to effectively assign, transfer and convey all of the Company’s rights and obligations, whether accrued as of the date hereof or hereafter arising, under the SPA and the Warrants, and otherwise to give to the Investors the full benefit of this Agreement, the SPA and the Warrants.
 
b.
This Agreement shall be governed by and construed under the laws of the State of New York, without regard to principles of conflicts of law thereunder.
 
c.
If any provision or part of a provision of this Agreement or its application to any party hereto shall be, or be found by any authority of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
 
d.
This Agreement may be executed in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same instrument.
 
e.
This Agreement may not be amended, modified or supplemented, except in a writing signed by each of the parties hereto.
 
f.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  The Investors are intended third party beneficiaries of this Agreement, entitled to the enforce this Agreement as if parties hereto.

g.
This Agreement and any agreement, document or instrument attached hereto or referred to herein among the parties hereto integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect of the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document
 
[Remainder of page intentionally left blank]
 

IN WITNESS WHEREOF , the parties have caused this Amended and Restated Agreement for the Transfer and Assumption of Obligations Under the Securities and Purchase and Registration Rights Agreements to be executed as of the Execution Date.
 
 
Ait Therapeutics, Inc.
 
By:      ______________________________              
Name: Jason Lane
Title:    Chief Executive Officer


Advanced Inhalation Therapies (AIT) Ltd.
 
By:      ______________________________
Name:  Amir Avniel
Title:    Chief Executive Officer


 

 

 


Exhibit 10.2
 
___________________________
 
SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT
 
DATED DECEMBER __, 2016
 
BY AND AMONG
 
ADVANCED INHALATION THERAPIES LTD.
 
AND
 
THE INVESTORS PARTY HERETO
 
___________________________
 



TABLE OF CONTENTS
 
Page
 
Article I. DEFINITIONS
2
1.1 Definitions
2
Article II. PURCHASE AND SALE
8
2.1 Escrow Agreement; Closing
8
2.2 Closing Deliveries.
8
Article III. REPRESENTATIONS AND WARRANTIES
9
3.1 Representations and Warranties of the Company
9
3.2 Representations and Warranties of the Investors
17
Article IV. OTHER AGREEMENTS OF THE PARTIES
20
4.1 Transfer Restrictions.
20
4.2 Use of Proceeds
22
4.3 Shareholder Rights Plan
22
4.4 Form D and Blue Sky
22
4.5 Resale Registration
23
4.6 Prohibitions on Dividends, Etc.
29
4.7 Subsequent Equity Sales
30
4.8 Satisfaction of Closing Conditions
30
4.9 Public Disclosure
30
4.10 Non-Public Information
31
4.11 Listing of Ordinary Shares; DTC
31
4.12 Registration Under Section 12; Maintenance of Reporting Status
31
4.13 Reservation of Ordinary Shares
32
Article V. CONDITIONS
32
5.1 Conditions Precedent to the Obligations of the Investors
32
5.2 Conditions Precedent to the Obligations of the Company
34
Article VI. INDEMNIFICATION
35
6.1 Indemnification.
35
6.2 Contribution
37
Article VII. MISCELLANEOUS
38
7.1 Remedies
38
7.2 Termination
38
7.3 Fees and Expenses
38
7.4 Entire Agreement; Further Assurances
38
7.5 Notices
38
7.6 Amendments; Waivers
39
7.7 Construction
39
7.8 Successors and Assigns
39
 

7.9 No Third-Party Beneficiaries
40
7.10 Governing Law; Venue; Waiver of Jury Trial
40
7.11 Survival
41
7.12 Execution
41
7.13 Severability
41
7.14 Independent Nature of Investors’ Obligations and Rights
41
7.15 Replacement of Securities
42
7.16 Interpretative Matters
42

ii

THIS SECURITIES PURCHASE AND REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”), dated as of December __, 2016, is by and among Advanced Inhalation Therapies Ltd., a company organized under the laws of the State of Israel (the “ Company ”), and each investor identified on the signature pages hereto (each, an “ Investor ” and collectively, the “ Investors ”).
 
RECITALS
 
A.   The Company and each Investor are executing and delivering this Agreement in reliance upon the exemption from registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), and Rule 506(b) of Regulation D (“ Regulation D ”) as promulgated by the United States Securities and Exchange Commission (the “ SEC ”) under the Securities Act.
 
B.   Each Investor, severally and not jointly, wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, that aggregate number of Units (each a “ Unit ” and the aggregate amount of Units purchased by all Investors together, the “ Purchased Units ”), set forth across from such Investor’s name on such Investor’s signature page hereto.
 
C.   Each Unit comprises one ordinary share, NIS 0.01 per share, the Company (each, an “ Ordinary Share ”), and one five-year warrant, in the form attached as Exhibit B , to purchase, in each case subject to adjustment as provided therein, one (1) Ordinary Share at an exercise price equal to $6.90 per share (the “ Warrants ” and each, a “ Warrant ”).
 
D.   The minimum aggregate purchase price for the Units offered and sold pursuant to this Agreement shall not be less than $10,000,000 (the “ Minimum Offering Amount ”) nor more than $25,000,000 (the “ Maximum Offering Amount ”).
 
E.   Prior to Closing, the Company shall have entered into the Escrow Agreement, pursuant to which, not later than the Business Day prior to the anticipated Closing Date, each Investor will have deposited an amount in cash, in immediately available funds (the “ Escrow Deposit ”), equal to $6.00 multiplied times the number of such Investor’s Purchased Units, as set forth below such Investor’s name on such Investor’s signature page to this Agreement (the “ Total Purchase Price ”).
 
F.   If, at the Closing, the Company shall not have issued and sold Units for the Maximum Offering Amount, then the Company may at its election and in its sole discretion offer and sell additional Units in one or more subsequent closings on substantially identical terms (including, without limitation, the same purchase price per Unit and, for the avoidance of doubt, the same Unit composition and the same exercise price per Ordinary Share under each Warrant) to those contained in this Agreement (all such subsequent closings, collectively, the “ Subsequent Financing ”); provided , that (i) the aggregate dollar amount of Units issued and sold in this offering at the Closing, together with all such subsequent closings, shall not exceed the Maximum Offering Amount and (ii) the Subsequent Financing may be effected pursuant to the issuance and sale of Ordinary Shares alone and without the concurrent issuance and sale of Warrants, so long as the price per Ordinary Share is not less than $6.00.
 

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 the Investors, intending to be legally bound hereby, agree as follows:
 
ARTICLE I.
DEFINITIONS
 
1.1    Definitions .  In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings indicated:
 
Additional Registration Statement ” has the meaning set forth in Section 4.5(c) .
 
Affiliate ” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act.
 
Agreement ” has the meaning set forth in the Preamble.
 
Allowable Grace Period ” has the meaning set forth in Section 4.5(d)(xi) .
 
BHCA ” has the meaning set forth in Section 3.1(ii) .
 
Blue Sky Filing ” has the meaning set forth in Section 6.1(a) .
 
Business Day ” means any day other than Saturday, Sunday, any day which shall be 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.
 
Claims ” has the meaning set forth in Section 6.1(a) .
 
Closing ” means the closing of the purchase and sale of the Purchased Units pursuant to Section 2.1 .
 
Closing Date ” means the second (2 nd ) Business Day following the satisfaction or waiver (by the Persons entitled to effect such waiver) of the conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 (other than those to be satisfied at the Closing).
 
Closing Form 8-K ” has the meaning set forth in Section 4.9 .
 
Company ” has the meaning set forth in the Preamble.
 
Company Board ” means the Company’s Board of Directors.
 
Convertible Securities ” means any stock or securities (other than Options) convertible into or exercisable or exchangeable for Ordinary Shares.
 
Covered Person ” has the meaning set forth in Section 3.1(z) .
 
2

Current Public Information Failure ” has the meaning set forth in Section 4.5(b) .
 
Cutback Shares ” has the meaning set forth in Section 4.5(c) .
 
Disqualification Event ” has the meaning set forth in Section 3.1(z) .
 
Effectiveness Deadline ” has the meaning set forth in Section 4.5(a) .
 
Effectiveness Failure ” has the meaning set forth in Section 4.5(b) .
 
Escrow Deposit ” has the meaning set forth in the Recitals.
 
Exchange Act ” means the Securities Exchange Act of 1934, as amended.
 
Exempted Issuance ” means: (i) Ordinary Shares issued or deemed to be issued by the Company pursuant to any employee benefit plan which has been duly adopted and approved by the Company Board and shareholders of the Company, pursuant to which the Company's securities may be issued to employees, consultants, advisors, officers and/or directors (or any individual who has accepted an offer of employment) for services provided to the Company, provided that the number of such shares issued or deemed to be issued in any calendar year does not exceed 5% of the number of outstanding Ordinary Shares as of the end of the immediately preceding year; (ii) Ordinary Shares issued or deemed to be issued by the Company upon the conversion, exchange or exercise of any right, option, obligation or security outstanding on the date immediately prior to the date of this Agreement and set forth in a Schedule hereto, provided that the terms of such option, obligation or security are not amended or otherwise modified on or after the date hereof in a manner that would reduce the exercise price thereof; (iii) Ordinary Shares issued or deemed to be issued by the Company in the Subsequent Financing; and (iv) Ordinary Shares issued or deemed to be issued by the Company upon exercise of the Warrants (provided that the terms of the Warrants are not amended or otherwise modified on or after the ate hereof in a manner that would reduce the exercise price thereof).
 
Federal Reserve ” has the meaning set forth in Section 3.1(ii) .
 
Filing Deadline ” has the meaning set forth in Section 4.5(a) .
 
Filing Failure ” has the meaning set forth in Section 4.5(b) .
 
FINRA ” has the meaning set forth in Section 3.2(c) .
 
GAAP ” United States generally accepted accounting principles applied on a consistent basis during the periods involved.
 
Grace Period ” has the meaning set forth in Section 4.5(d)(xi) .
 
Indebtedness ” means, with respect to any Person, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in accordance with GAAP, is classified as a capital lease, and (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by such Person, even though such Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness.
 
3

Indemnified Damages ” has the meaning set forth in Section 6.1(a) .
 
Indemnified Party ” has the meaning set forth in Section 6.1(b) .
 
Indemnified Person ” has the meaning set forth in Section 6.1(a) .
 
Investor ” has the meaning set forth in the Preamble.
 
Lien ” means any lien, charge, claim, security interest, pledge encumbrance, right of first refusal, preemptive right or other restriction.
 
Losses ” means any and all losses, claims, damages, liabilities, settlement costs and expenses, including, without limitation, reasonable attorneys’ fees.
 
Maintenance Failure ” has the meaning set forth in Section 4.5(b) .
 
Material Adverse Effect ” means any condition, circumstance, or situation that may result in, or reasonably be expected to result in (i) a material adverse effect on the legality, validity or enforceability of this Agreement or any of the Transaction Documents, (ii) a material adverse effect on the results of operations, prospects, assets, business or condition (financial or otherwise) of the Company and the Subsidiary, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform its obligations hereunder or under any of the Transaction Documents in any material respect on a timely basis; provided, however, that with respect to the immediately preceding clause (ii), none of the following shall be deemed in themselves to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect: (a) any change generally affecting the economy, financial markets or political, economic or regulatory conditions in the United States, the State of Israel or any other geographic region in which the Company and the Subsidiary conduct business (except, in each case, to the extent that the Company or the Subsidiary is disproportionately adversely affected relative to other participants in the industries in which the Company or the Subsidiary participate), (b) general financial, credit or capital market conditions, including interest rates or exchange rates, or any changes therein, (c) conditions (or changes therein) in any industry or industries in which the Company operates (including seasonal fluctuations) to the extent that such conditions do not disproportionately have a greater adverse impact on the Company and the Subsidiary, taken as a whole, relative to other companies operating in such industry or industries, (d) the announcement or pendency of this Agreement and the transactions contemplated hereby or (e) changes in applicable law or GAAP (or, in each case, any interpretations thereof).
 
4

Material Contract ” means any contract of the Company that would be required to be filed with the SEC pursuant to Item 601(b)(10) of Regulation S-K if the Company were required to file reports with the SEC pursuant to Sections 13 or 15(d) of the Exchange Act.
 
Material Permits ” has the meaning set forth in Section 3.1(q) .
 
Maximum Offering Amount ” has the meaning set forth in the Recitals.
 
Merger Agreement ” has the meaning set forth in the definition of Qualified Public Transaction.
 
Minimum Offering Amount ” has the meaning set forth in the Recitals.
 
Money Laundering Laws ” has the meaning set forth in Section 3.1(jj) .
 
NIS ” means New Israeli Shekels.
 
OFAC ” has the meaning set forth in Section 3.1(x) .
 
Options ” means any outstanding rights, warrants or options to subscribe for or purchase Ordinary Shares or Convertible Securities.
 
Ordinary Shares ” has the meaning set forth in the Recitals.
 
Outside Date ” has the meaning set forth in Section 7.2 .
 
Person ” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, a government or any department or agency thereof and any other legal entity.
 
Proceeding ” means an action, claim, suit, investigation or proceeding (including, without limitation, a partial proceeding, such as a deposition), whether commenced or threatened in writing.
 
Public Company ” has the meaning set forth in the definition of Qualified Public Transaction.
 
Purchased Securities ” has the meaning set forth in Section 3.1(e) .
 
Purchased Units ” has the meaning set forth in the Recitals.
 
5

Qualified Public Transaction ” means the consummation of a transaction pursuant to which the Company merges with or into a direct or indirect subsidiary of a U.S. public company that (a) is incorporated in Delaware, (b) has filed all of the periodic reports required to be filed by it under the Exchange Act (or, if such public company is a voluntary filer, such company has filed all of the periodic reports that would have been required to have been filed by it under the Exchange Act if it were subject to the reporting requirements thereunder), and (c) has no Indebtedness or other material liabilities (the “ Public Company ”), pursuant to a merger agreement approved by the Company Board and the requisite percentage of shareholders under applicable law and containing customary representations, warranties and covenants as determined in good faith by the Company Board (the “ Merger Agreement ”), and following which the Company’s shareholders immediately prior to such transaction control not less than 99.0% of the issued and outstanding equity securities of the Public Company, calculated on a fully diluted basis (i.e., assuming the full conversion, exercise  or exchange of, or subscription under, all Options and Convertible Securities and all similar rights and securities of the Public Company), entitled to vote generally in the election of directors.
 
RDP Cap ” has the meaning set forth in Section 4.5(b) .
 
Registrable Securities ” means (i) the Shares comprising a portion of the Units, (ii) the Warrant Shares and (iii) any shares of capital stock issued or issuable with respect to the Shares and Warrant Shares referred to in the immediately preceding clauses (i) and (ii) as a result of any stock split, dividend, distribution, recapitalization, Qualified Public Transaction or similar transaction; provided, that the Registrable Securities shall cease to be Registrable Securities when (a) a registration statement covering such Registrable Securities has been declared effective by the SEC and such Registrable Securities have been disposed of pursuant to such effective registration statement, or (b) such Registrable Securities may be sold without restrictions or other limitations pursuant to Rule 144 (or any successor provision) under the Securities Act (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1).
 
Registration Delay Payments ” has the meaning set forth in Section 4.5(b) .
 
Registration Period ” has the meaning set forth in Section 4.5(d)(i) .
 
Registration Failure ” has the meaning set forth in Section 4.5(b) .
 
Registration Statement ” has the meaning set forth in Section 4.5(a) .
 
Regulation D ” has the meaning set forth in the Recitals.
 
Representatives ” means, with respect to any Person, such Person’s directors, managers, officers employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives.
 
Required Approvals ” has the meaning set forth in Section 3.1(n) .
 
Rule 144 ” means Rule 144 promulgated by the SEC under the Securities Act.
 
6

SEC ” has the meaning set forth in the Recitals.
 
Securities Act ” has the meaning set forth in the Recitals.
 
Shares ” means Ordinary Shares.
 
Subsequent Financing ” has the meaning set forth in the Recitals.
 
Subsidiary ” means Advanced Inhalation Therapies (AIT) Inc., a Delaware corporation.
 
Total Purchase Price ” has the meaning set forth in the Recitals.
 
Trading Market ” means whichever of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, the OTCQB, OTCQX, OTCPink or the OTCBB on which the Ordinary Shares are listed or quoted for trading on the date in question.
 
Transaction Documents ” means this Agreement, including the schedules, annexes and exhibits attached hereto, the Warrants, the Escrow Agreement, the Merger Agreement and each of the other agreements or instruments entered into or executed by the parties hereto in connection with the transactions contemplated by this Agreement (including any expense reimbursement agreement entered into by the Company with any Investor or any of its Affiliates prior to the date of this Agreement).
 
Units ” has the meaning set forth in the Recitals.
 
Unrestricted Conditions ” has the meaning set forth in Section 4.1(b) .
 
Violations ” has the meaning set forth in Section 6.1(a) .
 
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 primary 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 Ordinary Shares are not then listed or quoted for trading on a Trading Market 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 Ordinary Shares so reported, or (c) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith by the Investors and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
 
Warrant Shares ” has the meaning set forth in Section 3.1(e) .
 
Warrants ” has the meaning set forth in the Recitals.
 
Willful Registration Failure ” has the meaning set forth in Section 4.5(b) .
 
7

ARTICLE II.
PURCHASE AND SALE
 
2.1           Escrow Agreement; Closing.
 
(a)   Promptly following the date hereof, the Company shall enter into the Escrow Agreement.  Not later than five (5) days prior to the Closing Date, the Company shall deliver written notice of the anticipated Closing Date to each Investor and instruct each Investor to deposit with the escrow agent under the Escrow Agreement an amount equal to such Investor’s Total Purchase Price.  Subject to the terms and conditions hereof, no later than the Business Day prior to the anticipated Closing Date, such Investor shall, deposit with the escrow agent under the Escrow Agreement an amount equal to such Investor’s Total Purchase Price.
 
(b)   Subject to the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to each Investor, and each Investor shall, severally and not jointly, purchase from the Company, such number of Units as set forth below such Investor’s name on such Investor’s signature page to this Agreement, for the Total Purchase Price.  The date and time of the Closing shall be 10:00 a.m., New York City Time, on the Closing Date.  The Closing shall take place at the offices of Greenberg Traurig, P.A., 333 S.E. 2nd Avenue, Suite 4400, Miami, Florida, 33131, or at such other location as the parties determine.  Closing may take place by delivery of the items to be delivered at Closing by facsimile or other electronic transmission.
 
2.2            Closing Deliveries .
 
(a)   At the Closing, the Company shall deliver or cause to be delivered to each Investor:
 
 (i)   One or more certificates issued in the name of such Investor, evidencing the number of Ordinary Shares equal to Investor’s Purchased Units; and
 
 (ii)   a duly executed Warrant exercisable for a number of Ordinary Shares equal to the number of such Investor’s Purchased Units.
 
(b)   At the Closing, each Investor shall deliver or cause to be delivered to the Company the following:
 
 (i)   the Total Purchase Price in U.S. dollars and in immediately available funds, by wire transfer to an account designated in writing to such Investor by the Company for such purpose; provided, that, such payment shall be satisfied by such Investor’s delivery of written instructions to the escrow agent, directing that the Escrow Deposit be immediately paid to the Company in accordance with the terms of the Escrow Agreement;
 
(ii)    a completed and executed Investor Signature Page to this Agreement;
 
8

(iii)   a completed Stock Certificate Questionnaire in the form attached hereto as Exhibit A-1 ; and
 
(iv)   a completed and executed copy of the Investor Certificate attached hereto as Exhibit A-2 .
 
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
 
3.1   Representations and Warranties of the Company.   The Company hereby represents and warrants to the Investors as follows:
 
(a)   Subsidiary .  The Company owns, directly or indirectly, all of the capital stock or comparable equity interests of the Subsidiary free and clear of any Lien (other than restrictions on transfer arising under applicable securities laws), and all issued and outstanding shares of capital stock or comparable equity interest of the Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights.  The Company does not own an equity or other ownership interest in any Person other than the Subsidiary.
 
(b)   Organization and Qualification .  Each of the Company and the Subsidiary is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable, with the requisite power and legal authority to own and use its properties and assets and to carry on its business as currently conducted.  Neither the Company nor the Subsidiary is in violation of any of the provisions of its certificate or articles of incorporation, bylaws or other organizational or charter documents, as applicable.  Each of the Company and the Subsidiary is duly qualified to do 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, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect and no Proceeding has been instituted seeking to revoke, limit or curtail such power or authority or qualification.
 
(c)   Authorization; Enforcement; Anti-Takeover Provisions Inapplicable .  The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.  The execution and delivery by the Company of each of the Transaction Documents to which it is a party 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 consent or action is required by the Company, the Company Board or its shareholders.  Each of the Transaction Documents to which it is a party has been (or upon delivery will be) duly executed by the Company and is, or when delivered in accordance with the terms hereof, will constitute, the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by 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.  The Company has taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination or other similar anti-takeover provision under the Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or the laws of the jurisdictions of incorporation, formation or organization of the Company that is or could become applicable to Investors as a result of the transactions contemplated by this Agreement, including the Company’s issuance of the Purchased Securities and each Investor’s ownership of the Purchased Securities immediately following the Closing.  The Company has not adopted a shareholder rights plan (or “poison pill”) or similar arrangement relating to accumulations of beneficial ownership of Ordinary Shares or a change in control of the Company.
 
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(d)   No Conflicts .  The execution, delivery and performance by the Company of the Transaction Documents to which it is a party, the issuance and sale of the Units and the consummation by the Company of the transactions contemplated hereby and thereby do not, and will not, (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents, as applicable, (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 the 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 (including any Material Contract), credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or the Subsidiary is a party or by which any property or asset of the Company or the Subsidiary is bound, or affected, except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right would not have or reasonably be expected to result in a Material Adverse Effect, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or the Subsidiary is subject or by which any property or asset of the Company or the Subsidiary is bound or affected, except to the extent that such violation would not have or reasonably be expected to result in a Material Adverse Effect.
 
(e)                                The (i) Ordinary Shares comprising a portion of the Units, (ii) the Warrants and (iii) the Ordinary Shares issuable upon exercise of the Warrants (the " Warrant Shares " and, collectively with the Ordinary Shares comprising a portion of the Units and the Warrants, the " Purchased 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 (other than restrictions on transfer arising under applicable securities laws) and will not be subject to preemptive or similar rights of stockholders (other than those imposed by the Investors).  The offer, issuance and sale of the Purchased Securities are exempt from registration under the Securities Act (in reliance on either or both Section 4(a)(2) or Rule 506(b) of Regulation D thereunder) and applicable state securities laws.
 
(f)   Capitalization.   The aggregate number of shares or other securities and types of all authorized, issued and outstanding classes of capital stock, Options and other securities of the Company and of the Subsidiary (whether or not presently convertible into or exercisable or exchangeable for shares of capital stock of the Company or the Subsidiary, as applicable, and without giving effect to any restrictions or limitations on conversion, exercise or exchange thereof) are set forth on Schedule  3.1(f) .  All outstanding shares of capital stock of the Company and of the Subsidiary are duly authorized, validly issued, fully paid and nonassessable and have been issued in compliance in all material respects with all applicable securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase any capital stock of the Company or the Subsidiary.  Except as set forth on Schedule  3.1(f) and as a result of the purchase and sale of the Purchased 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 the capital stock of the Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or the Subsidiary is bound to issue Ordinary Shares or other equity securities.
 
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(g)   Absence of Litigation .  There is no Proceeding pending, or, to the Company’s knowledge, threatened, before or by any court, public board, government agency, self-regulatory organization or body that adversely affect or challenge the legality, validity or enforceability of any of the Transaction Documents or that, if determined adversely to the Company or the Subsidiary, would, individually or in the aggregate, have or be reasonably likely to result in a Material Adverse Effect.  Neither the Company nor the Subsidiary, nor any director or officer thereof, is or has been the subject of any Proceeding 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 SEC involving the Company or any current or former director or officer of the Company.  The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or the Subsidiary under the Exchange Act or the Securities Act.
 
(h)   Compliance .  Except as would not, individually or in the aggregate, have or be reasonably likely to result in a Material Adverse Effect, (i)  neither the Company nor the Subsidiary 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 the Subsidiary under), nor has the Company or the Subsidiary received written 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 (including any Material Contract) 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) neither the Company nor the Subsidiary is in violation of any order of any court, arbitrator or governmental body, or (iii)  neither the Company nor the Subsidiary is or has been in violation of any statute, rule or regulation of any governmental authority.
 
(i)     Title to Assets .  Neither the Company nor the Subsidiary owns real property.  The Company and the Subsidiary has good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiary, in each case free and clear of all Liens, except for Liens that do not, individually or in the aggregate, have or are reasonably likely to result in a Material Adverse Effect or which do not materially affect the value and do not materially interfere with the use of such property by the Company.  Any real property and facilities held under lease by the Company or the Subsidiary is held by it under valid, subsisting and enforceable leases of which the Company and the Subsidiary is in compliance.
 
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(j)    Intellectual Property .  The Company and the Subsidiary own or possess adequate rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. Except for matters which would not be reasonably likely to have a Material Adverse Effect, the Company and the Subsidiary do not have any knowledge of any violation or infringement by the Company or its Subsidiary of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secret or other similar rights of others, and there is no claim, action or Proceeding pending against, or to the Company’s knowledge, threatened against, the Company or its subsidiaries regarding any trademarks, trade names, patents, patent rights, inventions, copyrights, licenses, service names, service marks, service mark registrations, trade secrets or other violations or infringements of intellectual property rights; and the Company and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.  The Company and the Subsidiary 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.
 
(k)   Insurance .  The Company and the Subsidiary 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 and locations in which the Company and the Subsidiary is engaged. Neither the Company nor the Subsidiary has any reason to believe 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.
 
(l)    Internal Accounting Controls . The Company and the Subsidiary 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 generally accepted accounting principles 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.
 
(m)   Indebtedness . Except (x) as set forth on Schedule 3.1(m) or (y) incurred subsequent to the date hereof in respect of the Company’s clinical trials (in an aggregate amount not in excess of $1,000,000), neither the Company nor the Subsidiary (i) has any outstanding Indebtedness or any liabilities that would be required to be reflected in the Company’s financial statements pursuant to GAAP or (ii) is in violation of any term of and is not in default under any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect.
 
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(n)                                Neither the Company nor the Subsidiary is 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 (including the issuance of the Units), other than (i) notice filings required by applicable state securities laws, (ii) the filing of a Notice of Sale of Securities on Form D with the SEC under Regulation D of the Securities Act, and (iii) those that have been made or obtained prior to the date of this Agreement (collectively, the " Required Approvals ").
 
(o)   Material Changes; Undisclosed Events, Liabilities or Developments .  Since September 30, 2016: (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and not exceeding an aggregate of $150,000, (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP (none of which, individually, or in the aggregate, are material) and (C) liabilities incurred subsequent to the date hereof in respect of the Company’s clinical trials (in an aggregate amount not in excess of $1,000,000), (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 Ordinary Shares or other equity securities, Options or Convertible Securities, to any officer, director or Affiliate, except pursuant to existing Company stock option plans and reflected on Schedule 3.1(f) .
 
(p)   Labor Relations .  No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which would reasonably be expected to result in a Material Adverse Effect.  None of the Company’s or its Subsidiary’s employees is a member of a union that relates to such employee’s relationship with the Company or the Subsidiary, and neither the Company nor the Subsidiary is a party to a collective bargaining agreement, and the Company and the Subsidiary believe that their relationships with their employees are good.
 
(q)   Regulatory Permits .  The Company and the Subsidiary possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses, 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 the Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit, nor is the Company or the Subsidiary in default under, or in violation of, any Material Permit where such default or violation would reasonably be expected to have a Material Adverse Effect.
 
(r)    Transactions With Affiliates and Employees .  Except as set forth on Schedule 3.1(r) , none of the officers or directors of the Company or the Subsidiary and, to the knowledge of the Company, none of the employees of the Company or the Subsidiary is presently a party to any transaction with the Company or the 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, without limitation, award agreements under any incentive compensation plan of the Company.
 
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(s)   Private Placement .  Assuming the accuracy of the Investors’ representations and warranties set forth in Section 3.2 and their compliance with their agreements contained in this Agreement, no registration under the Securities Act is required for the offer and sale of the Purchased Securities by the Company to the Investors pursuant to the terms of this Agreement.
 
(t)     Investment Company . The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Purchased Units, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
 
(u)   Registration Rights .  Other than as set forth in this Agreement, 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.
 
(v)   No General Solicitation .  Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Units by any form of general solicitation or general advertising.  The Company has offered, and may offer, the Units for sale only to the Investors and other “accredited investors” within the meaning of Rule 501 under the Securities Act.
 
(w)   Foreign Corrupt Practices .  Neither the Company nor the Subsidiary, nor to the knowledge of the Company or the Subsidiary, any agent or other person acting on behalf of the Company or the 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, (iii) failed to disclose fully any contribution made by the Company or the 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 Foreign Corrupt Practices Act of 1977, as amended.
 
(x)   Office of Foreign Assets Control .  Neither the Company nor the Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or the Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”).
 
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(y)     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.
 
(z)     Disqualification Events .  None of the Company or the Subsidiary, any of their respective predecessors, any director, executive officer, other officer of the Company or any Subsidiary participating in the offering contemplated hereby, any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Company's outstanding voting equity securities, calculated on the basis of voting power, any "promoter" (as that term is defined in Rule 405 under the Securities Act) connected with the Company or any of the Subsidiaries in any capacity at the time of the Closing, any placement agent or dealer participating in the offering of the Purchase Securities, any of such agents' or dealer's directors, executive officers, other officers participating in the offering of the Purchased Securities (each, a " Covered Person " and, together, " Covered Persons ") is subject to any of the "Bad Actor" disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a " Disqualification Event "). The Company has exercised reasonable care to determine (i) the identity of each person that is an Covered Person; and (ii) whether any Covered Person is subject to a Disqualification Event.  The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e).  The Company is not for any other reason disqualified from reliance upon Rule 506 of Regulation D under the Securities Act for purposes of the offer and sale of the Purchased Securities.  The Company will notify the Investors prior to the Closing Date of the existence of any Disqualification Event with respect to any Covered Person.
 
(aa)   General Solicitation .  Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf, has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Purchased Securities hereunder.
 
(bb)   No Integrated Offering .  Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of any of the Purchased Securities under the Securities Act (except as required by this Agreement), nor will the Company take any action or steps that would require registration of the issuance of any of the Purchased Securities under the Securities Act (except as required by this Agreement).
 
(cc)   Disclosure; Reporting .  Taken as a whole, all written disclosure provided by or on behalf of the Company to the Investors regarding the Company, the Subsidiary, their respective businesses and the transactions contemplated hereby and by the other Transaction Documents, including the Schedules to this Agreement, are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
 
(dd)   Financial Advisors; Placement Agents .  The Company shall be responsible for the payment of any placement agent’s fees or broker’s commissions relating to or arising out of the transactions contemplated hereby.  The Company shall pay, and hold each Investor harmless against, any liability, loss or expense (including reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim for any such payment.  The Company represents and warrants to each Investor that, except as set forth on Schedule 3.1(dd) , (a) it has not engaged a placement agent, broker or financial advisor in connection with the transactions contemplated hereby and (b) there are no fees, commissions or expenses payable to any broker, finder or agent relating to or arising out of the transactions contemplated hereby.
 
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(ee)   Solvency .  Based on the consolidated 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 Purchased Securities hereunder: (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing Indebtedness and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid.  The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).  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 one year from the Closing Date.
 
(ff)     Accountants .  The Company’s accounting firm is Kost Forer Gabby & Kasierer, a Member of EY Global.  To the knowledge and belief of the Company, such accounting firm: (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 for the fiscal year ending December 31, 2016.
 
(gg)   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.
 
(hh)   Acknowledgment Regarding Investors’ Purchase of Securities .  The Company acknowledges and agrees that each of the Investors is acting solely in the capacity of an arm’s length purchaser with respect to the Purchased Securities and the transactions contemplated thereby. The Company further acknowledges that no Investor is acting as a financial advisor or fiduciary of the Company with respect to the transactions contemplated hereby and any advice given by any Investor or any of their respective Representatives or agents in connection with the transactions contemplated hereby is merely incidental to such Investor’s purchase of the Purchased Securities.  The Company further represents to each Investor 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.
 
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(ii)   Bank Holding Company Act .   Neither the Company nor the Subsidiary nor any of their respective 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 the Subsidiary or any of their respective 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 the Subsidiary nor any of their respective 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.
 
(jj)   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 Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
 
3.2               Representations and Warranties of the Investors .  Each Investor hereby, as to itself only and for no other Investor, represents and warrants to the Company as follows:
 
(a)   Organization; Authority .  Such Investor, if such Investor is not a natural person, is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite corporate, limited liability company, partnership or other 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 purchase by such Investor of the Units hereunder and the consummation of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership or other action on the part of such Investor.  This Agreement and the Transaction Documents to which such Investor is a party or has or will execute have been (or will be prior to the Closing, as applicable) duly executed and delivered by such Investor and constitute the valid and binding obligations of such Investor, enforceable against it in accordance with their 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 Public Sale or Distribution . Such Investor is acquiring the Units in the ordinary course of business for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws, and such Investor does not have a present arrangement to effect any distribution of any of the Purchased Securities to or through any person or entity.
 
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(c)   Investor Status .  Such Investor is 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.  Such Investor is not a registered broker dealer registered under Section 15(a) of the Exchange Act, or a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or an entity engaged in the business of being a broker dealer.  Except as otherwise disclosed in writing to the Company in such Investor’s Selling Stockholder Questionnaire, such Investor is not affiliated with any broker dealer registered under Section 15(a) of the Exchange Act, or a member of the FINRA or an entity engaged in the business of being a broker dealer.
 
(d)   General Solicitation .  Such Investor is not purchasing the Units as a result of any advertisement, article, notice or other communication regarding the Units published in any newspaper, magazine or similar media, broadcast over television or radio, disseminated over the Internet or presented at any seminar or any other general solicitation or general advertisement.  Neither such Investor, nor any Person acting on behalf of such Investor, has offered or sold, and does not presently intend to offer and sell at any future time, any Purchased Securities by any form of general solicitation or general advertising.
 
(e)   Experience of Such Investor; Risk of Loss .  Such Investor 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 Units, and has so evaluated the merits and risks of such investment.  Such Investor understands that it must bear the economic risk of its investment in the Units indefinitely, and is able to bear such risk and is able to afford a complete loss of such investment.  Such Investor has the ability to bear the economic risks of its prospective investment in the Units and can afford the complete loss of such investment.
 
(f)   Access to Information .  Such Investor acknowledges that it has been afforded:  (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the Company and the terms and conditions of the offering of the Units and the merits and risks of investing in the Units; (ii) access to information (other than material non-public information) about the Company and the Subsidiary and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Neither such inquiries and access to information nor any other due diligence investigations conducted by such Investor or its advisors, if any, or its Representatives shall modify, amend or affect such Investor’s right to rely on the Company’s representations and warranties contained in this Agreement.
 
(g)   No Governmental Review .  Such Investor understands that no U.S. federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Units or the fairness or suitability of the investment in the Units nor have such authorities passed upon or endorsed the merits of the offering of the Units.
 
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(h)   No Conflicts .  The execution, delivery and performance by such Investor of this Agreement and the consummation by such Investor of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of such Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Investor, except in the case of clauses (ii) and (iii) above, for such that do not affect the ability of such Investor to consummate the transactions contemplated hereby or perform its obligations hereunder.
 
(i)     No Legal, Tax or Investment Advice .  Such Investor understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Investor in connection with the purchase of the Units constitutes legal, tax or investment advice.  Such Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Units and has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Units.
 
(j)     Reliance on Exemptions .  Such Investor understands that the Units are being offered and sold to it in reliance on specific exemptions from the registration requirements of U.S. federal and state securities laws and that the Company is relying upon the truth and accuracy of, and such Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Investor set forth herein and in the other Transaction Documents in order to determine the availability of such exemptions and the eligibility of such Investor to acquire the Units.
 
(k)   Residency .  Such Investor is a resident of that jurisdiction specified below its name on its signature page hereto.
 
(l)     Transfer or Resale .  Such Investor understands that:  (i) the Purchased Securities have not been and are not (except as required hereunder) being registered under the Securities Act, any U.S. state securities laws or the laws of any foreign country or other jurisdiction, and may not be offered for sale, sold, assigned or transferred unless in compliance with Section 4.1 ; (ii) any sale of the Purchased Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Purchased Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder, unless registered under the Securities Act; and (iii) except as set forth in Section 4.5 , neither the Company nor any other Person is under any obligation to register the Purchased Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.
 
(m)   Legends .  Such Investor understands that the certificates or other instruments representing the Purchased Securities, except as set forth below, shall bear a restrictive legend in substantially the form set forth in Section 4.1(b) and no other legend.
 
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ARTICLE III.
OTHER AGREEMENTS OF THE PARTIES
 
4.1           Transfer Restrictions .
 
(a)   Each Investor covenants that the Purchased Securities acquired by such Investor will be disposed of by such Investor only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with applicable state securities laws.  Subject to Section 4.1(b) , in connection with any transfer of Purchased Securities other than pursuant to an effective registration statement or to the Company, the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration under the Securities Act.
 
(b)   The Investors agree to the imprinting, until no longer required by this Section 4.1(b) , of the following legend on any certificate or other instrument evidencing any of the Purchased Securities:
 
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS 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 COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS. THESE SECURITIES 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 an Investor 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 Purchased Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act, and, if required under the terms of such arrangement, such Investor may transfer pledged or secured Purchased Securities to the pledgees or secured parties.  Such a pledge or transfer would not be subject to approval of the Purchased 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 applicable Investor’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Purchased Securities may reasonably request in connection with a pledge of the Purchased Securities.

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(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 volume or manner-of-sale restrictions and the Company is in compliance with the current public information required under Rule 144, (iv) 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 and without volume or manner-of-sale restrictions, or (v) 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 Company’s transfer agent 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 at such time as such legend is no longer required under this Section 4.1(c) , it will, no later than the earlier of (i) three (3) Business Days and (ii) the number of Business Days comprising the Standard Settlement Period (as defined below) following the delivery by an Investor to the Company or the transfer agent of a certificate representing Shares or Warrant Shares, as the case may be, issued with a restrictive legend (such third Business Day, the “ Legend Removal Date ”), deliver or cause to be delivered to such Investor a certificate representing such shares that is free from all restrictive and other legends (subject to the remainder of this Section 4.1(c)) .  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 4.1 .  Certificates for Purchased Securities subject to legend removal hereunder shall be transmitted by the transfer agent to the Investor by crediting the account of the Investor’s prime broker with the Depository Trust Company System (“ DTC ”) through its Deposit/Withdrawal at Custodian system as directed by such Investor.  As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Business Days, on the Company’s primary Trading Market with respect to the Shares as in effect on the date of delivery of a certificate representing Shares or Warrant Shares (or the date of crediting such Shares or Warrant Shares with DTC, as applicable), as the case may be, issued without a restrictive legend.
 
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(d)   In addition to an Investor’s other available remedies, the Company shall pay to such Investor, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of Shares (based on the VWAP of the Ordinary Shares on the date such Purchased Securities are submitted to the transfer agent) delivered for removal of the restrictive legend and subject to Section 4.1(c) , $10 per Business Day (increasing to $20 per Business Day five (5) Business Days after such damages have begun to accrue) for each Business Day after the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to an Investor by the Legend Removal Date a certificate representing the Purchased Securities so delivered to the Company by such Investor that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Investor purchases (in an open market transaction or otherwise) Ordinary Shares to deliver in satisfaction of a sale by such Investor of all or any portion of the number of Ordinary Shares, or a sale of a number of Ordinary Shares equal to all or any portion of the number of Ordinary Shares that such Investor was entitled to receive from the Company without any restrictive legend, then, an amount equal to the excess of such Investor’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the Ordinary Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) over the product of (A) such number of Ordinary Shares that the Company was required to deliver to such Investor by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Ordinary Shares on any Business Day during the period commencing on the date of the delivery by such Investor to the Company of the applicable Ordinary Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).
 
(e)   Each Investor, severally and not jointly with the other Investors, agrees with the Company that such Investor will sell all Purchased Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Purchased 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 Purchased Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
 
4.2   Use of Proceeds .  The Company shall use the net proceeds from the sale of the Units for its Phase III program in bronchiolitis, its Phase II and III programs in non-tuberculous mycobacterium and for working capital and general corporate purposes, including the expenses of this offering.
 
4.3   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 Investor 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 Investor could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Purchased Securities under the Transaction Documents.
 
4.4   Form D and Blue Sky . The Company agrees to timely file a Form D with respect to the Purchased Securities as required under Regulation D. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Purchased Securities for sale to the Investors at the Closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States (or to obtain an exemption from such qualification). The Company shall make all filings and reports relating to the offer and sale of the Purchased Securities required under applicable securities or “blue sky” laws of the states of the United States following the Closing Date and shall provide copies to any Investor who so requests.
 
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4.5                Resale Registration.
 
(a)   Mandatory Registration.   Following Closing, the Company shall prepare and, as soon as reasonably practicable, but in no event later than the 45 th day following the Closing Date (the " Filing Deadline "), file with the SEC, a registration statement on Form S-1, Form F-1 or such other form under the Securities Act as is then available to the Company (including the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments (and any additional registration statements filed in accordance herewith), all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the " Registration Statement "), providing for the resale from time to time by the Investors of any and all Registrable Securities.  The Company agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective by the SEC as soon as practicable following such filing, but in no event later than the earlier of (x) the 90 th day following the date on which the Registration Statement is initially filed with the SEC and (y) the fifth day following the date on which the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be reviewed or will not be subject to further review (such earlier date, the " Effectiveness Deadline ").  The Company shall promptly, and in any event within three (3) Business Days, notify the Investors of the effectiveness of the Registration Statement.  The Company shall maintain the effectiveness of the Registration Statement for so long as there are any Registrable Securities outstanding, with respect to such Registrable Securities.
 
(b)   Effect of Failure to Obtain Effectiveness by Effectiveness Deadline .  If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Deadline (a " Filing Failure ") or (B) declared effective by the SEC on or before the Effectiveness Deadline (an " Effectiveness Failure "), (ii) other than during an Allowable Grace Period, on any day after the Registration Statement has been declared effective by the SEC, sales of all the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement or to register sufficient Registrable Securities) (a " Maintenance Failure ") or (iii) if the Company fails to file with the SEC required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) and as a result of which any of the Investors are unable to sell Registrable Securities under Rule 144 (a " Current Public Information Failure ", and each of a Filing Failure, an Effectiveness Failure, a Maintenance Failure and a Current Public Information Failure being referred to as a " Registration Failure "), then, subject to the last sentence of this Section 4.5(b) (and subject to Section 4.5(c) with respect to Cutback Shares), as full relief (but not as a penalty) for the damages to any Investor by reason of its inability to sell Registrable Securities under the Registration Statement other than as a result of a Willful Registration Failure (as defined below), the Company shall, (i) on or prior to the fifth (5 th ) day following a Registration Failure and (ii) on or prior to the fifth (5 th ) day following each monthly anniversary of such Registration Failure and until such Registration Failure shall have been cured (prorated for any period of less than a month), pay to each Investor holding Registrable Securities an amount in cash equal to one and one-half percent (1.5%) of the Total Purchase Price paid by such Investor for such Investor's Purchased Units (such amounts, collectively, " Registration Delay Payments "); provided , that the aggregate amount of Registration Delay Payments payable by the Company shall in no event exceed an amount equal to nineteen and a half percent (19.5%) of the aggregate Total Purchase Price paid by all Investors hereunder (the " RDP Cap ").  Notwithstanding the foregoing, if there is (i) a Filing Failure or an Effectiveness Failure resulting from the Company's failure to have complied with clause (y) of the definition of "Effectiveness Deadline" or (ii) any Registration Failure that shall have been due to the Company's failure to use its reasonable best efforts to comply with its obligations under this Section 4.5 (each of the immediately preceding clauses (i) and (ii), a " Willful Registration Failure "), then as partial relief (but not as a penalty) for the damages to any Investor by reason of its inability to sell Registrable Securities under the Registration Statement and without limiting each Investor's rights to any other remedy available hereunder or otherwise at law or in equity, the Registration Delay Payments in respect of a Willful Registration Failure shall be an amount in cash equal to three percent (3.0%) of the Total Purchase Price paid by such Investor for such Investor's Purchased Units, and such Registration Delay Payments shall not be subject to the RDP Cap. For the avoidance of doubt, no more than one Registration Delay Payment shall be payable by the Company at any given time, notwithstanding that more than one failure giving rise to a Registration Delay Payment shall have occurred and is continuing (e.g., a Filing Failure and an Effectiveness Failure continuing simultaneously); provided , that , Registration Delay Payments shall continue in accordance with this Section 4.5(b) until all failures giving rise to such payments are cured.
 
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(c)   Rule 415 Cutback .  Notwithstanding the registration obligations set forth in Section 4.5(a) , if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, then the Company agrees to promptly inform each of the Investors thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC, covering the maximum number of Registrable Securities permitted to be registered by the SEC; provided , however , that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.  Notwithstanding any other provision of this Agreement, if the SEC or any guidance of the Staff thereof sets forth a limitation on the number of Registrable Securities permitted to be registered on the Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the SEC for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by an Investor as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows (the number of Registrable Securities not registered, the " Cutback Shares "):
 
(i)  First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
 
(ii) Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Investors on a pro rata basis based on the total number of unregistered Warrant Shares held by such Investors); and
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(iii) Third, the Company shall reduce Registrable Securities represented by Ordinary Shares (applied to the Investors on a pro rata basis based on the total number of unregistered Ordinary Shares held by such Investors).
 
In the event of a cutback hereunder, the Company shall give each Investor at least five (5) Business Days prior written notice along with the calculations as to such Investor’s allotment.  In the event the Company amends the Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by the SEC or guidance of the Staff thereof provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1, Form F-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended (any such other registration statements, an “ Additional Registration Statement ”).  As full relief (but not as a penalty) for the damages to any Investor by reason of its inability to sell Cutback Shares under the Registration Statement, the Company shall, (i) on or prior to the fifth (5 th ) day following the date on which the Registration Statement shall be declared effective by the SEC (and which Registration Statement does not include the Cutback Shares) and (ii) on or prior to the fifth (5 th ) day following each monthly anniversary of such effectiveness (prorated for any period of less than a month) and until the earliest to occur of (x) the date on which the Cutback Shares are included in either the effective Registration Statement, as may be amended or any effective Additional Registration Statement and (y) the date on which such Cutback Shares may be sold without restrictions or other limitations pursuant to Rule 144 (or any successor provision) under the Securities Act (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1), pay to each Investor holding Cutback Shares an amount in cash equal to one percent (1.0%) of the product of (A) $6.00 (subject to proportionate adjustment for any stock splits, stock dividends, stock combinations, recapitalizations and similar events occurring after the date hereof) and (B) the number of such Cutback Shares.
 
(d)   Related Obligations .  The Company shall use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and, pursuant thereto, the Company shall have the following obligations:
 
(i)  The Company shall promptly prepare and file with the SEC the Registration Statement with respect to all the Registrable Securities (but in no event later than the applicable Filing Deadline) and use its reasonable best efforts to cause the Registration Statement to become effective as soon as practicable after such filing (but in no event later than the Effectiveness Deadline).  Subject to Allowable Grace Periods, the Company shall keep the Registration Statement effective (and the prospectus contained therein available for use) pursuant to Rule 415 for resales by the Investors of all of the Registrable Securities on a delayed or continuous basis at then-prevailing market prices (and not fixed prices) at all times for so long as there remain outstanding any Registrable Securities (the “ Registration Period ”).  Notwithstanding anything to the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, the Registration Statement (1) shall not contain any 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 the case of prospectuses, in the light of the circumstances in which they were made) not misleading and (2) will disclose (whether directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities.  The Company shall submit to the SEC, within five (5) days after the Staff of the SEC advises the Company (orally or in writing, whichever is earlier) that the Staff either will not review the Registration Statement or has no further comments on the Registration Statement (as the case may be), a request for acceleration of effectiveness of the Registration Statement to a time and date not later than forty-eight (48) hours after the submission of such request.
 
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(ii)  Subject to Section 4.5(d)(xi) , the Company shall prepare and file with the SEC such amendments (including, without limitation, post-effective amendments) and supplements to the Registration Statement (and to the extent necessary additional registration statements, which shall be deemed to constitute part of the Registration Statement for all purposes hereof) and the prospectus used in connection with the Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Registration Statement effective and available for resales of all of the Registrable Securities at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act.
 
(iii)  The Company shall promptly furnish to each Investor, without charge, (i) upon request, after the same is prepared and filed with the SEC, a reasonable number of copies of the Registration Statement and any amendment(s) and supplement(s) thereto, including, if so requested, the financial statements and schedules filed therewith, all documents incorporated therein by reference, all exhibits and each preliminary prospectus, (ii) upon request, upon the effectiveness of the Registration Statement, two (2) copies of the prospectus included in the Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request from time to time), and (iii) such other documents, including, without limitation, copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
 
(iv)  The Company shall use its reasonable best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by Investors of the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of jurisdictions in the United States as shall be reasonably appropriate for the distribution of the Registrable Securities covered by the Registration Statement, (ii) prepare and file in those jurisdictions, such amendments (including, without limitation, post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4.5(d)(iv) , (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.  The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.  Without limiting the foregoing, for so long as the principal trading is not a United States national securities exchange, the Company shall file all necessary reports, at its expense, to publish all information so as to have available "current public information" in Standard & Poor's Corporation Records (or successor thereto) or Mergent's Manual (or successor thereto) for state "blue sky" exemption purposes.
 
(v)   The Company shall notify each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, non-public information regarding the Company or any of its Subsidiaries), and, subject to Section  4.5(d)(xi) , promptly prepare a supplement or amendment to the Registration Statement and such prospectus contained therein to correct such untrue statement or omission and, upon request by any Investor, deliver two (2) copies of such supplement or amendment to such Investor (or such other number of copies as such Investor may reasonably request).  If the Company receives SEC comments which challenge the right of an Investor to have its Registrable Securities included in the Registration Statement without being deemed an underwriter thereunder, the Company shall, in discussions with and responses to the SEC, use its reasonable best efforts and time to cause as many Registrable Securities as possible to be included in the Registration Statement without characterizing any Investor as an underwriter and in such regard use its reasonable best efforts to cause the SEC to permit the affected Investors or their respective counsel to reasonably participate in SEC conversations on such issue together with Company counsel, and timely convey relevant information concerning such issue with the affected Investors or their respective counsel. In no event may the Company name any Investor as an underwriter without such Investor's prior written consent; provided , however , that if, after the Company complies with its covenants contained in this Section  4.5(d)(v) , the SEC requires that such Investor be named an underwriter and such Investor refuses to promptly deliver its written consent to be so named, then the Company may exclude such Investor and such Investor's Registrable Securities from the Registration Statement, and such Investor's Ordinary Shares and Warrant Shares acquired under this Agreement shall be deemed to no longer be Registrable Securities, irrespective of the definition of " Registrable Securities " contained in this Agreement.
 
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(vi)  The Company shall (i) use reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension as soon as reasonably practicable and (ii) notify each Investor who holds Registrable Securities of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
 
(vii)  Without limiting any obligation of the Company under this Agreement, the Company shall use its reasonable best efforts either to (i) cause all of the Registrable Securities to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all of the Registrable Securities on the applicable over the counter market.
 
(viii)  The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (subject to applicable securities laws, not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts (as the case may be) as the Investors may reasonably request from time to time and registered in such names as the Investors may request.
 
(ix)  The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date of the Registration Statement.
 
(x)  The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection with the Registration Statement.
 
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(xi)   Notwithstanding anything to the contrary herein (but subject to the last sentence of this Section  4.5(d)(xi) ), at any time after the date on which the Registration Statement is declared effective by the SEC, the Company may delay the disclosure of material, non-public information concerning the Company or any of its Subsidiaries, the disclosure of which at the time is not, in the good faith opinion of the Company Board or any named executive officer of the Company, in the best interest of the Company or otherwise required by law or under this Agreement (a " Grace Period "); provided that the Company shall promptly notify the Investors in writing of the (i) existence of material, non-public information giving rise to a Grace Period (provided that in each such notice the Company shall not disclose the content of such material, non-public information to any of the Investors) and the date on which such Grace Period will begin and (ii) date on which such Grace Period ends; and, provided , further , that (A) no Grace Period shall exceed thirty (30) consecutive days, (B) during any three hundred sixty five (365) day period, such Grace Periods shall not exceed an aggregate of sixty (60) days, and (C) the first day of any Grace Period must be at least ten (10) Business Days after the last day of any prior Grace Period (each Grace Period that satisfies all of the requirements of this Section  4.5(d)(xi) being referred to as an " Allowable Grace Period ").  For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause and shall end on the date referred to in such notice.  Notwithstanding anything to the contrary contained in this Section  4.5(d)(xi) , the Company shall cause its transfer agent to deliver unlegended Ordinary Shares to a transferee of an Investor in accordance with the terms of this Agreement in connection with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the Registration Statement to the extent applicable, prior to such Investor's receipt of the notice of a Grace Period and for which the Investor has not yet settled.
 
(e)   Obligations of the Investors .  Each Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as the Company shall reasonably request and as shall be required in connection with the registration of the Registrable Securities.  Each Investor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Registration Statement, unless such Investor has notified the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities from the Registration Statement.
 
(f)   Expenses of Registration .  All expenses incurred in connection with the Registration Statement, excluding underwriters’ discounts and commissions, but including without limitation all registration, filing and qualification fees, word processing, duplicating, printers’ and accounting fees, stock exchange fees, messenger and delivery expenses, all fees and expenses of complying with state securities or blue sky laws and the fees and disbursements of counsel for the Company shall be paid by the Company.
 
4.6            Prohibitions on Dividends, Etc .  Except as expressly contemplated by this Agreement, on or prior to the Closing Date, the Company shall not authorize, approve, or effect, or set a record date for, any (i) share dividend, share split, share combination, recapitalization or similar event with respect to the Ordinary Shares, (ii) any dividend or distribution (of cash, securities or other assets) on the Ordinary Shares, (iii) any offering, issuance or sale of any Ordinary Shares or Options, Convertible Securities, or (iv) other action of a type that would have resulted in any adjustment of any of the terms of the Warrants if the Warrants were then to have been outstanding.
 
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4.7            Subsequent Equity Sales.
 
(a)   From the date hereof until the later of (i) the 90 th day following the date on which the Registration Statement is declared effective by the SEC and (ii) September 30, 2017, neither the Company nor its Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Ordinary Shares, Options or Convertible Securities.
 
(b)   From the date hereof until the one-year anniversary of the date on which the Registration Statement is declared effective by the SEC, the Company shall not effect or enter into an agreement to effect any issuance by the Company or the Subsidiary of Ordinary Shares, Options or Convertible Securities (or a combination of units thereof) involving a Variable Rate Transaction.  “ Variable Rate Transaction ” means a transaction in which the Company:  (i) issues or sells any Convertible Securities or Options that are convertible into, exchangeable or exercisable for, or include the right to receive, Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the Ordinary Shares at any time after the initial issuance of such Convertible Securities or Options or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or Options or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Ordinary Shares; or (ii) enters into, or effects a transaction under, any agreement, including an equity line of credit or “at-the-market” offering, whereby the Company may issue securities at a future determined price.
 
(c)   Notwithstanding the foregoing, this Section 4.7 shall not apply in respect of an Exempted Issuance or the Subsequent Financing; provided , that, with respect to the Subsequent Financing, this Section 4.7 shall apply on and after the earlier of (i) the date on which the Registration Statement is initially filed with the SEC and (ii) the Filing Deadline.
 
4.8            Satisfaction of Closing Conditions .  The Company shall use its reasonable best efforts to timely satisfy each of the conditions to be satisfied by it as provided in Section 5.1 of this Agreement. Without limiting the foregoing, the Company shall use its reasonable best efforts, and shall cause its Affiliates to use their reasonable best efforts, to, take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to consummate the Qualified Public Transaction as promptly as reasonably possible following the date of this Agreement.
 
4.9            Public Disclosure .  Not later than the fourth (4 th ) Business Day following the Closing Date, the Company shall file with the SEC a Current Report on Form 8-K (the “ Closing Form 8-K ”), describing the terms of the transactions contemplated by the Transaction Documents, as required pursuant to applicable SEC rules and regulations, including as exhibits to the Closing Form 8-K a copy this Agreement and the form of Warrant, and including all “Form 10 information” and other information required to be included therein.  The Closing Form 8-K shall include all information that constitutes, or the Company reasonably believes constitutes, material non-public- information that has been provided to the Investors on or prior to the Closing Date.  The Company shall not, and shall cause each of its Affiliates and its and each of their respective officers, directors, employees and agents not to, intentionally provide any Investor with any material nonpublic information regarding the Company or the Subsidiary from and after the filing of the Closing Form 8-K with the SEC without the express prior written consent of such Investor.
 
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4.10         Non-Public Information .  Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.9, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Investor or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Investor shall have consented to the receipt of such information and agreed with the Company to keep such information confidential.  The Company understands and confirms that each Investor shall be relying on the foregoing covenant in effecting transactions in securities of the Company.  To the extent that the Company delivers any material, non-public information to an Investor without such Investor’s consent, the Company hereby covenants and agrees that such purchaser shall not have any duty of confidentiality to the Company, its Subsidiary or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company or its Subsidiary or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that such Investor shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or its Subsidiary, the Company shall simultaneously file or furnish such notice with the SEC pursuant to a Current Report on Form 8-K.  The Company understands and confirms that each Investor shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
 
4.11         Listing of Ordinary Shares; DTC . The Company hereby agrees to use reasonable best 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 applicable Trading Market. The Company agrees to maintain the eligibility of the Ordinary Shares for electronic transfer through DTC, including by timely payment of fees to DTC in connection with such electronic transfer.
 
4.12         Registration Under Section 12; Maintenance of Reporting Status.
 
(a)   If the Ordinary Shares are not registered under Section 12(b) or 12(g) of the Exchange Act on the Closing Date, then the Company agrees to cause the Ordinary Shares to be registered under Section 12(g) of the Exchange Act on or before the 60 th calendar day following the Closing Date. From such registration until the earliest of the time that (i) no Investor owns any Purchased Securities or (ii) the Warrants shall have expired, the Company covenants to maintain the registration of the Ordinary Shares under Section 12(b) or 12(g) of the Exchange Act (the “ Reporting Period ”).
 
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(b)   From the Closing Date through the end of the Reporting Period, the Company (i) shall not terminate its status as an issuer required to file reports under the Exchange Act, even if the securities laws would otherwise permit any such termination, (ii) shall make and keep public information available, as those terms are understood and defined in Rule 144, (iii) shall timely file with the SEC all reports and other documents required to be filed by the Company under the Exchange Act, and (iv) shall furnish to each Investor so long as such Investor owns Registrable Securities, promptly upon request a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company (other than correspondence with the SEC and any document for which confidential treatment is sought), and (v) such other information as may be reasonably requested to permit the Investors to sell such securities pursuant to Rule 144.
 
4.13         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 all of the Shares pursuant to this Agreement and all of the Warrant Shares pursuant to any exercise of the Warrants.
 
ARTICLE IV.
CONDITIONS
 
5.1            Conditions Precedent to the Obligations of the Investors .  The obligation of each Investor to acquire Units at the Closing is subject to the satisfaction, unless waived in writing by such Investor, at or before the Closing, of each of the following conditions:
 
(a)   Representations and Warranties .  The representations and warranties of the Company contained herein:  (i) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects as of the date when made and as of the Closing Date as though made on and as of the Closing Date (except for those representations and warranties that are qualified by materiality or Material Adverse Effect and speak as of a specific date, which shall be true and correct in all respects as of such specified date); and (ii) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made on and as of the Closing Date (except for those representations and warranties that are not qualified by materiality or Material Adverse Effect and speak as of a specific date, which shall be true and correct in all material respects as of such specified date); provided , that , the representations and warranties of the Company contained in Sections 3.1(a) , 3.1(b) , 3.1(c) , 3.1(d) , 3.1(e) , 3.1(f) and 3.1(s) shall be true and correct in all respects as of the date when made and as of the Closing Date as though made on and as of the Closing Date (except for those representations and warranties that speak as of a specific date, which shall be true and correct in all respects as of such specified date).
 
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(b)   Performance .  The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the Closing.
 
(c)   Approvals .  The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Units (including all Required Approvals), all of which shall be and remain so long as necessary in full force and effect.
 
(d)   Absence of Litigation . No Proceeding by or before any court or any governmental body or authority, against the Company or the Subsidiary or pertaining to the transactions contemplated by this Agreement or their consummation, shall have been instituted on or before the Closing Date, which action, suit or proceeding would, if determined adversely, have or reasonably be expected to result in a Material Adverse Effect.
 
(e)   Transaction Documents .  The Company shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Investors.
 
(f)   No Injunction . No Proceeding shall have been filed and no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered or promulgated by any court or governmental authority of competent jurisdiction that prohibits or seeks to prohibit or otherwise challenges the consummation of any of the transactions contemplated by the Transaction Documents.
 
(g)   Adverse Changes .  Since the execution of this Agreement, no event or series of events shall have occurred that has had, or would be reasonably like to have, a Material Adverse Effect.
 
(h)   Officer’s Certificate .  The Company shall have delivered to the Investors a certificate executed by a duly authorized officer of the Company certifying the fulfillment of the conditions specified in Sections 5.1(a) and 5.1(b).
 
(i)   Secretary’s Certificate .  The Company shall have delivered to the Investors a certificate executed by the secretary of the Company, dated as of the Closing Date, as to (i) the resolutions adopted by the Company Board approving the transactions contemplated hereby, (ii) the articles of incorporation (or similar organizational documents) of the Company, as in effect on the Closing Date, (iii) the bylaws (or similar governing documents) of the Company, as in effect on the Closing Date, and (iv) the authority and incumbency of the officers of the Company executing the Transaction Documents.
 
(j)   Qualified Public Transaction .  The Company shall have entered into the Merger Agreement, and immediately following the Closing, (i) the Company shall consummate the Qualified Public Transaction in accordance with the Merger Agreement, (ii) the Public Company shall have assumed (but without releasing the Company), by written instrument reasonably acceptable to Investors having the right to acquire a majority of the Units at the Closing all of the Company’s post-Closing obligations hereunder (including registration and indemnification obligations), effective immediately following the Closing and the consummation of the Qualified Public Transaction, in accordance with Section 7.7 hereof, and (iii) the Public Company shall have assumed the obligations of the Company under each of the Warrants by issuing a new Warrant of the Public Company, in a form reasonably acceptable to Investors having the right to acquire a majority of the Units at the Closing, in accordance with Section 3(a)(iii) of each of the Warrants.
 
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(k)   Conversion of Preferred Shares and Convertible Notes .  Concurrently with, or immediately following Closing, all outstanding Series A Preferred Shares and convertible promissory notes of the Company shall convert into Ordinary Shares, in each case as set forth on Schedule 3.1(f) .
 
(l)   Offering Amount .  Investors shall have agreed to purchase an aggregate number of Purchased Units for an aggregate Total Purchase Price equal to or greater than the Minimum Offering Amount but equal to or less than the Maximum Offering Amount.
 
(m)                               Legal Opinion .  Company counsel shall have delivered to the Investors a legal opinion of Company counsel, addressed to the Investors, in form and substance reasonable satisfactory to the Investors.
 
                5.2           Conditions Precedent to the Obligations of the Company .  The obligation of the Company to sell the Units at the Closing is subject to the satisfaction or waiver by the Company, at or before the Closing, of each of the following conditions:
 
(a)   Representations and Warranties .  The representations and warranties of the Investors contained herein shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made on and as of the Closing Date (except for those representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such specified date).
 
(b)   Performance . The Investors shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Investors at or prior to the Closing.
 
(c)   Approvals .  The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Units (including all Required Approvals).
 
(d)   Deliverables .  The Investors shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company.  The Investors shall have delivered to the Company those items required by Section 2.2(b) .
 
(e)   No Injunction . No Proceeding shall have been filed and no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered or promulgated by any court or governmental authority of competent jurisdiction that prohibits or seeks to prohibit or otherwise challenges the consummation of any of the transactions contemplated by the Transaction Documents.
 
(f)   Offering Amount .  Investors shall have agreed to purchase an aggregate number of Purchased Units for an aggregate Total Purchase Price equal to or greater than the Minimum Offering Amount but equal to or less than the Maximum Offering Amount.
 
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ARTICLE V.
INDEMNIFICATION
 
6.1            Indemnification .
 
(a)   To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor and each of its directors, officers, shareholders, members, partners, employees, agents, advisors and representatives and each Person, if any, who controls such Investor within the meaning of the Securities Act or the Exchange Act and each of the directors, officers, shareholders, members, partners, employees, agents, advisors, representatives of such controlling Persons (each, an “ Indemnified Person ”), against any losses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’ fees and costs of defense and investigation), amounts paid in settlement or expenses, joint or several (collectively, “ Claims ”),  incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened in writing (“ Indemnified Damages ”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any breach of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or made by any Person in the Merger Agreement, (ii) any untrue statement or alleged untrue statement of a material fact in the Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“ Blue Sky Filing ”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the any prospectus (preliminary, final, free-writing or otherwise) or any amendment or supplement thereto, or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, or (iv) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to the Registration Statement (the matters in the foregoing clauses (i) through (iv) being, collectively, “ Violations ”).  Subject to Section 6.1(c) , the Company shall reimburse the Indemnified Persons for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim.  Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6.1(a) :  (i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Indemnified Person for such Indemnified Person expressly for use in connection with the preparation of, or inclusion in, the Registration Statement or any such amendment thereof or supplement thereto; and (ii) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed.  Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of any of the Registrable Securities by any of the Investors.
 
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(b)   In connection with the Registration Statement, each Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6.1(a) , the Company, and each of its directors and officers and each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Ac (each, an “ Indemnified Party ”), against any Claim or Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case, to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written information furnished to the Company by such Investor expressly for use in connection with the preparation of, or inclusion in, the Registration Statement or any such amendment thereof or supplement thereto; and, subject to Section 6.1(c) and the below provisos in this Section 6.1(b) , such Investor will reimburse an Indemnified Party any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such Claim; provided , however , the indemnity agreement contained in this Section 6.1(b) and the agreement with respect to contribution contained in Section 6.2 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld or delayed’ provided, further, that such Investor shall be liable under this Section 6.1(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the applicable sale of Registrable Securities pursuant to the Registration Statement.  Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of any of the Registrable Securities by any of the Investors.
 
(c)   Promptly after receipt by an Indemnified Person or Indemnified Party (as the case may be) under this Section 6.1 of notice of the commencement of any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6.1 , deliver to the applicable indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party (as the case may be); provided , however , an Indemnified Person or Indemnified Party (as the case may be) shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if:  (i) the indemnifying party has agreed in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly to assume the defense of such Claim and to employ counsel reasonably satisfactory to such Indemnified Person or Indemnified Party (as the case may be) in any such Claim; or (iii) the named parties to any such Claim (including, without limitation, any impleaded parties) include both such Indemnified Person or Indemnified Party (as the case may be) and the indemnifying party, and such Indemnified Person or such Indemnified Party (as the case may be) shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Person or such Indemnified Party and the indemnifying party (in which case, if such Indemnified Person or such Indemnified Party (as the case may be) notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then the indemnifying party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided further that in the case of clause (iii) above the indemnifying party shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for such Indemnified Person or Indemnified Party (as the case may be).  The Indemnified Party or Indemnified Person (as the case may be) shall reasonably cooperate with the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person (as the case may be) which relates to such action or Claim.  The indemnifying party shall keep the Indemnified Party or Indemnified Person (as the case may be) reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto.  No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, the indemnifying party shall not unreasonably withhold, delay or condition its consent.  No indemnifying party shall, without the prior written consent of the Indemnified Party or Indemnified Person (as the case may be), consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person (as the case may be) of a release from all liability in respect to such Claim or litigation, and such settlement shall not include any admission as to fault on the part of the Indemnified Party.  , firms or corporations relating to the matter for which indemnification has been made.  The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party (as the case may be) under this Section 6.1 , except to the extent that the indemnifying party is materially and adversely prejudiced in its ability to defend such action.
 
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(d)   The indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities to which the indemnifying party may be subject pursuant to the law.
 
6.2           Contribution .  To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6.1 to the fullest extent permitted by law; provided, however:  (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Section 6.1; (ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount of net proceeds received by such seller from the applicable sale of such Registrable Securities pursuant to the Registration Statement.  Notwithstanding the provisions of this Section 6.2, no Investor shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Investor from the applicable sale of the Registrable Securities subject to the Claim exceeds the amount of any damages that such Investor has otherwise been required to pay, or would otherwise be required to pay, under Section 6.1(b), by reason of such untrue or alleged untrue statement or omission or alleged omission.
 
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ARTICLE VI.
MISCELLANEOUS
 
7.1   Remedies .  In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Investors 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.
 
7.2   Termination .  This Agreement shall automatically terminate if the Closing has not been consummated on or prior to December 31, 2016 (the “ Outside Date ”); u , that no such termination will affect the right of any party to sue for any breach by the other party (or parties).
 
7.3   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 sale and issuance of the applicable Units.
 
7.4   Entire Agreement; Further Assurances .  The Transaction Documents, together with the Exhibits, Annexes and Schedules thereto, 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.  At or after the Closing, and without further consideration, the Company and the Investors will execute and deliver to the Investors such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents.
 
7.5                 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 or email at the facsimile number or email address specified in this Section 7.5 prior to 6:30 p.m. (New York City time) on a Business Day (subject to the sender’s receipt of good transmission, in the case of a facsimile, or the absence of a message back to the sender of undeliverability, in the case of email), (b) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile or email at the facsimile number or email address specified in this Section 7.5 on a day that is not a Business Day or later than 6:30 p.m. (New York City time) on any Business Day, (c) the Business Day following the date of deposit with a nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given.  The addresses, facsimile numbers and email addresses for such notices and communications are those set forth on the signature pages hereof, or such other address or facsimile number as may be designated in writing hereafter, in the same manner, by any such Person.
 
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7.6   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 Investors holding or having the right to acquire a majority of the Units at the time of such amendment or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No amendment shall be effective to the extent that it does not apply on the same basis to all of the Investors.  No consideration shall be offered or paid to any Investor to amend or consent to a waiver or modification or supplement of any provision of any of the Transaction Documents unless the same consideration also is offered to all of the Investors.  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.
 
7.7   Construction .  The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.  The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
 
7.8   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 the Investors; provided, however this Agreement shall be assigned to any corporation or association into which the Company may be merged or converted or with which it may be consolidated, or any corporation, association or other similar entity resulting from any merger, conversion or consolidation to which the Company shall be a party without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties to this Agreement except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.  Notwithstanding anything to the contrary contained herein, the Company shall cause this Agreement and all of the Company's obligations hereunder (including registration and indemnification obligations) to be assumed by the Public Company (but without releasing the Company), by written instrument reasonably acceptable to Investors having the right to acquire a majority of the Units at the Closing, effective immediately following the Closing and the consummation of the Qualified Public Transaction (and as a condition thereto), and pursuant to such assumption, all references herein to the Company, the Ordinary Shares and other securities of the Company shall, as used with respect to all periods following the Closing, be deemed to refer to the Public Company, the shares of common stock of the Public Company and other securities of the Public Company, as applicable.  Prior to the Closing, any Investor may assign some or all of its rights hereunder without the consent of the Company; provided that (i) such Investor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company after such assignment, (ii) the Company is furnished with written notice of the name and address of such transferee or assignee, and (iii) such transferee agrees in writing to be bound by the provisions hereof that apply to the " Investors " (including, at the time of such assignment, the making, and the truthfulness and accuracy, of all representations and warranties of an Investor hereunder); provided , further , however , that any such assignment shall not release such Investor from its obligations hereunder unless such obligations are assumed by such assignee and the Company has consented to such assignment and assumption, which consent shall not be unreasonably withheld, conditioned or delayed.  Any Investor may assign its rights with respect to any Purchased Securities under this Agreement to any Person to whom such Investor assigns or transfers such Purchased Securities, provided (i) such transferor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company after such assignment, (ii) the Company is furnished with written notice of the name and address of such transferee or assignee, (iii) following such transfer or assignment, the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws, (iv) such transferee agrees in writing to be bound, with respect to the transferred Purchased Securities, by the provisions hereof that apply to the " Investors " and (v) such transfer shall have been made in accordance with the applicable requirements of this Agreement.  Notwithstanding anything to the contrary contained in the Transaction Documents, any Investor shall be entitled to pledge the Purchased Securities in connection with a bona fide margin account or other loan or financing arrangement secured by the Purchased Securities.
 
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7.9   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, other than Indemnified Persons and Indemnified Parties who are not parties to this agreement, who shall be third-party beneficiaries to Article VI .
 
7.10   Governing Law; Venue; Waiver of Jury Trial .  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.  THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT 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 BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, 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 WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.  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 MANNER PERMITTED BY LAW.  THE COMPANY AND INVESTORS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
 
40

7.11   Survival .  Unless this Agreement is terminated under Section 7.2 , the representations and warranties, agreements and covenants contained herein shall survive indefinitely.
 
7.12   Execution .  This Agreement may be executed in counterparts, all of which when taken together shall be considered one and the same agreement.  In the event that any signature is delivered by facsimile transmission or email attachment, 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 email-attached signature page were an original thereof.
 
7.13   Severability .  If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
 
7.14   Independent Nature of Investors’ Obligations and Rights .  The obligations of each Investor under any Transaction Document are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under any Transaction Documents.  The decision of each Investor to purchase Units pursuant to this Agreement has been made by such Investor independently of any other Investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company which may have been made or given by any other Investor or by any agent or employee of any other Investor, and no Investor or any of its agents or employees shall have any liability to any other Investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors 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 Investor acknowledges that no other Investor has acted as agent for such Investor in connection with making its investment hereunder and that no other Investor will be acting as agent of such Investor in connection with monitoring its investment hereunder.  Each Investor shall be entitled to independently protect and enforce its rights, including the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Investor to be joined as an additional party in any Proceeding for such purpose.
 
41

7.15   Replacement of Securities .  If any certificate or instrument evidencing any Purchased Securities is mutilated, lost, stolen or destroyed, then 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 Purchased Securities, but without any requirement to post a bond (unless required by the Company’s transfer agent, in which case the cost of such bond shall be paid by the Company).
 
7.16   Interpretative Matters .  Unless the context otherwise requires, (i) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Agreement, (ii) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP, (iii) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (iv) the use of the word “including” in this Agreement shall be by way of example rather than limitation and (v) the word “or” shall not be exclusive.
 
[SIGNATURE PAGES FOLLOW]
 
42

IN WITNESS WHEREOF , the parties hereto have executed or caused this Securities Purchase and Registration Rights Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
 
 
Advanced Inhalation Therapies Ltd.
 
By: _________________________________
Name: _______________________________
Title: ________________________________

Address for Notice:
________________________
________________________
________________________
 
Facsimile No.: _________________________
Telephone No.: ________________________
Attn: ________________________________

With a copy to:

Greenberg Traurig, P.A.
333 S.E. 2nd Avenue
Suite 4400
Miami, FL 33131

Facsimile No.: 305.961.5756
Telephone No.: 305.579.0756
Attn: Robert L. Grossman and Drew M. Altman
 
[COMPANY SIGNATURE PAGE]
 


INVESTOR SIGNATURE PAGE
 
IN WITNESS WHEREOF , by its execution and delivery of this signature page, the undersigned Investor hereby joins in and agrees to be bound by the terms and conditions of that certain Stock Purchase and Registration Rights Agreement dated as of ___________ __, 2016 (the “ Purchase Agreement ”), by and among Advanced Inhalation Therapies Ltd., a company organized under the laws of the State of Israel, and the Investors (as defined therein), as to the number of Units set forth below such Investor’s on this signature page, and authorizes this signature page to be attached to the Purchase Agreement or counterparts thereof.
 
 
Name of Investor:
_____________________________________________________
 
By: __________________________________________________
Name: ________________________________________________
Title: _________________________________________________

Number of Purchased Units: ________________________________
Address: ______________________________________________
______________________________________________________
______________________________________________________
 
Telephone No.: __________________________________________
Facsimile No.: ___________________________________________
Email Address: __________________________________________
 
Delivery Instructions (if different than above):

c/o: __________________________________________________
Address: ______________________________________________
______________________________________________________

Telephone No.: _________________________________________
Facsimile No. : __________________________________________
Other Special Instructions:_________________________________
 
Exhibits:
A
Instruction Sheet for Investors
A-1
Stock Certificate Questionnaire
A-2
Investor Certificate
B
Form of Warrant


Exhibit A
 
INSTRUCTION SHEET FOR INVESTOR
 
(to be read in conjunction with the entire Securities Purchase and Registration Rights Agreement)
 
A.
Complete the following items in the Securities Purchase and Registration Rights Agreement:
 
 
1.
Complete and execute the Investor Signature Page.  The Securities Purchase and Registration Rights Agreement must be executed by an individual authorized to bind the Investor.
 
2.
Exhibit A-1 - Stock Certificate Questionnaire:
   
 
Provide the information requested by the Stock Certificate Questionnaire;
 
 
3
Exhibit A-2 - Investor Certificate:
   
 
Provide the information requested by the Investor Certificate.
 
 
4.
Return, via facsimile or email, the signed Securities Purchase and Registration Rights Agreement, including the properly completed Exhibits A-1 and A-2 to:
 
Email: __________________________
   
Facsimile: _______________________
   
Telephone: ______________________
   
Attn: ___________________________
 
 
5.
After completing instruction number four (4) above, deliver the original signed Securities Purchase and Registration Rights Agreement, including the properly completed Exhibits  A-1 and A-2 to:
 
   
570 Lexington Ave
11th Floor
New York, NY 10022
Attn:  Amy Cooper
 
B.
Instructions regarding the wire transfer of funds for the purchase of the Units will be sent by facsimile or email to the Investor by the Company at a later date.



Exhibit A-1
 
ADVANCED INHALATION THERAPIES LTD.
 
STOCK CERTIFICATE QUESTIONNAIRE
 
 
Please provide us with the following information:
 
 
 
1.
The exact name that the Purchased Securities are to be registered in (this is the name that will appear on the stock certificate(s)).  You may use a nominee name if appropriate:
   
____________________________________________
 
2.
The relationship between the Investor in the Purchased Securities and the Registered Holder listed in response to item 1 above:
 
 
____________________________________________
 
3.
The mailing address, telephone and telecopy number and email address of the Registered Holder listed in response to item 1 above:
 
 
 
 
 
____________________________________________
 
____________________________________________
 
____________________________________________
 
____________________________________________
       
4.
The Tax Identification Number of the Registered Holder listed in response to item 1 above:
  ____________________________________________
 

A-1-2

Exhibit A-2
 
ADVANCED INHALATION THERAPIES LTD.
 
CERTIFICATE FOR CORPORATE, PARTNERSHIP, LIMITED LIABILITY COMPANY,
TRUST, FOUNDATION AND JOINT INVESTORS
 
If the Investor is a corporation, partnership, limited liability company, trust, pension plan, foundation, joint Investor (other than a married couple) or other entity, an authorized officer, partner, or trustee must complete, date and sign this Certificate.
 
CERTIFICATE
 
The undersigned certifies that the representations and responses below are true and accurate:
 
(a)           The Investor has been duly formed and is validly existing and has full power and authority to invest in the Company.  The person signing on behalf of the undersigned has the authority to execute and deliver the Stock Purchase Agreement on behalf of the Investor and to take other actions with respect thereto.
 
(b)            Indicate the form of entity of the undersigned:
 
____   Limited Partnership
 
____   General Partnership
 
____   Limited Liability Company
 
____   Corporation
 
____   Revocable Trust (identify each grantor and indicate under what circumstances the trust is revocable by the grantor):
 
________________________________________
(Continue on a separate piece of paper, if necessary.)
 
____   Other type of Trust (indicate type of trust and, for trusts other than pension trusts, name the grantors and beneficiaries):

________________________________________
(Continue on a separate piece of paper, if necessary.)
 
____   Other form of organization (indicate form of organization (____________________________________________________________________________).
 
(c)           Indicate the approximate date the undersigned entity was formed:________________. .
 

(d)   In order for the Company to offer and sell the Units in conformance with state and federal securities laws, the following information must be obtained regarding your investor status.  Please initial each category applicable to you as an investor in the Company.
 
___
1.
A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity;
     
___
2.
A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934;
     
___
3.
An insurance company as defined in Section 2(13) of the Securities Act;
     
___
4.
An investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act;
     
___
5.
A Small Business Investment Company licensed by the U.S.  Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
     
___
6.
A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
     
___
7.
An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment advisor, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
     
___
8.
A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
     
___
9.
Any partnership, limited liability company or corporation or any organization described in Section 501(c)(3) of the Internal Revenue Code or similar business trust, not formed for the specific purpose of acquiring the Shares, with total assets in excess of $5,000,000;
 
A-2-2
 
___
10.
A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a sophisticated person as described in Rule  506(b)(2)(ii) of the Exchange Act;
     
___
11.
A “qualified institutional buyer” as defined by Rule 144A under the Securities Act;
     
___
12.
An entity in which all of the equity owners qualify under any of the above subparagraphs (or each such equity owner is a natural person who either (i) has an individual net worth, or joint net worth with such person’s spouse, in excess of $1,000,000 (exclusive of such person’s primary residence) or (ii) had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year).  If the undersigned belongs to this investor category only, list the equity owners of the undersigned, and, with respect to each equity owner that is not a natural person, the investor category which each such equity owner satisfies:  
________________________________________
(Continue on a separate piece of paper, if necessary.)
 
Please set forth in the space provided below the (i) states, if any, in the U.S. in which you maintained your principal office during the past two years and the dates during which you maintained your office in each state, and (ii) state(s), if any, in which you are incorporated or otherwise organized.
 
__________________________________
__________________________________
__________________________________
 
Dated:__________________________, 2016
 
__________________________________
Print Name of Investor
 
__________________________________
Name:
Title:
(Signature and title of authorized officer, partner or trustee)

A-2-3
Exhibit B
 
[Form of Warrant – Attached]
 
 

 



 
 
 

Exhibit 10.3
 
Warrant No. 101
 
THIS WARRANT HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS 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 COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS. THIS WARRANT 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.

Effective Date: []
Void After: []  
 
AIT THERAPEUTICS, INC.
 
WARRANT TO PURCHASE COMMON STOCK
 
AIT THERAPEUTICS INC. , a Delaware (the “ Company ”), for value received on [] (the “ Effective Date ”), hereby issues to __________ (the “ Holder ”) this Warrant (this “ Warrant ”) to purchase_____ shares of Common Stock, par value $.000001 per share (as defined below) (each such share as from time to time adjusted as hereinafter provided being a “ Warrant Share ” and all such shares being the “ Warrant Shares ”), at $6.90 per share, as adjusted from time to time as provided herein (the “ Exercise Price ”), on or before January 13, 2022 (the “ Expiration Date ”), all subject to the following terms and conditions.
 
This Warrant is one of a series of warrants of like tenor that have been issued in connection with the private offering by Advanced Inhalation Therapies (AIT) Ltd., a company organized under the laws of Israel (“ Predecessor ”), solely to accredited investors of Units in accordance with, and subject to, the terms and conditions described in, that certain Securities Purchase and Registration Rights Agreement, dated as of December 29, 2016, by and among Predecessor and the Investors (the “ Purchase Agreement ”).  Predecessor became a wholly-owned subsidiary of the Company pursuant to an Agreement and Plan of Merger and Reorganization entered into by and between the Company, Predecessor and Red Maple Ltd., an Israeli corporation, dated December 29, 2016, as amended by that certain Amendment No. 1 between the Company and Predecessor dated January 12, 2017, and in connection therewith, the Company assumed Predecessor’s obligations under the Purchase Agreement, this Warrant and the other warrants issued under the Purchase Agreement.  Capitalized terms used in this Warrant but not defined herein shall have the respective meanings ascribed thereto in the Purchase Agreement.
 
As used in this Warrant:
 
(i)
Affiliate ” means any person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a person, as such terms are used and construed in Rule 144 promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”);
 

(ii)
Business Day ” means any day other than Saturday, Sunday or any other day on which commercial banks in the City of New York, New York, are authorized or required by law or executive order to close;
 
(iii)
Exercise Period ” means the period commencing on the date hereof and ending at 5:00 P.M., New York City time, on the Expiration Date, unless sooner terminated as provided herein;
 
(iv)
Common Stock ” means (A) the Company’s common stock, and (B) any shares in the capital of the Company into which such common stock shall have been changed or any shares in the capital of the Company resulting from a reclassification of such common stock.
 
(v)
Person ” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, a government or any department or agency thereof and any other legal entity.
 
(vi)
Standard Settlement Period ” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the common Stock as in effect on the date of delivery of the Notice of Exercise.
 
(vii)
Trading Market ” means whichever of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, the OTCQB, the OTCQX, the OTCPink or the OTCBB on which the Common Stock is listed or quoted for trading on the date in question.
 
(viii)
Trading Day ” means (a) a day on which the Common Stock is traded on a Trading Market (other than the OTCQB, the OTCQX, the OTCPink or the OTCBB), or (b) if the Common Stock is not listed or quoted on any such Trading Market, a day on which the Common Stock are quoted on the OTCQB, OTCQX, OTCPink or the OTCBB; provided, that if the Common Stock is not listed or quoted as set forth in the immediately preceding clauses (a) or (b), then Trading Day shall mean a Business Day.
 
(ix)
Weighted Average Price ” means, for any security as of any date, the U.S. dollar volume-weighted average price for such security on its primary Trading Market during the period beginning at 9:30 a.m., New York City time (or such other time as the Trading Market publicly announces is the official open of trading), and ending at 4:00 p.m., New York City time (or such other time as the Trading Market publicly announces is the official close of trading), as reported by Bloomberg Markets (or any successor thereto, “ Bloomberg ”) through its “Volume at Price” functions, or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30 a.m., New York City time (or such other time as such over-the-counter market publicly announces is the official open of trading), and ending at 4:00 p.m., New York City time (or such other time as such over-the-counter market publicly announces is the official close of trading), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets Group, Inc. (or any successor thereto).  If the Weighted Average Price cannot be calculated for such security on such date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder.  If the primary Trading Market is located in a country other than the United States, the Weighted Average Price shall be calculated in U.S. Dollars using the spot rate for the purchase of the applicable foreign currency at the close of business on the immediately preceding Business Day in New York, New York published in the Wall Street Journal.   All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction that occurs during any period for which the Weighted Average Price is being determined.
 

1.   EXERCISE OF WARRANTS
 
  (a)   Exercise Procedures .
 
      (i)   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 Effective Date and on or before the Expiration Date by delivery to the Company (or such other office or agency that the Company may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company), as applicable, of a duly executed facsimile copy or PDF copy submitted by electronic delivery (or e-mail attachment to amir@ait-pharm.com and racheli@ait-pharm.com or such other email address to which the Company’s email address for this purpose may be changed in accordance with Section 7.4 of the Purchase Agreement) of the notice of exercise in the form attached as Exhibit A (the “ Notice of Exercise ”).  Within the earlier of (i) three (3) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following the date of exercise of this Warrant as set forth herein, the Holder shall deliver the aggregate Exercise Price (“ Aggregate Exercise Price ”) for the shares of Common Stock 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 1(a)(ii) is specified in such Notice of Exercise.  No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required.  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 reducing 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 dates of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day 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.
 

      (ii)   If, at any time a registration statement covering the resale of the Warrant Shares by the Holder is not currently effective and available for the resale of all the Warrant Shares, the Holder may, in its sole discretion, exercise all or any part of the Warrant in a “cashless” or “net-issue” exercise (a “ Cashless Exercise ”), pursuant to which the Holder shall be entitled to receive a number of Warrant Shares calculated using the following formula:
 
 
X       =
Y * (A - B)
 
A
 
 
with: X =
the number of Warrant Shares to be issued to the Holder
 
Y =
the number of Warrant Shares with respect to which the Warrant is being exercised
 
A =
the last Weighted Average Price immediately preceding the time of delivery of the Notice of Exercise giving rise to the applicable “cashless exercise”, as set forth in the applicable Notice of Exercise (to clarify, the “last Weighted Average Price” will be the last Weighted Average Price as calculated over an entire Trading Day such that, if this Warrant is exercised at a time that the primary Trading Market is open, then the prior Trading Day’s Weighted Average Price shall be used in this calculation)
 
B =
the then-current Exercise Price of the Warrant
 
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder in accordance with Section 3(a)(9) of the Securities Act, and the holding period for such Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
 
(iii)   Upon the exercise of this Warrant in compliance with the provisions of this Section 1(a) , the Company shall promptly issue and cause to be delivered to the Holder a certificate for the Warrant Shares purchased by the Holder by the date that is the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) after the delivery to the Company of the Notice of Exercise (the “ Share Delivery Date ”).  Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) three Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise (the “ Date of Exercise ”).  On or before the Share Delivery Date, the Company shall issue and dispatch by overnight courier to the address as specified in the Notice of Exercise, a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise; provided , that , if, at the time of exercise, there shall either be (i) an effective registration statement under the Securities Act covering the resale of the Warrant Shares subject to such exercise or (ii) the Holder shall have effected a cashless exercise pursuant to Section 1(a)(ii) on or after the six-month anniversary of the Effective Date and, at the time of such exercise, the Company satisfies the current public information requirements contained in Rule 144(c) promulgated under the Securities Act, then, on or prior to the Share Delivery Date, the Company shall (X) provided that the company’s transfer agent is participating in The Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer Program (the “ FAST Program ”), upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the Fast Program, issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise, without the imposition of any restrictive legend.  The Company agrees to maintain a transfer agent that is a participant in the FAST Program so long as this Warrant remains outstanding and exercisable.  If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise.
 

(b)   Partial 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, within three (3) Business Days following such surrender, 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.
 
(c)   Rescission Rights .  If the Company fails to cause its transfer agent to transmit to the Holder the Warrant Shares pursuant to Section 1(a)(iii) by the Share Delivery Date, then the Holder will have the right to rescind such exercise by written notice to the Company at any time prior to the delivery of such Warrant Shares.
 
(d)   Compensation for Buy-In on Failure to Timely Deliver Warrant Shares 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 the Warrant Shares in accordance with the provisions of Section 1(a)(iii) pursuant to an exercise on or before the 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, shares of Common Stock 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 shares of Common Stock 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 shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.  For example, if the Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrant 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. 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 Warrant Shares upon exercise of the Warrant as required pursuant to the terms hereof.
 

(e)   Exercise Limitation .  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, to the extent that after giving effect to the issuance of Warrant Shares after such 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 (such Persons, “ Attribution Parties ”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock 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 or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for purposes of this Section 1(d) , 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 1(d) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion, and at the sole determination, 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 Attribution Parties) 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, nor shall the Company be in any way liable to the Holder, any Attribution Party or any other Person in any respect of any such determination.  In addition, a determination as to any “group” status for purpose of this Section 1(d) 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 1(d) , in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission (the “ SEC ”), 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 shares of Common Stock outstanding.  Upon the written request of a Holder, the Company shall within two Trading Days confirm in writing to the Holder the number of shares of Common Stock then outstanding.  In any case, the number of outstanding shares of Common Stock 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 or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported.  The “ Beneficial Ownership Limitation ” shall be 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant.  The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 1(d) ; provided that the Beneficial Ownership Limitation in no event exceeds 9.985% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder, and the provisions of this Section 1(d) shall continue to apply.  Any increase in the Beneficial Ownership Limitation will not be effective until the 61 st day after such notice is delivered to the Company.  The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(d) 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.
 

2.   ISSUANCE OF WARRANT SHARES
 
(a)   The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Warrant, be (i) duly authorized, fully paid and non-assessable, and (ii) free from all liens, charges and security interests, with the exception of claims arising through the acts or omissions of the Holder and except as arising under applicable Federal and state securities laws.
 
(b)   The Company shall register this Warrant upon records to be maintained by the Company for that purpose in the name of the record Holder of such Warrant from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes.
 
(c)   Except and to the extent as waived or consented to by the Holder, the Company will not, by amendment of its organizational documents 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 to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all action necessary or appropriate in order to protect the rights of the Holder to exercise this Warrant, or against impairment of such rights.
 
3.   ADJUSTMENTS OF EXERCISE PRICE, NUMBER AND TYPE OF WARRANT SHARES;   REPURCHASE OF WARRANTS FOR CASH.
 
(a)   The Exercise Price and the number of Warrant Shares purchasable upon the exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence of certain events described in this Section 3 . If the Company does not have the requisite number of authorized but unissued shares of Common Stock to make any adjustment, the Company shall use its commercially reasonable efforts to obtain the necessary stockholder consent to increase the authorized number of shares of Common Stock to make such an adjustment pursuant to this Section 3 .
 
     (i)   Subdivision or Combination of Common Stock . In case the Company shall at any time subdivide (whether by way of stock dividend, stock split or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision shall be proportionately reduced and the number of Warrant Shares shall be proportionately increased, and conversely, in case the outstanding shares of Common Stock shall be combined (whether by way of stock combination, reverse stock split or otherwise) into a lesser number of shares, then the Exercise Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant Shares shall be proportionately decreased. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Section 3(a)(i) .
 
     (ii)   Dividends in Stock, Property, Reclassification . If at any time, or from time to time, all of the holders of shares of Common Stock (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefore:
 
(A)
any shares of stock or other securities that are at any time directly or indirectly convertible into or exchangeable for shares of Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution, or
 

(B)
additional stock or other securities or property (including cash) by way of spin-off, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock split or adjustments covered by the terms of Section 3(a)(i) ), then and in each such case, the Exercise Price and the number of Warrant Shares to be obtained upon exercise of this Warrant shall be adjusted proportionately, and the Holder hereof shall, upon the exercise of this Warrant, be entitled to receive, in addition to the number of Warrant Shares receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the cases referred to above) that such Holder would hold on the date of such exercise had such Holder been the holder of record of such Warrant Shares as of the date on which holders of shares of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Section 3(a)(ii) .  Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 3(a)(ii) with respect to any dividend or distribution that the Holder receives pursuant to Section 8 .
 
(iii)   Reorganization, Reclassification, Consolidation, Merger or Sale . If (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 shares of Common Stock 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 shares of Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the shares of Common Stock 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 shares of Common Stock (not including any shares of Common Stock 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) (an “ Organic Change ”), then, as a condition of such Organic Change, lawful and adequate provisions shall be made by the Company whereby the Holder shall thereafter have the right to purchase and receive (in lieu of the Warrant Shares immediately theretofore purchasable and receivable upon the exercise of the rights represented by this Warrant) such shares of stock, securities or other assets or property as may be issued or payable with respect to or in exchange for such Warrant Shares (as applicable, “ Alternate Consideration ”) equal to the number of shares of such stock immediately theretofore purchasable and receivable assuming the full exercise of the rights represented by this Warrant. In the event of any Organic Change, appropriate provision shall be made by the Company with respect to the rights and interests of the Holder of this Warrant to the end that the provisions hereof (including, without limitation, provisions for adjustments of the Exercise Price and of the number of shares purchasable and receivable upon the exercise of this Warrant) shall thereafter be applicable, in relation to any Alternate Consideration thereafter deliverable upon the exercise hereof. The Company will not effect any such Organic Change unless, prior to the consummation thereof, the successor corporation (if other than the Company) resulting from such Organic Change or the corporation purchasing such assets shall assume by written instrument (which, at the request of the Holder, shall be in the form of a new Warrant issued by such successor corporation) the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive upon exercise of this Warrant. If there is an Organic Change, then the Company shall cause to be mailed to the Holder at its last address as it shall appear on the books and records of the Company, at least 10 calendar days before the effective date of the Organic Change, a notice stating the date on which such Organic Change is expected to become effective or close, and the date as of which it is expected that holders of shares of Common Stock of record shall be entitled to exchange their shares for the Alternate Consideration delivered upon such Organic Change; 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. The Holder is entitled to exercise this Warrant during the 10-day period commencing on the date of such notice to the effective date of the event triggering such notice. In any event, the successor corporation (if other than the Company) resulting from such Organic Change or the corporation purchasing such assets shall be deemed to assume such obligation to deliver to such Holder such Alternate Consideration even in the absence of a written instrument assuming such obligation to the extent such assumption occurs by operation of law.
 

(b)   Adjustment of Exercise Price Upon Certain Issuances of Common Stock .   If and whenever after the Effective Date, the Company issues or sells, or is deemed to have issued or sold, any shares of Common Stock (excluding Exempted Issuances (as defined below)), for a consideration per share (the “ New Issuance Price ”) less than a price equal to the Exercise Price in effect immediately prior to such issuance or sale (the “ Applicable Price ”), then immediately after such issuance or sale the Exercise Price then in effect shall be reduced to the New Issuance Price.  If any sale or issuance, or deemed issuance, is for no consideration, then the New Issuance Price shall be deemed to be $0.01 per Ordinary Share.  Upon each such adjustment of the Exercise Price pursuant to the immediately preceding sentence, the number of Warrant Shares issuable upon exercise of this Warrant shall be increased to the number of shares of Common Stock determined by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.  For purposes of this Warrant, “ Exempted Issuances ” shall mean: (I) shares of Common Stock issued or deemed to be issued by the Company pursuant to any employee benefit plan which has been duly adopted and approved by the Company Board and shareholders of the Company, pursuant to which the Company's securities may be issued to employees,  consultants, advisors, officers and/or directors (or any individual who has accepted an offer of employment) for services provided to the Company, provided that the number of such shares issued or deemed to be issued in any calendar year does not exceed 5% of the number of outstanding shares of Common Stock as of the end of the immediately preceding year; (II) shares of Common Stock issued or deemed to be issued by the Company upon the conversion, exchange or exercise of any right, option, obligation or security outstanding on the date immediately prior to the date of the Purchase Agreement and set forth in a Schedule to the Purchase Agreement, provided that the terms of such option, obligation or security are not amended or otherwise modified on or after the date of the Purchase Agreement in a manner that would reduce the exercise price thereof; or (III) shares of Common Stock issued or deemed to be issued by the Company upon exercise of the Warrants issued by Predecessor pursuant to the Purchase Agreement and assumed by the Company (provided that the terms of the Warrants are not amended or otherwise modified on or after the date of the Purchase Agreement in a manner that would reduce the exercise price thereof).
 

(c)   Effect on Exercise Price of Certain Events .  For purposes of determining the adjusted Exercise Price under Section 3(b) (which, for the avoidance of doubt, the Company expressly agrees shall mean, for all purposes of this Section 3(c) , including for purposes of determining whether the Company has issued or sold, or shall be deemed to have issued or sold, any shares of Common Stock for a consideration per Common Share less than a price equal to the Applicable Price), the following shall be applicable:
 
     (i)   Issuance of Options .  If the Company in any manner grants or sells any Options and the lowest price per share for which one Ordinary Share is issuable upon the exercise of any such Option or upon conversion, exchange or exercise of any Convertible Securities issuable upon exercise of any such Option is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option.  For purposes of this Section 3(c)(i) , the “lowest price per share for which one Ordinary Share is issuable upon exercise of any such Option or upon conversion, exchange or exercise of any Convertible Security issuable upon exercise of any such Option” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one Ordinary Share upon the granting or sale of such Option, upon exercise of such Option and upon conversion, exchange or exercise of any Convertible Security issuable upon exercise of such Option. No further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Security upon the exercise of such Option or upon the actual issuance of such shares of Common Stock upon conversion, exchange or exercise of such Convertible Security.
 
     (ii)   Issuance of Convertible Securities .  If the Company in any manner issues or sells any Convertible Securities and the lowest price per share for which one Ordinary Share is issuable upon the conversion, exchange or exercise thereof is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share.  For the purposes of this Section 3(c)(ii) , the “lowest price per share for which one share of Common Stock is issuable upon such conversion, exchange or exercise” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one Ordinary Share upon the issuance or sale of any such Convertible Security and upon conversion, exchange or exercise of such Convertible Security.  No further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exchange or exercise of such Convertible Security, and if any such issue or sale of such Convertible Security is made upon exercise of any Option for which adjustment of the Exercise Price had been or are to be made pursuant to other provisions of Section 3(c)(i) , no further adjustment of the Exercise Price shall be made by reason of such issue or sale.
 
     (iii)   Change in Option Price or Rate of Conversion.   If the purchase, exchange or exercise price provided for in any Options, the additional consideration, if any, payable upon the issuance, conversion, exchange or exercise of any Convertible Securities, or the rate at which any Options or Convertible Securities are convertible into or exchangeable or exercisable for shares of Common Stock changes at any time, then the Exercise Price in effect at the time of such change shall be adjusted to the Exercise Price that would have been in effect at such time had such Options or Convertible Securities provided for such changed purchase, exchange or exercise price, additional consideration or changed conversion rate, as the case may be, at the time initially granted, issued or sold, and the number of shares of Common Stock acquirable hereunder shall be correspondingly readjusted.  For purposes of this Section 3(c)(iii) , if the terms of any Option or Convertible Security that was outstanding as of the date of issuance of this Warrant are changed in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such change.  No adjustment shall be made if such adjustment would result in an increase of the Exercise Price then in effect.
 

(d)   Calculation of Consideration Received .  In case any Options are issued in connection with the issuance or sale of other securities of the Company, together comprising one integrated transaction or series of related transactions, (A) the Options will be deemed to have been issued for a consideration equal to the greatest of (I) $0.01, (II) the specific aggregate consideration, if any, allocated to such Options, and (III) the sum of the Black-Scholes values of each such Option, determined by use of the Black-Scholes Option Pricing Model applying the applicable criteria set forth on Schedule I hereto (the greatest of (I), (II) and (III), the “ Option Consideration ”), and for purposes of applying the provisions of this Section 3(d) , the Option Consideration shall be allocated pro rata among all the shares of Common Stock issuable upon exercise of such Options to determine the consideration per each such Ordinary Share and (B) the other securities will be deemed to have been issued for an aggregate consideration equal to the aggregate consideration received by the Company for the Options and other securities (determined as provided below with respect to each share of Common Stock represented thereby), less the Option Consideration.  If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount received by the Company therefor.  If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of marketable securities, in which case the amount of consideration received by the Company will be the Weighted Average Price of such securities on the date of receipt of such securities.  If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be.  The fair value of any consideration other than cash or securities will be determined jointly by the Company and the Holder.  If such parties are unable to reach agreement within five (5) Business Days after the occurrence of an event requiring valuation (the “ Valuation Event ”), the fair value of such consideration will be determined within ten (10) Business Days after the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder.  The determination of such appraiser shall be final and binding upon all parties absent manifest error, and the fees and expenses of such appraiser shall be borne by the Company.
 
(e)   Certain Events .  If any event occurs of the type contemplated by the provisions of this Section 3 but not expressly provided for by such provisions (including the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company Board will make an appropriate adjustment in the Exercise Price and the number of Common Stock acquirable upon exercise of this Warrant so as to protect the rights of the Holders of the Warrants; provided that no such adjustment will increase the Exercise Price or decrease the number of Common Stock acquirable as otherwise determined pursuant to this Section 3.
 
(f)   Certificate as to Adjustments . Upon the occurrence of each adjustment or readjustment pursuant to this Section 3 , the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Holder, at its last address as it shall appear on the books and records of the Company, a notice setting forth (i) such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based and (ii) the number of Warrant Shares and the amount, if any, of other property which at the time would be received upon the exercise of the Warrant.
 

(g)   Repurchase of Warrants for Cash .  Notwithstanding anything to the contrary contained herein, if the Company effects or enters into an agreement to effect an Organic Change, then upon the written request of the Holder (an “ Organic Change Purchase Notice ”) delivered to the Company at any time on or prior to the 30 th day immediately following the later of (x) the date on which the Company publicly discloses such Organic Change or agreement in respect thereof and (y) the date on which such Organic Change is consummated, the Company (or the successor entity to the Company or the person acquiring all or substantially all of the Company’s assets in such Organic Change) shall purchase this Warrant from the Holder by paying to the Holder, on or prior to the later of (A) five (5) Business Days after such request and (B) the effective date of the Organic Change, cash in an amount (the “ Organic Change Purchase Price ”) equal to the “Black Scholes Value” of the remaining unexercised portion of this Warrant as of the effective date of such Organic Change, determined by use of the Black Scholes Option Pricing Model applying the criteria set forth in Schedule I hereto.  Any Holder that receives cash pursuant to this Section 3(g) shall not receive, and shall not be entitled to receive, any Alternate Consideration.  Concurrently with the consummation of such Organic Change, and provided that the Holder has previously delivered to the Company an Organic Change Purchase Notice, the Company shall pay the Organic Change Purchase Price, by wire transfer of immediately available funds, to an account designated by the Holder.  The Company shall not enter into a definitive agreement with respect to an Organic Change unless such agreement provides, as a condition to the consummation of such Organic Change, that the Organic Change Purchase Price with respect to each Warrant as to which an Organic Change Purchase Notice has been delivered to the Company shall be paid concurrently with the consummation of such Organic Change, as provided herein and in the other Warrants.  For the avoidance of doubt, the rights and obligations of the Company and the Holder upon the occurrence of an Organic Change are conditional upon such Organic Change being consummated, and in the event that an Organic Change in respect of which the Holder has delivered to the Company an Organic Change Purchase Notice is terminated prior to the consummation thereof, all actions taken under this Section 3(g) shall be deemed to be rescinded and null and void with respect to such Organic Change.
 
(h)   Failure of Financing .  If, on or prior to the Filing Deadline, the Company shall not have issued and sold Units or shares of Common Stock for aggregate consideration of at least $15,000,000 (inclusive of the Units issued and sold by Predecessor on the Closing Date together with all Units or shares of Common Stock issued and sold by the Company in all Subsequent Financings), then the number of Warrant Shares evidenced by this Warrant shall be multiplied by two (2); provided , that the Exercise Price shall not be adjusted upon an adjustment of the number of Warrant Shares pursuant to this Section 3(h) .
 
4.   TRANSFERS AND EXCHANGES OF WARRANT AND WARRANT SHARES
 
(a)   Registration of Transfers and Exchanges . Subject to Section 4(c) , upon the Holder’s surrender of this Warrant, with a duly executed copy of the Form of Assignment attached as Exhibit B , to the Secretary of the Company at its principal offices or at such other office or agency as the Company may specify in writing to the Holder, the Company shall register the transfer of all or any portion of this Warrant. Upon such registration of transfer, the Company shall issue a new Warrant, in substantially the form of this Warrant, evidencing the acquisition rights transferred to the transferee and a new Warrant, in similar form, evidencing the remaining acquisition rights not transferred, to the Holder requesting the transfer.
 
(b)   Warrant Exchangeable for Different Denominations . The Holder may exchange this Warrant for a new Warrant or Warrants, in substantially the form of this Warrant, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased hereunder, each of such new Warrants to be dated the date of such exchange and to represent the right to purchase such number of Warrant Shares as shall be designated by the Holder. The Holder shall surrender this Warrant with duly executed instructions regarding such re-certification of this Warrant to the Secretary of the Company at its principal offices or at such other office or agency as the Company may specify in writing to the Holder.
 

(c)   Restrictions on Transfers . This Warrant may not be transferred at any time without (i) registration under the Securities Act or (ii) an exemption from such registration (including pursuant to a so-called “4(a)(1) and a half” transaction) and a written opinion of legal counsel addressed to the Company that the proposed transfer of the Warrant may be effected without registration under the Securities Act, which opinion shall be in form and substance and from counsel reasonably satisfactory to the Company.
 
5.       MUTILATED OR MISSING WARRANT CERTIFICATE
 
If this Warrant is mutilated, lost, stolen or destroyed, upon request by the Holder, the Company will, at its expense, issue, in exchange for and upon cancellation of the mutilated Warrant, or in substitution for the lost, stolen or destroyed Warrant, a new Warrant, in substantially the form of this Warrant, representing the right to acquire the equivalent number of Warrant Shares; provided , that , as a prerequisite to the issuance of a substitute Warrant, the Company may require satisfactory evidence of loss, theft or destruction as well as an indemnity from the Holder of a lost, stolen or destroyed Warrant, but without any requirement to post a bond (unless required by the Company’s transfer agent, in which case the Company shall pay the cost of such bond).
 
6.       PAYMENT OF TAXES AND FEES
 
The Company will pay all transfer and stock issuance taxes attributable to the preparation, issuance and delivery of this Warrant and the Warrant Shares (and replacement Warrants) including, without limitation, all documentary and stamp taxes, transfer agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares; provided , however , that the Company shall not be required to pay any tax in respect of the transfer of this Warrant, or the issuance or delivery of certificates for Warrant Shares or other securities in respect of the Warrant Shares to any person or entity other than to the Holder.
 
7.       FRACTIONAL WARRANT SHARES
 
No fractional Warrant Shares shall be issued upon exercise of this Warrant. The Company, in lieu of issuing any fractional Warrant Share, shall round up the number of Warrant Shares issuable to nearest whole share.
 
8.       PARTICIPATION RIGHTS; NO OTHER STOCK RIGHTS; LEGEND
 
No holder of this Warrant, as such, shall be entitled to vote or be deemed the holder of any other securities of the Company, including, but not limited to, the Warrant Shares, that may at any time be issuable on the exercise hereof, nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, the rights of a stockholder of the Company or the right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting stockholders, or to receive dividends or subscription rights or otherwise.  Notwithstanding the foregoing or anything else contained herein, the Holder, as the holder of this Warrant, shall be entitled to receive such dividends paid and distributions of any kind (other than shares of Common Stock issued as a stock split or adjustments covered by the terms of Section 3(a)(i) ) made to the holders of shares of Common Stock to the same extent as if the Holder had Exercised this Warrant into shares of Common Stock (without regard to any limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares are authorized and reserved to effect any such exercise and issuance) and had held such shares of Common Stock on the record date for such dividends and distributions. Payments pursuant to the preceding sentence shall be made concurrently with the dividend or distribution to the holders of shares of Common Stock.
 

Except as otherwise provided in this Warrant or the Purchase Agreement, each certificate for Warrant Shares initially issued upon the exercise of this Warrant, and each certificate for Warrant Shares issued to any subsequent transferee of any such certificate, shall be stamped or otherwise imprinted with a legend in substantially the following form:
 
“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS 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 COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS. THESE SECURITIES 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.”
 
Notwithstanding the foregoing, the Warrant Shares issued upon exercise of this Warrant shall not contain such legend if:  (i) the Warrant Shares are, at the time of issuance, registered for resale pursuant to an effective registration statement under the Securities Act; or (ii) on or after the six-month anniversary of the Effective Date, the Warrant Shares are issued pursuant to a cashless exercise effected pursuant to Section 1(a)(ii) and, at the time of such exercise, the Company satisfies the current public information requirements contained in Rule 144(c) promulgated under the Securities Act.
 
9.         REGISTRATION RIGHTS
 
The Holder shall be entitled to the registration rights as are contained in the Purchase Agreement.
 
10.       NOTICES
 
All notices, consents, waivers, and other communications under this Warrant must be in writing and will be deemed given to a party (a) when delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) when sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment for notice sent by facsimile or lack of any rejection notice for notice sent by email; (c) when received or rejected by the addressee, if sent by certified mail, return receipt requested, if to the registered Holder hereof; (d) on the Business Day after being deposited for overnight delivery by a nationally recognized courier service; or (e) seven days after the placement of the notice into the mails (first class postage prepaid), to the Holder.  The respective contact information for the Holder and the Company shall be as set forth in the Purchase Agreement.
 

11.       SEVERABILITY
                         
If a court of competent jurisdiction holds any provision of this Warrant invalid or unenforceable, the other provisions of this Warrant will remain in full force and effect. Any provision of this Warrant held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
 
12.       AMENDMENT; BINDING EFFECT
 
This Warrant may be amended only in a writing entered into by the Company and the Holder.  This Warrant shall be binding upon and inure to the sole and exclusive benefit of the Company, its successors and assigns, and the registered Holder or Holders from time to time of this Warrant.
 
13.       SURVIVAL OF RIGHTS AND DUTIES
 
This Warrant shall terminate and be of no further force and effect on the earlier of 5:00 P.M., Eastern Time, on the Expiration Date or the date on which this Warrant has been exercised in full.
 
14.       SPECIFIC PERFORMANCE
 
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.
 
15.       GOVERNING LAW
 
THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.  THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT 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 BROUGHT BY THE COMPANY OR ANY INVESTOR HEREUNDER, 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 WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.  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 WARRANT 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 MANNER PERMITTED BY LAW.  THE COMPANY AND THE HOLDER HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
 

16.       RESERVATION OF SHARES
 
The Company shall reserve and keep available out of its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock for issuance upon the exercise of this Warrant, free from pre-emptive rights. 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. Without limiting the generality of the foregoing, the Company covenants that it will use commercially reasonable efforts to 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 use commercially reasonable efforts to obtain all such authorizations, exemptions or consents, including but not limited to consents from the Company’s stockholders or the Company Board or any public regulatory body, as may be necessary to enable the Company to perform its obligations under this Warrant.
 
17.       NO THIRD PARTY RIGHTS
 
This Warrant is not intended, and will not be construed, to create any rights in any parties other than the Company and the Holder, and no person or entity may assert any rights as third- party beneficiary hereunder.
 
[SIGNATURE PAGE FOLLOWS]
 


IN WITNESS WHEREOF , the Company has caused this Warrant to be duly executed as of the date first set forth above.
 
 
AIT THERAPEUTICS INC.
 
       
Date
By:
 
    Name: Amir Avniel  
    Title: CEO  
       
 

Schedule I
 
Black-Scholes Value
 
 
Calculation Under Section 3(d)
 
Calculation Under Section 3(g)
Remaining Term
Number of calendar days from date of the issuance of the Option (the “Option Date”) until the last date on which the Option  may be exercised (the “Option Term”).
 
Number of calendar days from date of public announcement of the Organic Change until the last date on which the Warrant may be exercised (the “Remaining Warrant Term”).
       
Interest Rate
A risk-free interest rate corresponding to the US$ LIBOR/Swap rate for a period equal to the Option Term.
 
A risk-free interest rate corresponding to the US$ LIBOR/Swap rate for a period equal to the Remaining Warrant Term.
       
Cost to Borrow
Zero
 
Zero
       
Volatility
The greater of 100% and the historical volatility for the 100 Trading Day period ending on the Option Date, obtained from the HVG or similar function on Bloomberg.
 
 
The greater of 100% and the arithmetic mean of the historical volatility for the 10, 50 and 100 Trading Day periods ending on the next succeeding Trading Day following the date of the first public announcement of the Organic Change, obtained from the HVG or similar function on Bloomberg.
       
Stock Price
The Weighted Average Price of the Common Stock on the Option Date.
 
 
The greatest of (1) the closing price of the Common Stock on the primary Trading Market (“Closing Market Price”) on the Trading Day immediately preceding the date on which the Organic Change is consummated, (2) the first Closing Market Price following the first public announcement of the Organic Change, or (3) the Closing Market Price as of the Trading Day immediately preceding the first public announcement of the Organic Change, in each case appropriately adjusted for any share dividends, share splits, share combinations, recapitalizations or similar events occurring prior to the consummation of the Organic Change.

If the Holder and the Company are unable to agree upon the calculation of the Black-Scholes value of the Option or Warrant (as applicable) within five (5) Business Days of the Option Date or the date of the Organic Change Purchase Notice (as applicable; any such applicable date being referred to as the “ Black-Scholes Determination Date ”), then the Company shall submit via facsimile the disputed calculation to an investment banking firm (jointly selected by the Company and the Holder) within seven (7) Business Days of the Black-Scholes Determination Date.  The Company shall direct such investment banking firm to perform the calculations and notify the Company and the Holder of the results no later than ten (10) Business Days after such Black-Scholes Determination Date.  Such investment banking firm’s calculation of the Black-Scholes value of the Options or Warrant (as applicable) shall be deemed conclusive absent manifest error.  The Company shall bear the fees and expenses of such investment banking firm for providing such calculation.
 

EXHIBIT A NOTICE OF EXERCISE
 
(To be executed by the Holder of Warrant if such Holder desires to exercise Warrant)
 
To AIT THERAPEUTICS INC.
 
The undersigned hereby irrevocably elects to exercise this Warrant as set forth below (check the box that applies):
 
  The undersigned hereby irrevocably elects to purchase __________ Warrant Shares in accordance with Section 1(a)(i) of the attached Warrant and tenders herewith payment of the exercise price in full, in an amount in cash equal to $______________, which amount includes any applicable taxes payable by the undersigned pursuant to the Warrant; OR
 
  The undersigned hereby irrevocably elects to purchase __________ Warrant Shares pursuant to a Cashless Exercise in accordance with Section 1(a)(ii) of the Warrant, and tenders herewith payment in cash for all applicable taxes payable by the undersigned pursuant to the Warrant.
 
The undersigned requests that certificates for such Warrant Shares be issued in the name of:
 
Name  
_________________________________________
 
Social Security or Federal Employer Identification Number (if applicable)
_________________________________________
 
Address  
_________________________________________
_________________________________________
_________________________________________
_________________________________________
 
If the Warrant Shares issuable upon this exercise of the Warrant are not all of the Warrant Shares which the Holder is entitled to acquire upon the exercise of the Warrant (and the Holder shall have delivered the Warrant to the Company), the undersigned requests that a new Warrant evidencing the rights not so exercised be issued in the name of and delivered to:
 
Name  
_________________________________________
 
Social Security or Federal Employer Identification Number (if applicable)
_________________________________________
 
Address  
_________________________________________
_________________________________________
_________________________________________
_________________________________________
 
 
Name of Holder (print): _______________________
(Signature): ________________________________
(By:) _____________________________________
(Title:) ____________________________________
Dated:_____________________________________

 


EXHIBIT B
 
FORM OF ASSIGNMENT
 
FOR VALUE RECEIVED, ___________________________________ hereby sells, assigns and transfers to each assignee set forth below all of the rights of the undersigned under the Warrant (as defined in and evidenced by the attached Warrant) to acquire the number of Warrant Shares set opposite the name of such assignee below and in and to the foregoing Warrant with respect to said acquisition rights and the shares issuable upon exercise of the Warrant:
 
Name of Assignee
Address
Number of Shares
     
     
     
     

If the total of the Warrant Shares are not all of the Warrant Shares evidenced by the foregoing Warrant, the undersigned requests that a new Warrant evidencing the right to acquire the Warrant Shares not so assigned be issued in the name of and delivered to the undersigned.
 
 
Name of Holder (print): _______________________
(Signature): ________________________________
(By:) _____________________________________
(Title:) ____________________________________

 
 
 




Exhibit 10.4

 

ADVANCED INHALATION THERAPIES (AIT) LTD.

 

THE 2013 SHARE OPTION PLAN

 

1. NAME

 

This Option Plan, as amended from time to time, shall be known as the Advanced Inhalation Therapies (AIT) Ltd. 2013 Share Option Plan (the “ Option Plan ” or the “ Plan ”).

 

2. PURPOSE OF THE OPTION PLAN

 

2.1 The Option Plan is intended to provide an incentive to retain, in the employ or service or directorship of Advanced Inhalation Therapies (AIT) Ltd. (the “ Company ”), and its worldwide Related Entities, persons of training, experience, and ability, to attract new employees, directors or consultants whose services are considered valuable, to encourage the sense of proprietorship of such persons, and to stimulate the active interest of such persons in the development and financial success of the Company by providing them with opportunities to purchase shares in the Company pursuant to an Option Plan approved by the Board of Directors of the Company (the “ Board ”).

 

2.2 Options granted hereunder to non Israeli Optionees under the Option Plan may or may not contain such terms as will qualify such options as Incentive Stock Options (“ ISOs ”) within the meaning of Section 422 (b) of the United States Internal Revenue Code of 1986, as amended (the “ Code ”). Options that do not contain terms that will qualify them as ISOs shall be referred to herein as Non-Qualified Stock Options (“ NQSOs ”). Each Option Agreement shall state whether such Option will or will not be treated as an ISO. No ISO shall be granted unless such Option, when granted, qualifies as an “incentive stock option” under Section 422 of the Code. Any ISO granted under the Option Plan shall contain such terms and conditions, consistent with the Option Plan, as the Company may determine to be necessary to qualify such Option as an “incentive stock option” under Section 422 of the Code. Any ISO granted under the Option Plan may be modified by the Company to disqualify such Option from treatment as an “incentive stock option” under Section 422 of the Code. Each person granted Options hereunder shall be referred to as an “ Optionee ”.

 

2.3 Options granted to Israeli Optionees under the Option Plan may or may not contain such terms as will qualify such options for the special tax treatment under Section 102(b) of the Israeli Tax Ordinance (New Version), 5721-1961, as amended (the “ Ordinance ”), and the Income Tax Rules (Tax Benefits in Share Issuances to Employees) 5763-2003 (the “ Rules ”) (“ 102 Options ”).

 

2.4 Options granted to non Israeli Optionees, excluding American Optionees, shall be granted in accordance with the applicable laws of each Optionee’s nationality state and with the terms and conditions set forth in its respective Option Agreement (as defined below) as prescribed by the Committee (as defined below).

 

2.5 For the purposes of the Plan, the following terms shall have the following meanings:

 

3(i) Option ” means an Option granted under the terms of Section 3(i) of the Ordinance to persons which do not qualify as “Employees” under the provisions of Section 102.

 

Advanced Inhalation Therapies (AIT) Ltd. – 2013 Option Plan

 

 

 

 

102(b) Track Election” means the right of the Company to prefer either the “Capital Track” (as set under Section 102(b)(2)), or the “Ordinary Income Track” (as set under Section 102(b)(1)), but subject to the provisions of Section 102(g) of the Ordinance.

 

102(b) Option ” means an Option intended to qualify, under the provisions of Section 102(b) of the Ordinance (including the Section 102(b) Choice of Track), as either:

 

(i) 102(b)(2) Option ” for the special tax treatments under the “Capital Track”, or

 

(ii) 102(b)(1) Option ” for the special tax treatments under the “Ordinary Income Track”.

 

Controlling Person ” shall have the meaning ascribed to such definition under Section 102 to the Ordinance, as may be amended from time to time.

 

Employee ” or "employee" for the purposes of Section 102 to the Ordinance shall include an officer of a company, but excluding a Controlling Person, as such definition may be amended from time to time under the Ordinance.

 

Other 102 Option ” means an Option granted under the terms of Section 102 of the Ordinance, excluding Section 102(b) Options.

 

Related Entity ” means, with respect to the Company, (i) any entity which is a Controlling Person of the Company, or (ii) any entity for which the Company is a Controlling Person, or (iii) any entity that is controlled by the same Controlling Person of the Company and such entity.

 

Rights ” means rights issued or distributed in respect of Shares issued pursuant to exercise of Options hereunder, including bonus shares but excluding cash dividends.

 

All options granted hereunder, whether together or separately, shall be hereinafter referred to as “ Options ”.

 

3. ADMINISTRATION OF THE OPTION PLAN

 

3.1 The Board or a compensation committee appointed and maintained by the Board for such purpose (the “ Committee ”) shall have the power to administer the Option Plan. Notwithstanding the above, the Board shall automatically have a residual authority if no Committee shall be constituted or if such Committee shall cease to operate for any reason whatsoever, and shall also have any authority granted to the Committee hereunder.

 

3.2 The Committee shall consist of such number of members (not less than two (2) in number) as may be fixed by the Board. Subject to the provisions of the Company’s Articles of Association, the Board shall appoint the members of the Committee, and may, from time to time, remove members from, or add members to, the Committee and shall fill vacancies in the Committee however caused. Subject to the provisions of the Company’s Articles of Association, the Committee shall select one of its members as its chairman (the “ Chairman ”) and shall hold its meetings at such times and places as the Chairman shall determine. The Committee shall keep records of its meetings and shall make such rules and regulations for the conduct of its business, as it shall deem advisable.

 

3.3 Subject to applicable laws, any member of such Committee shall be eligible to receive Options under the Option Plan while serving on the Committee, unless otherwise specified herein.

 

Advanced Inhalation Therapies (AIT) Ltd. – 2013 Option Plan

 

  - 2 -  
 

 

3.4 Subject to the provisions of applicable law and the Company’s Articles of Association, the Board or the Committee shall have full power and authority to (i) designate participants in the Option Plan; (ii) determine the terms and provisions of respective Option agreements (which need not be identical) including, but not limited to, the number of Shares to be covered by each Option, provisions concerning the time or times when, and the extent to which, the Options may be exercised and the nature and duration of restrictions as to transferability, vesting or other terms and conditions of the Option; (iii) accelerate the right of an Optionee to exercise, in whole or in part, any previously granted Option; (iv) determine the Fair Market Value of the Shares pursuant to Section 7.1 below; (v) designate Options as 102(b)(1) Options, as 102(b)(2) Options, as Other 102 Options, as 3(i) Options, as ISOs or as NQSO; (vi) interpret the provisions and supervise the administration of the Option Plan; (vii) amend the Option Plan from time to time in order to qualify for tax benefits applicable under U.S. and Israel laws; (viii) make a 102(b) Track Election (subject to the limitations set under Section 102(g) to the Ordinance); and (ix) determine any other matter which is necessary or desirable for, or incidental to administration of the Option Plan. In determining the number of Shares covered by the Options to be granted to each recipient, the Board or the Committee may consider, among other things, the nature of services provided by the recipient, the recipient’s salary and/or duration of his service or employment by the Company.

 

3.5 Subject to the provisions of the Articles of Association of the Company, all decisions and selections made by the Board or the Committee pursuant to the provisions of the Option Plan shall be made by a majority of its members except that no member of the Board or the Committee shall vote on, or be counted for quorum purposes, with respect to any proposed action of the Board or the Committee relating to any Option to be granted to that member. Any decision reduced to writing and signed by all of the members who are authorized to make such decision shall be fully effective as if it had been made by a majority at a meeting duly held.

 

3.6 The interpretation and construction by the Committee of any provision of the Option Plan or of any Option thereunder shall be final and conclusive unless otherwise determined by the Board.

 

3.7 Subject to the provisions of applicable law and the Company’s Articles of Association, each member of the Board or the Committee may be indemnified and held harmless by the Company against any cost or expense (including counsel fees) reasonably incurred by him, or any liability (including any sum paid in settlement of a claim with the approval of the Company) arising out of any act or omission to act in connection with the Option Plan unless arising out of such member's own fraud or bad faith, to the extent permitted by applicable law, and in such amounts and subject to such conditions, as may be decided by the Company's Board. Such indemnification, if applicable, shall be in addition to any rights of indemnification the member may have as a director or otherwise under the Company's Articles of Association, any agreement, any vote of shareholders or disinterested directors, insurance policy or otherwise.

 

Advanced Inhalation Therapies (AIT) Ltd. – 2013 Option Plan

 

  - 3 -  
 

 

4. DESIGNATION OF PARTICIPANTS

 

4.1 The persons eligible for participation in the Option Plan as recipients of Options shall include any employees (including officers), directors and consultants of the Company or of any Related Entity of the Company, provided, however, that following an IPO (as defined below) a non-Israeli consultant shall not be eligible to receive ISOs or NQSO hereunder unless such consultant is a natural person, renders bona fide services to the Company or any Related Entity, and such services are not in connection with the offer or sale of securities in a capital raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities. The grant of an Option hereunder shall neither entitle the recipient thereof to participate nor disqualify him from participating in, any other grant of Options pursuant to this Option Plan or any other option or Share plan of the Company or any of its affiliates. Notwithstanding any provisions to the contrary herein, no ISO shall be granted to any individual otherwise eligible to participate in the Option Plan who is not an employee of the Company or a “subsidiary” of the Company, within the meaning of Section 424(f) of the Code, on the date of granting of such ISO. No 102 Options shall be granted to any individual who is not an employee of the Company or of a Related Entity of the Company, or who otherwise would not qualify as an "employee" under Section 102(a) to the Ordinance.

 

4.2 To the extent applicable and anything in the Option Plan to the contrary notwithstanding, all grants of Options to directors and office holders (“Nosei Misra” - as such term is defined in the Israeli Companies Law, 5759-1999 (the “ Companies Law ”)) shall be authorized and implemented only in accordance with the provisions of the Companies Law, as in effect from time to time.

 

5. TRUSTEE

 

5.1 The 102(b) Options which shall be granted to Optionees and/or any Shares issued upon exercise of such Options and/or any other Shares received subsequently following any realization of rights resulting from a 102(b) Option or Rights resulting from Shares issued upon exercise of a 102(b) Option, shall be issued to a Trustee nominated by the Board and approved in accordance with the provisions of Section 102 of the Ordinance (the “ Trustee ”). The Board shall determine and approve the terms of engagement of the Trustee, and shall be authorized to designate from time to time a new Trustee and replace either of them at its sole discretion, and in the event of replacement of any existing Trustee, to instruct the transfer of all Options and Shares held by such Trustee at such time to its successor. The 102(b) Options and/or any Shares issued upon exercise of such Options will be held by the Trustee for the benefit of the Optionees for a period of not less than the minimum period permitted by applicable law without disqualifying such 102(b) Options from treatment under Section 102(b) of the Ordinance. The Trustee will hold such Options or Shares resulting from the exercise thereof in accordance with the provisions of the Ordinance and the Rules promulgated thereunder, the trust agreement and any other instructions the Board may issue to him/it from time to time (so long as they do not contradict the Ordinance and the Rules promulgated thereunder). Thereafter, the Trustee will transfer the Options or the Shares, as the case may be, to the Optionees upon his/her demand, subject to any deduction or withholding required under the Ordinance, the Rules or any other applicable law.

 

5.2 Anything to the contrary notwithstanding, the Trustee shall not release any Options which were not already exercised into Shares by the Optionee or release any Shares issued upon exercise of such Options prior to the full payment of the Optionee’s tax liabilities arising from such Options which were granted to him and/or any Shares issued upon exercise of such Options.

 

5.3 Upon receipt of an Option, the Optionee will sign an Option Agreement or an applicable option award which shall be deemed as Optionee’s undertaking to exempt the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation with the Option Plan, or any Option or Share granted to him thereunder.

 

Advanced Inhalation Therapies (AIT) Ltd. – 2013 Option Plan

 

  - 4 -  
 

 

5.4 Subject to applicable law, the Board shall be entitled to revise, amend or replace the terms of the trust agreement with the Trustee, to the extent that same (i) does not adversely affect any rights of Optionee under any valid and outstanding Option, which are expressly provided for in the respective Option Agreement with such Optionee, or (ii) is necessary or desirable in the light of any change or replacement of Section 102 of the Ordinance.

 

5.5 Any and all Rights resulting from the 102(b) Options and/or any Shares issued upon exercise of such Options and/or any other Shares received subsequently following any realization of rights resulting from a 102(b) Option, shall be issued or distributed, as the case may be, to the Trustee and held thereby. Such Rights will not be sold or transferred until the lapse of the minimum period permitted by applicable law, and such Rights shall be subject to the taxation track which is applicable to such Shares issued pursuant to the exercise of Options hereunder. Notwithstanding the aforesaid, Shares issued pursuant to the exercise of 102(b) Options hereunder or Rights resulting from such 102(b) Options may be sold or transferred, and the Trustee may release such Shares issued pursuant to the exercise of Options hereunder (or the applicable option award) or Rights from trust, prior to the lapse of the minimum period permitted by applicable law, provided however, that tax is paid or withheld in accordance with Section 102 of the Ordinance and/or Section 7 of the Rules, and/or any other provision in any other section of the Ordinance and any regulation, ruling, procedure and clarification promulgated thereunder, that will be relevant, from time to time .

 

6. SHARES RESERVED FOR THE OPTION PLAN; RESTRICTION THEREON

 

6.1 Subject to adjustments as set forth in Section 8 below, a total of 940,000 authorized but unissued Ordinary Shares, par value NIS 0.01 per share of the share capital of the Company (the “ Shares ”) shall be reserved for and subject to the Option Plan. Notwithstanding the aforesaid, in the event that any outstanding options to purchase Ordinary Shares of the Company granted hereunder shall for any reason expire or be canceled prior to its exercise or relinquishment in full, such number of expired or terminated options shall automatically increase the number of Shares available for allocation hereunder, and such increase shall not be deemed as amendment to this Plan. The Shares shall bear such rights and restrictions as set forth under the Company’s Articles of Association, as currently in effect and as may from time to time be amended or replaced in accordance with the Companies Law, without the consent of any Optionee (notwithstanding anything else here to the contrary). Any of such Shares which may remain unissued and which are not subject to outstanding Options at the termination of the Option Plan shall cease to be reserved for the purpose of the Option Plan, but until termination of the Option Plan the Company shall at all times reserve a sufficient number of Shares to meet the requirements of the Option Plan. Should any Option for any reason expire or be canceled prior to its exercise or relinquishment in full, the Shares therefore subject to such Option may again be subjected to an Option under the Option Plan.

 

6.2 Each Option granted pursuant to the Option Plan, shall be evidenced by a written agreement or an award between the Company and the Optionee (the “ Option Agreement ”), in such form as the Board or the Committee shall from time to time approve. Each Option Agreement shall state a number of the Shares to which the Option relates and the type of Option granted thereunder (whether a 102(b)(1) Option, 102(b)(2) Option, Other 102 Option, a 3(i) Option, an ISO or an NQSO), the purchase price per Share and the vesting schedule to which such Option shall become exercisable. Notwithstanding any other provision of the Plan, the aggregate Fair Market Value (determined as of the date an ISO is granted) of the Shares with respect to which ISOs are exercisable for the first time by an Optionee during any calendar year (under the Plan and any other “incentive stock option” plans of the Company, any “subsidiary” of the Company within the meaning of Section 424(f) of the Code, and any “parent corporation” of the Company within the meaning of Section 424(e) of the Code) shall not exceed $100,000 (or such other amount as may be prescribed by the Code from time to time); provided, however, that if the exercisability or vesting of an ISO is accelerated as permitted under the provisions of this Plan and such acceleration would result in a violation of the limit imposed by this Section 6.2, such acceleration shall be of full force and effect but the number of Shares that exceed such limit shall be treated as having been granted pursuant to a NQSO; and provided, further, that the limits imposed by this Section 6.2 shall be applied to all outstanding ISOs (under the Plan and any other “incentive stock option” plans of the Company, any “subsidiary” of the Company within the meaning of Section 424(f) of the Code, and any “parent corporation” of the Company within the meaning of Section 424(e) of the Code) in chronological order according to the dates of grant. In the event an Optionee receives an Option intended to be an Incentive Stock Option which is subsequently determined not to comply with the requirements of the Code for Incentive Stock Options, the Option shall be amended, if necessary, in accordance with the Code and applicable Treasury Regulations and rulings to preserve, as the first priority, to the maximum possible extent, the status of the Option as an ISO (as defined in the Code) and to preserve, to the maximum possible extent, the number of Shares subject to the Option. Options may be granted at any time after this Option Plan has been approved by the Company, subject to any further approval or consent required under Section 102 of the Ordinance or the Rules, in case of 102(b) Options, or of the U.S. Treasury, in case of ISOs and other applicable law.

 

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6.3 Each Option Agreement evidencing 102(b) Options shall include (i) an approval and acknowledgment by the Optionee of the agreement of the Company with the Trustee (as may be amended from time to time), (ii) a declaration that the Optionee is familiar with the provisions of Section 102 and the “Capital Track” (if applicable) and (iii) an undertaking not to sell or transfer the Options and/or the Shares issued pursuant to the exercise of Options prior to the lapse of the period in which the Options and/or such Shares are held in trust, unless the Optionee pays all taxes, which may arise in connection with such sale and/or transfer (as provided in Section 5.5 above).

 

6.4 By executing an Option Agreement, the Optionee approves and acknowledges, and each Option Agreement may include an approval and acknowledgement by an Optionee, that the grant of Options, constitutes inter alia, without derogating from other benefits or remuneration, adequate consideration for 'service inventions' (' hamtzaat sherut ', as such term in defined under Section 132 of the Israeli Patents Law, 5727-1967) for the purposes of Section 134 thereof, to the extent applicable.

 

7. PURCHASE PRICE

 

7.1 The purchase price of each Share subject to a new Option to be granted or any portion thereof shall be determined by the Board or the Committee in its sole and absolute discretion in accordance with applicable law, subject to any guidelines as may be determined by the Board from time to time. The purchase price per Share covered by each ISO shall be not less than the Fair Market Value of the Company's shares on the date the Option is granted; provided, however, that no ISO shall be granted to an individual otherwise eligible to participate in the Option Plan who owns (within the meaning of Section 424(d) of the Code), at the time the Option is granted, more than ten percent (10%) of the total combined voting power of all classes of shares of the Company, any “subsidiary” of the Company within the meaning of Section 424(f) of the Code, or any “parent corporation” of the Company within the meaning of Section 424(e) of the Code, unless, at the time such ISO is granted, the exercise price per Share subject to the Option is at least 110% of the Fair Market Value of a Share on the date such ISO is granted, and the ISO by its terms is not exercisable after the expiration of five years from such date of grant. For purposes of the foregoing, if the Company's shares are publicly traded on the Over-the-Counter Market or a recognized share exchange on the date the Option is granted, " Fair Market Value " shall mean, for any particular date, the last sale price of a Company's share on the applicable share exchange or, if no reported sales take place on the applicable date, the average of the high bid and low asked price of a Company's share as reported for such date or, if no such quotation is made on such date, on the next preceding day on which there were quotations, provided that such quotations shall have been made within the ten (10) business days preceding the applicable date. In the event that the Company's shares are not publicly traded on a share exchange, the Fair Market Value of a Share shall be determined in good faith by the Board or the Committee. Notwithstanding the preceding provision to the contrary, solely with respect to Shares granted pursuant to an ISO under the Option Plan, Fair Market Value shall be determined in accordance with Section 422(c)(7) of the Code.

 

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7.2 Unless otherwise specifically set forth under the Option Agreement, the purchase price shall be payable upon the exercise of the Option in a form satisfactory to the Board or the Committee, including without limitation, by cash, cheque, or wire transfer.

 

8. ADJUSTMENTS

 

Upon the occurrence of any of the following described events, Optionee's rights to purchase Shares under the Option Plan shall be adjusted as hereafter provided:

 

8.1 If the Company is separated, reorganized, merged, acquired or consolidated with or into another corporation while Options which were not yet vested remain outstanding under the Option Plan, then, subject to any applicable law, the Board may resolve (in its sole discretion), that the vesting period defined in each Optionee’s Option Agreement shall be accelerated so that any unvested Option shall be immediately vested in full prior to the effective date of such transaction (or any other date as shall be resolved by the Board).

 

8.2 If the outstanding shares of the Company shall at anytime be changed or exchanged by declaration of a share dividend, share split, combination or exchange of shares, recapitalization, or any other like event of the Company, then in such event only and as often as the same shall occur, the number, class and kind of shares (including Shares issuable pursuant to the Option Plan, as set forth in Section 6 hereof, in respect of which Options have not yet been exercised) subject to this Option Plan or subject to any Options therefore granted, and the purchase prices of the Options, shall be appropriately and equitably adjusted so as to maintain the proportionate number of Shares without changing the aggregate purchase price of the Options.

 

8.3 Anything herein to the contrary notwithstanding, if prior to the completion of an initial public offering of the Company’s securities pursuant to which the securities of the Company are listed for trade in any Over-The-Counter Market or recognized stock exchange or otherwise registered under the United States Securities Act of 1933 or the United States Securities Exchange Act of 1934 (“ IPO ”), all or substantially all of the shares of the Company are to be sold, or upon a merger or reorganization or the like, the shares of the Company, or any class thereof, are to be exchanged for securities of another Company, then in such event, each Optionee shall be obliged to sell, assign or exchange (in accordance with the value of his/her Shares pursuant to such transaction), as the case may be, the Shares such Optionee purchased under the Option Plan and any Options or portion to the extent then vested and exercisable, in accordance with any instructions then to be issued by the Board whose determination shall be final, and which may authorize any officer of the Company to execute such instructions on behalf of the Optionee. For the avoidance of doubt, the Board or Committee may decide in its sole discretion that an Option cannot be exercised, and shall automatically expire, following each of the transactions specified in this Section 8.3 above, to the extent not vested at the effective date of such transaction. Each Optionee, upon executing an Option Agreement, shall be deemed to have authorized the Company and each of its officers and to have granted the Company and each of its officers an irrevocable power of attorney to execute in his/her behalf such instruments and documents mentioned in this Section 8.3, inter alia through the Proxy. The Company and its shareholders shall each be deemed as a third party beneficiary of this paragraph 8.3 with rights to enforce same against the Optionee.

 

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8.4 Notwithstanding the foregoing adjustments, any changes to ISOs pursuant to this Section 8 shall, unless the Company determines otherwise, only be effective to the extent such adjustments or changes do not cause a “modification” (within the meaning of Section 424(h)(3) of the Code) of such ISOs or adversely affect the tax status of such ISOs.

 

8.5 Notwithstanding the foregoing adjustments, any changes to NQSOs pursuant to this Section 8 shall, unless the Company determines otherwise, only be effective to the extent such adjustments or changes do not cause a “modification” (within the meaning of Section 409A of the Code) of such NQSOs or adversely affect the tax status of such NQSOs.

 

9. TERM AND EXERCISE OF OPTIONS

 

9.1 Options shall be exercised by the Optionee by giving written notice to the Company, in such form and method as may be determined by the Company and the Trustee, which exercise shall be effective upon receipt of such notice by the Company at its principal office and the applicable payment of the exercise price of the exercised options. The notice shall specify the number of Shares with respect to which the Option is being exercised.

 

9.2 Vesting of Options may be time-based or performance-based, in the discretion of the Committee or the Board. Unless otherwise prescribed by the Committee or the Board and specified in the Option Agreement, an Option will not be exercisable before the first anniversary of the date of grant, with respect to the 33⅓% of the Shares subject to the Option, and with respect to the remaining 66⅔% of the Shares subject to the Options, on a quarterly basis, such that 8⅓% of such Options shall become vested upon the lapse of each quarter (3-month period) after the first anniversary of the date of grant, respectively. The Board shall have the exclusive authority to accelerate the periods for exercising an Option.

 

9.3 Subject to the provisions of Section 9.7 below, no option shall be exercisable after the expiration of ten (10) years from the "Date of Grant" (i.e., the date on which such Optionee was issued the applicable Option Agreement), or in the event of grant of ISOs, five years from the Date of Grant in the case of an Option held by an Optionee who holds more than ten percent (10%) of the total combined voting power of all classes of shares of the Company or of the shares of any “subsidiary” of the Company within the meaning of Section 424(f) of the Code or any “parent corporation” of the Company within the meaning of Section 424(e) of the Code (the “ Expiration Date ”); and then such Options, or such unexercised part thereof, as the case may be, shall terminate and all interests and rights of the Optionee thereunder shall automatically and conclusively expire.

 

9.4 Options granted under the Option Plan shall not be transferable by Optionees other than by will or laws of descent and distribution and during an Optionee's lifetime shall be exercisable only by that Optionee.

 

9.5 The Options may be exercised by the Optionee in whole at any time or in part from time to time, to the extent that the Options become vested and exercisable, prior to the Expiration Date, and provided that, subject to the provisions of Section 9.7 below and unless the Board or Committee resolves otherwise, the Optionee is an employee of the Company or any of its Related Entities or continuing to provide services to such entities, at all times during the period beginning with the granting of the Option and ending upon the date of exercise.

 

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9.6 Subject to the provisions of Section 9.7 below, in the event of termination of Optionee’s employment with the Company or any of its Related Entities, or if applicable, the termination of services given by the Optionee to the Company or any of its Related Entities, all Options granted to him will immediately expire. Unless otherwise determined by the Board, a notice of termination of employment or services shall be deemed to constitute termination of employment or services.

 

9.7 Notwithstanding anything to the contrary in Section 9.6 above and subject to the provisions of Section 9.8 below, and unless otherwise prescribed by the Committee or the Board and specified in the Option Agreement, an Option may be exercised after the date of termination of Optionee's service or employment with the Company or any Related Entity of the Company only with respect to the number of Options already vested and unexpired at the time of such termination according to the vesting and expiration periods of the Options set forth in this Option Plan, or under a different period prescribed by the Committee or by the Board and specified in Optionee’s Option Agreement, provided however, that;

 

9.7.1. such termination is without Cause (as defined below) in which case the Options shall be exercisable within not more than 90 days from the effective date of such termination; or

 

9.7.2. such termination is the result of death or disability of the Optionee, in which case the Options shall be exercisable within 12 months.

 

The term " Cause " shall mean: (i) conviction of any felony involving moral turpitude or affecting the Company or the Related Entities; (ii) any continuing refusal to carry out a reasonable directive of the CEO or the Board which involves the business of the Company or its Related Entities and was capable of being lawfully performed; (iii) embezzlement of funds of the Company or its Related Entities; (iv) any breach of the Optionee's fiduciary duties or duties of care of the Company or any Related Entity; including, without limitations, disclosure of confidential information of such entity; and (v) any conduct (other than conduct in good faith) reasonably determined by the Board of Directors to be materially detrimental to the Company or any Related Entity.

 

9.8 Anything to the contrary contained herein or in the Company’s Articles notwithstanding, and subject to applicable law, if the Optionee’s employment or services is terminated for Cause or fraud, breach of loyalty, theft or other malicious behavior against the Company (or any Related Entity thereof), then such Optionee shall be deemed to have irrevocably offered to the other shareholders of the Company entitled to a right of first refusal under the Company's Articles of Association (and in any event, other than employees or other persons who purchased Shares pursuant to the exercise of Options granted under this Option Plan or any prior or subsequent incentive plan of the Company) to purchase all the Shares and other securities issued in respect thereof in consideration for the lesser of (i) the purchase price (determined in accordance with Section 7 of this Option Plan) paid by such Optionee for such Shares and other securities and (ii) the Fair Market Value of such Shares and other securities, pro rata to their respective holdings of the Company’s issued and outstanding shares. Such Shares and other securities shall be sold and transferred as aforesaid within 30 days from the date of such termination of employment. If the Optionee fails to transfer his/her Shares and other securities to the shareholders of the Company who accepted the foregoing offer to purchase such Shares and other securities as aforesaid due to the Optionee's act and/or omission, the Company, at the decision of the Board, shall be entitled to forfeit his/her Shares and to authorize any person to execute on behalf of the Optionee any instrument or document necessary to effect such transfer and to make the appropriate inscription in the Company’s register of members. Each Optionee, upon executing an Option Agreement, shall be deemed to have authorized the Company and each of its officers and to have granted the Company and each of its officers, inter alia through the Proxy, an irrevocable power of attorney to execute in his/her behalf such instruments and documents. The Company and its shareholders shall each be deemed as a third party beneficiary of this paragraph with rights to enforce same against the Optionee. It is hereby clarified that notwithstanding anything to the contrary specified herein, in the event of the purchase of the Optionee's securities following the occurrence of the circumstances specified in this Section 9.8, the special tax treatment and incentives pursuant to the Ordinance and the Rules and regulations promulgated thereunder (including the special tax treatment under Section 102(b) of the Ordinance) may not apply.

 

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9.9 (a)           The holders of Options shall not have any of the rights or privileges of shareholders of the Company in respect of any Shares purchasable upon the exercise of any part of an Option unless and until, following exercise, registration of the Optionee as holder of such Shares in the Company’s register of members, but in case of Options and Shares held by the Trustee, subject always to the provisions of Section 5 of the Option Plan.

 

(b)           Notwithstanding the foregoing, until completion of the IPO, no Shares will be issued upon an exercise of any Option unless and until the Optionee shall have executed and delivered a proxy in the form of Exhibit A hereto, or such other form as the Board or the Committee may designate from time to time, to a person designated by the Board or the Committee, pursuant to which the Optionee shall authorize and empower such person to vote such Shares and exercise or waive any and all rights thereunder, and to authorize a sale or exchange in accordance with the provisions of the Plan, pursuant to the instructions of the Board or the Committee (the " Proxy "). Such person shall have no liability to any Optionee, and each Optionee upon acceptance of an Option shall be deemed to have waived any right or claim against such person and release such person from any liability, if any, to such Optionee, for any loss or damage of any kind which may occur to such Optionee as a result of any act or omission of such person in his capacity as proxy, and to the extent that the Optionee may have any such right or claim, he shall look solely for the Company for any remedy that may be available to him by virtue of such right or claim.

 

(c)           Notwithstanding the foregoing no Shares will be issued upon an exercise of any Option unless and until the Optionee shall have executed and delivered to the Company any document or instrument required in accordance with the Articles of Association of the Company, any shareholders agreement of the Company or applicable law.

 

9.10 Any form of Option Agreement authorized pursuant to this Option Plan may contain such other provisions as the Board may, from time to time, deem advisable. Without limiting the foregoing, the Board may, with the consent of the Optionee, from time to time, cancel all or any portion of any Option then subject to exercise, and the Company's obligation in respect of such Option may be discharged by (i) payment to the Optionee of an amount in cash equal to the excess, if any, of the Fair Market Value of the Shares at the date of such cancellation subject to the portion of the Option so canceled over the aggregate purchase price of such Shares, (ii) the issuance or transfer to the Optionee of Shares of the Company with a Fair Market Value at the date of such transfer equal to any such excess, or (iii) a combination of cash and shares with a combined value equal to any such excess, all as determined by the Board in its sole discretion.

 

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10. PURCHASE FOR INVESTMENT

 

10.1 The Company’s obligation to issue Shares upon exercise of an Option granted under the Plan is expressly conditioned if so required under the applicable law, as supported by the opinion of the Company’s counsel, upon the following terms: (a) the Company’s completion of any registration or other qualifications of such Shares under any state and/or federal law, rulings or regulations or (b) representations and undertakings by the Optionee (or his legal representative, heir or legatee, in the event of the Optionee’s death) to assure that the sale of the Shares complies with any registration exemption requirements which the Company in its sole discretion shall deem necessary or advisable. Such required representations and undertakings may include representations and agreements that such Optionee (or his legal representative, heir, or legatee): (a) is purchasing such Shares for investment and not with any present intention of selling or otherwise disposing thereof; and (b) agrees to have placed upon the face and reverse of any certificates evidencing such Shares a legend setting forth (i) any representations and undertakings which such Optionee has given to the Company or a reference thereto, (ii) that, prior to effecting any sale or other disposition of any such Shares, the Optionee must furnish to the Company an opinion of counsel, satisfactory to the Company, that such sale or disposition will not violate the applicable requirements of State and federal laws and regulatory agencies, and (iii) any other legend deemed reasonably necessary or appropriate by the Company.

 

10.2 As a further condition to the grant of any Option or the issuance of Shares to an Optionee, each Optionee agrees that in the event the Company advises Optionee that it plans an underwritten public offering of any of its shares of capital stock in compliance with the Securities Act of 1933, as amended, and the underwriter(s) for such offering seek to impose restrictions under which certain shareholders may not sell or contract to sell or grant any option to buy or otherwise dispose of part or all of their stock purchase rights of the Shares underlying Options, Optionee will not, for a period not to exceed 180 days from the date of the prospectus, sell or contract to sell or grant an option to buy or otherwise dispose of any Option granted to Optionee pursuant to the Plan or any of the underlying Shares without the prior written consent of the underwriter(s) or its representative(s).

 

11. DIVIDENDS

 

11.1 With respect to all Shares (in contrary to Options not exercised into Shares) issued upon the exercise of Options purchased by the Optionee, the Optionee shall be entitled to receive dividends in accordance with the quantity of such Shares, and subject to any applicable taxation on distribution of dividends.

 

11.2 During the period in which Shares, issued to the Trustee on behalf of an Optionee upon exercise of a 102(b) Option, are held by the Trustee, the cash dividends paid with respect thereto shall be paid directly to the Optionee (through the Trustee, who shall be responsible for deduction of applicable tax); all subject to the provisions of applicable law and Section 5.2 above.

 

12. ASSIGNABILITY AND SALE OF OPTIONS

 

12.1 No Option, whether fully paid or not, shall be assignable, transferable or given as collateral or any right with respect to them given to any third party whatsoever, and during the lifetime of the Optionee each and all of such Optionee's rights to purchase Shares hereunder shall be exercisable only by the Optionee.

 

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12.2 As long as Shares are held by the Trustee in favor of the Optionee, then all rights the last possesses over the Shares are personal, can not be transferred, assigned, pledged or mortgaged, other than by will or laws of descent and distribution.

 

13. TERM OF THE OPTION PLAN

 

The Plan shall become effective on the date that it is adopted by the Board. Subject to Section 14 below the Option Plan shall terminate at the end of 10 years from such day of adoption provided, however, that Options theretofore issued under an applicable Option Agreement may extend beyond such date in accordance with their terms. No ISOs will be granted unless the Option Plan shall have been approved by the shareholders of the Company within 12 months after this Plan is adopted by the Board of Directors of the Company.

 

14. AMENDMENTS OR TERMINATION

 

14.1 The Board may, at any time and from time to time, amend, alter or discontinue the Option Plan, except that no amendment or alteration shall be made which would impair the rights of the holder of any Option granted, if and to the extent such rights are specifically set forth under the applicable Option Agreement, without such Optionee's consent.

 

14.2 The following changes to the Option Plan shall be made subject to the approval of the shareholders of the Company, if such approval is required and necessary to satisfy (i) with regard to ISOs, any requirements under the Code relating to ISOs, or (ii) any applicable law, regulation or rule:

 

(a) except as is provided in Section 8, increase the maximum number of Shares which may be sold or awarded under the Option Plan;

 

(b) except as is provided in Section 8, decrease the minimum Option exercise price requirements under the Option Plan;

 

(c) change the class of persons eligible to receive Options under the Plan; or

 

(d) extend the duration of the Plan under Section 13 or the period during which ISOs may be exercised under Section 9.

 

14.3 Notwithstanding any provision of this Option Plan to the contrary, the Company (and the Optionee) intends that this Option Plan shall satisfy the applicable requirements of Section 409A of the Internal Revenue Code of 1986, as amended (" Code Section 409A ") in a manner that will preclude the imposition of penalties described in Code Section 409A. The Company shall have the right to amend the Option Plan to the extent necessary to comply with Code Section 409A and the regulations, notices and other guidance of general applicability issued thereunder.

 

15. GOVERNMENT REGULATIONS

 

Subject to Section 17 below, the Option Plan, the granting and exercise of Options hereunder, and the obligation of the Company to sell and deliver Shares under such Options, shall be subject to all applicable laws, rules, and regulations, whether of the State of Israel or of the United States or any other State having jurisdiction over the Company and the Optionee, including the United States Securities Act of 1933, and to such approvals by any governmental agencies or national securities exchanges as may be required.

 

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16. CONTINUANCE OF EMPLOYMENT OR HIRED SERVICES

 

Neither the Option Plan nor the Option Agreement with the Optionee shall impose any obligation on the Company or a Related Entity thereof, to continue any Optionee in its employ, or the hiring by the Company of the Optionee’s services and nothing in the Option Plan or in any Option granted pursuant thereto shall confer upon any Optionee any right to continue in the employ or service of the Company or a Related Entity thereof or restrict the right of the Company or a Related Entity thereof to terminate such employment or service hiring at any time.

 

17. GOVERNING LAW & JURISDICTION

 

This Option Plan shall be governed by and construed and enforced in accordance with the laws of the State of Israel applicable to contracts made and to be performed therein, without giving effect to the principles of conflict of laws. The competent courts of Tel-Aviv, Israel shall have sole jurisdiction in any matters pertaining to this Option Plan.

 

18. TAX CONSEQUENCES

 

18.1 To the extent permitted by applicable law, any tax consequences arising from the grant or exercise of any Option, from the payment for Shares covered thereby or from any other event or act (of the Company, the Trustee or the Optionee) hereunder shall be borne solely by the Optionee. The Company and/or the Trustee (where applicable) shall withhold taxes according to the requirements under the applicable laws, rules, and regulations, including the withholding of taxes at source. Furthermore, the Optionee shall agree to indemnify the Company and the Trustee (where applicable) and hold them harmless against and from any and all liability for any such tax or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withheld, any such tax from any payment made to the Optionee.

 

18.2 The Board, the Committee and/or the Trustee shall not be required to release any Share certificate issued upon exercise of a 102 Option and/or a 3(i) Option to an Optionee until all required payments have been fully made.

 

18.3 If the Option is intended to qualify as an ISO, then if the Optionee makes a disposition, within the meaning of Section 424(c) of the Code and the regulations promulgated thereunder, of any Share issued to the Optionee pursuant to his exercise of the Option within the two-year period commencing on the Date of Grant or within the one-year period commencing on the date after the date of transfer of such Share to the Optionee pursuant to such exercise, the Optionee shall, within ten (10) days after such disposition, notify the Company thereof, by delivery of a written notice to the Secretary of the Company, and immediately deliver to the Company the amount of all applicable withholding taxes and any other information as may be prescribed by the Committee or the Company.

 

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19. SPECIAL PROVISIONS FOR OPTION PLAN PARTICIPANTS WHO ARE ISRAELI RESIDENTS

 

19.1 This Section 19 shall apply only to Optionees who are residents of the State of Israel or those who are deemed to be residents of the State of Israel for the payment of tax.

 

19.2 Notwithstanding anything herein to the contrary, the Option Plan shall be governed by the provisions of the Ordinance, the rules promulgated thereunder, and any other applicable Israeli laws with respect to service providers or employees who are Israeli residents.

 

19.3 Following the grant of Options under the Option Plan and in any case in which the Optionee shall stop being considered as an “Israeli Resident”, as defined in the Ordinance, the Company may, if and to the extent the Ordinance and/or the rules promulgated thereunder shall impose such obligation on the Company, to withhold all applicable taxes from the Optionee, to remit the amount withheld to the appropriate Israeli tax authorities and to report to such Optionee the amount so withheld and paid to said tax authorities.

 

20. NON-EXCLUSIVITY OF THE OPTION PLAN

 

The adoption of the Option Plan by the Board shall not be construed as amending, modifying or rescinding any previously approved incentive arrangements or as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of Options otherwise than under the Option Plan, and such arrangements may be either applicable generally or only in specific cases.

 

21. MULTIPLE AGREEMENTS

 

The terms of each Option may differ from other Options granted under the Option Plan at the same time, or at any other time. The Committee or the Board may also grant more than one Option to a given Optionee during the term of the Option Plan, in addition to one or more Options previously granted to that Optionee.

 

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Exhibit A

 

IRREVOCABLE PROXY

 

Advanced Inhalation Therapies (AIT) Ltd.

7 Imbar St., P.O Box # 3542

Petah Tiqwa 49511 Israel

 

The undersigned hereby appoints the Chairman of the Board of Directors or his substitute, or any other officer designated for the purpose of this Irrevocable Proxy by the Board of Directors, as proxy of the undersigned, with full power of substitution, to (i) vote all of the shares of Advanced Inhalation Therapies (AIT) Ltd. (the " Company "), which the undersigned may be entitled to vote at any General Meeting or Class Meeting of Shareholders of the Company, granted under the Company’s 2013 Share Option Plan (the " Plan "), and to execute any resolutions or consents in lieu of meetings, to the extent undersigned is entitled to any of the foregoing voting rights, and (ii) to waive or exercise, on the undersigned’s behalf, any and all rights or privileges conferred upon the undersigned by virtue or in respect of any such shares owned beneficially or of record by the undersigned, and (iii) to execute on behalf of the undersigned any documents and instruments related to any sale or exchange of any such shares to the extent such sale or exchange is made in accordance with the provisions of the Plan.

 

Subject to the approval of the Company’s Board of Directors, this Irrevocable Proxy may be assigned by the original proxy or any of his assignees to any other person(s) approved by the Board of Directors.

 

This Irrevocable Proxy is granted by the undersigned pursuant to the provisions of the Company’s 2013 Share Option Plan and is intended to secure the rights and interests of third parties, including the Company and certain of its other shareholders, and accordingly is coupled with interest and irrevocable.

 

I hereby acknowledge that I have read and understood the provisions of the Plan, including without limitations, the provisions of Section 9.9 of the Plan, and fully agree therewith.

 

This Irrevocable Proxy will terminate automatically upon completion of the Company’s IPO (as defined in the Plan).

 

Date: ___________

 

  Very truly yours,
   
  ____________________
  (Optionee)

 

Advanced Inhalation Therapies (AIT) Ltd. – 2013 Option Plan

 

 

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Exhibit 10.5

 

AGREEMENT

 

This agreement (the “Agreement”) is entered into as of the 3 rd day of August, 2015 (the “Effective Date”) by and between Advanced Inhalation Therapies (AIT) Ltd., an Israeli corporation (“AIT”), and Ron Bentsur (“Bentsur”).

 

WHEREAS , AIT intends to undertake an initial public offering (the “IPO”); and

 

WHEREAS, AIT desires to appoint Bentsur as Chairman of its Board of Directors (the “Board”) and Bentsur desires to serve AIT in such capacity, in accordance with the terms and conditions set forth in this Agreement;

 

NOW, THEREFORE , AIT and Bentsur hereby agree as follows:

 

1.           Position . AIT hereby appoints Bentsur, and Bentsur hereby agrees to serve, as Chairman of the Board. Bentsur shall perform for AIT the duties customarily associated with the office of Chairman of the Board and such other duties consistent with that position as may be specified in the company’s by-laws and/or applicable law. Bentsur will not engage in any employment, business or other activity that creates an actual or potential conflict of interest with those duties and responsibilities.

 

2.           Compensation . AIT will pay Bentsur the following compensation and benefits for all services rendered by him under this Agreement:

 

(a)         Business Expenses . AIT shall reimburse Bentsur for his reasonable travel and other business expenses incurred in providing services under this Agreement, provided that Bentsur submits documentation of such expenses in a form acceptable to AIT.

 

(b)         Annual Retainer . Commencing on the effective date of the IPO, AIT will pay Bentsur an Annual Retainer at the annualized rate of $75,000. The Annual Retainer shall be paid in equal installments not less often than monthly.

 

(c)         Equity . AIT will grant Bentsur, subject to the consummation of the IPO, 3,955,000 restricted ordinary shares of AIT. The restricted shares shall vest as follows: fifty percent (50%) of such shares shall vest on the six (6) month anniversary of the IPO, and the remaining fifty percent (50%) of such shares shall vest on the eighteen (18) month anniversary of the IPO. The shares granted hereunder shall be governed by and subject to the terms and conditions of the Share Restriction Agreement entered into between AIT and Bentsur, attached hereto as Exhibit A.

 

Notwithstanding anything contained herein to the contrary, it is agreed and understood that the shares granted pursuant to this Section 2(c) shall accelerate and vest immediately upon the closing of a Change of Control Transaction (as hereinafter defined), subject to Bentsur serving as Chairman of AIT pursuant to this Agreement on the closing date of a Change of Control Transaction. The term “Change of Control Transaction” shall mean (i) a merger, consolidation, a sale of all or substantially all of the assets or similar transaction of AIT or its subsidiaries with or into or to any other person or entity, where AIT shall not be the surviving entity, or, if AIT is the surviving entity, after which the equity holders of AIT as of the date hereof fail to own at least fifty percent (50%) of the voting or management power of AIT or (ii) other than any public offering of securities, one or more sales of the outstanding capital stock of AIT after which the equity holders of AIT as of the date hereof fail to own at least fifty percent (50%) of the voting or management power of AIT or the surviving person or entity, as applicable.

 

  1  

 

 

Upon the death or “Disability” (as hereinafter defined) of Bentsur, the shares granted pursuant to this Section 2(c) and any unvested portion thereof shall accelerate and vest immediately. The term “Disability” shall mean “permanent and total disability” as defined in Section 22(e)(3) of the U.S. Internal Revenue Code. Upon the death or Disability of Bentsur the shares granted pursuant to this Section 2(c), including any unvested portion, shall be transferred to Bentsur legal heirs.

 

(d)        Bentsur shall be solely responsible for the payment of, and agrees to pay all income, social security, employment-related or other taxes of any kind incurred as a result of the performance of the services under this Agreement, and for all obligations, reports and timely notifications relating to those taxes, except those imposed on AIT and its subsidiaries. AIT has no obligation to pay or withhold any sums for those taxes. Bentsur will indemnify the Company and hold it harmless from and against any taxes imposed upon or asserted against AIT as a result of or in connection with Bentsur services hereunder other than any taxes arising as a result of the application of U.S. Internal Revenue Code Section 280G.

 

3.           Term . The term of this Agreement shall commence as of the Effective Date and shall continue for a period of three years from the Effective Date, subject to earlier termination as provided herein. This Agreement shall terminate upon termination by Bentsur or AIT, subject to the terminating party providing sixty (60) days’ prior written notice of termination to the other party.

 

4.           Payment Upon Termination . In the event that this Agreement and Bentsur services as Chairman are terminated for any reason, AIT will pay Bentsur any earned and accrued Annual Retainer through the termination date and reimburse him for any unpaid business expenses.

 

5.           Restrictions on Competition; Non-Solicitation .

 

(a)         Restrictions on Competition . Bentsur agrees that, during his service as Chairman and for a period of one (1) year following the termination of such service for any reason, (the “Restricted Period”), he shall not directly or indirectly, alone or with others, establish, open, reestablish or reopen, or in any manner become engaged, either as an employee, owner, partner, agent, stockholder, director, officer, consultant or otherwise, in any Competing Business in any territory. For purposes of this Agreement, “Competing Business” means any person, corporation or other entity whose main activity is to develop or to sell Nitric Oxide therapeutics products. Any investment Bentsur may make in such business shall not be considered to give rise to a violation of this covenant if the following three (3) conditions are met: (i) the stock of such business is publicly traded, (ii) Bentsur equity interest in such business does not exceed five percent (5%) of the aggregate outstanding equity interests of such business, and (iii) Bentsur does not participate in the management or operational affairs of such business.

 

(b)         Non-Solicitation of Clients . Bentsur agrees that during the Restricted Period he shall not, either directly or indirectly, alone or with others, solicit any customer of AIT or any subsidiary for the purpose of engaging in a business relationship related to advanced wound care products.

 

(c)         Non-Solicitation of Employees . Bentsur agrees that during the Restricted Period he shall not, either directly or indirectly, solicit or induce, or attempt to solicit or induce, any employee of AIT or any subsidiary to leave the employ of that company,.

 

6.           Confidentiality .

 

(a)         Nondisclosure of Confidential Information . During Bentsur service hereunder and after such service ends for any reason, Bentsur will hold in strict confidence and will not disclose, use or publish in any manner (including, without limitation, in print, audio or video or in any manner, on-line or through internet, mobile or cloud based transmission) any Confidential Information (as defined below) of AIT or any subsidiary, except as may be required in the performance of his duties hereunder or with the prior written authorization of the Board. Bentsur recognizes that all Confidential Information shall at all times be the sole property of AIT and/or any subsidiary and its/their assigns or successors in interest.

 

  2  

 

 

(b)         Definition of Confidential Information . The term “Confidential Information” shall include but not be limited to (i) trade secrets, documentation, designs, schematics, catalysts, settings, hardware designs, programming, processes, specifications required to produce material, research and development techniques, ideas, processes, products, handbooks, manuals, machines, compositions, methods, formulas, source and object codes, data, programs, patents, patent applications, know-how, improvements, research projects, formats, discoveries, developments, designs, drawings, techniques, system documentation, special hardware, related software development, computer software and programs, electronic codes; (b) plans for research, development, new products, marketing and selling, business and strategic plans, budgets and financial statements, licenses, prices and costs, suppliers and customers; (c) information concerning sales, sales volume, sales and marketing methods, financial performance, sales proposals, identity of clients, kind of client purchases, sources of supply; (d) information regarding the compensation of executives and employees of AIT and any subsidiary; and (e) other confidential or proprietary information belonging to or relating to the business affairs of AIT and any subsidiary. The term Confidential Information is to be broadly defined and construed to and for the benefit of AIT and any subsidiary, and includes any and all information that has or could have commercial value or other utility in the business in which AIT and any subsidiary are engaged or contemplate engaging in, and all information of which the unauthorized disclosure could be detrimental or adverse to the their interests.

 

“Confidential Information” shall not include information that (i) is or becomes known to the general public through no breach of an obligation of secrecy by Bentsur, (ii) is disclosed in written form, under no obligation of secrecy, to Bentsur by another party having a legal right to disclose it; or (iii) Bentsur is required to disclose, pursuant to the terms of a subpoena or other lawful process issued by a court or governmental regulatory agency with jurisdiction over AIT and/or any subsidiary, provided however, that Bentsur shall give timely notice to AIT of such required disclosure and shall disclose such information only to the extent required.

 

7.           Return of Documents . Upon the termination of Bentsur service to AIT for any reason, Bentsur will promptly deliver to AIT all correspondence, drawings, blueprints, manuals, letters, notes, notebooks, reports, flow charts, programs, proposals, product samples, prototypes, any documents concerning AIT’s or any subsidiary’s clients or concerning products or processes used by them, and all documents or materials, including those stored on computers or electronic devices, containing or constituting Confidential Information.

 

8.           No Prior Agreements . Bentsur represents and warrants that he is not a party to or otherwise subject to or bound by the terms of any contract, agreement, or understanding which in any manner would limit or otherwise affect his ability to perform any obligation under this Agreement. Bentsur further represents and warrants that he will not use or disclose any Confidential Information belonging to prior employers or other persons or entities in the performance of his duties hereunder.

 

9.           Assignment . This Agreement may not be assigned by any party hereto.

 

10.         Survival . The covenants and obligations of Bentsur herein which by their terms require performance after the termination of this Agreement shall survive the termination of this Agreement and shall be binding and enforceable until fully satisfied in accordance with the terms of this Agreement.

 

11.         Waiver . No consent to or waiver of any breach or default in the performance of any obligation hereunder shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance of any of the same or any other obligations hereunder. No waiver hereunder shall be effective unless it is in writing and signed by the waiving party.

 

  3  

 

 

12.         Complete Agreement; Modification . This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any previous oral or written communications, representations, understandings, contracts or agreements between them. Any modification of this Agreement shall be effective only if set forth in a written document signed by Bentsur and a duly authorized officer of AIT.

 

13.         Governing Law . This Agreement shall be governed by and construed in accordance with the laws of Israel without giving effect to conflict of law principles.

 

14.         Counterparts; Section Headings . This Agreement may be executed via facsimile or other electronic transmission and in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The section headings of this Agreement are for convenience only and will not affect the construction or interpretation of any of its provisions.

 

ADVANCED INHALATION THERAPIES (AIT) LTD.

 

 

/s/ Amir Avniel

By: Amir Avniel
Title:    Chief Executive Officer        
   
   
   
   
/s/ Ron Bentsur
Ron Bentsur

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Exhibit 10.6

 

Personal Employment Agreement

 

This Personal Employment Agreement (" Agreement ")is entered into on September 09, 2012, by and between Advanced Inhalation Therapies (AIT) Ltd. (the "Company ")and Mrs. Racheli Vizman (the "Employee ").

 

WHEREAS, the Company wishes to employ the Employee, and the Employee wishes to be employed by the Company, as of the Commencement Date (as such term is defined hereunder); and

 

WHEREAS, the parties desire to state the terms and conditions of the Employee's employment by the Company, as set forth below.

 

NOW, THEREFORE, in consideration of the mutual premises, covenants and other agreements contained herein, the parties hereby agree as follows:

 

1. Position .

 

1.1. The Employee shall serve in the position of COO (the "Position ") and shall be under the direction of the CEO of the Company and in the event no CEO is appointed , under the direction of the Board of Directors of the Company. The Employee undertakes to perform the duties and responsibilities, as are normally incident to the position held by Employee and commensurate with Employee's background, education and professional standing and as shall otherwise be instructed by the Company's CEO. The Employee shall perform his duties diligently, conscientiously and in furtherance of the Company's best interests.

 

2. Scope of Employment .

 

2.1. The Employee shall be employed by the Company on a part time basis . The Employee's scope of work shall be 75 % of a full time position (the "Scope of Work ").The Employee further undertakes to devote, in the Scope of Work, her entire business time, exclusively to t he performance of her dutie s in the Company .

 

3. Employee's Representations and Warranties.

 

3.1. The Employee represents and warrants that the execution and delivery of this Agreement and the fulfillment of its terms: (i) will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; (ii) do not require the consent of a ny person or entity . Further , with respect to any past engagement of the Employee with third parties (for purposes hereof, such third parties shall be referred to as "Other Employers "),the Employee represents, warrants and undertakes that: (a) his engagement with the Company is and/or will not be in breach of any of his undertakings toward Other Employers, and (b) he will not disclose to the Company , nor use , in provision of any services to the Company, any proprietary or confidential information belonging to any Other Employer.

 

3.2. The Employee agrees and undertakes to immediately inform the Company of any matter that may in any way raise a conflict of interest between the Employee and the Company. During his employment with the Company, the Employee shall not receive any payment, compensation or benefit from any third party in connection, directly or indirectly, with his position in the Company .

 

3.3. The Employee acknowledges and agrees that all information technology systems of the Company to which he shall have access are the sole and exclusive property of the Company, and that all such systems are and shall be monitored by the Company regularly, at its discretion. Employee understands that he should have no expectation of privacy in his use of such systems.

 

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4. Term and Termination .

 

4.1. The Employee's employment with the Company shall commence on M a y 6 th , 2012 (the "Commencement Date "),and will continue until terminated by either party at any time at such party's discretion with or without cause.

 

4.2. Either party may terminate this Agreement and the employment relationship hereunder at any time by giving the other party a prior written notice of sixty (60) days (the " Notice Period "). During the Notice Period the Company will continue to pay the Employee's Salary, as provided in Section 6 below, in effect at the time of the termination and provide continuation coverage for all other benefits and compensations that are part of this Agreement

 

4.3. Notwithstanding the aforesaid, in the event of a Cause (as defined hereafter) the Company will be entitled to terminate this Agreement immediately and this Agreement and the employment relationship will be deemed effectively terminated as of the time of delivery of such notice (subject to any minimal mandatory notice requirement under applicable law). The term "Cause" means (i) theft, embezzlement or other similar act by Employee of any tangible or intangible asset of the Company or any customer, supplier or investor of the Company; (ii) conviction of any felony involving dishonesty; (iii) a material breach by the Employee of or the contesting by Employee of the validity of the terms of any written agreement between the Company and Employee, or any written policy of the Company known by and applicable to all its employees, but a mere mistake in business judgment shall not constitute cause; (iv) any case of dismissal under circumstances which justify dismissal without severance pay according to the Israeli Law; or (v) willful failure by Employee t o follow the i nstructions of its supervisor or the Board of Directors of the Company to the extent such instructions are reasonably related to the business of the Company and the services provided by the Employee, are given in good faith to promote the interest of the Company, would not require Employee to commit any illegal act and are not given to provide the Company with cause for terminating Consultant; provided, however, that "Cause" shall not mean or include the Company's termination of Employee's employment under this Section 4.3(iii) and (v), if such action (a) is isolated, insubstantial or inadvertent or (b) is remedied promptly by Employee, if such cure is possible, within no more than fourteen days after receipt of notice from the Company of such issue(s).

 

4.4. During the period following notice of termination by either party, the Employee will cooperate with the Company and use the Employee's best efforts to assist the integration into the Company's organization of the person or persons who will assume the Employee's responsibilities.

 

5. Proprietary Information; Confidentiality and Non - Competition .

 

5.1. The Employee hereby agrees to the provisions of the Proprietary Information, Confidentiality and Non-Competition Agreement attached in Exhibit A hereto and simultaneously executes a copy thereof, the terms of which will survive termination of this Agreement.

 

6. Compensation .

 

6.1. The Company will pay the Employee as compensation for the employment services hereunder, an aggregate monthly salary in the amount of NIS 22,000 (the " Salary "). Notwithstanding anything to the contrary, it is hereby clarified that the Salary shall be amended upon the next equity financing in the Company, all subject to the approval of the Board of Directors of the Company.

 

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6.2. The Employee acknowledge and agree that his employment with the Company is a management position and requires a special degree of personal trust, and that the law known as "Work and Rest Hours, 1951" (" Chok shot Avoda Vemenucha ") shall not apply to his employment with the Company. Accordingly, the Salary payable to the Employee is a gross global salary inclusive of remuneration for working overtime and on days of rest, and all cost to the Company. The Employee acknowledge and agrees that unless expressly specified in this Agreement he shall not be entitled to any further remuneration or payment whatsoever other than the Salary and benefits expressly provided herein, regardless of any current or future custom between the Company and its employees.

 

6.3 An amount equals to 10% of the Salary shall be considered special compensation for Employee's compliance with his non-compete obligations set forth in Exhibit A attached hereto.

 

6.4. Notwithstanding the aforesaid, upon the commencement of a Phase IIB clinical trial by the Company, the Employee shall receive a one time bonus in the amount equal to NIS 60,000 (the" Bonus ").

 

6.5. Subject to the requirements under applicable law, the Employee shall cooperate with the Company in maintaining a record of the number of hours of work performed, in accordance with the Company's policy and instructions.

 

6.6. Except as specifically set forth herein, the Salary includes any and all payments to which Employee is entitled hereunder and under any applicable laws, regulations or agreements, including without limitation commuting expenses. Payment of the Salary will be made no later than the 9th day of each calendar month after the month for which the Salary is paid, after deduction of applicable taxes and any amounts deductible under this Agreement.

 

6. 7. Options

 

6.7.1. Subject to the approval of the Company's Board of Directors (the " Board ”), the Employee shall be issued options to purchase Ordinary Shares of the Company , representing 1.33 % of the issued and outstanding share capital, available through the Company's ESOP (as defined below) (the " Options "), subject to any dilution and subject to the following conditions:

 

6.7.2. The Options shall be granted in accordance with an Option Agreement to be signed between the Employee and the Company and shall be at all times subject to (i) all the terms of such incentive employees share option plan (" ESOP ") as shall be adopted by the Company at its sole discretion (ii) any terms and conditions as shall be determined and altered from time to time by the Board or any of its committees at their sole discretion, and (iii) any terms and conditions as provided in any agreement or arrangement the Company may enter from time to time including agreements and arrangements with Investment Banks or Underwriters.

 

6.7.3. Any tax liability in connection with the Options (including with respect to the grant, exercise, sell of the Option or the share receivable upon their exercise) shall be borne solely by the Employee.

 

6.7.4. Unless otherwise determined by the Board, the Options shall vest monthly over a vesting period of 36 (thirty six) months commencing as of the Commencement Date (the " Vesting Period "), so that ____ Options shall vest on ____, 2012 and _____ Options shall vest upon the end of each consecutive monthly period thereafter (collectively, the " Monthly Vesting "), provided that during the term of such Vesting Period, this Agreement remains in full force and the Employee remains an Employee by the Company on such date.

 

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6.7.5. Upon termination of this Agreement (for any reason other than for 'cause', as defined in Section 4.2), the vested Options shall be exercisable for a successive period of twenty four (24) months from the date of the Termination Notice and shall be deemed cancelled if not exercised prior thereto.

 

Social Benefits .

 

6.8. As of the Commencement Date the Company will, on a monthly basis, pay to a pension scheme for the benefit of the Employee and shall deduct from the Employee's Salary a respective payment towards such pension scheme (the "Pension Scheme "), all with respect to the entire Salary. The Company will be entitled to select the Pension Scheme manager or insurance agent at its discretion. The Company shall pay towards a loss of working ability component in accordance with the Company's general arrangement. Subject to applicable law, except if requested otherwise by the Employee, the Pension Scheme shall be of a managers' insurance type and the contribution to such insurance will be as follows: (i) the Company will pay an amount equal to 5% (five percent) of the Salary towards a fund for . life insurance and pension, and shall deduct from the Employee's Salary an amount equal to 5% (five percent) of the Salary and pay such amount towards the Pension Scheme on the Employee's behalf; (ii) the Company will pay an amount of up to 2.5% (two percent and one half of a percent), of the Salary towards a fund for the event of loss of working ability (" Ovdan Kosher Avoda "); and (iii) the Company will pay an amount equal to 8 1/3% (eight percent and one third of a percent) of the Salary towards a severance compensation. The Employee may request a different type of Pension Scheme, provided that the total payments by the Company towards such scheme will not be greater than the total payments by the Company set forth above in this Section 7.1. For the avoidance of doubt, no amount remitted by the Company in respect of this paragraph will be considered as part of the Salary for purposes of any deduction therefrom or calculations of severance pay.

 

As of the Start Date all payments to the Pension Scheme will be made in compliance with Section 14 of the Severance Compensation Law, 1963 (" Section 14 "), and in accordance with the general approval of the Labor Minister dated June 9, 1998, promulgated under said Section 14, a copy of which is attached hereby as Exhibit B , and the terms of Section 14 and said general approval will apply to the relationship hereunder. Therefore, the ownership of the Pension Scheme will be transferred to the Employee following termination of employment and the Company will not be entitled to retrieve any of the funds it transferred to the Pension Scheme, other than in accordance with Section 14 and said general approval, and the transfer of the Pension Scheme to the ownership of the Employee will be the full and only compensation to be paid by the Company to the Employee in such circumstances in respect of severance pay.

 

6.9. The Company and the Employee will maintain an advanced study fund (Keren Hishtalmut). The Company will contribute to such fund an amount equal to 7.5% of the Salary and will deduct from the net Salary and transfer to such fund an amount equal to 2.5% the Salary, provided that the total monthly contributed amount will not exceed the maximum amount exempted from tax payment under applicable laws. For the avoidance of doubt, no amount remitted by the Company in respect of this paragraph will be considered as part of the Salary for purposes of any deduction therefrom or calculations of severance pay.

 

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7. Vacation .

 

7.1. Subject to the provision of the Annual Vacation Law-1951, the Employee shall be entitled to a paid annual vacation of 22 working days with respect to each twelve (12) month period of her employment, up to a maximum of 28 days at any given time (i.e., at any given time, the Employee will have accrued no more than 28 days).The Company will be entitled to direct use of the vacation days, at its discretion. The Employee shall be entitled to accumulate unused vacation days in accordance with applicable law. The Employee will not be entitled to redemption of accumulated and unused vacation days, except in accordance with applicable law in the event of termination of employment.

 

8. Recreation Pay and Sick Leave .

 

8.1. The Employee will be entitled to recreation pay (Dmei Havra'a) and sick leave payment in accordance with applicable law.

 

9. Expenses .

 

9.1. The Company will reimburse the Employee for business expenses borne by the Employee, provided that such expenses were approved in advance by the Company or otherwise in accordance with the Company's expense policy, and against valid invoices furnished by the Employee to the Company.

 

10. Additional Benefits .

 

10.1. Car Expenses

 

The Company shall reimburse the Employee for necessary and customary Car expenses incurred by the Employee and approved by the Company, in accordance with terms and conditions set forth in the Company's Car Policy.

 

10.2. Cellular phone

 

While the Employee is employed by the Company, the Company shall maintain for the Employee a portable cellular phone for professional use. The Company shall bear the expenses of the usage of such cellular phone by the Employee, and shall also bear the applicable tax liability for the grant of use of the Company Mobile Phone according to the Company's policy regarding usage limitations of mobile phone that will be set by the company from time to time.

 

11.    Tax. The Company shall deduct from the Salary all national insurance fees, health insurance fees, income tax and any other amounts required by law, all in accordance with applicable law.

 

12.   General . Headings in this Agreement are included for reference purposes only and are not to be used in interpreting this Agreement. The e x hibits to this Agreement constitute an integral part thereof. Subject to applicable law, no collective bargaining agreement will apply to the relationship between the parties. No failure, delay of forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party's rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof. In the event it is determined under any applicable law that a certain provision set forth in this Agreement is invalid or unenforceable, such determination will not affect the remaining provisions of this Agreement unless the business purpose of this Agreement is substantially frustrated thereby. This Agreement constitutes the entire understanding and agreement between the parties and supersedes any and all prior discussions, agreements and correspondence with regard to the subject matter hereof except for any pre-existing agreements regarding assignment of inventions and/or confidentiality (if any), and may not be amended, modified or supplemented in any respect, except by a subsequent writing executed by both parties. The Employee acknowledges and confirms that all terms of Employee's employment are personal and confidential, and undertakes to keep such term in confidence and refrain from disclosing such terms to any third party.

 

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This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Israel, and the sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement shall be applicable courts in Tel-Aviv.

 

The Employee acknowledges that this Agreement, together with the Exhibits thereto, constitutes a due notice to the Employee of the terms of employment, as required under law.

 

Employee hereby declares that she understands the English language and that she does not need a translation into another language and that she has read and understood everything stated in this agreement and its appendices.

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

ADVANCED INHALATION THERAPIES (AIT) LTD   RACHELI VIZMAN
       
  /s/ Pini Ben Elazar   /s/ Racheli Vizman
  By: Pini Ben Elazar   Signature
  Title: Chairman    

 

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Exhibit A

 

This NONDISCLOSURE AGREEMENT (the " Agreement ") is made and entered into as of ___ of ______, 2012 (the "Effective Date") between Advanced Inhalation Therapies (AIT) Ltd. a corporation formed under the laws of the State of Israel (the " Company "), and Mrs. Racheli Vizman, (the " Recipient "), hereby agree as follows:

 

1. The parties have entered into an employment agreement whereby the Recipient is an employee of the Company (the " Business Relationship ").

 

2. To further the Business Relationship between the parties, it may be necessary that the Company disclose to Recipient certain Confidential Information. As used herein, " Confidential Information " shall mean information which is disclosed by the Company to Recipient by any means (including without limitation, in written or other tangible form (including on magnetic media) , orally or visually) and which should reasonably have been understood by Recipient because of notice on the material, the circumstances of disclosure or the nature of the information itself, to be proprietary or confidential to the Company or a third party.

 

3. Recipient shall not disclose Confidential Information to any person or entity except its employees or consultants, or those of its wholly-owned companies (directly or indirectly), who are required to have the Confidential Information in order to assist it in acting as contemplated by the Business Relationship, and only to the extent necessary. Prior to disclosing any Confidential Information to such employees or · consultants, Recipient shall have ensured that they are aware of the provisions of this Agreement and have signed non-disclosure agreements with non-use and non-disclosure terms substantially similar to those contained in this Agreement. The Recipient shall bear full responsibility and liability for the actions of such employees and consultants concerning the Confidential Information, at all times, regardless of termination of any labor , employment or other relationship with any such employees and consultants. Recipient shall treat the Confidential Information as strictly confidential and with at least the degree of care that it treats similar materials of its own in order to prevent unauthorized disclosure of Confidential Information to others , or a higher standard of care if reasonable under the circumstances.

 

4. Recipient shall not use Confidential Information for its own use or for any purpose except as contemplated by the Business Relationship.

 

5. Without derogating from the Company's rights under law or under this Agreement, Recipient shall immediately notify the Company upon discovery of loss or unauthorized disclosure or use of Confidential Information.

 

6. The obligations of paragraphs 3, 4 and 5 hereof shall not apply to any particular portion of the Confidential Information that is:

 

7. (a) in the public domain at the time of the Company's communication thereof to Recipient or enters the public domain through no breach of Recipient;

 

(b) is demonstrated by reasonable documented proof to be in Recipient's possession before receipt from the Company;

 

(c) Independently developed by Recipient without the use of or reference to the Company's Confidential Information, as shown by reasonable documented proof;

 

(d) communicated by the Company to a third party free of any obligation of confidence;

 

(e) rightfully received by Recipient from a third party that has an independent right to disclose the information;

 

  - 7 -  
 

 

(f) required to be disclosed pursuant to law, regulation or court order, provided that Recipient (i) promptly notifies the Company in writing prior to making any such disclosure in order to facilitate the Company's seeking a protective order or other appropriate remedy from the proper authority; and (ii) thereafter furnishes only that portion of the Confidential Information which is required;

 

8. The obligations undertaken by Recipient under paragraphs 3, 4 and 5 hereof with respect to Confidential Information provided prior to e x piration or termination of this Agreement shall remain in full force and effect indefinitely and shall survive any such termination or expiration.

 

9. The Confidential Information furnished to Recipient by the Company under this Agreement , including without limitation documents, drawings, models, apparatus, sketches, designs, lists, disks, video cassettes and other materials, (a) shall remain the property of the Company and (b) is provided on an "AS IS" basis, with no warranties of any kind, express or implied, being given by the Company with respect to such information. Nothing contained herein shall be construed as giving Recipient any license or rights with respect to the Confidential Information and such materials. Recipient shall make no copies of the Confidential Information and such materials except for the purposes of the Business Relationship or as otherwise permitted herein, and it shall reproduce the Company's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. Upon termination or e x piration of this Agreement, or upon the written request of the Company at any time, any Confidential Information, any copies made thereof and any materials containing any portion of any Confidential Information, to the extent that they remain in the possession of Recipient, its employees, consultants and controlled companies, shall be returned promptly by Recipient to the Company (except those materials which are legally privileged) , or, on the Company's request, shall be destroyed by Recipient and ceased to be used by Recipient or any of the entities referred to above. Upon the Company's request , an officer of Recipient shall certify in writing that Recipient has complied with the preceding sentence.

 

10. Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply any promise or intention by either party to enter into any further agreement with the other, including, without limitation, with respect to the Business Relationship.

 

11. During the term of the Business Relationship and for a period of one (1) year thereafter, Recipient will not, directly or indirectly, engage in any employment or business activity, or hold an interest in any business, which is competitive with the business of the Company, provided, however, that Recipient may purchase or otherwise acquire up to (but not more than) five percent (5%) of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange Recipient further agrees that for the period of the Business Relationship and for a period of one (1) year thereafter, Recipient will not (a) induce any employee of the Company to leave the employ of the Company, (b) induce any customer, supplier, licensee, or business relation of the Company to cease doing business with the Company

 

12. This Agreement shall be construed in accordance with the laws of the State of Israel. The competent court of Tel-Aviv-Jaffa in Israel shall have exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement.

 

13. Recipient acknowledges that a breach of this Agreement would result in irreparable harm to the Company, the extent of which would be difficult to ascertain, and in any event monetary damages alone would be inadequate in the event of such a breach. Accordingly, in the event of a breach of this Agreement the Company shall be entitled to injunctive or other equitable relief as the court deems appropriate, without the necessity of the Company showing posting a bond. Any such relief shall be in addition to, and not in place of, any other appropriate relief to which the Company may be entitled.

 

  - 8 -  
 

 

14. The provisions of this Agreement are independent of and severable from each other. If any provision, or portion thereof, is found to be invalid or unenforceable for any reason, that provision, or portion, shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties as expressed herein, or if it cannot be so modified, then eliminated, and the remainder of the Agreement shall continue in full force and effect as if the Agreement had been signed with the invalid portion so modified or eliminated.

 

15. This Agreement contains the entire agreement of the parties hereto and supersedes any and all prior understandings, arrangements and agreements between them, whether oral or written, with respect to the subject matter hereof. This Agreement may not be amended or in any manner modified except by a written instrument signed by both parties. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.

 

16. Recipient shall not assign any of its rights or obligations hereunder, without the prior written consent of the Company, which consent may be freely withheld .

 

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the Effective Date .

 

COMPANY   RECIPIENT
     
Signature: /s/ Pini Ben Elazar   Signature: /s/ Racheli Vizman
Name: Pini Ben Elazar   Name: Racheli Vizman

 

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Exhibit 10.7

 

ADDENDUM TO PERSONAL EMPLOYMENT AGREEMENT

 

Dated May 30, 2013

 

By and between

 

Advanced Inhalation Therapies (AIT) Ltd.

(the " Company ")

 

and

 

Racheli Vizman

I.D. 040785610

(the " Employee ")

 

WHEREAS, the Company and the Employee have entered into a Personal Employment Agreement dated September 09, 2012 (the " Employment Agreement "); Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Employment Agreement; and

 

WHEREAS the parties wish to amend the provisions of the Employment Agreement, as hereinafter provided.

 

NOW THEREFORE, in consideration of the mutual promises contained herein, and intending to be legally bound, the parties hereto hereby declare and agree as follows:

 

1. Effective as of February 1, 2013 (" Effective Date "):

 

a. Section 6.1 of the Employment Agreement will be amended such that the Salary shall be in the amount of NIS 25,000 instead of the amount of NIS 22,000.

 

b. Section 6.7.1 of the Employment Agreement shall be replaced in its entirety as follows:

 

"Subject to the approval of the Company's Board of Directors (the "Board" ), the Employee shall be issued with options to purchase up to [424,719 Ordinary Shares of the Company, representing as of the date hereof3% of the issued and the outstanding share capital of the Company, under and subject to the terms and conditions of the Company's approved Share Option Plan (as may be amended from time to time) and the terms and conditions of the option agreement to be executed between the Company and the Employee in this respect (the “ Options ”). For the avoidance of doubt, the foregoing undertaking to grant the Options replaces and supersedes any previous undertaking of the Company to grant options to the Employee made prior to the Effective Date. 

 

Addendum to Personal Employment Agreement – Salary Increase + Options – Racheli Vizman

 

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c. Section 6.7.4 of the Employment Agreement shall be replaced in its entirety as the follows:

 

"Unless otherwise determined by the Board, the Options shall vest monthly over a vesting period of 24 (twenty four) months from the Effective Date (the "Vesting Period" ) so that 1/24 of the Options shall vest upon the end of each consecutive monthly period following the Effective Date (collectively, the "Monthly Vesting" ), provided that during the term of such Vesting Period, this Agreement remains in full force and the employee remains an employee by the Company on such date."

 

2. All other provisions of the Employment Agreement not amended herein shall remain in full force and effect.

 

[ signatures page next ]

 

Addendum to Personal Employment Agreement – Salary Increase + Options – Racheli Vizman

 

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IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first above written:

 

/s/ Pini Ben Elazar   /s/ Racheli Vizman
Advanced Inhalation Therapies (AIT) Ltd.   Racheli Vizman
     
By: Pini Ben Elazar    
Title: Chairman    

 

Addendum to Personal Employment Agreement – Salary Increase + Options – Racheli Vizman

 

 

 

3







Exhibit 10.8

 

ADDENDUM #2 TO PERSONAL EMPLOYMENT AGREEMENT

 

Dated April 8, 2014

 

By and between

 

Advanced Inhalation Therapies (AIT) Ltd.

(the " Company ")

 

And

 

Racheli Vizman

I.D. 040785610

(the "Employee" )

 

WHEREAS, the Company and the Employee have entered into a Personal Employment Agreement Dated September 09, 2012, as amended on May 30, 2013 (the "Employment Agreement" ); Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Employment Agreement; and

 

WHEREAS the parties wish to amend the provisions of the Employment Agreement, as hereinafter provided.

 

NOW TEREFORE, in consideration of the mutual promises contained herein, and intending to be legally bound, the parties hereto hereby declare and agree as follows:

 

1. Effective as of 1 April, 2014 ( "Effective Date" )

 

a. Section 2.1 of the Employment Agreement shall be deleted in its entirety and shall be replaced with the following:

 

"The Employee shall be employed by the Company on a full time basis. The Employee's scope of work shall be 100% of a full time position (the "Scope of Work" ). Employee Further undertakes to devote, in the Scope of Work, her entire business time, exclusively to the performance of her duties in the Company".

 

b. Section 6.1 of the Employment Agreement will be amended such that Salary shall be in the amount of NIS 33,333 instead of the amount of NIS 25,000.

 

2. All other provisions of the Employment Agreement not amended herein shall remain in full force and effect.

 

[ signatures page next ]

 

Addendum #2 to Personal Employment Agreement- Racheli Vizman

 

 

 

IN WITNESS WHEROF, the parties hereto have executed this Addendum as of the date first above written:

 

/s/ Ari Raved  

/s/ Racheli Vizman

Advanced Inhalation Therapies (AIT) Ltd.   Racheli Vizman

 

By:

Ari Raved

 
Title: Director  

 

Addendum #2 to Personal Employment Agreement- Racheli Vizman

 

 

2







Exhibit 10.9

 

ADDENDUM #3 TO PERSONAL EMPLOYMENT AGREEMENT

 

Dated July 12, 2015

 

By and between

 

Advanced Inhalation Therapies (AIT) Ltd.

(the " Company ")

 

and

 

Racheli Vizman

I.D. 040785610

(the " Employee ")

 

WHEREAS, the Company and the Employee have entered into a Personal Employment Agreement dated September 09, 2012, as amended on May 30, 2013 and as further amended on April 9, 2014 (the " Employment Agreement "); Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Employment Agreement; and

 

WHEREAS the parties wish to amend the provisions of the Employment Agreement, as hereinafter provided.

 

NOW THEREFORE, in consideration of the mutual promises contained herein, and intending to be legally bound, the parties hereto hereby declare and agree as follows:

 

1. Effective as of July 1 st , 2015 (" Effective Date "):

 

a. Section 4.2 of the Employment Agreement will be amended such that the Notice Period shall be ninety (90) days instead of sixty (60) days.

 

b. The following shall be added to the Employment Agreement to appear as Section 4.2A thereof:

 

“Notwithstanding the foregoing, (i) in the event the Company elects to terminate Employee's employment (other than for Cause) during a period of six (6) month as of the date in which the Company consummated a Change of Control (as defined below) in the Company, the Company shall pay the Employee a compensation in an amount equal to six (6) month's Salary; and (ii) in the event the Employee elects to terminate her employment during a period of six (6) month as of the date of this Addendum, the Company shall pay the Employee a compensation in an amount equal to three (3) month's Salary.

 

For the purpose hereof the term " Change of Control " shall mean the acquisition (excluding pursuant to raising of funds by the Company), directly or indirectly, in one or more related transactions, by any person who is a not an affiliate of the Company, or group of such persons acting in concert, of (i) more than 50% of the then outstanding shares or voting rights of the Company, or (ii) all or substantially all of the assets of the Company.”

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

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c. Section 6.1 of the Employment Agreement will be amended such that the Salary shall be in the amount of NIS 37,000 instead of the amount of NIS 33,333.

 

d. Section 6.4 of the Employment Agreement shall be deleted in its entirety and shall be replaced with the following:

 

“6.4 The Employee shall be entitled to receive the following performance based bonuses (the " Bonuses "):

 

  i. a one-time bonus in an amount equal to US$ 20,000 payable to Employee as of the date of this Addendum;

 

 ii. a one-time bonus in an amount equal to NIS 60,000 payable upon the commencement of a Phase IIB clinical trial by the Company;

 

iii. an annual bonus in an amount equal to one (1) month's Salary will be paid to the Employee within 10 days from the end of each calendar year as of the date hereof;

 

iv. a one-time bonus in an amount equal to US$ 15,000 payable once Company's bank account shall contain funds in excess of US$ 500,000, provided however , that in the event Employee is entitled to receive the bonus mentioned in sub-section (v) below, the one-time bonus payment in accordance with this sub-section (iv) shall not be payable to Employee;

 

 v. a one-time bonus in an amount equal to US$ 35,000 payable following consummation by the Company of an equity financing round in an amount of no less than US$ 3,000,000 and the actual receipt of such funds by the Company, provided however , that in the event Employee is entitled to receive the bonus mentioned in sub-section (iv) above, the one-time bonus payment in accordance with this sub-section (v) shall be reduced to US$ 20,000; and

 

vi. a one-time bonus in an amount equal to US$ 50,000 payable upon consummation by the Company of an M&A Transaction (as defined below) in which the total amount of proceeds payable to the company and/or the Company's shareholders pursuant to consummation of such M&A Transaction shall exceed US$ 50,000,000.

 

The term “ M&A Transaction ” shall mean any transaction or series or combination of related transactions whereby either of the following transactions is being consummated: (A) the sale of all (or substantially all) of the assets or shares of an entity of the Company’s, or (B) a merger with another entity, which constitutes a Change of Control.

 

For the avoidance of any doubt, the Bonuses shall not be deemed to be part of Employee's Salary, including without limitation, for purposes of any social benefits and calculation of severance payments, and shall be subject to withholding tax, social security payments ('Bituach Leumi') and such other withholding as may be required, from time to time, under applicable law.”

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

  2  

 

 

 

e. Section 10.1 of the Employment Agreement shall be deleted in its entirety and shall be replaced with the following :

 

“10.1 Company Car :

 

a.           The Company shall make available to the Employee, during the term of Employee's employment hereunder and until the expiration of a two (2) month period as of termination thereof (the " Leasing Period "), an automobile of Class 5 (or equivalent) and in a cost per month of up to NIS 4,500 , and shall bear all fixed and current work-related expenses related to such automobile (but not parking fines and other traffic violations) as per the Company’s policy (the " Company Car "); such Company Car may be purchased or leased by the Company, at its sole discretion and according to the Company's policy.

 

b.           The Company shall bear costs of gasoline of the Company Car.

 

c.           Notwithstanding the foregoing, if any applicable law requires the deduction or withholding of any tax in connection with the Company Car, then then the sum payable to the Employee in connection with the Company Car shall be increased as necessary so that after such deduction or withholding has been made the Employee shall receive an amount equal to the amount she would have received had no such deduction or withholding been made.

 

d.           Upon the earlier of (i) termination of Employee's employment for Cause; and (ii) expiration of the Leasing Period, the Employee shall forthwith return the Company Car with the keys and all licenses and other documentation related with the Company Car and all its accessories to the Company. The Employee shall not have any lien right in the Company Car or in any document or property related thereto.

 

e.           The Employee’s liabilities and responsibility with respect to the use of the Company Car are set forth in Exhibit D and compliance therewith is a condition for the Employee to maintain the Company Car.”

 

2. All other provisions of the Employment Agreement not amended herein shall remain in full force and effect.

 

[ signatures page next ]

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

  3  

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first above written:

 

/s/ Yossef Av-Gay   /s/ Racheli Vizman
Advanced Inhalation Therapies (AIT) Ltd.   Racheli Vizman

  

By: Yossef Av-Gay
Title: CSO

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

  4  

 

 

Exhibit D

 

Duties of the Employee in respect of the Company Car placed at Employee’s disposal

 

1. The Employee warrants that Employee has held a valid driving license for at least two years and is competent to drive the car placed at Employee’s disposal by the Company.

 

2. The Employee and/or a person acting on Employee’s behalf and/or a member of Employee’s family may drive the Company Car, provided that such person is over the age of 24 and has held a valid driving license for the type of vehicle received by the Employee from the Company for a period of at least two years. A driver aged between 18 and 24 must obtain the prior written consent of the Company to drive the Company Car.

 

3. The Employee shall be responsible for all fines or expenses which the Company may be demanded to pay for traffic/parking offences involving the Company Car during the term of employment even if the demand only reaches the Company after cessation of the Employee’s employment.

 

4. The Employee shall not allow any third party whatsoever (except for other employees of the Company and/or persons acting on their own or on their behalf) to make any use whatsoever of the Company Car nor shall the Employee grant any third party in the custody of the Company Car or the rights therein or Employee’s rights under this Employment Agreement.

 

5. The Employee shall make reasonable use of the Company Car as required by law, shall carry out maintenance on time, shall keep the Company Car properly and to the best of Employee’s ability, shall refrain from causing damage to the Company Car, and shall treat the Company Car in the same manner as a careful owner would look after his/her own property.

 

6. The Employee shall obey the instructions of the car manufacturer as regards to the use and maintenance of the Company Car and, inter alia, shall comply with the owner’s instructions regarding the transfer of the Company Car to a garage specified by the Company for maintenance and repair. The Company shall give the Employee advance warning of the renewal date for the annual car license and the Employee shall update the Company on the car mileage for the purposes of current service of the Company Car. The Employee acknowledges the Company’s right to check the Company Car’s mileage with the gasoline companies whenever it deems fit.

 

7. The Employee shall abstain from causing damage to the car intentionally or by indifference, or recklessness.

 

8. The Employee shall not take passengers or freight for hire or monetary consideration.

 

9. The Employee shall not use the Company Car while under the influence of alcohol, medication, drugs or other substances likely to impair Employee’s ability to drive, temporarily or permanently.

 

10. The Employee shall not use the Company Car for unlawful purposes.

 

11. The Employee shall not leave the Company Car unlocked or with the key inside.

 

12. The Employee shall not use the Company Car in connection with any violent, political or labor strike related purposes.

 

13. The Employee shall not use the Company Car for towing or propelling any other vehicle or object and shall not use the Company Car for competition and/or racing and/or testing.

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

  5  

 

 

14. The Employee shall not carry passengers or freight in excess of the number or quantity permitted by law or by the car insurance policy (compulsory and third party). The Employee shall use the Company Car solely for the purposes permitted under the said policy and shall do nothing that is likely to impair the validity and cover thereof. The Employee shall not use the Company Car outside of the State of Israel including those territories defined as Area A pursuant to the agreements between the State of Israel and the Palestinian Authority.

 

15. The Employee shall not transport any poisonous, dangerous and/or radioactive materials in the Company Car.

 

16. The Employee shall not use the Company Car on roads or areas, which are unpaved or unsuitable for vehicles. Furthermore, the Employee shall not use the Company Car in places where there are riots or disturbances or in circumstances in which the Company Car is likely to be damaged and Employee shall not take the Company Car into such places.

 

17. The Employee shall not, without the Company’s consent, make any change to, or change any part of or make any addition to the Company Car or any part thereof, or drill any holes therein or install any appliances therein. Employee shall likewise not paint or mark or use the Company Car in a manner likely to damage the car or any apart thereof and Employee shall not hang any signs or notices thereon.

 

18. The Employee shall give the Company immediate notice of any defect, damage
or disrepair of or to the Company Car of any kind and howsoever caused and shall act in respect thereof in accordance with the directives of the Company.

 

19. The Employee shall give the Company immediate notice of any accident in which the Company Car shall be involved and shall give the Company full particulars thereof. The Employee or the driver involved in the accident shall fill in an accident report form without delay in such form as the Company shall require and shall sign and furnish the same to the Company even if no damage has been caused to the Company Car. Failure by the Employee to furnish such signed report within 24 hours of the accident shall disqualify the Employee from obtaining a substitute vehicle.

 

20. The Employee and/or any person driving on Employee’s behalf shall not make any admission, waiver or financial offer in connection with an accident to any third party and shall not assume any responsibility whatsoever in Employee’s or their or the Company’s name. This is subject however to giving full and truthful evidence in an official investigation instigated by law.

 

21. The Employee and/or any person driving on Employee’s behalf who is involved in an accident shall note the particulars of any other driver involved in the accident and of the other vehicle as well as insurance particulars and witnesses, if any.

 

22. The Employee and/or person driving the Company Car on Employee’s behalf (at the time of the accident) shall give every assistance, furnish full particulars and give all evidence required by the Company to enable it to deal with the accident and/or the damage and/or legal proceedings insofar as such are initiated in connection with the accident.

 

23. Any damage caused by a blow to the underside of the car otherwise than by an accident and damage to another part of the Company Car by such a blow as well as any damage caused to the Company Car resulting from want of repair will be the sole responsibility of and for the account of the Employee and Employee shall reimburse the Company for the cost of repair of such damage.

 

24. The Employee shall give the Company immediate notice of the theft of the Company Car should it be stolen and shall report the theft to the police.

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

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25. The Company shall bear no responsibility whatsoever for any effects, appliances or instruments left in the vehicle by the Employee or a person on Employee’s behalf at any time including servicing, repair, car-washing etc. nor shall the Company be liable for the entirety or regularity of such things.

 

26. The Employee and all persons using the Company Car shall comply fully with the provisions of this Agreement and the insurance policies (compulsory and third party). Should the Employee or persons on Employee’s behalf fail so to comply, the Employee shall be liable to compensate the Company for all damage, loss and expense occasioned to the Company directly or indirectly by reason of such failure to comply.

 

27. The Employee shall return the Company Car to the Company immediately upon termination of Employee’s employment for any reason and Employee shall not postpone its return even if Employee has claims against the Company. The Employee hereby waives any right of lien on the Company Car, contractual or under any law.

 

28. In the event of theft of the car or total loss by reason of the Employee’s negligence or failure to comply with the terms of this Appendix, the Employee shall pay the Company an amount equivalent to double the amount defined as a contribution (deductible) under the Insurance Policy.

 

Addendum #3 to Personal Employment Agreement – Racheli Vizman

 

7




 




Exhibit 10.10

 

LICENSE AGREEMENT

 

BETWEEN:

THE UNIVERSITY OF BRITISH COLUMBIA , a corporation continued under the University Act of British Columbia with offices at #103-6190 Agronomy Road, Vancouver, British Columbia, V6T 1Z3

(“ UBC ”)

 

AND:

 

Advanced inhalation therapies , a corporation incorporated under the laws of Israel, with a registered office at 27th Aavat Zion St, Tel Aviv

(the “ Licensee ”)

 

WHEREAS:

 

A.          UBC has been engaged in research during the course of which it has developed and/or acquired certain technology relating to anonymized data from an investigator-initiated Phase I clinical trial to investigate the safety of inhaled gaseous nitric oxide in healthy adults for potential use as a frontline treatment for pulmonary infections the “ Nitric Oxide Clinical Trial ”, which research was undertaken by Dr. Yossef Av-Gay and Dr. Chris Miller in the UBC Faculty of Medicine, Division of Infectious Diseases (the “ Investigators ”);

 

B.           It is UBC’s objective to exploit its technology for the public benefit, and to generate further research in a manner consistent with its status as a non-profit, tax exempt educational institution; and

 

C.          The Licensee and UBC have agreed to enter into this license agreement (the “ Agreement ”) on the terms and conditions set out below.

 

THE PARTIES AGREE AS FOLLOWS:

 

1.0            DEFINITIONS

 

1.1           In this Agreement:

 

(a) Basic Participant Data ”means the information collected by UBC from the clinical trial participants in the normal course of clinical trial enrolment;

 

(b) Confidential Information ” means all information, regardless of its form:

 

(i) disclosed by UBC to the Licensee and designated by UBC as confidential, whether orally or in writing, including without limitation all information and documents related to the Technology (including all derived analyses and conclusions) and the terms and conditions of this Agreement; or

 

(ii) disclosed by the Licensee to UBC and which is clearly identified in writing as “Confidential”,

 

except that “Confidential Information” does not include information:

 

   

 

 

(iii) possessed by the recipient (the “ Recipient ”) before receipt from the disclosing party (the “ Discloser ”), other than through prior disclosure by the Discloser, as evidenced by the Recipient’s business records;

 

(iv) published or available to the general public otherwise than through a breach of this Agreement;

 

(v) obtained by the Recipient from a third party with a valid right to disclose it, provided that the third party is not under a confidentiality obligation to the Discloser; or

 

(vi) independently developed by employees, agents or consultants of the Recipient who had no knowledge of or access to the Discloser’s information as evidenced by the Recipient’s business records;

 

(c) License Fee ” is defined in Article 3.4;

 

(d) Objectionable Material ” is defined in Article 7.3;

 

(e) Start Date ” means 1st November, 2011;

 

(f) Technology ” means the anonymized data from the Nitric Oxide Clinical Trial as described in Schedule “ A ” and UBC’s Confidential Information;

 

(g) Term ” is defined in Article 13.1; and

 

(h) UBC Trade-marks ” means any mark, trade-mark, service mark, logo, insignia, seal, design, symbol or device used by UBC in any manner at all.

 

2.0          PROPERTY RIGHTS IN & TO THE TECHNOLOGY AND TO INTELLECTUAL PROPERTY

 

2.1          The Licensee acknowledges and agrees that UBC owns all right, title and interest in and to the Technology.

 

2.2          The Licensee will, at the request of UBC, sign all documents as may be required to ensure that ownership of the Technology remains with UBC.

 

2.3         The Licensee will own all right, title and interest in any intellectual property or products generated by employees (or other service providers or consultants) of the Licensee based on its activities under the License from the Start Date (the “ Licensee Inventions ”). For greater clarity, the Licensee may apply for patents covering Licensee Inventions in its sole discretion, and at its sole cost, which will be registered in Licensee’s name as sole proprietary owner off such patents and with no rights to be granted to UBC on such Licensee Inventions. The Licensee will be free to use and sublicense such Licensee Inventions as in its sole discretion it sees fit, without further accounting to UBC.

 

    Page 2 of 14

 

 

3.0          GRANT OF LICENSE

 

3.1         Subject to Article 3.3, UBC hereby grants to the Licensee a sole and exclusive worldwide, non-transferable, non-sublicensable license to (a) use the Technology as part of regulatory submissions that will advance the development of inhaled nitric oxide therapy for therapeutic uses, and (b) for use in patent applications on the terms and conditions set out in this Agreement.

 

3.2         UBC further grants to the Licensee a sole and exclusive license, with the right to sublicense to develop, have developed, register, market, have marketed, produce, have produced, distribute, have distributed, sell, have sold, offer for sale and import any product based on, but which do not incorporate, the Technology, on the terms and conditions set out in this Agreement (the licenses granted under Section 3.1 and Section 3.2 above shall, collectively, be referred to as the “ License ”).

 

3.3         The Licensee acknowledges and agrees that UBC may use the Technology without charge in any manner at all for research, scholarly publication, educational and all other non-commercial uses.

 

3.4          As a condition of UBC granting this License, the Licensee agrees to pay to UBC;

 

(a) A license fee of $40,000 (Canadian funds) (the “ License Fee ”). The License Fee will not be refunded to the Licensee (in whole or in part) under any circumstances. The License Fee will be paid in three instalments as follows;

 

(i) $15,000 paid concurrently with the execution of this Agreement;

 

(ii) $15,000 paid three months after the Start Date; and

 

(iii) $10,000 paid six months after the Start Date; and

 

(b) The Licensee will enter into a Collaborative Research Agreement with UBC for at least 2 years beginning no later than one year after the Start Date. The Collaborative Research Agreement will provide a minimum of $75,000 (Canadian funds) per year in funding for research relating to the use of nitric oxide for therapeutics.

 

4.0           BASIC PARTICIPANT DATA

 

4.1          The Licensee acknowledges and agrees that UBC has a public duty to safeguard the sanctity of the Basic Participant Data and ensure that they are used in a manner as authorized by the participants’ informed consent and so as to serve the advancement of scientific research.

 

4.2          For greater clarity, the Technology licensed hereunder shall not include Basic Participant Data but shall only contain certain anonymized components of such Basic Participant Data together with results and analyses from the Nitric Oxide Clinical Trial.

 

4.3          The Basic Participant Data, including any backup archives, are and will remain the property of UBC.

 

4.4          The Licensee will not make any representation to third parties to the effect that it has any proprietary rights in the Basic Participant Data or otherwise act in any manner inconsistent with UBC’s ownership of and right to control the Basic Participant Data.

 

4.5          The Licensee will use its best efforts to cooperate with UBC in ensuring that all subject identification and information associated with the Basic Participant Data is removed.

 

    Page 3 of 14

 

 

4.6          The Licensee will comply with all applicable privacy legislation and will not use the Technology which will in any way cause UBC to be in breach of the Freedom of Information and Personal Privacy Act and will use its best efforts to cooperate with UBC in the fulfilment of its duty to comply with such Act, or any other applicable laws.

 

5.0           DISCLAIMER OF WARRANTY

 

5.1          UBC makes no representations, conditions or warranties, either express or implied, regarding the Technology. Without limitation, UBC specifically disclaims any implied warranty, condition or representation that the Technology;

 

(a) corresponds with a particular description;

 

(b) is of merchantable quality;

 

(c) is fit for a particular purpose; or

 

(d) is durable for a reasonable period of time.

 

UBC is not liable for any loss, whether direct, consequential, incidental or special, which the Licensee or other third parties suffer arising from any defect, error or fault of the Technology, or its failure to perform, even if UBC is aware of the possibility of the defect, error, fault or failure. The Licensee acknowledges that it has been advised by UBC to undertake its own due diligence regarding the Technology.

 

5.2          Nothing in this Agreement:

 

(a) constitutes a warranty or representation by UBC as to title to the Technology or that anything made, used, sold or otherwise disposed of under the license granted in this Agreement will not infringe the patents, copyrights, trade-marks, industrial designs or other intellectual property rights of any third parties, or any patents, copyrights, trade-marks, industrial design or other intellectual property rights owned, in whole or in part, by UBC, or licensed by UBC to any third parties;

 

(b) constitutes an express or implied warranty or representation by UBC that the Licensee has, or will have the freedom to operate or practice the Technology; or

 

(c) imposes an obligation on UBC to bring, prosecute or defend actions or suits against third parties for infringement of patents, copyrights, trade-marks, industrial designs or other intellectual property or contractual rights.

 

6.0           INDEMNITY & LIMITATION OF LIABILITY

 

6.1          The Licensee indemnifies, holds harmless and defends UBC, its Board of Governors, officers, employees, faculty, students, invitees and agents against any and all claims (including all associated legal fees and disbursements actually incurred) arising out of the exercise of any rights under this Agreement, including without limitation against any damages or losses, consequential or otherwise, arising in any manner at all from or out of the use of the Technology licensed under this Agreement by the Licensee.

 

    Page 4 of 14

 

 

6.2          UBC’s total liability, whether under the express or implied terms of this Agreement, in tort (including negligence) or at common law, for any loss or damage suffered by the Licensee, whether direct, indirect or special, or any other similar damage that may arise or does arise from any breaches of this Agreement by UBC, its Board of Governors, officers, employees, faculty, students or agents, is limited to $10,000.

 

6.3          The Licensee acknowledges and agrees that UBC will not be liable for consequential or incidental damages arising from any breach or breaches of this Agreement.

 

6.4           Notwithstanding the termination or expiration of this Agreement, the rights and obligations in Article 6 will survive and continue to bind the Licensee and its successors and permitted assigns.

 

7.0           PUBLICATION & CONFIDENTIALITY

 

7.1          Each party will keep and use the other party’s Confidential Information in confidence and will not, without the other party’s prior written consent, disclose the other party’s Confidential Information to any person or entity, except to the party’s directors, officers, employees, faculty, students and professional advisors who require the Confidential Information to assist such party in performing its obligations under this Agreement. The Licensee will maintain an appropriate internal program limiting the distribution of UBC’s Confidential Information to only those officers, employees and professional advisors who require such Confidential Information in performing the Licensee’s obligations under this Agreement and who have signed appropriate non-disclosure agreements.

 

7.2          Any party required by judicial or administrative process to disclose the other party’s Confidential Information, will promptly notify the other party and allow it reasonable time to oppose the process before disclosing the Confidential Information.

 

7.3          UBC is not restricted from presenting at symposia, national or regional professional meetings, or from publishing in journals or other publications, accounts of its research relating to the Technology , provided that with respect to the Confidential Information only, the Licensee is provided with copies of the proposed disclosure at least 60 days before the presentation or publication date and does not, within 30 days after delivery of the proposed disclosure, give notice to UBC indicating that it objects to the proposed disclosure. Any objection to a proposed disclosure will specify the portions of the proposed disclosure considered objectionable (the “ Objectionable Material ”). On receiving notice from the Licensee that any proposed disclosure contains Objectionable Material, UBC will delay the proposed disclosure for 4 months from the date UBC delivered the proposed disclosure to the Licensee. After 4 months from the date UBC delivered the proposed disclosure to the Licensee, UBC is free to present and/or publish the proposed disclosure whether or not it contains Objectionable Material.

 

7.4          The Licensee and UBC agree that the terms and conditions of this Agreement are confidential, subject to disclosure requirements by applicable laws. Notwithstanding anything contained in Article 7, the Licensee and UBC agree that either party may identify the title of this Agreement, the parties to this Agreement and the names of the inventors of the Technology , and that UBC may also disclose to the Investigators the amount of all payments made to UBC by the Licensee under this Agreement.

 

7.5          Notwithstanding the termination or expiration of this Agreement, the rights and obligations in Article 7 survive and continue to bind the parties, their successors and permitted assigns.

 

    Page 5 of 14

 

 

8.0           TRADE-MARKS

 

8.1          The Licensee will not use the UBC Trade-marks or make reference to UBC or its name in any advertising or publicity, without the prior written consent of UBC. Without limitation, the Licensee will not issue a press release regarding this Agreement or the Technology without first obtaining UBC’s written approval. If the Licensee is required by law to act in breach of this Article, the Licensee will provide UBC with sufficient prior notice to permit UBC to bring an application or other proceeding to contest the requirement.

 

9.0           INSURANCE

 

9.1          One (1) month before the initiation of a human clinical trial, the Licensee will notify UBC of the terms and amount of the product liability, clinical trials, public liability, and commercial general liability insurance and such other types of insurance which it has placed. This insurance will include UBC, its Board of Governors, faculty, officers, employees, students and agents as additional insureds under such insurance policies.

 

10.0        ASSIGNMENT

 

10.1        Subject to Article 10.2, the Licensee will not assign, transfer, mortgage, pledge, financially encumber, grant a security interest, permit a lien to be created, charge or otherwise dispose of any or all of the rights granted to it under this Agreement without the prior written consent of UBC.

 

10.2        The Licensee may assign this Agreement as part of a sale, transfer or merger of the Licensee’s entire business (or that part of Licensee’s business that exercises all rights granted under this Agreement), provided that before any such assignment, the following conditions must be met:

 

(a) the Licensee must give UBC thirty (30) days prior written notice of the assignment, including the intended assignee’s name and contact information;

 

(b) the assignee must have the financial and technical ability to assume the obligations under this Agreement, and the assignee (and its principals) must be of good and reputable character;

 

(c) the assignee must agree in writing with UBC to be bound by this Agreement; and

 

(d) the Licensee will pay all reasonable legal expenses incurred by UBC regarding any consents and approval required from UBC.

 

10.3        UBC will have the right to assign its rights, duties and obligations under this Agreement to a company of which it is the sole shareholder, or a society which it has incorporated or which has purposes which are consistent with the objectives of UBC. If UBC makes such an assignment, the Licensee will release and discharge UBC from all obligations or covenants, provided that the company or society, as the case may be, signs a written agreement which provides that the company or society assumes all obligations or covenants from UBC and that the Licensee retains all rights granted to the Licensee under this Agreement.

 

11.0        GOVERNING LAW

 

11.1       This Agreement is governed by, and will be construed in accordance with, the laws of British Columbia and the laws of Canada in force in that province, without regard to its conflict of law rules. All parties agree that by executing this Agreement they have attorned to the jurisdiction of the Supreme Court of British Columbia. The parties agree that the British Columbia Supreme Court has exclusive jurisdiction over this Agreement.

 

    Page 6 of 14

 

 

12.0         NOTICES

 

12.1        All reports and notices or other documents that a party is required or may want to deliver to any other party will be delivered:

 

(a) in writing; and

 

(b) either by personal delivery or by registered or certified mail at the address for the receiving party set out in Article 12.2 or as varied by any notice.

 

Any notice personally delivered is deemed to have been received at the time of delivery. Any notice mailed in accordance with this Article 12.1 is deemed to have been received at the end of the fifth day after it is posted.

 

12.2        The address for delivery of notices and instructions for making payments to UBC are set out in the attached Schedule “ B ”. The address for delivery of notices to the Licensee is set out below:

 

ADVANCED INHALATION TECHNOLOGIES

 

Address:27th Aavat Zion, Tel Aviv, Israel
Telephone: +97236045662 or +972502323280
Fax: +97236045662

 

13.0        TERM

 

13.1        The term (the “ Term ”) of this Agreement starts on the Start Date and ends on:

 

(a) the day that is exactly 10 years later; or

 

(b) the date on which the Collaborative Research Agreement terminates or expires,

 

whichever is last to occur, unless terminated earlier under Article 14.

 

14.0        TERMINATION OF AGREEMENT

 

14.1       This Agreement automatically and immediately terminates without notice to the Licensee if any proceeding under the Bankruptcy and Insolvency Act of Canada, or any other statute of similar purpose, is started by or against the Licensee.

 

14.2       UBC may, at its option, immediately terminate this Agreement by giving notice to the Licensee if one or more of the following occurs:

 

(a) the Licensee becomes insolvent, as evidenced, for example (without limitation) by the appointment of a receiver, a receiver manager, the issuance of financial statements which according to GAAP would render the Licensee insolvent, the termination of a majority of the Licensee’s employees, the vacation of the Licensee’s chief place of business or the Licensee ceasing or threatening to cease carrying on business;

 

    Page 7 of 14

 

 

(b) any execution or other process of any court becomes enforceable against the Licensee, or if any similar process is levied on the rights under this Agreement or on any money due to UBC and is not released or satisfied by the Licensee within 30 days from the process becoming enforceable or being levied;

 

(c) if the Licensee or any of its directors or officers have breached or otherwise failed to comply with any applicable securities laws, regulations or requirements which UBC deems in its sole discretion to be material;

 

(d) any resolution is passed or order made or other steps taken for the winding up, liquidation or other termination of the existence of the Licensee;

 

(e) the Technology becomes subject to any security interest, lien, charge or encumbrance in favour of any third party claiming through the Licensee;

 

(f) if the Licensee breaches any of Articles 3.1, 8.0, 9.0 or 10.0; or

 

14.3        Other than as set out in Articles 14.1 and 14.2, either party may terminate this Agreement for any breach which is not remedied after providing the following notice to the party in breach:

 

(a) 30 days notice in the case of any breach which can reasonably be remedied within 30 days of the delivery of such notice; or

 

(b) if the breach cannot be remedied within 30 days and the breach is not remedied within such further period as may be reasonably necessary, or within 90 days after receipt of notice, whichever is sooner.

 

14.4        If this Agreement is terminated under Article 14.1 to 14.3, the Licensee will make all outstanding payments to UBC and UBC may proceed to exercise any or all of the rights and remedies available under this Agreement or otherwise available by law or in equity, successively or concurrently, at the option of UBC. Within 5 days of the termination date, the Licensee will deliver to UBC all Technology in its possession or control and will have no further right of any nature at all in the Technology. If the Licensee has not delivered up the Technology within 5 days from the termination date, UBC may immediately and without notice enter the Licensee’s premises and take possession of the Technology. The Licensee will pay all charges or expenses incurred by UBC in the enforcement of its rights or remedies against the Licensee under this Article 14.4, including without limitation UBC’s legal fees and disbursements on an indemnity basis.

 

14.5        The Licensee will cease to use the Technology in any manner at all within 5 days from the termination date.

 

14.6        The Licensee will have the right to terminate this Agreement by providing prior written notice of ninety (90) days to UBC.

 

15.0         MISCELLANEOUS COVENANTS OF LICENSEE

 

15.1        The Licensee represents and warrants to UBC that the Licensee is a corporation duly organized, existing and in good standing under the laws of Israel and has the power, authority and capacity to enter into this Agreement and to carry out the transactions contemplated by this Agreement, all of which have been duly and validly authorized by all requisite corporate proceedings. UBC is aware that the Licensee is a start up company and that the Licensee will use commercially reasonable efforts to raise the necessary seed capital financing for the activities set out herein.

 

    Page 8 of 14

 

 

15.2        The Licensee will comply with all laws, regulations and ordinances, whether Federal, State, Provincial, County, Municipal or otherwise, with respect to the Technology and this Agreement.

 

15.3        The Licensee will pay all taxes and any related interest or penalty designated in any manner at all and imposed as a result of the existence or operation of this Agreement, including without limitation tax which the Licensee is required to withhold or deduct from payments to UBC. The Licensee will provide to UBC evidence as may be required by Canadian authorities to establish that the tax has been paid. If UBC is required to collect a tax to be paid by the Licensee, the Licensee will pay the tax to UBC on demand.

 

15.4        The obligation of the Licensee to make all payments under this Agreement is absolute and unconditional and is not, except as expressly set out in this Agreement, affected by any circumstance, including without limitation any set-off, compensation, counterclaim, recoupment, defence or other right which the Licensee may have against UBC, or anyone else for any reason at all.

 

15.5        The Licensee will pay interest on all amounts due and owing to UBC under this Agreement but not paid by the Licensee on the due date, at the rate of 12.68% per annum, calculated annually not in advance. The interest accrues on the balance of unpaid amounts from time to time outstanding, from the date on which portions of the amounts become due and owing until payment in full.

 

15.6        The Licensee will complete and deliver to UBC on or before January 1 of each year during the Term, starting on January 1, 2012, an annual report in the form attached as Schedule “ C ” (or an amended form as reasonably required by UBC from time to time).

 

16.0         MANAGEMENT OF CONFLICTS OF INTEREST

 

16.1        The Licensee acknowledges that it is aware of UBC’s Conflict of Interest Policy #97, Patent and Licensing Policy #88 and Research Policy #87 (www.universitycounsel.ubc.ca/policies/policies.html), and that UBC may amend these policies or introduce new policies from time to time.

 

16.2         Subject to Article 16.3 the Licensee and UBC agree, that:

 

(a) the facilities and research programs of the Licensee will be conducted independently of all UBC facilities, faculty, students or staff, and in particular, independently of and from the Investigators and the laboratory facilities made available to the Investigators by reason of the Investigators’ employment at UBC;

 

(b) no students, post-doctoral fellows or other UBC staff will participate or be involved in the Licensee’s research, projects or utilize its facilities; and

 

(c) any disclosures of inventions made by the Investigators to the Licensee will be immediately forwarded by the Licensee to UBC.

 

16.3        The Licensee and UBC may, from time to time, enter into written agreements to permit activities which would otherwise be prohibited by Article 16.2.

 

    Page 9 of 14

 

 

17.0        GENERAL

 

17.1        Nothing contained in this Agreement is to be deemed or construed to create between the parties a partnership or joint venture. No party has the authority to act on behalf of any other party, or to commit any other party in any manner at all or cause any other party’s name to be used in any way not specifically authorized by this Agreement.

 

17.2        Subject to the limitations in this Agreement, this Agreement operates for the benefit of and is binding on the parties and their respective successors and permitted assigns.

 

17.3        No condoning, excusing or overlooking by any party of any default, breach or non-observance by any other party at any time or times regarding any terms of this Agreement operates as a waiver of that party’s rights under this Agreement. A waiver of any term, or right under, this Agreement will be in writing signed by the party entitled to the benefit of that term or right, and is effective only to the extent set out in the written waiver.

 

17.4        No exercise of a specific right or remedy by any party precludes it from or prejudices it in exercising another right or pursuing another remedy or maintaining an action to which it may otherwise be entitled either at law or in equity.

 

17.5        All terms which require performance by the parties after the expiry or termination of this Agreement, will remain in force despite this Agreement’s expiry or termination for any reason.

 

17.6        Part or all of any Article that is indefinite, invalid, illegal or otherwise voidable or unenforceable may be severed and the balance of this Agreement will continue in full force and effect.

 

17.7        The Licensee acknowledges that the law firm of Richards Buell Sutton LLP has acted solely for UBC in connection with this Agreement and that all other parties have been advised to seek independent legal advice.

 

17.8        This Agreement sets out the entire understanding between the parties and no changes are binding unless signed in writing by the parties to this Agreement.

 

17.9        Time is of the essence of this Agreement.

 

    Page 10 of 14

 

 

17.10      Unless the contrary intention appears, the singular includes the plural and vice versa and words importing a gender include other genders.

 

SIGNED BY THE PARTIES AS AN AGREEMENT on the 1 st day of November, 2011 but effective as of the Start Date.

 

SIGNED FOR AND ON BEHALF of  
THE UNIVERSITY OF BRITISH COLUMBIA  
by its authorized signatories:  
   
/s/ J.P. Heale  
Authorized Signatory  
   
   
Authorized Signatory  

 

SIGNED FOR AND ON BEHALF of  
ADVANCED INHALATION TECHNOLOGIES  
by its authorized signatories:  
   
/s/ Amir Avniel  
Authorized Signatory  
   
Amir Avniel, Director  
Please print Name and Title of Signatory  
   
   
Authorized Signatory  
   
   
Please print Name and Title of Signatory  

 

    Page 11 of 14

 

 

SCHEDULE “A”

 

DESCRIPTION OF “TECHNOLOGY”

 

UBC File # Investigators Description
10-086

Dr. Yossef Av-Gay

Dr. Chris Miller

CREB approval

Phase I clinical trial protocol

Health Canada Report

Phase I clinical trial anonymized data

 

The data will be strictly anonymized. The link between the data and any participant identifiers will be irreversibly severed so that no participant can subsequently be identified. Confidentiality will be maintained because each subject will be identified by an alphanumeric code. The data includes the following fields for each of the 10 clinical trial participants:

1. Individual lD (anonymized random arbitrary ID number)
2. Gender
3. Age group
4. Lung Function Results
5. Blood Chemistry and Haematology results

 

    Page 12 of 14

 

 

SCHEDULE “B”

 

ADDRESS FOR NOTICES & PAYMENT INSTRUCTIONS

 

1. The address for delivery of notices to UBC is:

 

The Director
University – Industry Liaison Office
University of British Columbia
#103 – 6190 Agronomy Road
Vancouver, British Columbia
V6T 1Z3
Telephone:
Fax:

 

2. Payment of all amounts due to UBC under the terms of this license may be made as follows:

 

a) by cheque made payable to “The University of British Columbia” delivered to UBC at the above address; or

 

b) by wire transfer in accordance with the instructions set out below:

 

Note: Please ensure ALL of the information is provided for efficient receipt of wire payments:

 

For Canadian $ Deposits via wire (General) For US $ Deposits via wire:
Pay Via: Pay Via:
Pay to: Pay to:

Bank Address:

HSBC Bank of Canada
Main Branch
885 West Georgia Street
Vancouver, BC, Canada

Bank Address:

HSBC Bank of Canada
Main Branch
885 West Georgia Street
Vancouver, BC, Canada

For Account: For Account:

Beneficiary: The University of British Columbia

Reference: Finance Officer

Phone:

Re: Dept ID 352000

For Royalties use JHJQ

For Patent Fees use EFGE

Dept Name: UILO

Beneficiary: The University of British Columbia

Reference: Finance Officer

Phone:

Re: Dept ID 352000

For Royalties use JHJQ

For Patent Fees use EFGE

Dept Name: UILO

 

Cover/Reimbursement:

Receiving Bank:

(HSBC Bank USA)

Beneficiary Bank:

 

 

    Page 13 of 14

 

 

SCHEDULE “C”

 

UBC License Agreement Annual Report

 

The information to be completed below will constitute the annual report required under the UBC License Agreement. Any information or documents provided by the Licensee in this report will not be interpreted as affecting the express rights and obligations of the Licensee contained in the License Agreement.

 

Date of Report: __________________ Person Preparing This Report: ____________________

 

Name of Licensee: ______________ UBC File Number: ___________________________

 

Jurisdiction of Corporation: _________________ Head Office Address: ________________________

 

Contact Person for Company _________________________________________________________

 

Licensed Technology: ____________________________________________________________________

 

Telephone Number: __________________ E-mail Address: ____________________________

 

  1. Please provide a brief report on the status of development of the UBC Technology.  
       
       
       
       
  2. Has the Licensee filed any patent applications relating to the UBC Technology?  Please provide details, and attach copies of all relevant documents.  
       
       
       
       
  3. Is there any other information relating to this License that you think we should be aware of? Please summarize them below or contact us directly.  
       
       
       

 

Prepared by   Date Dd/mm/yy Phone  

 

I _____________________ (print name), of _________________(title) hereby certify the foregoing information as true and correct.

 

   
Signature Date Signed

 

Once completed, please submit this report to:

 

Managing Director

University – Industry Liaison Office

#103 – 6190 Agronomy Road,

Vancouver, BC

V6T 1Z3

 

 

Page 14 of 14







Exhibit 10.11

 

**CONFIDENTIAL PORTIONS HAVE BEEN OMITTED PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH

THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”).**

 

NON-EXCLUSIVE PATENT LICENSE AGREEMENT

 

This NON-EXCLUSIVE PATENT LICENSE AGREEMENT (this “ Agreement ”) is made as of October 22, 2013 (the “ Effective Date ”) by and between Advanced Inhalation Therapies (AIT) Ltd., a company incorporated under the laws of the State of Israel (“ Licensee ”), and SensorMedics Corporation, a California corporation (“ CareFusion ”).

 

BACKGROUND

 

A.           CareFusion and/or its Affiliates have certain ownership rights to the CareFusion Patents (defined below); and

 

B.           Licensee wishes to receive a non-exclusive license to the CareFusion Patents on the terms and conditions set forth in this Agreement.

 

In consideration of the covenants, conditions, and undertakings hereinafter set forth, and intending to be legally bound hereby, it is agreed by and between the parties as follows:

 

1.            DEFINITIONS.

 

1.1           “ Affiliate ” means a corporation, association or other entity that directly or indirectly Controls, is Controlled by, or is under common Control with, the party in question.

 

1.2           “ Agreement ” has the meaning set forth in the Preamble,

 

1.3           “ Agreement Term ” has the meaning set forth in Section 11.1.

 

1.4           “ CareFusion ” has the meaning set forth in the Preamble.

 

1.5           “CareFusion Indemnitees” has the meaning set forth in Section 9.2.

 

1.6           “ CareFusion Patents ” means the patents listed on the attached Exhibit A, and any continuations, divisionals, supplementary protection certificates, and renewals thereon, any patents issuing from such patent applications, and any reissues, reexaminations or foreign equivalents claiming priority to any of the foregoing.

 

1.7           “ Commercially Reasonable Efforts ” means the carrying out of obligations or tasks by a party in a sustained manner using good faith and diligent efforts, which efforts shall be consistent with the exercise of prudent scientific and business judgment in accordance with the efforts such party (or a similarly situated entity with sufficient resources to advance a program) devotes to products or research or development projects owned by it of similar scientific and commercial potential.

 

 

 

 

1.8          “ Confidential Information ” means (i) the terms and conditions of this Agreement, (ii) any proprietary or confidential information or material, including all trade secrets, in tangible form disclosed hereunder that is marked as “Confidential” or with some other statement conveying the same meaning at the time it is delivered to the receiving party, or (iii) proprietary or confidential information or material, including all trade secrets, disclosed orally hereunder; provided, however, that the above information shall not be deemed Confidential Information, to the extent the receiving party can establish by competent proof that such information:

 

1.8.1           was already known to the receiving party, other than under an obligation of confidentiality owed to the disclosing party or as a result of disclosure by the disclosing party, at the time of disclosure;

 

1.8.2           was generally available to the public or otherwise part of the public domain at the time of its disclosure hereunder to the receiving party;

 

1.8.3           becomes generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of this Agreement;

 

1.8.4           is independently developed by the receiving party without reference to any Confidential Information disclosed by the disclosing party; or

 

1.8.5           is subsequently disclosed to the receiving party by a person other than the disclosing party without breach of any legal obligation to the disclosing party.

 

1.9          “ Control ” means:

 

1.9.1           as to an entity, Control means ownership, directly or through one or more other entities, of fifty percent (50%) (or such lesser percentage equal to a percentage that is equal to or greater than one percent (1%) less than the maximum percentage allowed to be owned by a foreign entity in a particular jurisdiction) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, of fifty percent (50%) (or such lesser percentage equal to a percentage that is equal to or greater than one percent (1%) less than the maximum percentage allowed to be owned by a foreign entity in a particular jurisdiction) or more of the equity interests in the case of any other type of legal entity, the status of a general partner in any partnership; provided that such entity shall be considered an Affiliate only for the time during which such Control exists; or

 

1.9.2           as to the prosecution of patent applications, the maintenance of patent rights (including determinations to abandon), and the enforcement and/or defense of patent rights, Control includes the authority to select legal counsel, solicit other expert advice and assistance, and to make decisions pertaining to the conduct of patent prosecution, interferences, patent issuance, maintenance, reissue, reexamination, patent enforcement or defense, as applicable.

 

1.10        “ Distributor ” means a third party who purchases Licensed Products from Licensee, directly or indirectly, and takes title to and builds a stock in Licensed Products in a country or region, and who builds a market and engages in sales of such Licensed Products, as the case may be, in such region directly for itself and not as a sales agent or representative of ,Licensee, including possibly obtaining necessary regulatory approvals to market and sell such goods, products or services hi the applicable country or region.

 

 

 

  

1.11         “ Effective Date ” has the meaning set forth in the preamble.

 

1.12         “ Enforcement Action ” means any action reasonably related to the enforcement and protection of the CareFusion Patents in any dispute, disagreement, complaint or proceeding which could affect the enforcement, validity, scope, ownership or licensing of the CareFusion Patents in any country or jurisdiction. Enforcement Actions shall include, without limitation, actions directed at third party infringement, interferences, post-grant oppositions, and inventorship disputes.

 

1.13         “ FDA ” means the United States Food and Drug Administration or any replacement or successor authority.

 

1.14         “ Field ” means the application of NO Gas for the treatment of diseases or conditions in humans (expressly excluding veterinary applications).

 

1.15         “ Indemnitee ” has the meaning set forth in Section 9.3.

 

1.16         “ Indemnitor ” has the meaning set forth in Section 9.3.

 

1.17         “ Intellectual Property ” means generally any and all right, title and interest in, arising from, or relating to inventions, ideas, know-how, works of authorship and confidential information, including copyrights, patents and patent applications (together with all divisionals, continuations, continuations-in-part, reissues, reexaminations, renewals, and extensions of the same), trade secrets, trade names, trademarks, service marks, any registrations or applications relating to any of the foregoing, and any other rights of a similar nature or character whether now existing or hereafter created, developed, arising or otherwise coming into being.

 

1.18         “ License ” has the meaning set forth in Section 2.1.

 

1.19         “ Licensed Product ” means any product, good or service (i) for which the sale, use or manufacture would, but for the license granted herein, infringe on a CareFusion Patent, or (ii) that utilizes a device or method of treatment with NO Gas described in the claims of a CareFusion Patent. For avoidance of doubt, Licensed Product shall include all the goods, components and services comprising NO Therapy (i.e., the NO Gas).

 

1.20         “ Licensee ” has the meaning set forth in the Preamble,

 

1.21         “ Licensee Indemnitees ” has the meaning set forth in Section 9.1.

 

1.22         “ Major Market Countries ” means the United States, Japan, England, Germany, France, Italy and Spain.

 

 

 

  

1.23         “ NDA ” means a new drug application, or abbreviated application, pursuant to Section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355, or any other equivalent application for FDA open-label marketing approval of a drug.

 

1.24         “ NDA Approval ” means approval of an NDA by the FDA.

 

1.25         “ Net Sales ” means the gross consideration received from the sale or transfer of a Licensed Product by Licensee, and its Affiliates and Sublicensees, on a worldwide basis, after deduction of the following expenses, provided and to the extent such expenses are actually incurred and documented and do not exceed reasonable and customary amounts in the market in which such sale occurred: (a) discounts and allowances to customers; (b) rebates paid to Distributors; (c) taxes; (d) freight; and (e) refunds and returns. Net Sales includes all consideration received in respect of any sale of an applicable product, good or service, whether such consideration is in cash, payment in kind, exchange or another form. For avoidance of doubt, Net Sales shall include any consideration based on all goods, components, and services comprising NO Therapy, including without limitation the NO Gas, NO Gas Delivery Device(s) and NO Gas Container. If, for example and without limiting the foregoing, Licensee receives payments based on sales by a Third Party of NO Gas for use with an NO Delivery Device or NO Gas Container, such payments shall be Net Sales.

 

1.26         “ NO Gas ” means nitric oxide gas.

 

1.27         “ NO Gas Container ” means a storage vessel for NO Gas.

 

1.28         “ NO Gas Delivery Device(s) ” means devices used for the delivery of NO Gas that contain Intellectual Property Licensed by CareFusion to Licensee.

 

1.29         “ NO Therapy ” means the use of NO Gas using a Licensed Product for a particular application within the Field.

 

1.30         “ Patent Term ” means the period commencing on the Effective Date and continuing until expiration of the last to expire CareFusion Patent.

 

1.31         “ Prime Rate ” means the base lending rate on corporate loans from commercial banks, as published from time to time in The Wall Street Journal,

 

1.32         “ Royalty ” has the meaning set forth in Section 4.3.1.

 

1.33         “ Royalty Term ” means, with respect to each Licensed Product, the period of time beginning on the first sale of a Licensed Product in a country following receipt of regulatory approval for the marketing and sale of such Licensed Product in such country and continuing on a country-by-country and product-by-product basis until the later of (1) the expiration of the Patent Term, or (ii) ten (10) years from the date of such sale of such Licensed Product in such country (other than any sale or transfer between Licensee and its Affiliates or Sublicensees).

 

1.34         “ sale ,” “ sell ,” or “ sold ” means the transfer, lease, conveyance, or distribution for consideration (which consideration includes cash, payment in kind, or other forms of value) of a good or a service to a third party, or the distribution to a third party (e.g., a supplier or Distributor) for sale by such third party of the applicable good or service to the marketplace, including hospitals or physicians.

 

 

 

  

1.35        “ Sublicensees ” has the meaning set forth in Section 2.2.

 

1.36        “ Sublicense Revenue ” means all cash payments, the fair market cash value of any equity consideration (less any amounts paid for such equity consideration), and forgivable loans (to the extent actually forgiven) received by Licensee or its Affiliates in consideration for and directly attributable to the grant of a sublicense under the CareFusion Patents, including any upfront payments, license maintenance fees, milestone payments or the like. Sublicense Revenue will not include: (a) bona fide, non-forgivable loans (and forgivable loans unless and until forgiven); or (b) running royalties based upon sales of a Licensed Product. Any payments received by Licensee from a Sublicensee for equity in Licensee shall be deemed to be Sublicense Revenue to the extent that the Sublicensee’s payments for such equity exceeds the fair market value of such equity on the date that the obligation to make such payments are received by Licensee arises.

 

2.            LICENSE GRANTS TO LICENSEE.

 

2.1           Non-Exclusive Patent License to Licensee . Subject to the terms and conditions of this Agreement, CareFusion hereby grants to Licensee, and Licensee accepts, a non-exclusive, non-sublicensable (except in accordance with Section 2.2) license, under CareFusion’s interest in the CareFusion Patents, to develop, make, have made, use, have used, sell, offer for sale, have sold, and import Licensed Products throughout the world solely within the Field (the “ License ”).

 

2.2           Sublicenses .

 

2.2.1           Licensee is entitled to sublicense its rights under the License to a third party (each, a “ Sublicensee ”) solely to have Licensed Products developed or acquired by Licensee made, sold or distributed for or on behalf of licensee or its Affiliates, and further subject to the terms of this Section 2.2, unless otherwise expressly agreed in writing by CareFusion. Any such sublicense shall be on terms and conditions in compliance with and not inconsistent with the terms of this Agreement. No sublicense shall relieve Licensee of any of its obligations hereunder, and Licensee shall take all steps that may be reasonably necessary to enforce compliance by Sublicensees. Sublicensees shall not be permitted to further sublicense to any other entity(ies). In the event of a termination of this Agreement, each sublicense shall automatically terminate,

 

2.2.2           Licensee shall grant sublicenses only pursuant to written agreements, which will be subject to and subordinate to the terms and conditions of this Agreement. Licensee shall furnish CareFusion with a fully executed copy of any sublicense agreement, promptly after its execution.

 

2.2.3           Any act or omission by a Sublicensee that would have constituted a breach of this Agreement had it been an act or omission by Licensee shall constitute a breach of this Agreement by Licensee.

 

 

 

  

2.3          Reservation of Rights . CareFusion retains all rights to use, title and ownership under the CareFusion Patents except as expressly licensed under this Section 2. All rights not expressly granted herein are reserved by CareFusion, and no other licenses to the CareFusion Patents or any other intellectual property are granted herein, by implication, estoppel or otherwise.

 

3.            AFFIRMATIVE OBLIGATIONS OF THE PARTIES,

 

3.1          Licensee Responsibilities . In connection with the license granted under this Agreement and Licensee’s responsibility to develop, market and sell Licensed Products, Licensee agrees (and shall cause its permitted Sublicensees to agree, as applicable to their sublicensed activities) to:

 

3.1.1           Determine regulatory pathways for NO Therapies to commercial markets within the Field;

 

3.1.2           Use Commercially Reasonable Efforts to obtain NDA Approval for NO Therapies within the Field;

 

3.1.3           Use Commercially Reasonable Efforts to obtain marketing clearance of at least one NO Therapy application for the Field and achieve the milestones set forth on Exhibit B within the timeframes therein;

 

3.1.4           Commercially Reasonable Efforts to fund and manage sales, marketing, distribution, advertising, and end-user service of, and sell, Licensed Products within the Field.

 

3.2          Diligence Reporting . Within sixty (60) days after the end of each calendar year (other than the calendar year ending December 31, 2013), Licensee shall furnish CareFusion with a written report summarizing its, its Affiliates’ and its Sublicensees’ efforts during the prior year to develop and commercialize Licensed Products. Each report must contain a sufficient level of detail for CareFusion to assess whether Licensee is in compliance with its obligations under Section 3.1 and a discussion of intended efforts for the then-current year. Licensee represents and warrants that each of such reports shall be accurate.

 

4.            PAYMENTS.

 

4.1          Upfront Fees . Licensee shall pay to CareFusion one hundred fifty thousand dollars ($150,000) as follows: (a) fifty thousand dollars ($50,000) within three (3) days of the Effective Date; (b) fifty thousand dollars ($50,000) within three (3) months of the Effective Date; and (c) fifty thousand dollars ($50,000) within six (6) months of the Effective Date. Such payments shall be nonrefundable and non-creditable.

 

4.2          Annual Fee . During the Royalty Term, Licensee shall, on an annual basis, make a nonrefundable payment to CareFusion of fifty thousand dollars ($50,000), with the first such payment due on the first anniversary of the Effective Date. Each such annual fee payment under this Section 4.2 shall be creditable against any Royalty payments that become due during the twelve (12)-month period following the date of such payment.

 

 

 

  

4.3          Net Sales and Royalties .

 

4.3.1            Royalties . During the Royalty Term, Licensee shall pay to CareFusion a royalty equal to five percent (5%) of Net Sales (“ Royalty ”) by Licensee, by its Affiliates, and any of its Sublicensees (but excluding sales by third party Distributors, or sales to Licensee by contract manufacturers who manufacture NO Gas Containers or NO Gas Delivery Devices solely for the benefit of Licensee).

 

4.3.2            Acknowledgment Regarding Sublicensees . CareFusion acknowledges that it is not entitled to receive any additional Royalties from Licensee with respect to Net Sales by a Sublicensee, other than the Royalty set forth in Section 4.3.1.

 

4.4          Sublicense Revenue . In the event Licensee or an Affiliate of Licensee sublicenses under Section 2.2, Licensee shall pay CareFusion **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** of any Sublicense Revenues resulting from sublicense agreements executed by Licensee.

 

5.            PAYMENTS; BOOKS AND RECORDS.

 

5.1          Royalty Reports and Payments . After the first sale of any Licensed Product, Licensee shall deliver written reports to CareFusion for each calendar quarter within forty-five (45) days after the end of such quarter, stating in each such report, separately for Licensee, its Affiliates and applicable Sublicensees, the number and description of each Licensed Product, by country, the gross revenues in respect thereof, the calculations and itemizations of all permitted deductions to arrive at Net Sales, and the calculation of Royalties due thereon. Concurrent with the delivery of the report required pursuant to this Section 5.1, Licensee shall pay to CareFusion all Royalties that have accrued hereunder as of the close of the prior calendar quarter that is covered by such report.

 

5.2          Payment Method . All payments due under this Agreement shall be made by check or by bank wire transfer in immediately available funds to a bank account designated by CareFusion. All payments hereunder shall be made in U.S. dollars. If the due date of any payment is a Saturday, Sunday or national holiday, such payment may be paid on the following business day.

 

5.3          Late Payment Penalties . Interest shall accrue on any late payment owed to CareFusion hereunder not made on the date such payment is due, including late payments or underpayments of Royalties at an interest rate equal to the lesser of **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** or the highest rate permissible by law, with such interest accruing from the date the payment was originally due, and any late payment pursuant to this Section shall be credited first to interest and then to any outstanding fees. This Section shall in no way limit any other rights and remedies available to CareFusion, whether arising under this Agreement or at law or in equity.

 

 

 

  

5.4            Currency Conversions . If any currency conversion shall be required in connection with the calculation of royalties hereunder, such conversion shall be made using the selling exchange late for conversion of the foreign currency into U.S. Dollars, quoted for current transactions reported in The Wall Street Journal for the second to last business day of the month prior to the month in which CareFusion received such payment.

 

5.5            Records; Inspection . Licensee shall keep, and shall cause its Affiliates and Sublicensees to keep, complete, true and accurate books of account and records for the purpose of determining the royalty amounts payable under this Agreement. Such books and records shall be kept at Licensee’s, or at the applicable Affiliate’s or Sublicensee’s, principal place of business, for at least five (5) years following the end of the quarterly period to which they pertain. Licensee agrees that the books and records of Licensee, and its Affiliates and Sublicensees, shall be open for inspection by CareFusion during such five (5)-year period by, at CareFusion’s option, either CareFusion or a public accounting firm for whom the party to be inspected has no reasonable objection, for the purpose of verifying Royalty statements or any other payment obligations hereunder. Such inspections may be made no more than once each calendar year, at reasonable times and on reasonable notice. Inspections conducted under this Section 5.5 shall be at CareFusion’s expense; provided, however, if a variation or error producing an increase exceeding **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.**of the amount owed for any period covered by the inspection is established in the course of any such inspection, then all reasonable costs relating to the inspection for such period and any unpaid amounts that are discovered shall be paid promptly by Licensee to CareFusion, together with interest thereon from the date such payments were originally due at the lesser of **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** or the highest rate permissible by law, and any payment pursuant to this Section 5.5 shall be credited first to interest and then to any outstanding principal amount.

 

5.6            Tax Matters . All royalty amounts and other payments required to be paid pursuant to this Agreement shall be paid without deduction therefrom for withholding for or on account of any sales tax, use tax, value-added tax or other tax or governmental charge, Any amounts required under the applicable laws to be withheld by Licensee will be the sole responsibility of Licensee and all amounts owing from Licensee to CareFusion for license fees and royalties shall be grossed up to account for any withholding taxes.

 

6.            INTELLECTUAL PROPERTY.

 

6.1            Patent Prosecution & Maintenance . Patent prosecution and maintenance of the CareFusion Patents shall he Controlled by CareFusion. Licensee shall be responsible for all costs and fees in respect thereof; provided, however, that in the event CareFusion has other third party licensees of any CareFusion Patents, Licensee shall only be responsible for a prorated portion of the costs and fees for each such CareFusion Patent based on the total number of licensees of CareFusion for such CareFusion Patent. Licensee shall pay to CareFusion such amounts within thirty (30) days of invoice therefor.

 

 

 

  

6.2          Infringement Defense . If a third party alleges that the making, using, selling, importing, or exporting of a Licensed Product infringes such third party’s patents, Licensee shall notify CareFusion of the allegations and, if requested by CareFusion, consult and confer with CareFusion regarding the defense thereof. Licensee agrees that it shall not, without CareFusion’s express prior written consent in each instance, settle or compromise any action (or pursue any defense or other theory) in a manner that would invalidate, modify, or limit the scope of any CareFusion Patent or any claim thereunder, or that would require any specific performance outside the Field. In addition, at CareFusion’s request, Licensee agrees not to oppose any decision by CareFusion (and shall cooperate reasonably in support of such decision) to retain counsel for CareFusion, at CareFusion’s sole expense, and enter an appearance in such action in defense or enforcement of the CareFusion Patents.

 

6.3          Enforcement of Patent Rights . CareFusion shall Control any and all Enforcement Actions, including the decision whether to undertake such Enforcement Action.

 

6.4          Marking . Licensee shall, and shall cause its Affiliates and Sublicensees to, mark all Licensed Products sold in such a manner as to conform with the patent laws and practice of the country to which such products are shipped or in which such products are sold for purposes of ensuring maximum enforceability of CareFusion Patents in such country.

 

7.            REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

 

7.1           Representations and Warranties .

 

7.1.1            By CareFusion . CareFusion warrants and represents to Licensee that it has the corporate authority to enter into this Agreement.

 

7.1.2            By Licensee . Licensee warrants and represents to CareFusion that (i) it has the corporate authority to enter into this Agreement, and (ii) as of the Effective Date and to the actual present knowledge (but without having undertaken any investigation) of Licensee, there are no existing or threatened actions, suits or claims pending against it with respect to its right to enter into and perform its obligations under this Agreement.

 

7.2          Disclaimer of Warranties . Except as expressly provided in Section 7.1.1, the CareFusion Patents (and related Confidential Information disclosed hereunder) are licensed or provided to Licensee “AS IS” and CareFusion expressly disclaims any further representations and warranties, including any express or implied warranties of merchantability, non-infringement, or fitness for a particular purpose, or any warranty that any patent or patent application licensed hereunder shall be valid or enforceable. Licensee acknowledges that it is not relying on any representations, warranties or covenants other than those set forth in Section 7.1.1, and these disclaimers represent a reasonable allocation of risk between the parties in respect of the consideration paid hereunder, and are intended to apply even if the Licensed Products, or this Agreement fails of its essential purpose. Licensee also acknowledges that CareFusion does not represent or warrant as to the scope of any CareFusion Patents, that the exploitation of CareFusion Patents will be successful, or that any exploitation of CareFusion Patents will not infringe upon any other intellectual property owned or controlled by CareFusion.

 

 

 

  

8.            CONFIDENTIALITY.

 

8.1            Confidential Information . Except as expressly provided in this Agreement, the parties agree that, for the Agreement Term and thereafter, the receiving party shall keep completely confidential and shall not publish or otherwise disclose (except for disclosures permitted under Section 8.2) and shall not use for any purpose except for the purposes contemplated by this Agreement any Confidential Information furnished to it by the disclosing party hereto pursuant to this Agreement. Without, limitation upon any provision of this Agreement, each of the parties shall be responsible for the observance by its employees of the confidentiality obligations set forth in this Section 8 and this Agreement, generally.

 

8.2            Permitted Disclosures . Except as otherwise limited by this Agreement, each party hereto may disclose the other party’s Confidential Information: (a) as for the terms and conditions of this Agreement, to its advisors, financial investors (including prospective investors) and other similarly situated third parties on a need to know basis, if such permitted recipients agree in writing to be bound by the terms of this Section 8, or (b) to the extent such disclosure is reasonably necessary in connection with (i) filing or prosecuting patent applications, prosecuting or defending litigation, complying with applicable governmental regulations or otherwise submitting information to tax or other governmental authorities, or (ii) making a permitted sublicense or otherwise exercising its rights hereunder, provided that if a party is required to make any such disclosure of another party’s Confidential Information, other than pursuant to a confidentiality agreement, it shall give reasonable advance notice to the latter party of such disclosure and, save to the extent inappropriate in the case of patent applications, shall cooperate with the original disclosing party in any effort by the original disclosing party to secure a protective order blocking the disclosure of, or otherwise affording confidential treatment to, such Confidential Information.

 

9.            INDEMNIFICATION & INSURANCE.

 

9.1            Indemnification of Licensee . CareFusion shall indemnify and hold Licensee and its directors, officers, employees, agents, consultants and counsel, and the successors and permitted assigns of the foregoing (the “ Licensee Indemnitees ”) harmless from and against any and all liabilities, damages, losses, costs or expenses (including reasonable attorneys’ and professional fees and other expenses of litigation and arbitration) resulting from a claim, suit or proceeding brought by a third party against a Licensee Indemnitee, arising from or occurring as a result of a breach of CareFusion’s representations and warranties set forth in Section 7.1.1.

 

9.2            Indemnification of CareFusion . Licensee shall indemnify and hold CareFusion and its respective directors, officers, employees, agents, consultants, and counsel, and the successors and permitted assigns of the foregoing (the “ CareFusion Indemnitees ”) harmless from and against any and all liabilities, damages, losses,, costs or expenses (including reasonable attorneys’ and professional fees and other expenses of litigation and arbitration) resulting from a claim, suit or proceeding brought by a third party against a CareFusion Indemnitee, arising from or occurring as a result of (i) any practice by Licensee of the licenses granted herein, (ii) the development, manufacture, use, importation, marketing, sale and commercialization by Licensee, its Affiliates or any Sublicensee of any Licensed Product, or any other good, product, or service provided by Licensee or its Affiliates, whether covered by the CareFusion Patents or otherwise (including manufacturer’s defect or product liability claims), except, in each case, to the extent caused by the willful misconduct of CareFusion, or (iii) a breach by Licensee of its representations and warranties set forth in Section 7.1.2.

 

 

 

  

9.3          Procedure . A party (the “ Indemnitee ”) that intends to claim indemnification under this Section 9 shall promptly notify the other party (the “ Indemnitor ”) of any loss, claim, damage, liability or action in respect of which the Indemnitee intends to claim such indemnification, and the Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume sole Control of the defense thereof with counsel mutually satisfactory to the parties, including the right to settle the action on behalf of the Indemnitee on any terms the Indemnitor deems desirable in the exercise of its sole discretion, except that the Indemnitor shall not, without the Indemnitee’s prior written consent, settle any such claim if such settlement contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of the Indemnitee or imposes any obligation on the Indemnitee other than a monetary obligation, and only to the extent the Indemnitor assumes directly, and in full, such obligation and is able to fulfill such obligation. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action shall not affect or limit Indemnitor’s duty to defend such action but shall relieve Indemnitor of liability to the Indemnitee solely to the extent the Indemnitor is materially prejudiced by the delay. At the Indemnitor’s request and expense, the Indemnitee shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification and provide full information with respect thereto. Subject to the Indemnitee’s fulfillment of its obligations under this Section 9.3, the Indemnitor shall pay any damages, costs or other amounts awarded against the Indemnitee (or payable by the Indemnitee pursuant to a settlement agreement entered into by the Indemnitor) in connection with such claim.

 

9.4          Insurance .

 

9.4.1            Coverage . Licensee will procure and maintain during the Agreement Term comprehensive liability insurance, including commercial liability, product liability and workers’ compensation, having coverage not less than one million dollars ($1,000,000) per occurrence (or higher if consistent with industry standards) and three million dollars ($3,000,000) in the aggregate, with a reputable and financially secure insurance carrier. This insurance will be written to cover claims incurred, discovered, manifested, or made during or after the expiration or termination of this Agreement.

 

9.4.2            Certificate . Within forty-five (45) days of mutual execution of this Agreement, Licensee will provide CareFusion with a Certificate of Insurance evidencing primary coverage and requiring thirty (30) days prior written notice of cancellation or material change to CareFusion. Licensee will advise CareFusion, in writing, that it maintains excess liability coverage over primary insurance for at least the minimum limits set forth above.

 

9.4.3            Continued Coverage . If Licensee’s insurance is written on a claims-made basis, as opposed to an occurrence basis, Licensee will purchase the coverage necessary to ensure continued and uninterrupted coverage of all claims, including those made ‘after the policy expires or is terminated.

 

 

 

 

10.           LIMITATION OF LIABILITY.

 

Except in respect of a breach of Section 8, or obligations arising under Section 9, in no event shall either party be liable under this Agreement to the other party for any incidental, consequential, indirect or exemplary damages, including damages from loss of profits or opportunities, even if advised of the possibility of such damages. Notwithstanding any fault, negligence, strict liability or other theory of liability of either party or of its officers, directors, employees or agents under or in connection with this Agreement, in no event shall the amount of damages payable by one party to the other party exceed the total amount paid by Licensee to CareFusion in the two year period immediately preceding the action, event or circumstance giving rise to liability hereunder, except with respect to a breach of Section 2, a breach of a payment obligation arising under Section 4 or Section 5.5, or obligations arising under Sections 8 or 9, for all of which no such limitation on the amount of damages is imposed.

 

11.           TERM AND TERMINATION.

 

11.1          Agreement Term . Subject to the remainder of this Section 11, the term of this Agreement shall commence on the Effective Date and shall continue until the expiration of the last to expire Royalty Term for all countries and Licensed Products (the “ Agreement Term ”).

 

11.2          Termination for Cause . Either party may, upon written notice to the other party, terminate this Agreement in its entirety or, at the option of the party providing notice of termination, may terminate any license granted hereunder, if the other party has breached this Agreement and failed to cure such breach within sixty (60) days after receiving written notice thereof from the party seeking to terminate. For avoidance of doubt, termination pursuant to this Section 11.2 shall be effective if the party seeking to terminate provides notice of breach and states that this Agreement or applicable license shall terminate immediately and without further notice thereof, unless the party in breach cures such breach within the sixty (60) day cure period.

 

11.3          Termination for Insolvency . If voluntary or involuntary proceedings by or against a party are instituted in bankruptcy under any insolvency law, or a receiver or custodian is appointed for such party, or proceedings are instituted by or against such party for corporate reorganization or the dissolution of such party, which proceedings, if involuntary, shall not have been dismissed within sixty (60) days after the date of filing, or if such party makes an assignment for the benefit of creditors, or substantially all of the assets of such party are seized or attached and not released within sixty (60) days thereafter, the other party may immediately terminate this Agreement upon notice to the other party, and all licenses granted to such party hereunder effective upon notice of such termination.

 

11.4          Termination if Licensee Challenges CareFusion Patents . If Licensee or any of licensee Affiliates, directly or indirectly, (i) initiates or requests an interference or opposition proceeding with respect to any CareFusion Patent, or (ii) makes, files or maintains any claim, demand, lawsuit or cause of action to challenge the validity or enforceability of any CareFusion Patent, CareFusion shall have the right to terminate this Agreement immediately upon written notice to Licensee.

 

 

 

  

11.5          Termination for Failure to Meet Diligence Milestones . If Licensee fails to reach any milestone set forth on Exhibit B within the timeframe set forth therein, CareFusion may terminate this Agreement upon thirty (30) days prior written notice.

 

11.6          Accrued Obligations . Termination of this Agreement or any license granted hereunder for any reason shall not release any party hereto from any obligation which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination or the performance of which was due prior to such termination, nor shall it preclude either party from pursuing any rights and remedies it may have hereunder and at law and in equity which accrued or are based upon any event occurring prior to or continuing after such termination.

 

11.7          Effect of Termination . Upon any termination of this Agreement or any license granted hereunder, the terminated party promptly shall cease any use, including for evaluation, research or commercial exploitation, under such license and shall, upon request of the terminating party, promptly destroy all materials derived therefrom (i.e., the use, manufacture, sale or import or export of which is covered by a claim under the terminated license) and all other Confidential Information received from the terminating party related to the terminated license. Upon any termination of this Agreement, all sublicenses under the Licenses shall automatically terminate. The terminated party shall certify in writing its compliance with a request to destroy any materials. Termination of this Agreement shalt not limit any of the parties’ rights under this Agreement at law, or in equity. In the event of termination of this Agreement during the Royalty Term for any Licensed Product in any country, and without granting or implying any rights to Licensee or limiting any rights or remedies of CareFusion, the payment obligations under Section 4 shall survive with respect to such Licensed Product and country for the remainder of the Royalty Term.

 

11.8          Survival . Sections 1, 2.3, 4, 5, 7.2, 8, 9, 10, 11.6, 11.7, 11.8 and 12 survive the expiration or termination of this Agreement.

 

12.           MISCELLANEOUS.

 

12.1          Governing Law and Venue . This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed in accordance with the internal laws of the State of California without regard to its rules governing conflicts of law. The sole jurisdiction and venue for actions related to the subject matter of this Agreement shall be the federal and state courts located in San Diego County, California. Both parties hereby consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving notices or otherwise as allowed by California state or United States federal law.

 

12.2          Waiver . Neither party may waive or release any of its rights or interests in this Agreement except in a writing signed by both parties. The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition.

 

 

 

  

12.3          Amendment . This Agreement may be modified or amended only pursuant to a writing executed by both parties.

 

12.4          Publicity . Licensee shall not use CareFusion’s, or any of its affiliates’, names, or refer to it or any of them directly or indirectly in any papers, articles, advertisements, marketing materials, sales presentations or press releases, without the prior written approval of CareFusion.

 

12.5          Assignment . Except as otherwise provided herein, this Agreement and the licenses granted herein shall not be assignable or transferable by Licensee, including to any Affiliate of Licensee, without the prior written consent of CareFusion, which shall not be unreasonably withheld, conditioned or delayed. Licensee is entitled to assign this Agreement and the License, in whole but not in part, and CareFusion hereby consents to such assignment, upon a merger, consolidation or reorganization of Licensee, or upon a sale or other transfer of more than fifty percent (50%) of the voting securities of Licensee (or such lesser number as is sufficient to transfer the authority to elect a majority of the board of directors of Licensee). Any assignment of this Agreement by Licensee shall be null and void unless the assignee agrees in advance in writing to be bound by the terms of this Agreement as if it were an original signatory hereto. For purposes of this Agreement, any change in Control of Licensee shall be deemed an assignment, and accordingly, the agreement must be assigned to the “assignee” thereof. CareFusion may assign this Agreement, and any of the Intellectual Property licensed to Licensee in this Agreement, to any person or entity at its discretion. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the parties.

 

12.6          Notices . All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by international express delivery service, registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other parties hereto:

 

  Licensee:

Advanced Inhalation Therapies (AIT) Ltd.

2 Derech Meir Weisgal

Rehovot, 7632605 Israel

Attn: Chief Operations Officer

     
  CareFusion:

SensorMedics Corporation

22745 Savi Ranch Parkway

Yorba Linda, CA 92887

Attn: General Manager

     
  with a copy to:

CareFusion Corporation

3750 Torrey View Court

San Diego, CA 91230

Attn: General Counsel

 

Except for a notice of a change of address, which shall be effective only upon receipt thereof, all such notices, requests, demands, waivers and communications properly addressed shall be effective: (i) if sent by U.S. mail, three (3) business days after deposit in the U.S. mail or air mail, postage prepaid; (ii) if sent by Federal Express or other overnight delivery service, one (1) business day after delivery to such service; (iii) if sent by personal courier, upon receipt; and (iv) if sent by facsimile (if the receiving machine confirms receipt through answerback and the sending machine prints a paper copy of the answerback message), or email (if the receiving device confirms both receipt and that the recipient has opened the email, and the sending device receives a confirmation of such delivery and opening of the email) upon receipt.

 

 

 

  

12.7          Force Majeure . Neither party shall be liable to the other for failure or delay in the performance of any of its obligations under this Agreement (other than obligations to pay money) for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, hostilities between nations, governmental law, order or regulation, embargo, action by the government or any agency thereof, act of God, act of terrorism, storm, fire, accident, labor dispute or strike, sabotage, explosion or other similar or different contingencies, in each case, beyond the commercially reasonable control of such party. The party affected by Force Majeure shall provide the other party with full particulars thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities), and shall use commercially reasonable endeavors to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable, If the performance of any obligation under this Agreement is delayed owing to a force majeure for any continuous period of more than six (6) months, the parties hereto shall consult with respect to an equitable solution, including the possible termination of this Agreement.

 

12.8          Independent Contractors . Nothing contained in this Agreement is intended implicitly, or is to be construed, to constitute Licensee or CareFusion as partners or joint venturers in the legal sense. No party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of any other party or to bind any other party to any contract, agreement or undertaking with any third party.

 

12.9          Advice of Counsel . Licensee and CareFusion have each consulted counsel of their choice regarding this Agreement, and each acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one party or another and shall be construed accordingly.

 

12.10          Other Obligations . Except as expressly provided in this Agreement or as separately agreed upon in writing between Licensee and CareFusion, each party shall bear its own costs incurred in connection with the implementation of the obligations under this Agreement.

 

12.11          Severability . If any provisions of this Agreement are determined to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect without said provision. The parties shall in good faith negotiate a substitute clause for any provision declared invalid or unenforceable, which shall most nearly approximate the intent of the parties in entering this Agreement; provided, if the parties are unable to agree on such a substitute clause and the deletion of the provision held invalid or unenforceable would produce material adverse financial consequences for one party, such party shall have the right to terminate this Agreement with one hundred eighty (180) days prior notice.

 

 

 

  

12.12          Further Assurances . At any time or from time to time on and after the date of this Agreement, either party shall at the request of the other party (i) deliver to the requesting party such records, data or other documents consistent with the provisions of this Agreement, (ii) execute, and deliver or cause to be delivered, all such consents, documents or further instruments of assignment, transfer or license, and (iii) take or cause to be taken all such actions, as the requesting party may reasonably deem necessary or desirable in order for the requesting party to obtain the full benefits of this Agreement and the transactions contemplated hereby.

 

12.13          Approvals . Licensee shall be responsible, at its expense, for obtaining any approvals from the governmental entities which may be required under applicable law for the commercial exploitation of NO Therapy.

 

12.14          Entire Agreement . This Agreement together with the Exhibits hereto constitutes the entire agreement with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral, between Licensee and CareFusion with respect to such subject matter.

 

12.15          Headings . The headings to the Sections hereof are not a part of this Agreement, but are included for convenience of reference only and shall not affect its meaning or interpretation.

 

12.16          Construction . Whenever examples are used in this Agreement with the words “including,” “for example,” “e.g.,” “such as,” “etc.” or any derivation of such words, such examples are intended to be illustrative and not limiting.

 

12.17          Counterparts . This Agreement may be executed in two counterparts and by facsimile, each of which shall be deemed an original and which together shall constitute one instrument.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their authorized representatives effective as of the Effective Date.

 

SENSORMEDICS CORPORATION   ADVANCED INHALATION THERAPIES (AIT) LTD.
         
By: /s/ Kevin Ketzel   By: /s/ Racheli Vizman
         
Name: Kevin Ketzel   Name: Racheli Vizman
         
Its: General Manager   Its: COO

 

 







 

Exhibit 10.12

 

SERVICE AGREEMENT

 

This Service Agreement (the “ Agreement ”) is entered into as of 11 June, 2015 between Advanced Inhalation Therapies (AIT) Ltd., a company organized and currently existing under the laws of the State of Israel, of 2 Meir Weisgal Rd., Rehovot, 7632605 Israel, (the “ Company ”), and Guberman Consulting Ltd., of 12 Yad Harutzim RD., Tel-Aviv (the “ Service Provider ”).

 

WITNESSETH

 

WHEREAS , the Company is in desire of professional services of expertise and know-how, in its field of business; and

 

WHEREAS , Service Provider has the expertise and know-how to provide certain professional services as set forth in this Agreement, and Service Provider has agreed to provide the Company, through Ms. Ifat Tal- Havia, CPA, I.D. number 033570417 (“ Ifat ”), such services on the terms hereof; and

 

WHEREAS , the Company wishes to appoint Ifat as the Company’s Chief Financial Officer and an office holder (“Noseh Misrah” ) of the Company.

 

NOW THEREFORE , in consideration of the premises and mutual agreements hereinafter contained, the parties hereto agree as follows:

 

1.          Provision of the Services

 

1.1           Commencing as of June 11, 2015 (the “ Effective Date ”), and subject to the terms and conditions set forth herein, the Company shall retain Service Provider to provide to the Company such professional part-time Chief Financial Officer services in accordance with Company's needs from time to time, inter alia , as described in further details in Exhibit A hereto (the “ Services ”), to be provided personally by Ifat, on behalf of the Service Provider, in accordance with the terms and conditions of this Agreement, and Service Provider and Ifat hereby accepts such engagement to provide to the Company the Services and assume such duties and responsibilities as customarily performed by a Chief Financial Officer of a company.

 

1.2           Ifat shall devote, on behalf of the Service Provider, 30% of his entire business time (approx. 13 hours per week) for the provision of the Services and his attention and abilities to the job duties during all such business hours, and undertakes to act in the best interests of the Company at all times.

 

1.3           Ifat may be required to travel and to stay abroad from time to time, according to the requirements of her position with the Company. To the extent that due to the foregoing travel abroad, Ifat shall, on behalf of Service Provider, provide Services in such amount exceeding 13 hours during a calendar week (“ Additional ServicesAbroad ”), Service Provider will be paid for each day of Additional Services Abroad performed by Ifat directly and solely in connection with performance of the Services, a total amount per day of NIS 2,000, plus applicable VAT, as additional Services Fee (i.e. in addition to the NIS 15,000+ VAT as specified in Section 2.1 below).

 

1.4           The parties hereto agree and acknowledge that the Company is entitled to engage Ifat directly for the provision of the Services and terminate this Agreement in accordance with its terms. In such event, the Company shall pay Service Provider a onetime compensation of NIS 22,500.

 

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Service Agreement – AIT – Guberman Consulting Ltd. & Ifat Tal

 

 

2.           Consideration

 

2.1           In consideration for the Services, the Company shall pay to Service Provider, on a monthly basis, a monthly fee of NIS 15,000, plus applicable VAT (including travel expenses to the company's premises), for the provision of the Services (the “ Services Fee ”), subject to the receipt of an invoice from the Service Provider, to be paid within 5 days from the end of the applicable calendar month. It is hereby agreed and acknowledged by the parties, that an amount equal to 30% of the Services Fee payable to Service Provider hereunder shall be paid in consideration for Service Provider's undertakings set forth under Section 6 below.

 

2.2           In addition, the Company shall reimburse the Service Provider for out-of-pocket expenses properly incurred by the Service Provider directly and solely in connection with performance of the Services, including without limitation, traveling and lodging expenses while traveling, subject to the prior written approval of the Company, against applicable receipts. Such reimbursement of expenses, for each calendar month (or any part thereof) shall be made as part of that month's invoice received from the Service Provider.

 

2.3           Service Provider shall not be entitled to any further fees, reimbursement of costs and expenses or any other payment or consideration whatsoever, except as specifically set forth herein.

 

2.4           Any and all taxes and liabilities applicable from time to time in connection with the Services and/or the Services Fee and/or any other payment or benefit which Service Provider is entitled to under this Agreement, will be borne solely by Service Provider and the Company shall be entitled to make any mandatory deductions. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment or any other consideration made to Service Provider, the Company shall withhold said tax at the rate set forth in the certification issued by the appropriate taxing authority or at the rate determined by said law or regulation.

 

2A ..    D&O insurance and Indemnification agreement

 

2A.1      Subject to the provisions of applicable law and the approval of applicable corporate organs of the Company, the Company shall, during the term of this Agreement provide and include Ifat in its Directors and Officer Insurance policy.

 

2A.2       Subject to the provisions of applicable law and the approval of applicable corporate organs of the Company, the Company will enter into an Indemnification Agreement with Ifat, in the form attached hereto as Exhibit B . Furthermore, the Company undertakes that the terms and conditions of the Indemnification Agreement of Ifat shall be similar to the terms and conditions of the indemnification agreements of other directors and officers of the Company, as may be entered by the Company from time to time.

 

3.          Duration and Termination

 

3.1           This Agreement shall become effective on the Effective Date and continue until terminated in accordance with this Section 3.

 

3.2           This Agreement may be terminated either party, at any time and at their sole discretion by giving the other party not less than sixty (60) days' notice in writing in respect of the Services.

 

3.3           The Company may terminate this this Agreement at any time, by providing the Service Provider a written notice in this respect, if Ifat shall cease to be employed or engaged by or associated with Service Provider or is otherwise unavailable to continue providing the Services on behalf of the Service Provider in accordance with the provisions hereof.

 

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3.4           Either party may terminate this Agreement at any time, by providing the other party a written notice in this respect, if the other party has materially violated or breached any of its undertakings hereunder.

 

3.5           Any termination of this Agreement shall not derogate of any of Service Provider's and Ifat's continuing obligations under this Agreement intended to survive termination hereof, and therefore, termination of the agreement shall not affect the obligations of the Service Provider and Ifat under Sections 4, 5, 6 and 7 hereunder. In addition, upon termination hereof, Service Provider and Ifat will fully cooperate with the Company to ensure an orderly transfer of responsibilities.

 

4.          Confidentiality

 

4.1           Service Provider shall not (except in the proper performance of its duties hereunder) while engaged with the Company or at any time (without limit) after the date on which Service Provider's engagement with the Company terminates:

 

(a)          divulge or communicate to any person, including by way of publication;

 

(b)          use for its own purposes or for any purposes other than those of the Company; or

 

(c)          through any failure to exercise due care and diligence, cause any unauthorized disclosure of;

 

any Confidential Information (as defined below). These restrictions shall cease to apply to any information which shall become available to the public generally otherwise than through the default by Service Provider.

 

4.2           In the event that Service Provider shall be legally required (by formal questioning or, in the written opinion of its legal counsel, by applicable law) to disclose any Confidential Information, Service Provider shall, to the extent permissible, immediately notify the Company of such request or requirement prior to disclosure so that the Company may seek an appropriate protective order with the reasonable assistance of Service Provider, and/or waive compliance with the terms of this undertaking, at the Company's absolute discretion. If such order or waiver is not timely obtained, only such portion of the Confidential Information as specifically required shall be disclosed. For the avoidance of doubt, any information disclosed pursuant to such event, shall continue to be deemed as Confidential Information.

 

4.3            “Confidential Information” means all information which is identified or treated by the Company as confidential or which by reason of its character or the circumstances or manner of its disclosure is evidently confidential including (without prejudice to the foregoing generality) any business plans, proposals relating to the acquisition or disposal of a company or business or proposed expansion or contraction of activities, maturing new business opportunities, research and development projects, designs, secret processes, trade secrets, source codes, mask works, product or services development and formulae, know-how, inventions, patents, patent applications, sales statistics and forecasts, marketing strategies and plans, costs, profit and loss and other financial information (save to the extent published in audited accounts), prices and discount structures, and also information regarding the compensation of any of the Company’s employees or service providers.

 

4.4           Service Provider represents and warrants that Service Provider has not and will not disclose to the Company any confidential information received by Service Provider from any third party, and subject to restriction on disclosure, or through breach of confidentiality obligations, including without limitations any information received by Service Provider in connection with any prior employer-employee engagement.

 

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4.5           Upon termination of engagement with the Company for any reason, these provisions of Section 4 shall continue to apply to Service Provider, and Service Provider shall promptly return to the Company any and all copies of Confidential Information.

 

4.6           In this Section 4, the obligations and undertakings of the Service Provider shall apply, mutatis mutandis , to the Service Provider's employees, consultants and/or agents, including without limitations, Ifat.

 

5.           Inventions and Other Works

 

5.1           For the purposes of this Section, “Intellectual Property Rights” means any and all intellectual or industrial property rights (whether registered or unregistered) including, without prejudice to the generality of the foregoing, all existing and future copyrights, design rights, database rights, trade marks, internet rights/domain names, know-how, patents and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing.

 

5.2           During the term of Service Provider’s engagement with the Company, Service Provider may either alone or in conjunction with others, generate or assist in the generation of documents, materials, designs, drawings, processes, formulae, computer coding, methodologies, techniques, developments, research data, including specifically technical aspects of the technology and devices that are not common knowledge, trade secrets, marketing plans, company financial information, business development information, strategic plans of the Company and other works deemed as Confidential Information and/or Intellectual Property Rights by the Company (“ Works ”), and Service Provider agrees that such Works and the related Intellectual Property Rights and Confidential Information will belong to and be the absolute property of the Company or any other person the Company may nominate.

 

5.3           Service Provider hereby agrees to keep and maintain adequate records of all Works developed by him during its engagement with the Company, to the extent generated in connection with this Agreement, which records shall be available to and remain the sole property of the Company.

 

5.4           Service Provider shall immediately on request by the Company (whether during engagement with the Company or after the termination of such engagement) and at the expense of the Company:

 

(a) apply or join with the Company in applying for any Intellectual Property Rights or other protection or registration (“ Protection ”) for, or in relation to, any Works;

 

(b) execute all instruments and do all things necessary for vesting the Works or Protection when obtained and all right, title and interest to and in the same absolutely and as sole beneficial owner in the Company or other person as the Company may nominate;

 

(c) in the event that the Company is unable for any reason, after reasonable effort, to secure Service Provider's signature on any document needed in connection with the actions specified in the preceding paragraph, Service Provider hereby: (i) irrevocably designates and appoints the Company and its duly authorized officers and agents as its agent and attorney in fact, which appointment is coupled with an interest, to act for and in its behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by him, and (ii) hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, which it now or may hereafter have for infringement of any Works assigned hereunder to the Company.

 

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Service Agreement – AIT – Guberman Consulting Ltd. & Ifat Tal

 

 

5.5           In this Section 5, the obligations and undertakings of the Service Provider shall apply, mutatis mutandis , to the Service Provider's employees, consultants and/or agents, including without limitations, Ifat.

 

6.          Restrictions after Termination

 

6.1           During the term of the provision of any Services hereunder and for a period of twelve (12) months thereafter (the “ Restricted Period ”), Service Provider and Ifat shall not, for her/its own account or as an employee, officer, director, partner, venture partner, shareholder, investor, consultant or otherwise (except as an investor in a corporation whose stock is publicly traded and in which such party holds less than 5% of the outstanding shares) be interested in or engage in any activity which directly competes with the Company's business anywhere in the world, other than for the exclusive benefit of the Company.

 

6.2           During the Restricted Period, neither Service Provider nor Ifat shall solicit any of the Company's or any of its affiliates' employees or consultants engaged by the Company or its affiliates (at such time or for the preceding 12 month period) to leave the Company or any of its affiliates, as the case may be, and shall not employ or offer employment or similar engagement to any such employees or consultants.

 

6.3           Each of Service Provider and Ifat acknowledges that the restrictions set under this Section 6 are fair and reasonable, and are essential for protection of the Company's and the Company's business, proprietary rights and other legitimate interests of the Company, in view of the nature of the business in which the Company is engaged and its innovative course. In addition, such restrictions are fully compensated for by the Services Fee and other benefits granted hereunder.

 

7.          Scope of Relations

 

7.1           The relationship between the Company and Service Provider and/or Ifat shall be that of independent contractors. During the term of this Agreement, Service Provider and/or Ifat shall not be deemed to be, nor shall be treated by the Company as, an employee of the Company. Service Provider and/or Ifat shall bear all social benefits required under any applicable law and shall not receive nor be entitled to overtime pay, insurance, paid vacation, severance payments or similar fringe or employment benefits from the Company.

 

7.2           Each of the Service Provider and/or Ifat affirms that this Agreement does not create any employer-employee relationship between the Service Provider and/or Ifat on the one hand and the Company on the other hand.

 

7.3           Without derogating from the above, the Service Provider and/or Ifat shall reimburse and compensate the Company in the event that the Company is required to pay any sum of money to the Service Provider and/or Ifat, and/or, the Service Provider’s and/or Ifat's heirs, and/or dependents and/or to the National Social Security Authority (Bituach Leumi) and/or the Tax Authorities and/or any other party that sues in the name of the Service Provider and/or Ifat or on Service Provider’s and/or Ifat's behalf, for any rights deriving from a status of an employee of the Company, excluding an action based on negligence of the Company towards the Service Provider.

 

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Service Agreement – AIT – Guberman Consulting Ltd. & Ifat Tal

 

 

7.4           The parties acknowledge that had the Company elected to retain the services of the Service Provider and/or Ifat as an employee and had the Service Provider and/or Ifat agreed to accept such employment, the salary payable to the Service Provider and/or Ifat would be substantially lower than the Service Fee as the Service Fee takes into account all social benefits that would otherwise be payable to an employee including, severance payments, etc.

 

7.5           Therefore, if any labor court, or other competent authority, determines that an employer-employee relationship does in fact exist between the Company and the Service Provider and/or Ifat, the provisions of Section 7.8 shall apply, and rights that the Service Provider and/or Ifat may be entitled to according to the provisions of Section 7.8 below, shall be subject to a set-off right of the Company against any amount or other right the Company may be entitled to according to Sections 7.6 and 7.7 below. The Service Provider and/or Ifat hereby irrevocably instructs the Company to deduct and offset from any payment or other right that they may be entitled to, according to the provisions of Section 7.8 below, any amount or other right the Company may be entitled to according to Sections 7.6 and 7.7 below.

 

7.6           In the event that the Service Provider and/or Ifat and/or the Service Provider’s and/or Ifat's heirs and/or dependents and/or to the National Social Security Authority (Bituach Leumi) and/or the Tax Authorities and/or any other party shall file a claim in the name of the Service Provider and/or Ifat or on Service Provider’s and/or Ifat's behalf, for any rights deriving from a status of an employee of the Company, then, the Services Fee and any other consideration (if any) paid to the Service Provider according to this Service Agreement shall be considered to be an index linked loan, bearing interest at the annual rate of 7%, granted by the Company to the Service Provider and/or Ifat, which loan shall be immediately due and payable.

 

7.7           For the avoidance of any doubt, the Service Provider hereby undertakes to confirm, and act in order that, any and all taxes and liabilities applicable from time to time in connection with the Services Fee and/or any other payment or benefit which Service Provider is entitled to under this Agreement, will be paid by him in due time and in accordance with their terms. Upon the receipt by the Company of any demand served by any authority in this respect, the Company shall be entitled, at its sole discretion, to notify that it has determined to activate the provisions of Section 7.6 above, which will be considered to be in full force and effect as of such the notification of the Company.

 

7.8           Therefore, if any labor court, or other competent authority, determines that an employee relationship does in fact exist between the Company and the Service Provider and/or Ifat, the monthly salary that would have been payable to the Service Provider and/or Ifat as an employee of the Company shall be seventy percent (70%) of the Service Fee (excluding VAT) and this salary shall be the basis for calculating any statutory social benefits due to the employee.

 

7.9           The above obligations of the Service Provider shall survive the termination of this Agreement.

 

8.          No Conflict, Valid and Binding . Each of Service Provider and Ifat represents that neither the execution of this Agreement nor the performance of Services and/or Service Provider’s and Ifat's obligations under this Agreement will result in a violation or breach of any other agreement by which Service Provider and/or Ifat is bound and that he/it has full power and right to enter into this Agreement. Service Provider and/or Ifat are not authorized to obligate the Company in any way and/or create any commitments of the Company, except to the extent explicitly authorized in advance by the Company in writing.

 

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Service Agreement – AIT – Guberman Consulting Ltd. & Ifat Tal

 

 

9.           Notices . Any notice or other communication required, permitted or contemplated by this Agreement must be in writing and delivered to the other party by registered or certified mail, return receipt requested or delivered by facsimile mail with the original counterpart thereof being sent on the same day or on the day immediately following the date of the facsimile transmission, or by electronic mail. Such notice shall be deemed received three days after a registered or certified letter containing such notice, properly addressed with the postage prepaid, if posted, or on the same day if transmitted by facsimile mail or by electronic mail.

 

10.          Governing Law and Jurisdiction . This Agreement shall be governed by, and construed and enforced in accordance with the law of the state of Israel, without regard to the conflict of law rules thereof. The parties irrevocably agree that the competent courts of Tel-Aviv, Israel are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement.

 

11.          Assignment and Third Party Rights . This Agreement may not be assigned in whole or in part by any party without the written consent of the other parties hereto.

 

12.          Entire Agreement . This Agreement shall constitute the entire agreement and understanding between the parties with respect to all matters which are referred to and shall supersede any previous agreements between the parties in relation to the matters referred to in this Agreement.

 

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF , the parties have executed this Agreement as of the date first appearing above.

 

/s/Advanced Inhalation Thereapies (AIT) Ltd.  
Advanced Inhalation Therapies (AIT) Ltd.  
   
By: Racheli Vizman  
Title: COO  
   
/s/ Guberman Consulting Ltd.  
Guberman Consulting Ltd.  
   
By: Tami Guberman  
Title: CEO  
   
Agreed and Acknowledged:  
   
/s/ Ifat Tal  
Ifat Tal  

 

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Service Agreement – AIT – Guberman Consulting Ltd. & Ifat Tal

 

 

Exhibit A

Services

1 Essence of the contract

 

1.1  AIT hereby requests and Guberman agrees to provide Chief Financial Officer services.

 

1.2  The services shall include inter alias:

 

1.3   Chief Financial Officer

The service may include: 

  1.3.1 Weekly/biweekly meeting with the CEO regarding financial and business issues.
  1.3.2 Dealing with the annual budget.
  1.3.3 Preparing forecasts, Business plans and financial data.
  1.3.4 Dealing with the Chief Scientist, Investment Center or other incentive government institutes.
  1.3.5 Dealing with option plans and Cap tables.
  1.3.6 Help in due diligence and rising capital processes.
  1.3.7 Controlling the CF and dealing with banks.
  1.3.8 Reporting to the BOD.
  1.3.9 Working with lawyers and auditors.
  1.3.10 Helping the company prepare for IPO
  1.3.11 The service will include one skilled CFO that will serve 30% position per month, 13 hours per week (one working days a week in the company's offices and the rest from his office).

 

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Service Agreement – AIT – Guberman Consulting Ltd. & Ifat Tal

 

 

Exhibit B

 

INDEMNIFICATION AND RELEASE AGREEMENT

 

Date: ________, 2015

 

To: Ms. Ifat Tal

 

It is in the best interest of Advanced Inhalation Therapies (AIT) Ltd. (the “ Company ”) to retain and attract as directors and/or officers the most capable persons available, and such persons are becoming increasingly reluctant to serve in companies unless they are provided with adequate protection through insurance and indemnification in connection with such service.

 

You are or have been appointed to be a director and/or officer of the Company, and in order to enhance your service to the Company in an effective manner, the Company desires to provide hereunder for your indemnification to the fullest extent permitted by law.

 

In consideration of you continuing to serve the Company, subject to the provisions of applicable law, as amended from time to time, the Company hereby agrees as follows:

 

1. The Company hereby undertakes to indemnify you, in accordance with and subject to the terms and conditions of this Indemnification and Release Agreement (the “Agreement”) to the maximum extent permitted by applicable law, subject to the limitations set forth in Sections 3 and 6 below for any liability, obligation or expense as set forth in paragraphs 1.1 through 1.5 below ("Expenses"), imposed on you or expended by you in respect of any act or omission (“action”) taken or made by you or alleged to have been taken or made by you in your capacity as a director and/or officer of the Company:

 

1.1. any financial obligation imposed on you in favor of another person by a court judgment, including a settlement or an arbitrator’s award approved by court; and

 

1.2. all reasonable litigation expenses, including attorneys’ fees and the fees and expenses of investigators, accountants and other experts, expended by you, in an investigation or proceeding conducted against you by an agency authorized to conduct such investigation or proceeding, and which investigation or proceeding (i) “concluded without the filing of an indictment” (as such term is defined in Section 260(a)(1a) of the Companies Law 5759-1999) against you and without there having been imposed against you a “financial obligation in lieu of a criminal proceeding” (as such term is defined in Section 260(a)(1a) of the Companies Law), or (ii) “concluded without the filing of an indictment” against you but with there having been imposed against you a “financial obligation in lieu of a criminal proceeding” for an offense that does not require proof of mens rea (criminal intent) or with respect to monetary sanction or penalty; and

 

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1.3. all reasonable litigation expenses, including attorneys’ fees and the fees and expenses of investigators, accountants and other experts, expended by you or charged to you by a court, in a proceeding instituted against you by the Company or on its behalf or by another person, or in any criminal proceedings in which you are acquitted, or in any criminal proceedings of a crime which does not require proof of mens rea (criminal intent) in which you are convicted; or in preparation or defense with respect to any threatened proceedings as aforesaid.

 

1.4. a financial obligation imposed upon you and reasonable litigation expenses, including attorney fees, expended by you as a result of an administrative proceeding instituted against you. Without derogating from the generality of the foregoing, such obligation or expense will include a payment which you are obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Israeli Securities Law, 1968 – 5728 (the " Securities Law ") and expenses that you incurred in connection with a proceeding under Chapters H'3, H'4 or I'1 of the Securities Law, including reasonable legal expenses, which term includes attorney fees; and

 

1.5. The above indemnification will also apply to any action taken by you in your capacity as a director and/or officer of any other company controlled, directly or indirectly, by the Company (a “ Subsidiary ”) or in your capacity as an officer, director, or observer at board of directors’ meetings, of a company not controlled by the Company but where your appointment as an officer, director or observer is at the request of the Company (“ Affiliate ”).

 

provided however , that in respect of any specific action indemnifiable pursuant to the provisions hereof (an " Indemnifiable Event "), the Expenses for which you may be indemnified hereunder will be subject to the Global Limitation (as defined below).

 

2. The Company will not indemnify you for any amount you may be obligated to pay in respect of any of the following:

 

2.1. a breach of your duty of loyalty, except, to the extent permitted by law, for a breach of your duty of loyalty to the Company, a Subsidiary or an Affiliate while acting in good faith and having reasonable cause to assume that such act would not prejudice the interests of the Company;

 

2.2. a willful breach of the duty of care or reckless disregard for the circumstances or to the consequences of a breach of the duty of care other than a breach arising solely out of your negligent conduct;

 

2.3. an action, taken or not taken, with the intent of unlawfully realizing personal gain.

 

2.4. any fine, civil fine, monetary sanction or penalty payment to propitiate an offense for which and to the extent that applicable law prohibits indemnification.

 

3. The indemnification mentioned in paragraph 1 above shall apply only insofar as it results from your actions in the following matters or in connection therewith (which have been determined by the Board of Directors of the Company as foreseeable in view of the Company’s current activity):

 

3.1. The offering of securities by the Company and/or by a shareholder to the public and/or to private investors or the offer by the Company to purchase securities from the public and/or from private investors or other holders pursuant to a prospectus, agreements, notices, reports, tenders and/or other proceedings;

 

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3.2. Occurrences resulting from the Company’s becoming, or its status as, a public company, and/or from the fact that the Company’s securities were offered to the public and/or are traded on a stock exchange, whether in Israel or abroad;

 

3.3. Occurrences in connection with investments that the Company and/or Subsidiaries and/or Affiliates make in other corporations whether before and/or after the investment is made, entering into the transaction, the execution, development and monitoring thereof, including actions taken by you in the name of the Company and/or a Subsidiary and/or an Affiliate as a director, officer, and/or board observer of the corporation the subject of the transaction and the like;

 

3.4. The sale, purchase and holding of negotiable securities or other investments for or in the name of the Company, a Subsidiary and/or an Affiliate;

 

3.5. Actions in connection with any sale or acquisition of assets by the Company, a Subsidiary and/or an Affiliate or the merger of the Company, a Subsidiary and/or an Affiliate with or into another entity;

 

3.6. Actions in connection with the sale of the operations and/or business, or part thereof, of the Company, a Subsidiary and/or an Affiliate;

 

3.7. Without derogating from the generality of the above, actions in connection with the purchase or sale of companies, legal entities or assets, and the division or consolidation thereof;

 

3.8. Actions concerning the approval of transactions of the Company, its Subsidiaries and/or Affiliates with officers and/or directors and/or holders of controlling interests in the Company, its Subsidiaries and/or Affiliates;

 

3.9. Actions taken in connection with the approval and execution of financial statements and business reports and the representations made in connection therewith;

 

3.10. Actions taken in connection with labor relations and/or employment matters in the Company, Subsidiaries and/or Affiliates and trade relations of the Company, Subsidiaries and/or Affiliates, including with employees, independent contractors, customers, suppliers and various service providers;

 

3.11. Actions in connection with the testing of products developed by the Company, Subsidiaries and/or Affiliates, and/or in connection with the distribution, sale, license and/or use of such products, and/or in connection with the procedure of obtaining regulatory approvals regarding such products, whether in Israel or abroad, and/or in connection with claims that the Company acted without such approvals.

 

3.12. Actions taken in connection with the intellectual property of the Company, Subsidiaries and/or Affiliates, and its protection, including the registration or assertion of rights to intellectual property and the defense of claims related to intellectual property;

 

3.13. Actions taken pursuant to or in accordance with the policies and procedures of the Company, Subsidiaries and/or Affiliates, whether such policies and procedures are published or not.

 

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3.14. Any claim or demand not covered by any of the categories of events described above, which pursuant to any applicable law, a director or officer of the Company may be held liable for in connection with actions taken by such director and/or officer in such capacity.

 

The Company will make available to you all amounts needed in accordance with paragraph 1 above as soon as practicable but in any event no later than thirty (30) days after your written demand shall be presented to the Company (“ Time of Indebtedness ”), and with respect to items referred to in paragraphs 1.2 and 1.3 above, even prior to a court decision. Notwithstanding the foregoing, the obligations of the Company under Section 1 and the obligation of the Company to make an advance payment of Expenses to you (an " Expense Advance "), shall be subject to the condition that the Company shall not have determined that you are not lawfully entitled to be such indemnification in accordance with the provisions hereunder, in which event, the Company shall be entitled to be reimbursed by you (and you hereby agree to reimburse the Company) for any and all amounts theretofore paid.

 

Without derogating from the generality of the foregoing, Expenses Advances given to cover legal expenses in criminal proceedings or in administrative or investigative proceedings that result in criminal proceedings will be promptly repaid by you to the Company if you are found guilty of a crime which requires proof of criminal intent.

 

As part of the aforementioned undertaking, the Company will make available to you any security or guarantee that you may be required to post in accordance with an interim decision given by a court or an arbitrator, including for the purpose of substituting liens imposed on your assets; provided, however , that if it is determined by a court of law that you are not entitled to be indemnified by the Company, you shall promptly execute all documents required and provide all assistance necessary to substitute and replace any Company-provided security or guarantee with alternate security or guarantees.

 

All amounts paid as indemnification pursuant hereto will be grossed-up to cover any tax payments you may be required to make if the indemnification payments are taxable to you.

 

4. The Company’s obligation to indemnify you and advance Expenses in accordance with this Agreement shall be for such period as you shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding or any inquiry or investigation, whether civil, criminal or investigative, arising out of your service/action in the position of a director and/or an officer of the Company/Subsidiary/Affiliate, even if at the relevant Time of Indebtedness you are no longer a director and/or officer of the Company or of a Subsidiary or an officer, director or board observer of an Affiliate and the indemnity will extend to your heirs, executors, administrators and legal representatives.

 

5. The Company will not indemnify you for any liability with respect to which you have received payment (by virtue of an insurance policy, Articles of Association, another indemnification agreement or otherwise) of the amounts otherwise indemnifiable hereunder, except for amounts indemnifiable hereunder which are in excess of the amounts actually paid to you as provided above (including deductible amounts not covered by insurance policies).

 

6. Subject to the provisions of paragraph 5 above, the total obligation of the Company to all indemnitees under this Agreement, in the aggregate, including all then pending claims for indemnification made by all directors or officers of the Company (" Indemnitees "), whether under law, agreement or the Articles of Association of the Company, will not exceed the higher of: i) US$5 Million; and ii) 25% of the paid-up share capital of the Company (including premiums paid in respect of shares) at such time according to the last approved audited consolidated annual financial statements of the Company (the " Global Limitation "); all of the foregoing in addition to any amounts received or receivable from a directors and officers insurance policy. If the total of all such claims exceed such amount (or the remaining balance of such amount at the relevant time), then the limit amount per each Indemnitee of the Company shall be pro rated among all Indemnitees proportionately to the proven amount of each respective Indemnitee out of the aggregate amount of all proven claims by all Indemnitees.

 

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7. The Company will be entitled to reimbursement from you of amounts collected from a third party in connection with liabilities indemnified hereunder, such reimbursement not to exceed the amounts indemnified by the Company.

 

8. In all indemnifiable circumstances:

 

8.1. You shall, as a condition precedent to your right to be indemnified under this Agreement, promptly notify the Company of any legal proceedings initiated against you and of all possible or threatened legal proceedings and, to the extent permitted by law, all administrative or investigative proceedings initiated against you, in each case, for which Indemnification will or could be sought under this Agreement, without delay following your first becoming aware thereof, and you shall deliver to the Company, or to such person as it shall advise you, without delay all documents you receive in connection with these proceedings.

 

Similarly, you will advise the Company on an ongoing and current basis concerning all events which you suspect may give rise to the initiation of legal proceedings against you. Failure to notify the Company as aforesaid will not relieve the Company of its indemnification obligations pursuant hereto except to the extent that it has been actually prejudiced as a result of such failure.

 

8.2. Other than with respect to proceedings that have been initiated against you by the Company or in its name, the Company shall be entitled to undertake the conduct of your defense in respect of such legal proceedings and/or to hand over the conduct thereof to any attorney which the Company may choose for that purpose, except to an attorney who is not, upon reasonable grounds, acceptable to you.

 

Notwithstanding the foregoing you will be entitled to appoint an attorney of your own that shall accompany you in such procedure, at you own expense. Your attorney shall be fully updated on the defense procedure. In the event that you retained your own attorney due to a conflict of interest between you and the Company or between you and the Company's attorney, the Company shall indemnify you for all reasonable expenses incurred by you in connection with engaging such attorney, in accordance with and subject to the provisions hereof.

 

The Company and/or the attorney appointed by it as aforesaid shall be entitled, within the context of the conduct as aforesaid, to conclude such proceedings, all as it shall see fit, at its sole discretion, including by way of settlement without your consent provided that the amount of such settlement does not exceed the applicable limit amount (subject to the limitations set forth below). At the request of the Company, you shall execute all documents reasonably required to enable the Company and/or its attorney as aforesaid to conduct your defense in your name, and to represent you in all matters connected therewith, in accordance with the aforesaid.

 

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For the avoidance of doubt, in the case of criminal proceedings the Company and/or its attorney as aforesaid will not have the right to plead guilty in your name or to agree to a plea-bargain in your name without your prior written consent. Furthermore, in a civil proceeding (whether before a court or as a part of a compromise arrangement), the Company and/or its attorney will not have the right to admit to any occurrences that are not indemnifiable pursuant to this Agreement and/or pursuant to law, or to enter into any settlement, or compromise or consent to any judgment unless such settlement, compromise or consent includes a complete release of you from all liability arising out of the proceeding, without your prior written consent, which will not be unreasonably withheld. However, the aforesaid will not prevent the Company and/or its attorney as aforesaid, with the approval of the Company, to come to, inter alia, a financial arrangement with a plaintiff in a civil proceeding without your consent so long as such arrangement will not be an admittance of an occurrence not indemnifiable pursuant to this Agreement and/or pursuant to law and so long as it includes an complete release as aforesaid.

 

8.3. You will fully cooperate with the Company and/or its attorney as aforesaid in every reasonable way as may be required of you within the context of their conduct of such legal proceedings, including but not limited to the execution of power(s) of attorney and other documents, provided that the Company shall cover all costs incidental thereto such that you will not be required to pay the same or to finance the same yourself, all, in accordance with and subject to the provisions hereof,; and provided, further, that you shall not be required to take any action that would in any way prejudice your defense or waive any defense or position available to you in connection with any proceeding.

 

8.4. If, in accordance to paragraph 8.2, the Company has taken upon itself the conduct of your defense, the Company will have no liability or obligation pursuant to this Agreement or the resolutions referred to below to indemnify you for any legal expenses, including any legal fees, that you may expend in connection with your defense, except in the event of a conflict of interests pursuant to the second paragraph of Section 8.2 above.

 

8.5. The Company will have no liability or obligation pursuant to this Agreement or the resolutions referred to below to indemnify you for any amount expended by you pursuant to any compromise or settlement agreement reached in any suit, demand or other proceeding as aforesaid having been entered into without receiving the Company’s prior written consent to such compromise or settlement, which consent shall not be unreasonably withheld. Neither the Company nor any of its agents, employees, directors or officers shall make any statement to the public or to any other person regarding any settlement of claims against you that would in any manner cast any negative light, inference or aspersion against you, and it shall be a requirement of such settlement that the terms of such settlement shall be confidential.

 

9. Subject to section 2 above, the Company hereby exempts and releases you, to the fullest extent permitted by law, from any liability for damages caused as a result of a breach of your duty of care to the Company in your capacity as a director, whether such breach occurred or occurs prior or subsequent to the resolutions referred to below, provided that no such exemption shall apply to a breach of your duty of care in connection with a Distribution (as defined in the Companies Law).

 

10.         If for the validation of any of the undertakings in this Agreement any act, resolution, approval or other procedure is required by any organ of the Company, the Company undertakes to initiate and make its best efforts to cause them to be done or adopted in a manner which will enable the Company to fulfill all its undertakings as aforesaid, subject to any applicable legal requirement on such organ of the Company to act with good faith and in a reasonable manner and any fiduciary duties of such organ.

 

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11. For the avoidance of doubt, it is hereby clarified that nothing contained in this Agreement or in the above resolutions derogates from the Company’s right, at its sole discretion, to indemnify you post factum for any amounts which you may be obligated to pay as set forth in paragraph 1 above irrespective of the limitations set forth in paragraphs 3, 6 and 7 above.

 

12. If any undertaking included in this Agreement is held invalid or unenforceable, such invalidity or unenforceability will not affect any of the other undertakings, exemptions or releases, which will remain in full force and effect. Furthermore, if such invalid or unenforceable undertaking exemption or release may be modified or amended so as to be valid and enforceable as a matter of law, such undertakings exemptions or releases will be deemed to have been modified or amended, and any competent court or arbitrator are hereby authorized to modify or amend such undertaking exemption or release, so as to be valid and enforceable to the maximum extent permitted by law.

 

13. This Agreement and the agreement herein shall be governed by and construed and enforced in accordance with the laws of the State of Israel, as such laws are applied to contracts entered into and to be performed entirely within such State, without regard to its conflict of laws rules.

 

14. This Agreement sets forth the entire understanding between the parties hereto relating to the subject matter hereof and cancels any preceding indemnification and release agreement or undertaking that may have been issued to you by the Company.

 

15. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement, (A) to indemnify or advance Expenses to you with respect to claims initiated or brought voluntarily by you and not by way of defense, except: (i) with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement, or insurance policy or under the Company's Articles of Association now or hereafter in effect relating to claims for Indemnifiable Events, and in connection therewith, subject to all limitations set herein, the Company shall bear your reasonable costs, including legal expenses, (ii) in specific cases if the Board of Directors has approved the initiation or bringing of such suit, (iii) if the claim is initiated in order to preempt a foreseeable claim against you, covered by this Agreement or (iv) as otherwise required under the laws of the Company's (or where applicable, its Subsidiary's) jurisdiction of incorporation, regardless of whether you ultimately determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be, and (B) to indemnify you for expenses and the payment of profits arising from the purchase and sale by you of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended (the " Exchange Act "), or any similar applicable law of any jurisdiction.

 

16. In the event of any change after the date of this Agreement of any applicable law, statute or rule which expands the right of a corporation of the Company's jurisdiction of incorporation to indemnify a member of its board of directors or an officer, it is the intent of the parties hereto that you shall enjoy by this Agreement the greater benefits afforded by such change, subject however to the Global Limitation. In the event of any change in any applicable law, statute or rule which narrows the right of a corporation of the Company's jurisdiction of incorporation to indemnify a member of its board of directors or an officer, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties' rights and obligations hereunder except as set forth in Section 2 hereof.

 

17. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.

 

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18. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and personal and legal representative. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

19. All notices and other communications required or permitted hereunder shall be in writing, shall be effective when given and shall in any event be deemed to be given: (a) five (5) business days after deposit with the applicable postal service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the business day of deposit with overnight courier, freight prepaid, or (d) one day after the business day of delivery by facsimile transmission or email, if delivered by facsimile transmission or email, with copy by first class mail, postage prepaid, and shall be addressed if to you, at your address as set forth beneath your signature to this Agreement and if to the Company at the address of its principal corporate offices or at such other address as such party may designate by ten (10) days' advance written notice to the other party hereto.

 

20. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of your rights of recovery, and you shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.

 

21. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any of your rights under this Agreement in respect of any action taken or omitted by you prior to such amendment, alteration or repeal. In addition, no amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by both the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

 

22. Nothing contained in this Agreement shall be construed as giving you any right to be retained in the employ or otherwise in the service of the Company or any of its Subsidiaries.

 

This Agreement is being issued to you pursuant to the resolutions adopted by the board of directors of the Company on ______________, 2015.

 

Kindly sign and return the enclosed copy of this Agreement to acknowledge your agreement to the contents hereof.

 

[SIGNATURE PAGE TO FOLLOW]

 

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[SIGNATURE PAGE TO INDEMNITY AGREEMENT- IFAT TAL]

 

  Sincerely,
   
  Advanced Inhalation Therapies (AIT) Ltd.
   
  By:  
  Title:  

 

   
Name: Ms. Ifat Tal  
Title: CFO  

 

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Exhibit 10.13

 

OPTION AGREEMENT

 

THIS Option Agreement is entered into this 31 st day of August, 2015 by Advanced Inhalation Therapies (AIT) Ltd. , a company duly incorporated under the laws of the State of Israel (the “ Company ”) and Pulmonox Technologies Corporation, a company duly incorporated under the laws of the Province of Alberta, Canada (the “ Seller ”); each of the Company and the Seller may be referred to as a “ Party ” and jointly as the “ Parties ”.

 

WHEREAS           Seller is the owner of rights and title in the Acquired IP (as defined below), and the Company is interested in evaluating the purchase of all such rights and title from Seller who is interested in selling such rights and title;

 

WHEREAS           for the purposes of facilitating the purchase of the Acquired IP, Seller is willing to grant the Company a certain Option (as defined below) to purchase all of Seller’s rights and title to the Acquired IP;

 

WHEREAS           for the purposes of further facilitating such possible purchase, during the time between the grant of the Option and its exercise or expiration, Seller is willing to grant the Company a temporary license to use the Acquired IP during such period, as further detailed in this Agreement;

 

WHEREAS           the Company and the Seller wish to lay down the terms of the grant of the Option, the temporary license and of the subsequent sale of the Acquired IP upon exercise of the Option.

 

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

1. Definitions

 

In this Agreement, the following terms shall have the following meaning ascribed to them, unless the context requires otherwise:

 

1.1. " Acquired IP " means all of Seller's Intellectual Property as of the Effective Date and as of the Closing (as defined below), including without limitations, the patents, patent applications and know-how identified as such in Schedule 1.1 attached hereto.

 

1.2. Affiliate ” means, with respect to any party hereto, any person, organization or entity directly or indirectly controlling, controlled by or under common control with, such party. For purposes of this definition only, “control” of another person, organization or entity shall mean the ability, directly or indirectly, to direct the activities of the relevant entity, and shall include, without limitation (i) ownership or direct or indirect control of fifty percent (50%) or more of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) direct or indirect possession, of the power to elect or appoint fifty percent (50%) or more of the members of the governing body of the organization or other entity.

 

1.3. " Approved Product " means each of the First Approved Product, the Second Approved Product and/or the Third Approved Product that include revenues paid to the Company for nitric oxide gas for approved medical indications. For the avoidance of any doubt, Approved Product includes nitric oxide and may include the use of a proprietary delivery device. For example, if the First Approved Product is for chronic obstructive pulmonary disease (“COPD”), this First Approved Product will include nitric oxide drug product and any devices necessary to deliver nitric oxide for treatment of COPD.

 

1.4. Combination Product ” means a product which comprises an Approved Product and any additional products which do not qualify as Approved Products.

 

IP Acquisition Option Agreement – AIT - Pulmonox

 

 

 

1.5. " Closing " shall mean the consummation of the acquisition of the Acquired IP by the Company from the Seller in accordance with the provisions hereof.

 

1.6. " Documents " means all files, documents, data, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title policies, lists, regulatory filings, operating data and plans, technical documentation (production files, design specifications, functional requirements, operating instructions, logic manuals, flow charts, etc.), research materials, quality assurance and test procedures, user documentation (installation guides, user manuals, training materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), complete manufacturing files in connection with the Acquired Products and other similar materials, all to the extent related to the Acquired IP, in each case whether in tangible or electronic form

 

1.7. " Effective Date " means the date of this Agreement.

 

1.8. " Encumbrances " means any charge, lien, attachment, pledge, encumbrance, debt, security interest, mortgage, right of way, easement, servitude, claim, right to acquire or similar restriction, including any restriction on use, transfer, exercise of any other attribute of ownership over or in the relevant property, or any third party rights.

 

1.9. "Governmental Body" means any court, administrative agency or commission or other federal, national, provincial, state, local, foreign or other governmental authority, instrumentality, agency or commission.

 

1.10. " Inhaled Nitric Oxide " means any and all technology related to using gaseous Nitric Oxide for therapeutics or prevention of disease in animals and humans

 

1.11. " Intellectual Property "means all patents, or patent applications and any patent issued therefrom, any divisional, continuation or continuation-in-part application, or application for a patent of addition or another application claiming priority, directly or indirectly, from said patents and patent application, and patents issued therefrom, and any extensions of term, patent term adjustments, supplementary patent certificates and the like of any of the foregoing; registered and unregistered designs; registered and unregistered trade marks; copyrights; design rights; rights in and to databases; know-how; trade secrets; purchasing information; results of development activities, whether in confidential information or otherwise; information of a commercial nature; any materials, results, devices, production files, procedures, protocols, formulae, computer programs, software, source code, algorithms, file structure and any other information or data regardless of form or type, including but not limited to that of a scientific, technical nature experimental data, test data, designs, specifications, processes, manufacturing data, production files, techniques, inventions, drawings, vendor lists, photographs, films, reports, manuals, technical writings, sound recordings, pictorial representations, and other documentation or other representations, graphical or otherwise; and any other information related to development, discoveries, concepts and ideas, whether or not patentable or otherwise subject to proprietary rights or legal protection; on magnetic tape, computer memory, or in any other form, any or all subsisting or issued anywhere in the world.

 

1.12. " Legal Requirements " means any applicable federal, national, state, local, municipal, foreign, international, multinational or other constitution, law, ordinance, code, regulation, rule, order, judgment, decree, statute or treaty.

 

1.13. Net Sales means the gross consideration received from the sale or transfer of an Approved Product by the Company or its Affiliates, on a worldwide basis, after deduction of the following expenses, provided and to the extent such expenses are actually incurred and documented and do not exceed reasonable and customary amounts in the market in which such sale occurred: (a) discounts and allowances to customers; (b) rebates paid to Distributors; (c) taxes; (d) freight; and (e) refunds and returns. Net Sales includes all consideration received in respect of any sale of an applicable product, good or service, whether such consideration is in cash, payment in kind, exchange or another form.

 

IP Acquisition Option Agreement – AIT - Pulmonox

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Notwithstanding the above, for the purposes of this definition, the transfer of an Approved Product by the Company or one of its Affiliates to another Affiliate of the Company is not a sale; in such case, Net Sales will be determined based on the gross invoice amount of the Approved Product first sold by the Affiliate to independent third-parties, less the deductions permitted herein.

 

In addition, the Net Sales shall be furthermore adjusted and reduced in the event that a Approved Product is sold as part of a Combination Product as set forth in Section 2.4 hereto.

 

1.14. " Permits " means any licenses, permits, consents, registrations, approvals, permissions, certificates, applications or other authorizations.

 

1.15. " Proceeding " means any claim, demand, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation.

 

1.16. " Product " means any Inhaled Nitric Oxide product, good or service sold by the Company.

 

1.17. " Transaction Documents " means this Agreement and all agreements, documents, instruments and certificates ancillary to or contemplated by this Agreement.

 

2. The Option; Transfer of Acquired IP

 

2.1. Seller hereby grants the Company, effective as of the Effective Date, an exclusive option to purchase all of the Seller's rights, title and interest in and to the Acquired IP (the " Option "). The grant of the Option is conditioned upon Company paying Seller the sum of US$25,000 in cash within 10 days from the Effective Date (the " Option Consideration ").

 

2.2. The Option shall be exercisable by a written notice given by the Company to Seller to that effect not later than within six (6) months as of the Effective Date (the " Exercise Notice " and the " Option Period ", respectively).

 

2.3. Subject to the exercise of the Option by the Company, in consideration for the acquisition by the Company of the Acquired IP from the Seller:

 

2.3.1. The Company shall pay Seller the sum of US$500,000 in cash (the " Purchase Price ") within 3 business days from the Closing Date;

 

2.3.2. The Company shall issue to Seller within 3 business days from the Closing Date warrants to purchase up to such amount of Ordinary Shares (also known as Common Shares) of the Company, in such number equal to: (A) US$1,000,000; divided by (B) 80% of the price per share of each Ordinary Share of the Company determined for the purposes of the Company's initial public offering (the " Exercise Price " and the " Warrant ", respectively). The Warrant shall be exercisable, in whole or in part, until the seventh anniversary as of the date of grant of the Warrant, for cash and at Exercise Price, all in accordance with and subject to the terms and conditions of the Warrant attached as Schedule 2.3.2 hereto. In the event that the Company shall not undergo an initial public offering within one (1) year as of the Closing Date, the Parties hereto shall bona fide renegotiate the terms of the Warrant. Seller acknowledges that, if required by the underwriter, any shares issued to it in connection with the exercise of the Warrant as part of the Company's initial public offering, will be subject to a standard lock-up period not to exceed six months.

 

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2.3.3. The Company shall make the following one-time development milestone payments to Seller, upon achievement of each relevant milestones (each, a “ Development Milestone ”) (the “ Development Milestone Payments ”):

 

(a) Obtainment by the Company of its first FDA approval for an Approved Product (" First Approved Product ") - $1,500,000;

 

(b) Obtainment by the Company of its second FDA approval for an Approved Product (" Second Approved Product ") - $1,500,000;

 

(c) Obtainment by the Company of its third FDA approval for an Approved Product (" Third Approved Product ") - $1,500,000;

 

2.3.4. The Company shall make the following one-time sales milestone payments to Seller, upon achievement of each relevant milestones (each, a “ Sales Milestone ”) (the “ Sales Milestone Payments ”):

 

(a) The achievement by the Company of cumulative aggregate Net Sales exceeding US$20,000,000 worldwide, per all First Approved Product - US$1,500,000.

 

(b) The achievement by the Company of cumulative aggregate Net Sales exceeding US$75,000,000 worldwide, per all First Approved Product - US$3,000,000.

 

(c) The achievement by the Company of cumulative aggregate Net Sales exceeding US$125,000,000 worldwide, per all First Approved Product - US$3,000,000.

 

(d) The achievement by the Company of cumulative aggregate Net Sales exceeding US$500,000,000 worldwide, per all First Approved Product - US$20,000,000.

 

(e) The achievement by the Company of cumulative aggregate Net Sales exceeding US$20,000,000 worldwide, per all Second Approved Product - US$1,500,000.

 

(f) The achievement by the Company of cumulative aggregate Net Sales exceeding US$75,000,000 worldwide, per all Second Approved Product - US$3,000,000.

 

(g) The achievement by the Company of cumulative aggregate Net Sales exceeding US$125,000,000 worldwide, per all Second Approved Product - US$3,000,000.

 

(h) The achievement by the Company of cumulative aggregate Net Sales exceeding US$500,000,000 worldwide, per all Second Approved Product - US$20,000,000.

 

(i) The achievement by the Company of cumulative aggregate Net Sales exceeding US$20,000,000 worldwide, per all Third Approved Product - US$1,500,000.

 

(j) The achievement by the Company of cumulative aggregate Net Sales exceeding US$75,000,000 worldwide, per all Third Approved Product - US$3,000,000.

 

(k) The achievement by the Company of cumulative aggregate Net Sales exceeding US$125,000,000 worldwide, per all Third Approved Product - US$3,000,000.

 

(l) The achievement by the Company of cumulative aggregate Net Sales exceeding US$500,000,000 worldwide, per all Third Approved Product - US$20,000,000.

 

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For the avoidance of any doubt, (i) Seller shall be entitled to receive each of the Sales Milestone Payments only one-time with respect to the achievement of each Sales Milestone achieved by the Company; (ii) with respect to each of the First, Second and Third Approved Product, Seller may be entitled to receive up to an aggregate amount of US$27,500,000 in total on account of the Sales Milestone Payments for each such Approved Product.

 

For clarification purposes only, for example :

 

(A) in the event that the Company reaches an aggregate Net Sales of US$30,000,000 with respect to the First Approved Product, Seller shall be entitled to receive a one-time payment of US$1,500,000, thereafter if the Company reaches an additional aggregate Net Sales of US$45,000,000 with respect to the First Approved Product, Seller shall be entitled to receive an additional one-time payment of US$3,000,000.

 

(B) in the event that the Company reaches an aggregate Net Sales of US$80,000,000 with respect to the First Approved Product, Seller shall be entitled to receive a one-time payment of US$1,500,000 (for achieving the US$20,000,000 milestone) and a one-time payment of US$3,000,000 (for achieving the US$75,000,000 milestone).

 

2.4. Notwithstanding the foregoing, in the event that any Approved Product is sold in a form of a Combination Product, then the parties shall, together, determine in good faith the proportion of such Combination Product to be attributed to the Approved Product, it being agreed that absent such mutual agreement as to the proportion of such Combination Product to be attributed to the Approved Product, the parties shall mutually appoint an independent expert to determine such proportion. Net Sales from such Combination Product for the purposes of determining Sales Milestone Payments thereon shall be determined by multiplying the actual Net Sales of such Combination Product by such mutually agreed or expert-determined proportion, and the Company shall make Sales Milestone Payments to Seller accordingly. For example purposes only, in the event that the Net Sales derived by the Company from the sale of a certain Combination Product which is comprised from the First Approved Product and additional other products are at a certain point US$1,000,000, and the mutually agreed or expert-determined proportion is 4/5, the Net Sales attributed to the First Approved Product on account of the sales of such Combination Product, shall be US$800,000.

 

2.5. Company's obligation to make the payments set forth under Sections 2.3.3 and 2.3.4 above may be assigned by the Company, subject to a written notice to Seller, to any third party licensing or acquiring the Acquired IP from the Company, provided that such third party shall undertake in writing to become bound by the applicable provisions hereof. Each such agreement shall include language pursuant to which the permitted assignee or licensee commits to make reasonable commercial efforts to commercialize the Acquired IP.

 

2.6. Immediately upon exercise of the Option by the Company, at its sole discretion and at any time during the Option period, Seller shall be deemed to have sold, assigned, and transferred to the Company all of Seller's rights, title and interest in and to the Acquired IP, free and clear of any and all Encumbrances other than 2.5 above.

 

2.7. Following the exercise of the Option, Seller undertakes to take all actions, provisions and undertakings necessary to effectuate such sale, assignment and transfer and to assist the Company in any such effort including, without limitation, any registration of the assignment in any territory as will be required, at Company’s cost and expense. In addition, at Company’s request, Seller shall promptly deliver to the Company true and complete files or copies of files relating to the issuance, prosecution, maintenance, enforcement and defense to all Acquired IP in its possession, and shall thereafter promptly forward to the Company any additional information, documents or notices it receives in connection with the Acquired IP.

 

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2.8. Seller hereby grants the Company, during the Option Period and to the extent that the Option was exercised by the Company in accordance with the provisions hereof, for an additional period of six (6) month as of the end of the Option Period, an option to purchase all of Seller's tangible assets, including inventory, machinery, equipment, tools, supplies and other tangible property related to, or used in connection with the Acquired IP (the " Tangible Assets "), including without limitation the Tangible Assets listed under Schedule 2.8 attached hereto, for such consideration to be agreed upon between the parties.

 

2.9. Value Added Tax will be added to any payment under this Agreement pursuant to applicable law, if applicable according to any applicable law, in which event payment by the Company shall be made, by wire transfer to a bank account designated by the Seller to the Company in writing, subject to and against appropriate tax invoice issued by Seller.

 

2.10. The Company shall be entitled to deduct and withhold from any payment made pursuant to this Agreement such amounts required to be deducted and withheld with respect to the making of any such payment under any applicable law (the " Withholding Amount "), unless the Company is provided with an exemption from such withholding Tax or certificate of reduced withholding in respect of each such payment at least 3 Business Days prior to the applicable payment date (a " Withholding Tax Exemption "). Upon the request of Seller, the Company shall reasonably assist Seller in obtaining an applicable Withholding Tax Exemption at Seller's cost. Any Withholding Amount so withheld by the Company shall be remitted to the applicable Governmental Authorities and shall be treated for all purposes of this Agreement as having been paid to the Seller.

 

2.11. Seller will bear any taxes which according to applicable law should be borne by a seller in connection with the sale of the Acquired IP and the transactions contemplated hereunder. Without derogating from the foregoing, no Party will have any liability whatsoever for any taxes of any kind or nature, to be borne by the other Party pursuant to applicable law, whether due, arising or payable prior, at or following the Closing Date.

 

3. Use of IP

 

3.1. For due consideration hereby acknowledged and for purpose of facilitating the contemplated purchase of the Acquired IP, Seller hereby grants the Company with a temporary exclusive license to use the Acquired IP for preclinical and clinical development purposes during the License Term as defined in Section 3.2 below (the " License "), subject to the provision of Section 2.

 

3.2. The term of the License (the “License Term”) shall commence as of the Effective Date and end until the earlier of the following: (a) exercise of the Option; (b) expiry of the Option Period without execution of the Option; or (c) termination of this Agreement without execution of the Option in accordance with the provisions of Section 9 below.

 

3.3. At the expense of the Company the Seller undertakes to make any document, provision and undertaking to effectuate the License and assist the Company in any such effort including, without limitation, any license registration in any territory as will be required.

 

4. Representations and Warranties

 

Except as set forth in a disclosure schedule delivered by Seller to the Company dated as of the date hereof (the “ Disclosure Schedule ”) (the Disclosure Schedule will be arranged in sections corresponding to the sections contained in this Section 5 and exceptions and disclosures set forth in any section of the Disclosure Schedule will apply to any other section of the Disclosure Schedule to the extent the relevance to such other section or sections is reasonably apparent), Seller hereby represents and warrants to the Company as of the date hereof and as of the Closing Date:

 

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4.1. Constitution and Compliance

 

4.1.1. Seller is duly incorporated and validly existing under the laws of the Province of Alberta, Canada, in good standing and with power and authority to carry on its business as currently conducted and as currently proposed to be conducted and to own, lease, and operate its properties. Seller has at all times carried on its business and affairs related to the Acquired IP in all material respects in accordance with its organizational documents and all applicable Legal Requirements, and has not breached or violated, and is not in breach or violation, of its organizational documents or applicable Legal Requirements in a manner which may materially and adversely affect Seller in connection with the Acquired IP.

 

4.1.2. Seller has made available to the Company or to the Company’s legal advisor true, accurate and complete copies of its organizational documents, as amended, as of the date of this Agreement.

 

4.2. Authority to Transact

 

4.2.1. Seller has all requisite corporate power and authority to execute and deliver the Transaction Documents, and to carry out and perform its obligations under the Transaction Documents and to consummate the transactions contemplated thereby.

 

4.2.2. (i) all corporate action on the part of Seller, necessary for the authorization and execution of the Transaction Documents by Seller, and the performance of all of Seller’s obligations under the Transaction Documents, have been taken, and no other corporate proceeding on the part of the Seller is necessary to authorize this Agreement and the transactions contemplated hereby; and (ii) this Agreement and the Transaction Documents constitutes, valid and legally binding obligations of Seller, enforceable against the Seller in accordance with their terms, except as such enforceability may be limited by effect of (a) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights and (b) general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity.

 

4.3. Execution of Agreement

 

Neither the execution and delivery by Seller of the Transaction Documents nor the consummation by Seller of the transactions contemplated thereby, will:

 

4.3.1. Violate any provisions of Seller’s organizational documents or any contract, agreement, indenture, mortgage, instrument, note, bond, lease, license, arrangement, or undertaking of any nature, written or oral, of Seller, or cause the acceleration, termination or modification of any contract, agreement, indenture, mortgage, instrument, note, bond, lease, license, arrangement, or undertaking of any nature, written or oral, of Seller, in each case, related to the Acquired IP.

 

4.3.2. Require the consent, Permit or agreement of any Governmental Body, entity or any other third party.

 

4.3.3. Result in any violation of, or conflict with, or constitute a default under any term of, or result in the creation or enforcement of, any Encumbrances upon any of the properties or assets of Seller used in connection with the Acquired IP.

 

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4.3.4. Cause Seller to lose any interest in or the benefit of any asset, right, license or privilege considered as Acquired IP it presently owns or enjoys.

 

4.3.5. Result in any breach or violation by Seller of any provisions of any Legal Requirements applicable to the Seller or by which any of its assets or properties is bound or subject.

 

4.4. Title to Assets

 

4.4.1. Seller owns and has good and valid title to all of the Acquired IP, free and clear of any and all Encumbrances other than those disclosed by Seller to Company as of the effective date of the execution of this agreement.

 

4.4.2. No other person or entity has any legal or equitable interest whatsoever in any of the Acquired IP, other than those disclosed by Seller to Company as of the effective date of the execution of this agreement.

 

4.5. Compliance with Legal Requirements; Governmental Authorizations

 

4.5.1. Seller has at all times acted with best efforts with respect to the Acquired IP in compliance with each Legal Requirement that is or was applicable to it, in all applicable jurisdictions relevant for Seller and to the Acquired IP.

 

4.5.2. No event has occurred or circumstance exists that may (with or without notice or lapse of time): (i) to Seller's knowledge, constitute or result in a violation by Seller of, or a failure on the part of Seller to comply with, any Legal Requirement with respect to any of the Acquired IP; or (ii) could reasonably be expected to give rise to any obligation on the part of Seller to undertake, or to bear all or any portion of the cost of, any remedial action of any nature in connection with any Legal Requirement with respect to the Acquired IP.

 

4.5.3. Seller has not received, at any time, any written notice or other communication from any Governmental Body or any other person or entity regarding: (i) any actual, alleged, possible or potential violation of, or failure to comply with, any Legal Requirement with respect to any of the Acquired IP; or (ii) any actual, alleged, possible or potential obligation on the part of Seller to undertake, or to bear all or any portion of the cost of, any remedial action of any nature in connection with any Legal Requirement with respect to the Acquired IP, and to Seller's knowledge, there is no factual or legal basis for such.

 

4.5.4. There is no action or Proceeding pending or, to the knowledge of the Seller, threatened and no notice has been received by the Seller that has resulted in or, could reasonably be expected to result in, suspension, non-renewal, termination or cancellation of, with respect to, any such Permit.

 

4.6. Litigation

 

There is no Proceeding brought, conducted or heard by or before, or otherwise involving, any Governmental Body or any arbitrator or arbitration panel of any kind, at law or in equity (including actions or Proceedings seeking injunctive relief), pending or, to the knowledge of Seller, threatened, against, or involving Seller or any properties, assets or rights of Seller, to the extent consisting part of the Acquired IP, and Seller is not subject to any continuing order of, consent decree, settlement agreement, or other similar written agreement with, or to the knowledge of Seller, continuing investigation by, any Governmental Body, or any judgment, order, writ, injunction, decree, or award of any Governmental Body or arbitrator to the extent related thereto nor is it a party thereto.

 

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4.7. Intellectual Property

 

4.7.1. Schedule 4.7.1 contains a true and complete description as of the date of this Agreement and as of the Closing Date of:

 

(a) All registered copyrights, registered patents, patent applications, registered trademarks, registered service marks, and registered trade names owned by Seller.

 

(b) The jurisdictions in which any applications for patents or registration of any Acquired IP has been made, including the respective application numbers and dates.

 

(c) The jurisdictions in which the Acquired IP has been registered, including the respective patent or registration numbers and dates.

 

(d) All parties to whom Seller has delivered any copies of the source code constituting part of the AcquiredIP during the past three (3) years, whether pursuant to an escrow arrangement or otherwise, or parties (other than Employees) who have the right to receive such source code.

 

(e) All current products, constituting part of the Acquired IP made commercially available by Seller or currently under development by Seller, are as described in Schedule 4.7.1(e) (" Acquired Products ").

 

(f) Seller is the sole and exclusive owner of all of the Acquired IP. Seller has sole, full and clear title to all of such items of the AcquiredIP, free and clear of any Encumbrances, and upon Closing, the Company will possess sole, full and clear title to all of such items of the Acquired IP, free and clear of any Encumbrances, without the need to obtain any third party or Governmental Body consent or approval, except as may be required under Legal Requirements applicable to the Company in connection with Company's activity. The Acquired IP constitutes all of the Seller Intellectual Property. The Seller has taken all reasonable steps to protect its rights in all of the AcquiredIP, including making all filings and paying all fees required by any Governmental Body with respect to registered Acquired IP.

 

4.7.2. All granted and issued patents and all registered mask works and copyright registrations constituting part of the Acquired IP are valid and subsisting. Without limiting the generality of the foregoing, and in connection with such Intellectual Property:

 

(a) Seller has not engaged in patent misuse or any fraud in connection with any registered patents.

 

4.7.3. Seller has the right to use, sell, license, assign, transfer, convey or dispose of the Acquired IP.

 

4.7.4. Seller has taken all necessary and appropriate steps to protect and preserve the confidentiality of the Acquired IP.

 

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4.7.5. Seller has secured valid written assignments or licenses, from all employees and consultants of Seller who contributed to the creation or development of the Acquired IP. To Seller's knowledge, Seller does not make use, nor has it made any use, of any invention or other creation of any employees or consultants thereof, made by such employee or consultant prior to their employment or engagement by Seller and with respect to which Seller has not secured a right to use such invention or creation from such employee or consultant.

 

4.7.6. As of the date of this Agreement and as of the Closing, no person has asserted or threatened to assert any claims with respect to the Acquired IP or any part thereof: (i) contesting the right of Seller to use, exercise, sell, license, transfer or dispose of any of the Acquired IP; (ii) challenging the ownership, validity or enforceability of any of the Acquired IP; or (iii) alleging any claim of infringement, violation, or misappropriation of the Acquired IP. None of the Acquired IP is subject to any outstanding order, judgment or decree restricting in any manner the licensing, assignment, transfer or conveyance thereof by Seller in a manner which may interfere with the provisions hereof.

 

4.7.7. To Seller's knowledge, there has not been and as of the date of this Agreement and as of the Closing Date, there is no unauthorized use, infringement, violation or misappropriation of any of the Acquired IP by any third party. Seller has not brought any actions or lawsuits, or asserted any claims alleging (i) infringement, violation or misappropriation of any of the Acquired IP; or (ii) breach of any license, sublicense or other agreement authorizing another party to use the Acquired IP.

 

4.7.8. Neither the execution, delivery or performance of the Transaction Documents, nor the consummation of the transactions contemplated thereby, will, with or without notice or lapse of time, result in or give any other person or entity the right or option to cause or declare: (i) a loss of, or Encumbrance on, any Acquired IP; (ii) a breach of any contract or agreement relating to the Acquired IP to which Seller is a party or by which it is bound; (iii) the release, disclosure or delivery of any of the Acquired IP by or to any escrow agent or other person or entity; or (iv) the grant, assignment or transfer to any third party of any license or other right or interest under, to or in any of the Acquired IP.

 

4.7.9. Seller has made available to the Company or the Company’s legal advisor accurate, full and complete copies of the following Documents relating to the Acquired IP and the Acquired Products:

 

(a) Any patent clearance for any Acquired Product.

 

(b) Any non-infringement or invalidity opinions related to third party patents drafted as a result of an Acquired Product clearance or third party patent assertion.

 

(c) Any letter, notification or correspondence to Seller from any third party or from Seller to any third party regarding infringement of the Acquired IP.

 

4.7.10. Seller has not provided or disclosed the source code of any software used or embedded in the Acquired IP or the Acquired Products to any person or entity other than their respective employees and authorized consultants and contractors. No contract or agreement grants any third party any exclusive rights, whether or not limited in time or territory, with respect to any of the Acquired Products or the Acquired IP. The Seller has no liability with respect to, or is required to pay, any royalties, commissions, or similar payments to any person or entity in connection with any sale, distribution, license or development of the Acquired Products or Acquired IP.

 

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4.8. Brokers and Finders

 

Seller has no Liability or obligation to pay any fees, commissions or similar payments to any broker, finder or agent in connection with the transactions contemplated hereunder.

 

4.9. Due Diligence Materials.

 

Seller has provided to the Company or its representatives, all documents held by Seller of the character and type requested by the Company in connection with its "due diligence" investigation of the Seller and there are no documents in the possession of the Seller or any of its respective agents or representatives of a character or type described in such requests which have not been so provided to the Company or its representatives.

 

4.10. Full Disclosure

 

The representations and warranties made by Seller in this Agreement, when read together in their entirety, do not contain as of the date of this Agreement and as of the Closing Date any untrue statement of a material fact, or omit as of the date of this Agreement to state a material fact necessary to make the statements contained herein not misleading, in light of the circumstances under which they were made.

 

5. Prosecution and Maintenance of Patent Rights

 

5.1. During the Option Period, Seller shall (i) at the written request of the Company, prepare, file, prosecute and maintain patent applications and patents covered by the Acquired IP in any country, if available, at the Company’s cost, (ii) shall take action to actively maintain (i.e., maintenance and annuity fees paid) and prosecute all of the Acquired IP, (iii) shall not neglect nor allow abandonment on any of the Acquired IP, (iv) regularly notify the Company of the status of all pending applications and existing applications and patents constituting part of the Acquired IP, (v) immediately share with the Company all correspondence regarding any of the Acquired IP, all for a maximum of $20,000 USD.

 

5.2. During the Option Period, Seller shall not prepare, file, prosecute, abandon or maintain patent applications and patents covered by the Acquired IP in any country, unless such action is made (i) in full cooperation with the Company, and (ii) subject to the Company’s prior written consent, which shall not be unreasonable withheld.

 

5.3. Seller and any of its assignees and/or licensees shall not make any priority claims based on any Acquired IP, without the Company’s prior written consent.

 

6. Restrictive Covenants of Seller

 

6.1. Confidentiality .

 

During the Option Period and for seven (7) years thereafter, to the extent that the Option was exercised by the Company in accordance with the terms hereof, Seller shall not, directly or indirectly, and shall cause its respective directors, officers, employees, agents and representatives, directly or indirectly, and shall cause their respective directors, officers, employees, agents and representatives not to (i) disclose; or (ii) use for its own benefit, or for the benefit of any other person or entity, any trade secret, data or information, whether written, oral or in other form, including without limitation, technology, copyrights, know how, trade secrets, intellectual property, whether registered or not, designs, formulae, methods, experimental works or specifications, discoveries, samples, processes, techniques, developments, production, marketing and sale methods, business plans, prices and pricing methods, customer lists, supplier information, or any similar information, to the extent relating to the Acquired IP (including operations, activities, technology, plans, products or financial affairs) (the " Confidential Information "), without limitation of time; unless such Confidential Information is or becomes part of the public domain without the fault of Seller and except as required by applicable law. Seller acknowledges that the Company is in the process of preparing for an initial public offering of its shares to the public and accordingly may be required by securities laws and / or the U.S. Securities and Exchange Commission (the “SEC”) to file this Agreement, and further consents to the filing of the Agreement, if so required in the Company’s discretion. In the event that the filing of this Agreement is so required, the Parties shall agree in good faith what parts of the Agreement the Company should request the SEC to be kept confidential in light of the confidential information included in such parts on the one hand and the type of information the SEC agrees to redact from agreements such as the Agreement on the other hand.

 

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6.2. Non-Compete .

 

During the Option Period and thereafter, provided that the Option was exercised by the Company in accordance with the terms hereof, for an additional period of four (4) years as of the Closing Date, Seller or any person or entity acting on its behalf shall not (except as provided in this Agreement, Schedule 6.2 , or any other Transaction Document):

 

6.2.1. Engage (whether as an owner, operator, manager, employee, officer, director, consultant, advisor, representative or otherwise), directly or indirectly anywhere in the world (including each and every county thereof as if individually named herein) in any business in competition with the Company; provided that ownership of less than 5% of the outstanding stock of any publicly-traded corporation shall not be deemed to be engaging solely by reason thereof in any of its business and shall not be a violation of the provisions hereof.

 

6.2.2. Contact, encourage or solicit any consultant, independent contractor, agent, lessor, licensor, supplier, investigator, distributor, reseller, or other business associate who is employed or engaged by the Company (other than by a general solicitation directed to the public at large through the mailing or other means of distribution of a letter, pamphlet, handbill, circular or other written or printed media), to terminate or modify his, her or its respective employment, engagement or business relationship therewith;

 

6.2.3. Contact, encourage or solicit any employee, who is employed or engaged by the Company (other than by a general solicitation directed to the public at large through the mailing or other means of distribution of a letter, pamphlet, handbill, circular or other written or printed media) to terminate, modify or cease to provide any services to the Company, or otherwise to be engaged by Seller or provide it any services; and

 

6.2.4. Contact, encourage, or solicit any customer of the Company to terminate or modify such customer’s business relationship with the Company.

 

6.3. Exclusivity .

 

From the date hereof and until the earlier of termination or expiration hereof and the Closing Date, Seller and its respective officers, directors, employees, agents or other representatives acting on its behalf, shall not consummate any transaction involving the sale, transfer, license, pledge or other disposition, as the case may be, of any assets comprising of the Acquired IP of the Seller (a " Restricted Transaction "), or negotiate or encourage or solicit any offers for, respond to any unsolicited offers for, or conduct any negotiations with any other person, in respect of any Restricted Transaction.

 

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7. Indemnification

 

The Company shall indemnify and hold Seller and its directors, officers, employees, agents, consultants and counsel ("Seller Indemnitees") harmless from and against any and all liabilities, damages, losses, costs or expenses (including reasonable attorneys’ and professional fees and other expenses of litigation and arbitration) resulting from a claim, suit or proceeding brought by a third party against a Seller Indemnitee, arising from or occurring as a result of (i) any practice by the Company of the licenses granted or Acquired IP herein, (ii) the development, manufacture, use, importation, marketing, sale and commercialization by the Company, its Subsidiaries or any Sublicensee of any Product, except, in each case, to the extent caused by the willful misconduct, and or gross negligence, and or violation of law of the Seller.

 

8. Closing

 

Within 7 business days following the Exercise Notice date or at such other time and date as may be agreed by Seller and the Company in writing (the " Closing Date "), the Closing shall take place and the Seller shall transfer to the Company appropriate assignment forms required in order to give effect to the sale and assignment of the Acquire IP to the Company, in such forms reasonably satisfactory to the Company;

 

9. Term and Termination

 

9.1. This Agreement shall commence upon the date hereof and shall remain in effect unless and until (i) the expiration of the Option Period, to the extent the Company did not exercise the Option until such date; or (ii) terminated in accordance with the terms of this Section 8 or as otherwise specifically set forth in this Agreement.

 

9.2. The Company shall have the right to terminate this Agremeent at any time prior to the exercise of the Option, upon a written notice to the Seller.

 

9.3. The failure by either party to comply with any of the obligations contained in this Agreement shall entitle the non-breaching party to give notice to have the default cured. If such default is not cured within ten (10) days after the receipt of such notice, or diligent steps are not taken to cure or if by its nature such default could not be cured within ten (10) days, the notifying party shall be entitled, without prejudice to any of its other rights conferred on it by this Agreement, and in addition to any other remedies that may be available to it by law, pursuant to this Agreement or otherwise, to terminate this Agreement.

 

9.4. The provisions under which this Agreement may be terminated shall be in addition to any and all other legal remedies which either party may have for the enforcement of any and all terms hereof, and do not in any way limit any other legal remedy such party may have, except as specifically specified hereunder. Termination, relinquishment or expiration of this Agreement for any reason shall be without prejudice to any rights that shall have accrued to the benefit of any party prior to such termination, relinquishment or expiration. Such termination, relinquishment or expiration shall not relieve any party from obligations which are expressly indicated to survive termination or expiration of this Agreement. All obligations which are not expressly indicated to survive termination or expiration of this Agreement shall terminate upon the termination or expiration of this Agreement.

 

9.5. In the event that the Company fails to comply with any of its financial obligations hereunder, and provided that Seller have sent the Company a written notice to that effect, stating the circumstances of such incompliance, and the Company did not cure such incompliance within 90 days from the of receipt by it of such notice or the Company rejected the veracity of the content of such notice, then, the Parties shall submit the said dispute to the New York International Arbitration Centre in New York, USA, pursuant to its rules and regulations.

 

IP Acquisition Option Agreement – AIT - Pulmonox

13  

 

 

10. Miscellaneous

 

10.1. Non-Transferability .

 

Unless otherwise agreed in writing, during the Option Period neither party shall assign, sub-license, pledge, lien or otherwise dispose of or transfer any right under this Agreement.

 

10.2. Agreement Binding On Successors .

 

This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.

 

10.3. Relationship of the Parties .

 

This Agreement shall not be construed to make any party hereto the agent, partner, joint venture or legal representative of the other for any purpose whatsoever. Neither party hereto is granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other party, except as herein otherwise expressly provided.

 

10.4. Governing Law and Jurisdiction .

 

This Agreement shall be governed by the Laws of the State of Delaware, without regard to its rules of private international Law, and each party irrevocably submits to the non-exclusive jurisdiction of the State of New York.

 

10.5. Entire Agreement .

 

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and cancels and supersedes all prior negotiations, understandings and agreements relating to the subject matter hereof.

 

10.6. Amendments in Writing .

 

This Agreement may not be amended except pursuant to a written instrument signed by each of the parties.

 

10.7. Notices .

 

All notices or other communications hereunder shall be in writing and shall be given in person, by registered mail (registered international air mail if mailed internationally), by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or e-mail transmission (provided that written confirmation of receipt is provided) with a copy by mail, addressed as set forth below:

 

If to the Company: Advanced Inhalation Therapies (AIT) Ltd.
  2 Derech Meir Weisgal,
  Rehovot 7632605, Israel
  Attention: Amir Avniel

 

With a copy to (which shall not constitute notice): Oded Har-Even
  Attorney at Law
  Sullivan & Worcester LLP
  ZAG/S&W 1633 Broadway, New York, NY 10019, USA

 

IP Acquisition Option Agreement – AIT - Pulmonox

14  

 

 

If to Seller: Pulmonox Technologies Corporation.
  #102, 10835 - 120 Street
  Edmonton, Alberta, Canada
  T5H 3P9
  Attention: Doug Hole

 

With a copy to (which shall not constitute notice): Hugh MacNaught
  2738 Saint Andrews Ave.
  North Vancouver, BC, V7N 1Z3, Canada

 

or such other address as any Party may designate to the other in accordance with the aforesaid procedure. All communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or e-mail transmission shall be deemed given on the Business Day following transmission with confirmed answer back, and all notices and other communications sent by registered mail (or air mail if the posting is international) shall be deemed given ten (10) days after posting.

 

10.8. Expenses .

 

As between the Parties, each Party shall be responsible for the fees and expenses (including legal, accountants’ and financial advisors’ fees and expenses) incurred by it in connection with the preparation, negotiation, execution and delivery of this Agreement and any document required to be executed by any of such agreements, and otherwise in connection with the consummation of the transaction contemplated hereby.

 

10.9. Delays or Omissions; Waiver .

 

The rights of a Party may be waived by such Party only in writing and specifically; the conduct of any one of the Parties shall not be deemed a waiver of any of its rights pursuant to this Agreement or as a waiver or consent on its part as to any breach or failure to meet any of the terms of this Agreement or as an amendment hereto. A waiver by a Party in respect of a breach by the other Party of its obligations shall not be construed as a justification or excuse for a further breach of its obligations.

 

No delay or omission to exercise any right, power, or remedy accruing to any Party upon any breach or default by the other under this Agreement shall impair any such right or remedy nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein or in any similar breach or default thereafter occurring.

 

10.10. Counterparts .

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. A signed Agreement received by a Party via facsimile or electronic mail will be deemed an original, and binding upon the Party which signed it.

 

10.11. No Third-Party Beneficiaries .

 

Except as otherwise set forth herein, nothing in this Agreement shall create or confer upon any Person, other than the Parties or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities.

 

The Parties to this Agreement have caused this Agreement to be executed and delivered as of the date above first written.

 

IP Acquisition Option Agreement – AIT - Pulmonox

15  

 

 

SELLER:

 

/s/ Doug Hole  

PULMONOX TECHNOLOGIES CORPORATION

 

By: Doug Hole

Title: Chairman

 

COMPANY:

 

/s/ Amir Avniel  

ADVANCED INHALATION THERAPIES (AIT) LTD.

 

By: Amir Avniel

Title: Chief Executive Officer

 

 

IP Acquisition Option Agreement – AIT - Pulmonox

16
 






 
Exhibit 10.14

TENTH AMENDMENT TO OPTION AGREEMENT
 
This amendment (“Tenth Amendment”) is being entered into by and between Advanced Inhalation Therapies Limited (“AIT”) and Pulmonox Technologies Corporation (“Pulmonox”), for the purpose of amending the Option Agreement originally entered by AIT and Pulmonox on 31 st August 2015 (the “Option Agreement”).

For valid consideration, the sufficiency of which is being acknowledged by AIT and Pulmonox, it is agreed to extend the Option Period (Section 2.2 of the Option Agreement) by twelve (12) months, such that Section 2.2 of the Option Agreement shall be replaced by the following:

2.2            The Option shall be exercisable by a written notice given by the Company to Seller to that effect not later than within eighteen (18) months as of the Effective Date (the “Exercise Notice” and the “Option Period”, respectively).
 
IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment to be executed by their duly authorized representatives as of the dates hereof.
 
ADVANCED INHALATION THERAPIES LIMITED
PULMONOX TECHNOLOGIES CORPORATION
 
_______________________________________
(signature)
 
_______________________________________
(signature)
 
Name:
 
______________________________________
 
Name:
 
______________________________________
 
Title:
 
______________________________________
 
Title:
 
______________________________________
 
Date:
 
December 31, 2016
______________________________________
 
Date:
 
December 31, 2016
______________________________________






Exhibit 10.15
AGREEMENT

This agreement (the "Agreement") is entered into as of the ___24_____ day of June, 2016 (the "Effective Date") by and between Advanced Inhalation Therapies (AIT) Ltd., an Israeli corporation ("AIT"), and Steven Lisi ("Lisi").

WHEREAS , AIT intends to undertake a financing in the United States in some form, most likely, but not limited to, an initial public offering (the "IPO"); and

WHEREAS, AIT desires to appoint Lisi as Member of its Board of Directors (the "Board") and Lisi desires to serve AIT in such capacity, in accordance with the terms and conditions set forth in this Agreement;

NOW, THEREFORE , AIT and Lisi hereby agree as follows:

1.   Position .  AIT hereby appoints Lisi, and Lisi hereby agrees to serve, as Member of the Board.  Lisi shall perform for AIT the duties customarily associated with the office of Member of the Board and such other duties consistent with that position as may be specified in the company's by-laws and/or applicable law. Lisi will not engage in any employment, business or other activity that creates an actual or potential conflict of interest with those duties and responsibilities.

2.   Compensation .  AIT will pay Lisi the following compensation and benefits for all services rendered by him under this Agreement:

(a)
Business Expenses .  AIT shall reimburse Lisi for his reasonable travel and other business expenses incurred in providing services under this Agreement, provided that Lisi submits documentation of such expenses in a form acceptable to AIT.

(b)
One-time Bonus .  Within 30 days from the completion of the IPO, AIT shall make a one time payment to Lisi of $150,000.

(b)          Annual Retainer .  Commencing on the effective date of the IPO, AIT will pay Lisi an Annual Retainer at the annualized rate of $40,000. The Annual Retainer shall be paid in equal installments not less often than monthly.

(c)          Equity AIT will grant Lisi, subject to the consummation of the IPO, restricted ordinary shares of AIT equal to 3% of all issued and outstanding shares + stock options (Fully Diluted Share Count) of AIT after the completion of the IPO, including any green shoe (or similar).  The restricted shares shall vest as follows:   one-third (33.33%) of such shares shall vest immediately on the completion of the IPO, one-third (33.33%) of such shares shall vest on the six (6) month anniversary of the IPO, and the remaining one-third (33.33%) of such shares shall vest on the twelve (12) month anniversary of the IPO.  The shares granted hereunder shall be governed by and subject to the terms and conditions of the the Amended and Restated 2013 Equity Incentive Plan  attached hereto as Exhibit A.

Notwithstanding anything contained herein to the contrary, it is agreed and understood that the shares granted pursuant to this Section 2(c) shall accelerate and vest immediately upon the closing of a Change of Control Transaction (as hereinafter defined), subject to Lisi serving as Member of AIT pursuant to this Agreement on the closing date of a Change of Control Transaction.  The term "Change of Control Transaction" shall mean (i) a merger, consolidation, a sale of all or substantially all of the assets or similar transaction of AIT or its subsidiaries with or into or to any other person or entity, where AIT shall not be the surviving entity, or, if AIT is the surviving entity, after which the equity holders of AIT as of the date hereof fail to own at least fifty percent (50%) of the voting or management power of AIT or (ii) other than any public offering of securities, one or more sales of the outstanding capital stock of AIT after which the equity holders of AIT as of the date hereof fail to own at least fifty percent (50%) of the voting or management power of AIT or the surviving person or entity, as applicable.


Upon the death or "Disability" (as hereinafter defined) of Lisi, the shares granted pursuant to this Section 2(c) and any unvested portion thereof shall accelerate and vest immediately. The term "Disability" shall mean "permanent and total disability" as defined in Section 22(e)(3) of the U.S. Internal Revenue Code. Upon the death or Disability of Lisi the shares granted pursuant to this Section 2(c), including any unvested portion, shall be transferred to Lisi legal heirs.

(d)    Lisi shall be solely responsible for the payment of, and agrees to pay all income, social security, employment-related or other taxes of any kind incurred as a result of the performance of the services under this Agreement, and for all obligations, reports and timely notifications relating to those taxes, except those imposed on AIT and its subsidiaries.  AIT has no obligation to pay or withhold any sums for those taxes.  Lisi will indemnify the Company and hold it harmless from and against any taxes imposed upon or asserted against AIT as a result of or in connection with Lisi services hereunder other than any taxes arising as a result of the application of U.S. Internal Revenue Code Section 280G.

3.   Term .  The term of this Agreement shall commence as of the Effective Date and shall continue for a period of three years from the Effective Date, subject to earlier termination as provided herein.  This Agreement shall terminate upon termination by Lisi or AIT, subject to the terminating party providing sixty (60) days' prior written notice of termination to the other party.

4.   Payment Upon Termination .  In the event that this Agreement and Lisi services as Member are terminated for any reason, AIT will pay Lisi any earned and accrued Annual Retainer through the termination date and reimburse him for any unpaid business expenses.  If this agreement is terminated without cause by AIT then any unvested shares will vest immediately.  Cause is defined as Gross Negligence or Willful Misconduct that is documented.

5.   Restrictions on Competition; Non-Solicitation .

(a)    Restrictions on Competition .  Lisi agrees that, during his service as Member and for a period of one (1) year following the termination of such service for any reason, (the "Restricted Period"), he shall not directly or indirectly, alone or with others, establish, open, reestablish or reopen, or in any manner become engaged, either as an employee, owner, partner, agent, stockholder, director, officer, consultant or otherwise, in any Competing Business in any territory.  For purposes of this Agreement, "Competing Business" means any person, corporation or other entity whose main activity is to develop or to sell Nitric Oxide therapeutic products.  Any investment Lisi may make in such business shall not be considered to give rise to a violation of this covenant if the following three (3) conditions are met: (i) the stock of such business is publicly traded, (ii) Lisi equity interest in such business does not exceed five percent (5%) of the aggregate outstanding equity interests of such business, and (iii) Lisi does not participate in the management or operational affairs of such business.

(b)    Non-Solicitation of Clients .  Lisi agrees that during the Restricted Period he shall not, either directly or indirectly, alone or with others, solicit any customer of AIT or any subsidiary for the purpose of engaging in a business relationship related to Nitric Oxide therapeutic products .

(c)    Non-Solicitation of Employees .  Lisi agrees that during the Restricted Period he shall not, either directly or indirectly, solicit or induce, or attempt to solicit or induce, any employee of AIT or any subsidiary to leave the employ of that company,.


6.   Confidentiality .

(a)    Nondisclosure of Confidential Information .  During Lisi service hereunder and after such service ends for any reason, Lisi will hold in strict confidence and will not disclose, use or publish in any manner (including, without limitation, in print, audio or video or in any manner, on-line or through internet, mobile or cloud based transmission) any Confidential Information (as defined below) of AIT or any subsidiary, except as may be required in the performance of his duties hereunder, required by law or with the prior written authorization of the Board.  Lisi recognizes that all Confidential Information shall at all times be the sole property of AIT and/or any subsidiary and its/their assigns or successors in interest.

(b)   Definition of Confidential Information .  The term "Confidential Information" shall include but not be limited to (i) trade secrets, documentation, designs, schematics, catalysts, settings, hardware designs, programming, processes, specifications required to produce material, research and development techniques, ideas, processes, products, handbooks, manuals, machines, compositions, methods, formulas, source and object codes, data, programs, patents, patent applications, know-how, improvements, research projects, formats, discoveries, developments, designs, drawings, techniques, system documentation, special hardware, related software development, computer software and programs, electronic codes; (b) plans for research, development, new products, marketing and selling, business and strategic plans, budgets and financial statements, licenses, prices and costs, suppliers and customers; (c) information concerning sales, sales volume, sales and marketing methods, financial performance, sales proposals, identity of clients, kind of client purchases, sources of supply; (d) information regarding the compensation of executives and employees of AIT and any subsidiary; and (e) other confidential or proprietary information belonging to or relating to the business affairs of AIT and any subsidiary.  The term Confidential Information is to be broadly defined and construed to and for the benefit of AIT and any subsidiary, and includes any and all information that has or could have commercial value or other utility in the business in which AIT and any subsidiary are engaged or contemplate engaging in, and all information of which the unauthorized disclosure could be detrimental or adverse to the their interests.

"Confidential Information" shall not include information that (i) is or becomes known to the general public through no breach of an obligation of secrecy by Lisi, (ii) is disclosed in written form, under no obligation of secrecy, to Lisi by another party having a legal right to disclose it; or (iii) Lisi is required to disclose, pursuant to the terms of a subpoena or other lawful process issued by a court or governmental regulatory agency with jurisdiction over AIT and/or any subsidiary, provided however, that Lisi shall give timely notice to AIT of such required disclosure and shall disclose such information only to the extent required.

7.   Return of Documents .  Upon the termination of Lisi service to AIT for any reason, Lisi will promptly deliver to AIT all correspondence, drawings, blueprints, manuals, letters, notes, notebooks, reports, flow charts, programs, proposals, product samples, prototypes, any documents concerning AIT's or any subsidiary's clients or concerning products or processes used by them, and all documents or materials, including those stored on computers or electronic devices, containing or constituting Confidential Information.

8.   No Prior Agreements .  Lisi represents and warrants that he is not a party to or otherwise subject to or bound by the terms of any contract, agreement, or understanding which in any manner would limit or otherwise affect his ability to perform any obligation under this Agreement.  Lisi further represents and warrants that he will not use or disclose any Confidential Information belonging to prior employers or other persons or entities in the performance of his duties hereunder.

10.   Assignment .  This Agreement may not be assigned by any party hereto.

11.   Survival .  The covenants and obligations of Lisi herein which by their terms require performance after the termination of this Agreement shall survive the termination of this Agreement and shall be binding and enforceable until fully satisfied in accordance with the terms of this Agreement.


12.   Waiver .  No consent to or waiver of any breach or default in the performance of any obligation hereunder shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance of any of the same or any other obligations hereunder.  No waiver hereunder shall be effective unless it is in writing and signed by the waiving party.

13.   Complete Agreement; Modification .  This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any previous oral or written communications, representations, understandings, contracts or agreements between them.  Any modification of this Agreement shall be effective only if set forth in a written document signed by Lisi and a duly authorized officer of AIT.

14.   Governing Law .  This Agreement shall be governed by and construed in accordance with the laws of  the State of New York without giving effect to conflict of law principles and to the fullest extent permitted by law. (ii)  All parties submit that any dispute related to this Agreement shall be filed and adjudicated without objection to venue in New York County, New York

15.   Indemnification; General Liability (i) To the fullest extent permitted by applicable law, AIT, it's receiver, trustee, or its successor, shall indemnify, defend, and hold Lisi harmless from and against any expense, loss, damage or liability incurred in connection   with any claim, suit, demand, loss, judgment, liability, cost or expense (including reasonable attorneys' fees) arising from or related to the services performed by him under the terms of this Agreement and amounts paid in settlement of any of the foregoing; provided that the same were not the resolute of Lisi's fraud or criminal misconduct.  (ii) AIT will maintain insurance with an A rated or equivalent carrier for the purposes of and with appropriate limits of liability to effect the defense and indemnification requirements set forth in this paragraph

16.   Counterparts; Section Headings .  This Agreement may be executed via facsimile or other electronic transmission and in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The section headings of this Agreement are for convenience only and will not affect the construction or interpretation of any of its provisions.
 
ADVANCED INHALATION THERAPIES (AIT) LTD.
 
 
 
By:
Amir Avniel
 
Title:
Chief Executive Officer
 
     
   
Steven Lisi
 




 
Exhibit 21.1
List of AIT Therapeutics, Inc. Subsidiaries
 
1.
Advanced Inhalation Therapies (AIT) Ltd., an Israeli corporation
 


Exhibit 99.1
 
ADVANCED INHALATION THERAPIES (AIT) LTD
 
INTERIM CONSOLIDATED FINANCIAL STATEMENTS
 
AS OF SEPTEMBER 30, 2016
 
U.S. DOLLARS IN THOUSANDS

UNAUDITED

INDEX
 
 
Page
   
2-3
   
4
   
5
   
6
   
7 - 19


 
A DVANCED INHALATION THERAPIES (AIT) LTD.
CONSOLIDATED BALANCE SHEETS
U.S. dollars in thousands
 
   
September 30,
   
December 31,
 
   
2016
   
2015
 
   
Unaudited
       
             
ASSETS
           
             
CURRENT ASSETS:
           
Cash and cash equivalents
 
$
20
   
$
129
 
Restricted bank deposits
   
12
     
12
 
Receivables and prepaid expenses
   
11
     
11
 
                 
Total current assets
   
43
     
152
 
                 
NON-CURRENT ASSETS:
               
                 
Deferred IPO costs
   
-
     
352
 
Property and equipment, net
   
66
     
93
 
                 
Total non-current assets
   
66
     
445
 
                 
TOTAL ASSETS
 
$
109
   
$
597
 

The accompanying notes are an integral part of the consolidated financial statements.
 
2

ADVANCED INHALATION THERAPIES (AIT) LTD.
 
CONSOLIDATED BALANCE SHEETS
U.S. dollars in thousands, (except share and per share data)
 
   
September 30,
   
December 31,
 
   
2016
   
2015
 
   
Unaudited
       
LIABILITIES AND SHAREHOLDERS' DEFICIENCY
           
             
CURRENT LIABILITIES:
           
Line of credit
 
$
53
   
$
-
 
Trade payables
   
466
     
124
 
Other accounts payable
   
967
     
716
 
Loans from a related party
   
99
     
29
 
                 
Total current liabilities
   
1,585
     
869
 
                 
CONVERTIBLE NOTES
   
2,547
     
1,552
 
                 
TOTAL  LIABILITIES
   
4,132
     
2,421
 
                 
COMMITMENTS AND CONTINGENCIES
               
                 
SHAREHOLDERS' DEFICIENCY:
               
                 
Ordinary shares, NIS 0.01 par value per share -
               
11,665,085 shares authorized at September 30, 2016 (unaudited) and December 31, 2015; 1,452,290 and 1,448,363 issued and outstanding shares at September 30, 2016 (unaudited) and December 31, 2015, respectively
   
29
     
29
 
Convertible Preferred A shares, NIS 0.01 par value per share -
               
790,630 shares authorized at September 30, 2016 (unaudited) and December 31, 2015; 759,086 issued and outstanding shares at September 30, 2016 (unaudited) and  December 31, 2015
   
16
     
16
 
 Aggregate liquidation preference of Convertible Preferred A Shares at September 30, 2016 (unaudited) amounted to $2,329
               
Additional paid- in capital
   
8,531
     
7,984
 
Deficit accumulated
   
(12,599
)
   
(9,853
)
                 
Total   shareholders' deficiency
   
(4,023
)
   
(1, 824
)
                 
TOTAL LIABILITIES AND SHAREHOLDERS' DEFICIENCY
 
$
109
   
$
597
 
 
The accompanying notes are an integral part of the consolidated financial statements.


3

ADVANCED INHALATION THERAPIES (AIT) LTD.

STATEMENTS OF CONSOLIDATED COMPREHENSIVE LOSS
U.S. dollars in thousands, (except share and per share data)
 
   
Nine months ended
September 30,
 
   
2016
   
2015
 
   
Unaudited
 
             
Operating expenses:
           
  Research and development expenses
 
$
573
   
$
1,433
 
  General and administrative expenses
   
523
     
495
 
  Costs related to aborted IPO
   
621
     
-
 
                 
Operating loss
   
1,717
     
1,928
 
                 
Financial expense, net
   
990
     
713
 
Revaluation of warrants to purchase Convertible Preferred A Shares
   
-
     
152
 
                 
Loss before taxes on income
   
2,707
     
2,793
 
                 
Tax on income
   
39
     
117
 
                 
Net comprehensive loss
   
2,746
     
2,910
 
                 
Net basic and diluted loss per share
   
1.99
     
2.11
 
                 
Weighted average number of Ordinary Shares used in computing basic and diluted net loss per share
   
1,448,750
     
1,448,363
 

The accompanying notes are an integral part of the consolidated financial statements.
 
4


ADVANCED INHALATION THERAPIES (AIT) LTD.
STATEMENTS OF CHANGES IN CONSOLIDATED SHAREHOLDERS' DEFICIENCY
U.S. dollars in thousands, (except share and per share data)
 
   
Ordinary shares
   
Preferred A shares
   
Additional paid-in
   
Deficit
   
Total shareholders'
 
   
Number
   
Amount
   
Number
   
Amount
   
capital
   
accumulated
   
Deficiency
 
                                           
Balance as of January 1, 2015
   
1,448,363
   
$
29
     
525,051
   
$
11
   
$
2,890
   
$
(6,371
)
 
$
(3,441
)
                                                         
Conversion of warrants into Convertible Preferred A Shares at $2.457 per share, net of issuance costs
   
-
     
-
     
234,035
     
5
     
3,408
     
-
     
3,413
 
Stock-based compensation related to options granted to employees and non-employees
   
-
     
-
     
-
     
-
     
429
     
-
     
429
 
Stock-based compensation related to RSU's granted to director
   
-
     
-
     
-
     
-
     
18
     
-
     
18
 
Beneficial conversion feature in respect to Convertible Notes
   
-
     
-
     
-
     
-
     
1,239
     
-
     
1,239
 
Net loss
   
-
     
-
     
-
     
-
     
-
     
(3,482
)
   
(3,482
)
                                                         
Balance as of December 31, 2015
   
1,448,363
     
29
     
759,086
     
16
     
7,984
     
(9,853
)
   
(1,824
)
                                                         
Modification of Consultants' warrants to purchase Ordinary Shares
   
-
     
-
     
-
     
-
     
94
     
-
     
94
 
Stock-based compensation related to options granted to employees and non-employees
   
-
     
-
     
-
     
-
     
254
     
-
     
254
 
Stock-based compensation related to RSU's granted to Board of Directors' member
   
-
     
-
     
-
     
-
     
22
     
-
     
22
 
Issuance of Ordinary shares
   
3,927
     
*) -
 
   
-
     
-
     
-
     
-
     
*) -
 
Beneficial conversion feature in respect to Convertible Notes
   
-
     
-
     
-
     
-
     
177
     
-
     
177
 
Net loss
   
-
     
-
     
-
     
-
     
-
     
(2,746
)
   
(2,746
)
                                                         
Balance as of September 30, 2016 (unaudited)
   
1,452,290
   
$
29
     
759,086
   
$
16
   
$
8,531
   
$
(12,599
)
 
$
(4,023
)

*)   Represents an amount lower than $1.
 
The accompanying notes are an integral part of the consolidated financial statements.
 
5

 
ADVANCED INHALATION THERAPIES (AIT) LTD.
STATEMENTS OF CONSOLIDATED CASH FLOWS
U.S. dollars in thousands
 
   
Nine months ended
September 30,
 
   
2016
   
2015
 
   
Unaudited
 
Cash flows from operating activities
           
             
Net loss
 
$
(2,746
)
 
$
(2,894
)
Adjustments to reconcile net loss to net cash used in operating activities:
               
Depreciation
   
20
     
19
 
Capital loss in respect to property and equipment
   
4
     
-
 
Stock-based compensation and RSU's
   
370
     
302
 
Amortization of beneficial conversion feature and debts issuance costs in the Convertible Notes
   
776
     
526
 
Revaluation of warrants to purchase Convertible Preferred A Shares
   
-
     
152
 
Imputed interest on Convertible Notes, loans from related parties and line of credit
   
215
     
145
 
Change in:
               
  Receivables and prepaid expenses
   
-
     
23
 
  Trade payables
   
342
     
16
 
  Other accounts payable
   
252
     
181
 
  Deferred IPO costs that was aborted
   
352
     
-
 
                 
Net cash used in operating activities
   
(415
)
   
(1,530
)
                 
Cash flows from investing activities
               
                 
Selling of property and equipment
   
3
     
-
 
Purchase of property and equipment
   
-
     
(6
)
                 
Net cash (used in) provided by investing activities
   
3
     
(6
)
                 
Cash flows from financing activities
               
                 
Proceeds from loan from related party
   
70
     
-
 
Proceeds from issuance of Convertible Note, net of issuance costs
   
184
     
1,069
 
Proceeds from line of credit
   
467
     
-
 
Maturity of line of credit
   
(418
)
   
-
 
Proceeds from conversion of warrants into Convertible Preferred A Shares, net of issuance costs
   
-
     
540
 
Deferred IPO costs that were paid
   
-
     
(45
)
                 
Net cash provided by financing activities
   
303
     
1,564
 
                 
Increase (decrease) in cash and cash equivalents
   
(109
)
   
28
 
Cash and cash equivalents at the beginning of the period
   
129
     
161
 
                 
Cash and cash equivalents at the end of the period
 
$
20
   
$
189
 
                 
Supplemental disclosure of non‑cash financing activities:                
                 
  Conversion of warrants into Convertible Preferred A Shares
 
$
-
   
$
2,873
 

The accompanying notes are an integral part of the consolidated financial statements.
 
6

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 1:-
GENERAL

a.
Advanced Inhalation Therapies (AIT) Ltd. (the "Company") was incorporated in Israel on May 1, 2011 and commenced its operation in May, 2012. The Company is an emerging Israeli drug development company focusing on the development and commercialization of nitric oxide formulations for the treatment of respiratory infections and diseases. The AIT pipeline includes therapies against respiratory infections in acute and chronic diseases such as: bronchiolitis (RSV), cystic fibrosis (CF), pneumonia, and asthma .

The Company has not generated revenue from the sale of any product, and does not expect to generate significant revenue unless and until the obtaining of marketing approval and commercializing its products .

b.
On August 29, 2014, the Company established a wholly-owned subsidiary, Advanced Inhalation Therapies (AIT) Inc. ("Inc.") in USA which its principal business activity is to provide executive management and administrative support functions to the Company.

c.
Since its inception, the Company has devoted substantially most of its effort to business planning, research and development. The Company has incurred losses and has accumulated negative cash flow from operating activities amounted to $2,746 and $415 during the nine months period ended September 30, 2016, respectively, and has an accumulated deficit of $12,599 as of September 30, 2016. These conditions raise substantial doubts about the Company's ability to continue as a going concern. The Company's ability to continue to operate is dependent upon raising additional funds to finance its activities. There are no assurances, however, that the Company will be successful in obtaining an adequate level of financing needed for the long-term development and commercialization of its products.

The consolidated financial statements do not include any adjustments with respect to the carrying amounts of assets and liabilities and their classification that might be necessary should the Company be unable to continue as a going concern.
 
NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES

The significant accounting policies applied in the annual consolidated financial statements of the Company as of December 31, 2015 are applied consistently in these interim consolidated financial statements. For further information, refer to the consolidated financial statements as of December 31, 2015.

7


ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 3:-
UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS

The accompanying unaudited interim consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States for interim financial information. Pursuant to those rules and regulations, the Company has condensed or omitted certain information and footnote disclosure it normally includes in its annual consolidated financial statements prepared in accordance with U.S. generally accepted accounting principles ("US GAAP"). In the opinion of management, the Company has made all adjustments (consisting only of normal, recurring adjustments, except as otherwise indicated) considered necessary for a fair presentation of the Company’s consolidated financial position as of September   30, 2016. Consolidated results of operations and consolidated cash flows for the nine months periods ended September   30, 2016 and 2015, have been included. The results for the nine months period ended September   30, 2016 are not necessarily indicative of the results that may be expected for the year ended December 31, 2016.
 
NOTE 4:-
LINE OF CREDIT

In January 2016, the Company entered into an agreement for a renewable line of credit for a maximum withdrawal amount of $49 with imputed interest in average rate of 5.1%. Such line of credit is renewed on a monthly basis upon the Company's request. As of September 30, 2016, the line of credit and accrued interest are amounted to $53.
 
NOTE 5:-
CONVERTIBLE NOTES

Starting December 2013 and until September 30, 2016, the Company entered into Convertible Notes Agreements ("Agreement") and received an aggregate amount of $3,342 ("Convertible Notes"), $855 out of which from related parties (see also Note 8e). Such Convertible Notes bear an interest rate of 8% per annum compounded annually and are convertible, with accrued interest, to the most senior shares of the Company. The maturity date of the Convertible Notes, unless converted earlier, is the earlier to occur of (i) December 12, 2017 or (ii) an event of default as defined in the Agreement. The conversion price was set to (i) $2.457 upon voluntary conversion, and (ii) the lowest of 66.6% of the price of the most senior shares of the Company or a price per share of $5.46 calculated in accordance with the valuation of the Company being $13,333 ("Discounted Conversion Price") upon mandatory conversion in case of a "triggering event" as defined in the Agreement.

According to the Agreement, upon a triggering event caused by a financing round of at least $2,000, the holders of the Convertible Notes will have the right to participate in the next equity round, and shall have the right to purchase an amount of the most senior class of shares to be issued to the investors in such equity round, at a discounted conversion price ("Participation Rights"). In the event of an initial public offering of the Company at the offering price reflecting a pre-money valuation of at least $20,000 ("Qualified IPO"), the Participation Rights will automatically expire and the holder will instead be granted options to purchase Ordinary Shares of the Company, for an aggregate price of the principal amount invested via Convertible Notes. The exercise price of the option will be equal to the Discounted Conversion Price. The options will remain exercisable until the earlier of two years from a Qualified IPO and an acquisition of the Company.
 
8

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 5:-
CONVERTIBLE NOTES (Cont.)

With respect to the aforesaid Convertible Notes, the Company applies ASC 470, "Debt with Conversion and Other Options" ("ASC 470"), pursuant to which' the Company recognizes and measures the Beneficial Conversion Feature ("BCF") in the Convertible Notes at the commitment date by allocating a portion of the proceeds equal to the intrinsic value of the feature to additional paid-in-capital. The intrinsic value of the feature is calculated on the commitment date using the effective conversion price. The discount resulting from the BCF is amortized over the life of the Convertible Notes through financial expenses unless mandatorily converted earlier.

The Convertible Notes balance consists of the following:

   
September 30,
2016
   
December 31,
2015
 
   
Unaudited
       
             
Opening balance
 
$
1,552
   
$
568
 
Receipt of Convertible Notes
   
184
     
1,277
 
BCF in respect of Convertible Notes
   
(177
)
   
(1,239
)
Amortization of BCF
   
764
     
759
 
Capitalization of debts issuance costs
   
-
     
(38
)
Amortization of debts issuance costs
   
12
     
9
 
Imputed interest
   
212
     
216
 
                 
   
$
2,547
   
$
1,552
 
 
NOTE 6:- CONTINGENT LIABILITIES AND COMMITMENTS

a.
The Company is engaged in an operating lease agreement for its office facilities. Future minimum non-cancelable rental payments under the operating lease are $14 for the year ending December 31, 2016. Rent expenses for the nine months periods ended September 30, 2016 and 2015 amounted to $10 and $13, respectively.

b.
On October 22, 2013, the Company entered into certain patent license agreement with a third party pursuant to which the Company shall pay to the third party a non-refundable upfront fee amounted to $150 and is obligated to pay the third party 5% royalties of the licensed product revenues, but at least $50 per annum at the royalty period. As of September 30, 2016, the Company did not record any revenues and therefore no royalties were paid or accrued.

c.
On April 8, 2014, the Company signed a finder fee agreement pursuant to which among others the Company will grant to the finder fee of 6% of the Company's conversion shares to be actually issued to certain lenders upon actual conversion of the lender's Convertible Notes as described in Note 5.

d.
On March 4, 2015, the Company entered into an agreement with certain gas supplier pursuant to which the supplier will receive exclusivity on the US market in exchange for gas supply for clinical studies for Bronchiolitis.

9

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 6:- CONTINGENT LIABILITIES AND COMMITMENTS (Cont.)

e.
On August 3, 2015 ("Effective Date"), the Company entered into agreement with certain individual to serve as the Company's chairman of the Board of Directors pursuant to which, among others, the Company will pay as compensation and benefits upon consummation of Initial Public Offering ("IPO") (i) an annual retainer of $75 to be paid on equal installments and (ii) 3,955,000 restricted shares of the Company with vesting schedule of 50% if such shares to be vested after 6 month anniversary of the completion of an IPO and the remaining 50% of such shares after 18 month anniversary of the completion of an IPO. Upon closing change of control transaction, as defined in the agreement, the unvested options shall be accelerated and vested immediately.

The agreement shall commence as of the Effective Date and shall continue for a period of three years, subject to earlier termination as defined in the agreement.

f.
In August 2015, the Company entered into an Option Agreement ("Agreement") with a third party whereby the Company acquired for $25 the option to purchase certain intellectual property assets and rights ("Option"). According to the Agreement, the option is exercisable for a period of six months starting August 2015 (which was extended in 2016 for a period which is ended December 2016). Upon exercise of the option, the Company will be obligated to pay an exercise price of $500 and will be required to make certain one-time development and sales milestone payments to the third party starting from the date when the Company will receive regulatory approval for the commercial sale of its first product candidate.

In addition, the Company has issued to the third party a warrant to purchase up to such amount of Ordinary Shares of the Company in such number equal to $1,000 divided by 80% of the price per share of each Ordinary Share of the Company determined for the purposes of the Company's IPO. The warrant shall be exercisable, in whole or in part, until the seventh anniversary as of the date of grant of the warrant.

g.
The Company entered into employment agreements with certain employees and service agreements with certain vendors pursuant to which in the event that the Company succeeds in achieving and consummating an IPO until the year ended December 31, 2016 the Company will pay a one-time bonus as IPO success payment. As of September 30, 2016, the Company's contingent commitment in such regard amounted to $318.

h.
On June 24, 2016 ("Effective Date"), the Company entered into agreement with certain individual to serve as the Company's member of the Board of Directors pursuant to which, among the others, the Company will pay as compensation and benefits upon consummation of IPO (i) an annual retainer of $40 to be paid on equal installments; (ii) one-time bonus amounted to $150 with 30 days from completion of an IPO and (iii) restricted shares equal to 3% of all issued and outstanding fully diluted shares of the Company after the completion of an IPO (including any green shoe or similar) with vesting schedule of 33.33% of such shares to be vested immediately upon the completion of an IPO, 33.33% of such shares to be vested after 6 month anniversary of the completion of an IPO and the remaining 33.33% of such shares after 12 month anniversary of the completion of an IPO. Upon closing change of control transaction, as defined in the agreement, the unvested options shall be accelerated and vested immediately.

10

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 6:- CONTINGENT LIABILITIES AND COMMITMENTS (Cont.)

The agreement shall commence as of the Effective Date and shall continue for a period of three years, subject to earlier termination as defined in the agreement.
 
NOTE 7:-
SHAREHOLDERS' DEFICIENCY

a.
Share capital:

1.
Ordinary Shares

The Ordinary Shares confer upon their holders the right to participate and vote in general shareholders meetings of the Company and to share in the distribution of dividends, if any, declared by the Company, and rights to receive a distribution of assets upon liquidation.

2.
Convertible Preferred A Shares:

The Convertible Preferred A Shares confer on the holders thereof all rights accruing to holders of Ordinary Shares in the Company and, in addition, bear the following rights (and such other rights set forth in the Company's AOA):

Voting - Every holder of Convertible Preferred A Shares shall have one vote for each Ordinary Share into which the Convertible Preferred A Shares held by him of record could be converted, on every resolution, without regard to whether the vote thereon is conducted by a show of hands, by written ballot or by any other means. The holders of each class of Convertible Preferred A Shares shall vote separately on all matters that by law or under the Articles of Association are subject to a class vote.

Conversion - Each Preferred A Share shall be convertible, without payment of additional consideration, by the holder thereof into Ordinary Shares at the option of the holder thereof, at any time after the date on which such Preferred A Share was issued by the Company. In addition, all Convertible Preferred A Shares are mandatorily convertible into Ordinary Shares simultaneously with the occurrence of the first to occur of (A) the consummation of an IPO of the Company’s Ordinary Shares, reflecting a pre-money valuation of the Company of no less than $20,000 and netting to the Company proceeds of no less than $5,000; or (B) the holders of the majority of the issued and outstanding Convertible Preferred A Shares elect to convert their Convertible Preferred A Shares into Ordinary Shares.

Dividend Preference - When, as, and if a dividend is declared and distributed, the holders of the Convertible Preferred A Shares shall be entitled to receive, prior to any distribution of dividends to the holders of Ordinary Shares, a dividend, up to the cumulative aggregate amount, with respect to all dividends distributed, of the Preferred A Preference Amount (as defined below). After the dividend preferences of the Convertible Preferred A Shares have been paid in full, the Convertible Preferred A Shares will participate pro-rata with the Ordinary Shares in the receipt of any additional dividends on an as-converted basis.

11

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 7:-
SHAREHOLDERS' DEFICIENCY (Cont.)

Liquidation Preference - In the event of any liquidation (including a deemed-liquidation event), each of the holders of Convertible Preferred A Shares, then outstanding, shall be entitled to be paid out of the assets available for distribution to the shareholders, whether capital, surplus, earnings, securities or assets of any kind (the “Liquidation Assets”), prior and in preference to any distribution, declaration or setting apart for payment of any amount made in respect of any other shareholder an amount per share equal to the original issue price plus 8% per annum, plus any accrued but unpaid dividends thereon, but minus any dividends previously declared and paid for such share (“Preferred A Preference Amount”).

b.
On October 28, 2016, the Company's Board of Directors and the shareholders approved a reverse share split of all outstanding Ordinary Shares of the Company, by way of issuance and distribution of bonus shares without a change in nominal value of the Company's outstanding shares at a ratio of approximately 8.03 for 1.

For accounting purposes, all Ordinary Shares, warrants to purchase Ordinary Shares and Convertible Preferred A Shares, options to purchase Ordinary Shares and loss per share amounts have been adjusted to give retroactive effect to this reverse share split for all periods presented in these consolidated financial statements. Any fractional shares resulting from the reverse share split will be rounded up to the nearest whole share.

c.
Issuances of Convertible Preferred A Shares:

1.
In January 2015, one of the Company's shareholders exercised 101,754 warrants to 101,754 Convertible Preferred A Shares for a total consideration of $250 which reflects an exercise price of $2.457. Consequently, the Company issued additional 4,070 Convertible Preferred A Shares at par value on the issuance date to consultant in respect to exercise of 4,070 warrants.
 
2.
In August, 2015, the Company's shareholders exercised 118,035 warrants to 118,035 Convertible Preferred A Shares for a total consideration of $290 which reflects an exercise price of $2.457. Consequently, the Company issued additional 4,070 Convertible Preferred A Shares at par value on the issuance date to consultant in respect to exercise of 4,070 warrants.
 
In addition, the Company decided to grant to the aforementioned shareholders additional 5,902 warrants to purchase Convertible Preferred A Shares at par value with no exercise price which have been converted into 5,902 Convertible Preferred A Shares. Consequently, the Company issued additional 204 Convertible Preferred A Shares at par value to consultant in such respect.

d.
As of December 31, 2015, the Company planned to have its securities listed on the OTCQB for the purpose of raising capital to finance its operations. Thus, during the year ended December 31, 2015, the Company incurred direct and incremental costs related to the IPO, including among others, accounting, consulting, legal and printing fees of $352, which were capitalized as a non-current asset. As of December 31, 2015, $146 out of the aforementioned amount was paid.

12

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 7:-
SHAREHOLDERS' DEFICIENCY (Cont.)

In the beginning of 2016, the Company's Board of Directors decided to abort the IPO and therefore the aforementioned deferred IPO costs together with additional related costs amounted to $269 that have been generated in 2016 have been charged as separate line in the statement of comprehensive loss.

e.
Stock options granted to employees:

In September and December 2013, the Company authorized through its 2013 Incentive Option Plan (the "2013 Plan"), the grant of options and Restricted Share Units ("RSU's) to officers, directors, advisors, management and other key employees. The Company reserved for grants of options up to 466,676 of the Company's Ordinary Shares. The options granted have generally between 2 to 4 years vesting terms and expire 10 years after the grant date. Certain options will be accelerated upon fulfillment of certain conditions. As of September 30, 2016, 177,772 options and RSU's were still available for future grants under 2013 Plan.
 
A summary of the Company's options activity for employees and directors under the Company's 2013 Plan is as follows:
 
   
Nine months period ended
September 30, 2016,
 
   
Number of
options
   
Weighted average
exercise price
   
Weighted average
remaining
contractual life
 
                   
Options outstanding at beginning of period
   
146, 622
   
$
3.38
     
8.92
 
Granted
   
-
     
-
     
-
 
                         
Options outstanding at end of period
   
146, 622
     
3.38
     
8. 17
 
                         
Options vested and expected to period
   
146, 622
     
3.38
     
8. 17
 
                         
Options exercisable at end of period
   
84,122
   
$
2.03
     
7. 62
 
 
As of September 30, 2016, the aggregated intrinsic value of outstanding and exercisable options is $242 and $215, respectively. The aggregate intrinsic value represents the total intrinsic value (the difference between the deemed fair value of the Company's Ordinary Shares on the last day of third quarter of 2016 and the exercise price, multiplied by the number of in-the-money options) that would have been received by the option holders had all option holders exercised their options on September 30, 2016. This amount is impacted by the changes in the fair market value of the Company's shares.
13

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 7:-
SHAREHOLDERS' DEFICIENCY (Cont.)

f.
Options granted to non-employees:

The Company granted options to certain non-employees under the Company's 2013 Plan and accounted for these options in accordance with ASC 505-50.

The outstanding options granted to the Company's non-employees are as follows:

Grant date
 
Number of options
   
Exercise
price
 
Expiration date
                  
September 8, 2013
   
17,080
   
$
4.01
 
September 8, 2023
September 8, 2013
   
2,340
   
$
*) -
 
September 8, 2023
December 29, 2013
   
3,511
   
$
4.01
 
December 29, 2023
April 8, 2014
   
9,158
   
$
*) -
 
April 8, 2024
July 24, 2014
   
2,492
   
$
5.46
 
July 24, 2024
March 1, 2015
   
57,779
   
$
5.46
 
March 1, 2025
October 20, 2015
   
12,456
   
$
*) -
 
October 20, 2025
December 1, 2015
   
11,210
   
$
5.46
 
December 1, 2025
 April 2, 2016    
14,476
   
$
5.46
 
April 2, 2026
                      
     
130,502
            

*)
Represents an amount lower than $ 0.01.

g.
Stock-based compensation:

The Stock-based compensation expense recognized in the consolidated financial statements for services received from employees, directors and non-employees is shown in the following table:

   
Nine months ended
September 30,
 
   
2016
   
2015
 
   
Unaudited
 
             
Research and development
 
$
190
   
$
268
 
General and administrative expenses
   
64
     
24
 
                 
   
$
254
   
$
292
 

As of September 30, 2016, the total unrecognized estimated compensation cost related to non-vested stock options granted prior to that date was $ 243 , which is expected to be recognized over a weighted average period of approximately 3 .25 years.
 
Total weighted average grant date fair value of options grant in the nine months periods ended September 30, 2016 and 2015 was $0.58 and $0.55, respectively.
14

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 7:-
SHAREHOLDERS' DEFICIENCY (Cont.)

h.
On August 31, 2015, the Company's Board of Directors approved grant of 11, 781 RSU's to one of the Board of Directors' members with a vesting schedule of three years from September 3, 2015. During the nine months periods ended September 30, 2016 and 2015, expenses amounted to $22 and $9, respectively, have been recognized in the general and administrative expenses.

i.
Warrants' modification:

On October 3, 2013 ("Grant Date"), the Company granted warrant to strategic adviser to purchase 85,474 Ordinary Shares of the Company with an exercise price of $8.19. Such warrant is fully vested on the Grant Date is eligible for exercise during a period of three years commencing as of the issuance of the warrants and ending on the third annual anniversary of the Grant Date ("Exercise Period"). In addition, the warrant will be expired in the event of an IPO or an acquisition of the Company unless it was already converted.

In January 2016, the Company's Board of Directors approved the extension of the Exercise Period by replacing the aforementioned original warrant with a new warrant exercisable until December 31, 2017 or until the fifth anniversary of the Grant Date if event of IPO was occurred until December 31, 2016.

The Company accounted for the extension of the Exercise Period pursuant to ASC 718 as a modification. Accordingly, additional compensation of $94 was calculated as the fair value of the modified award in excess of the fair value of the original award measured immediately before its terms have been modified based on current circumstances and recorded incremental fair value as an immediate compensation expense in the general and administrative expenses in the statements of comprehensive loss during the nine months period ended September 30, 2016.

NOTE 8:-
RELATED PARTY BALANCES AND TRANSACTIONS
 
Balances with related parties:

   
September 30,
   
December 31,
 
   
2016
   
2015
 
   
Unaudited
       
             
Convertible Notes (e)
 
$
858
   
$
586
 
                 
Other accounts payable (b), (c), (f)
 
$
73
   
$
17
 
                 
Loan from related party (a) (g)
 
$
99
   
$
29
 

15

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 8:-
RELATED PARTY BALANCES AND TRANSACTIONS (Cont.)

Related parties' expenses:
 
   
Nine months ended
September 30,
 
   
2016
   
2015
 
   
Unaudited
 
Amounts charged to:
           
             
General and administrative expenses (d) (f)
 
$
182
   
$
196
 
                 
Research and Development expenses (b), (c)
 
$
60
   
$
82
 
                 
Financial expense (a), (e) (g)
 
$
49
   
$
35
 

a.
On April 9, 2012, the Company signed a loan agreement with one of its shareholders for a total amount of $27. The loan bears an interest of 3% per annum and is payable on the earlier of December 31, 2015 or in two installments of $20 and $7. On November 2012, an amount of $20 was repaid by the Company.

On February 10, 2014, the Company signed a loan agreement with one of its shareholders for a total amount of $22. The loan bears an interest of 4% per annum and is payable at December 31, 2015.

b.
On September 9, 2012, the Company signed an agreement (which was amended at November 8, 2012) with a consultant, who is also one of the Company's shareholders. According to the agreement and amendment, the consultant will serve as the Company's Chief Medical Officer for a consideration of approximately $3 per month.  For the nine months periods ended September 30, 2016 and 2015, the company recorded expenses in the amount of $37 and $10, respectively.

c.
On December 15, 2012, the Company signed an agreement with a consultant, who is also one of the Company's shareholders. According to the agreement and amendment, the consultant will serve as the Company's Chief Scientific Officer based on hourly rate. For the nine months periods ended September 30, 2016 and 2015, the Company recorded expenses in the amounts of $23 and $72, respectively.

d.
On November 26, 2012, the Company signed an agreement with a consultant, who is also a related party of the Company. According to the agreement, the Company will receive legal and notary services from the consultant. For the nine months period ended September 30, 2015, the Company recorded expenses in the amounts of $37.

e.
Commencing December 2013, the Company signed a certain convertible note agreements of which consideration of $858 and $586 were with related parties as of September 30, 2016 and December 31, 2015, respectively (see also Note 5 for further details). The Convertible notes bear an interest rate of 8% per annum compounded annually. For the nine months periods ended September 30, 2016 and 2015, the Company recorded finance expenses in the amounts of $49 and $35, respectively.

16

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 8:-
RELATED PARTY BALANCES AND TRANSACTIONS (Cont.)

f.
On October 1, 2014, the Company signed an agreement with a consultant, who is also one of the Company's shareholders. According to the agreement, the consultant will serve as the Company's Chief Executive Officer based on monthly rate. For the nine months periods ended September 30, 2016 and 2015, the Company recorded expenses in the amount of $182 and $159, respectively.

g.
In September 2016, the Company entered into loan agreement with existing shareholders pursuant to which the Company received amount of $70 ("Loan") which bears an interest rate of 16% per annum and shall be fully repaid in 12 months from the date it was funded. In case that full payment of the Loan at any time within 90 days of the funding, a minimum interest rate of 4% of the Loan shall be paid along with the Loan principal. For the nine months period ended September 30, 2016, the Company recorded expenses in the amounts of $1.

Subsequent to September 30, 2016, the Company received additional loan amounted to $160 with the same terms as mentioned above (see also Note 11b).

h.
In November 2016, the Company's Chief Executive Officer which is also one of the Company's shareholders has waived all his requirements for certain debts of the Company to him in total amount of $99 (see also Note 11e).
 
NOTE 9:-
FINANCIAL EXPENSE, NET

   
Nine months ended
September 30,
 
   
2016
   
2015
 
   
Unaudited
 
             
Financial expenses, net:
           
Bank charges and other
 
$
6
   
$
5
 
Imputed interest expense   in respect to Convertible Notes
   
212
     
153
 
Foreign currency translation adjustments, net
   
(4
)
   
23
 
Amortization of debt issuance costs
   
12
     
5
 
Amortization of BCF in respect to Convertible Notes
   
764
     
527
 
                 
   
$
990
   
$
713
 

17

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 10:-
BASIC AND DILUTED NET LOSS PER SHARE

The following table sets forth the computation of the Company's basic and diluted net loss per share of Ordinary Share:

   
Nine months ended
September 30,
 
   
2016
   
2015
 
   
Unaudited
 
             
Net comprehensive loss
 
$
(2,746
)
 
$
(2,910
)
Convertible Preferred A Shares accumulated dividend
   
(131
)
   
(140
)
                 
Net loss attributable to Ordinary shares
 
$
(2,877
)
 
$
(3,050
)
                 
Shares used in computing net loss per share of Ordinary shares, basic and diluted
   
1,448,750
     
1,448,363
 
                 
Net loss per share of Ordinary share, basic and diluted
   
(1.99
)
   
(2.11
)

(*)
The net loss used for the computation of basic and diluted net loss per share include the compounded dividend of eight percent per annum which shall be distributed to shareholders in case of distributable assets determined in the AOA under the liquidation preference right (See also Note 7a2)

Convertible securities such as warrants to purchase Convertible Preferred A Shares, Convertible Preferred A Shares and stock options to grantees under the 2013 Plan, have been excluded from the calculation of the diluted net loss per share since their effect was anti-dilutive.

NOTE 11:-
SUBSEQUENT EVENTS

a.
The Company evaluates events or transactions that occur after the balance sheet date but prior to the issuance of the consolidated interim financial statements to identify matters that require additional disclosure. For its consolidated financial statements as of September 30, 2016 and for the nine months period then ended, the Company evaluated subsequent events through January 20, 2017 , the date that the consolidated financial statements were issued. Except as described below, the Company has concluded that no subsequent event has occurred that require disclosure.

b.
In October 2016, the Company entered into loan agreement with existing shareholders pursuant to which the Company received amount of $160 ("Loan"). The Loan bears an interest rate of 16% per annum. The term of the repayment of the Loan in full will be 12 months from the date it was funded. In case that full payment of the Loan at any time within 90 days of the funding, a minimum interest rate of 4% of the Loan shall be paid along with the Loan principal.
 

18

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 11:-
SUBSEQUENT EVENTS (Cont.)

c.
Subsequent to the balance sheet date, the convertible loans terms were changed such that immediately prior and subject to the consummation of the Company's IPO, the conversion discounted price will be amended such that it will be 60.5% of the price of the most senior shares of the Company upon mandatory conversion in the event of a "triggering event" (as defined in the agreement, e.g. initial public offering) and the Participation Rights which should have been granted will be forfeited.

d.
On October 28, 2016, the Company's Board of Directors and the shareholders approved a reverse share split of all outstanding Ordinary Shares of the Company, by way of issuance and distribution of bonus shares without a change in nominal value of the Company's outstanding shares at a ratio of approximately 8.03 for 1.

For accounting purposes, all Ordinary Shares, warrants to purchase Ordinary Shares and Convertible Preferred A Shares, options to purchase Ordinary Shares and loss per share amounts have been adjusted to give retroactive effect to this reverse share split for all periods presented in these consolidated financial statements. Any fractional shares resulting from the reverse share split will be rounded up to the nearest whole share.

e.
In November 2016, the Company's Chief Executive Officer has waived certain obligations of the Company to him in total amount of $99.

 
f.
On January 13, 2017 AITT, a Delaware corporation , and a wholly- owned subsidiary of AITT, Red Maple Ltd.  (“Merger Sub”), and the Company closed the transaction that was the subject of an Agreement and Plan of Merger and Reorganization dated December 29, 2016, as amended by that Amendment No. 1 to the Merger Agreement dated January 12, 2017 (the “Merger Agreement”). The Merger Agreement provides for (i) the merger of Merger Sub with and into the Company (the “Israeli Merger”), and (ii) the exchange of the Company’s shareholders’ shares of the Company's Ordinary Shares for shares of AITT common stock along with the other conditions set forth in the Merger Agreement, culminating with the Company, as the surviving entity in the Israeli Merger, being a wholly-owned subsidiary of AITT (the “Merger”).  The Israeli Merger was consummated on December 29, 2016 and the Merger closed on January 13, 2017. At the Closing of the Merger, all outstanding Series A Preferred Shares and convertible notes of the Company were converted into Ordinary shares of the Company.
 
g.
In December 2016 and January 2017, the Company entered into a securities purchase and registration rights agreement ("SPA") with certain investors. According to the SPA, the Company will sell Units in the minimum aggregate amount of $10,000 and up to maximum aggregate amount of $25,000.
 
Each Unit comprise one Ordinary share, NIS 0.01 par value per share, and one five-year warrant to purchase one Ordinary share at an exercise price of $6.9 per share. Each Unit is sold at a price per Unit of $6.
 
Immediately prior to the Closing of the Merger, the Company closed on approximately $10,200 of financing from the Investors under the SPAs and was obligated to issue the Investors an aggregate of 1,701,616 Ordinary Shares and warrants to acquire 1,701,616 Ordinary Shares.
 
 
19



 

Exhibit 99.2
 
ADVANCED INHALATION THERAPIES (AIT) LTD
 
CONSOLIDATED FINANCIAL STATEMENTS
 
AS OF DECEMBER 31, 2015
 
U.S. DOLLARS IN THOUSANDS

INDEX
 
 
Page
   
2
   
3 - 4
   
5
   
6
   
7
   
8 - 31


 
 
 
Kost Forer Gabbay & Kasierer
3 Aminadav St.
Tel-Aviv 6706703, Israel
Tel: +972-3-6232525
Fax: +972-3-5622555
ey.com
       
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
To the Shareholders and Board of Directors of

ADVANCED INHALATION THERAPIES (AIT) LTD
 
We have audited the accompanying consolidated balance sheets of Advanced Inhalation Therapies (AIT) Ltd. and its subsidiary ( the "Company") as of December 31, 2015 and 2014 and the related consolidated statements of comprehensive loss, changes in shareholders' deficiency and cash flows for the years ended December 31, 2015 and 2014. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits .

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board ( United States ). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation . We believe that our audits provide a reasonable basis for our opinion .

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2015 and 2014 and the consolidated results of its operations and cash flows for each of the years ended December 31, 2015 and 2014 in conformity with accounting principles generally accepted in the United States of America .

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1c to the consolidated financial statements, the Company has recurring losses from operations and accumulated deficit that raise substantial doubt about its ability to continue as a going concern. Management's plans in regards to these matters are also described in Note 1c. The financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result from the outcome of this uncertainty .
 
January 20, 2017
KOST FORER GABBAY & KASIERER
Tel-Aviv, Israel
A Member of EY Global
 
2

 
ADVANCED INHALATION THERAPIES (AIT) LTD.
 
CONSOLIDATED BALANCE SHEETS
U.S. dollars in thousands
 
   
December 31,
 
   
2015
   
2014
 
             
ASSETS
           
             
CURRENT ASSETS:
           
Cash and cash equivalents
 
$
129
   
$
161
 
    Restricted bank deposits
   
12
     
12
 
Other accounts receivable
   
11
     
46
 
                 
Total current assets
   
152
     
219
 
                 
NON-CURRENT ASSETS:
               
                 
Long-term lease deposit
   
-
     
3
 
Deferred IPO costs
   
352
     
-
 
Property and equipment, net
   
93
     
112
 
                 
Total non-current assets
   
445
     
115
 
                 
TOTAL ASSETS
 
$
597
   
$
334
 

The accompanying notes are an integral part of the consolidated financial statements.
 
3


ADVANCED INHALATION THERAPIES (AIT) LTD.
 
CONSOLIDATED BALANCE SHEETS
U.S. dollars in thousands, (except share and per share data)
 
   
December 31,
 
   
2015
   
2014
 
             
LIABILITIES AND SHAREHOLDERS' DEFICIENCY
           
             
CURRENT LIABILITIES:
           
Trade payables
 
$
124
   
$
114
 
Other accounts payable
   
716
     
344
 
Loans from a related party
   
29
     
28
 
                 
Total current liabilities
   
869
     
486
 
                 
NON-CURRENT LIABILITIES:
               
Convertible notes
   
1,552
     
568
 
Warrants to purchase Convertible Preferred A Shares
   
-
     
2,721
 
                 
Total long term liabilities
   
1,552
     
3,289
 
                 
TOTAL  LIABILITIES
   
2,421
     
3,775
 
                 
COMMITMENTS AND CONTINGENCIES
               
                 
SHAREHOLDERS' DEFICIENCY:
               
                 
Ordinary Shares, NIS 0.01 par value per share -
               
11,665,085 shares authorized at December 31, 2015 and 2014; 1,448,363 issued and outstanding shares at December 31, 2015 and 2014.
   
29
     
29
 
Convertible Preferred A Shares, NIS 0.01 par value per share -
               
790,630 shares authorized at December 31, 2015 and 2014;   759,086 and 525,051 issued and outstanding shares at December 31, 2015 and 2014, respectively;
   
16
     
11
 
Aggregate liquidation preference of Preferred shares at December 31, 2015 amounted to $2,198 
               
Additional paid- in capital
   
7,984
     
2,890
 
Deficit accumulated
   
(9,853
)
   
(6,371
)
                 
Total   shareholders' deficiency
   
(1,824
)
   
(3,441
)
                 
TOTAL LIABILITIES AND SHAREHOLDERS' DEFICIENCY
 
$
597
   
$
334
 

The accompanying notes are an integral part of the consolidated financial statements.

January 20 , 2017
   
Date of approval of the
 
Amir Avniel
financial statements
 
Chief Executive Officer
and Director
 
4


ADVANCED INHALATION THERAPIES (AIT) LTD.
 
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
U.S. dollars in thousands, (except share and per share data)
 
   
December 31,
 
   
2015
   
2014
 
             
Operating expenses:
           
  Research and development expenses
 
$
1,620
   
$
1,167
 
  General and administrative expenses
   
589
     
989
 
                 
Operating loss
   
2,209
     
2,156
 
                 
Financial expense, net
   
994
     
411
 
Revaluation of warrants to purchase Convertible Preferred A Shares
   
152
     
2,055
 
                 
Loss before taxes on income
   
3,355
     
4,622
 
                 
Tax on income
   
127
     
-
 
                 
Net comprehensive loss
 
$
3,482
   
$
4,622
 
                 
Net basic and diluted loss per share
   
(2.53
)
   
(3.32
)
                 
Weighted average number of Ordinary Shares used in computing basic  and diluted net loss per share
   
1,448,363
     
1,448,363
 

The accompanying notes are an integral part of the consolidated financial statements.
 
5

 
ADVANCED INHALATION THERAPIES (AIT) LTD.

CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' DEFICIENCY
U.S. dollars in thousands, except share data
 
   
Ordinary shares
   
Preferred A shares
   
Additional paid-in
   
Deficit
   
Total shareholders'
 
   
Number
   
Amount
   
Number
   
Amount
   
capital
   
accumulated
   
Deficiency
 
                                           
Balance as of January 1, 2014
   
1,448,363
   
$
29
     
446,293
   
$
9
   
$
891
   
$
(1,749
)
 
$
(820
)
                                                         
Issuance of Series A Convertible Preferred Shares at $2.457 per share, net of issuance costs
   
-
     
-
     
78,758
     
2
     
107
     
-
     
109
 
Stock-based compensation related to options granted to non-employees and employees
   
-
     
-
     
-
     
-
     
241
     
-
     
241
 
Beneficial conversion feature in respect to Convertible Notes
   
-
     
-
     
-
     
-
     
1,651
     
-
     
1,651
 
Net loss
   
-
     
-
     
-
     
-
     
-
     
(4,622
)
   
(4,622
)
                                                         
Balance as of December 31, 2014
   
1,448,363
     
29
     
525,051
     
11
     
2,890
     
(6,371
)
   
(3,441
)
                                                         
Conversion of warrants into Convertible Preferred A Shares at $2.457 per share, net of issuance costs
   
-
     
-
     
234,035
     
5
     
3,408
     
-
     
3,413
 
Stock-based compensation related to options granted to employees and non-employees
   
-
     
-
     
-
     
-
     
429
     
-
     
429
 
Stock-based compensation related to RSU's granted to Board of Directors' member
   
-
     
-
     
-
     
-
     
18
     
-
     
18
 
Beneficial conversion feature in respect to Convertible Notes
   
-
     
-
     
-
     
-
     
1,239
     
-
     
1,239
 
Net loss
   
-
     
-
     
-
     
-
     
-
     
(3,482
)
   
(3,482
)
                                                         
Balance as of December 31, 2015
   
1,448,363
   
$
29
     
759,086
   
$
16
   
$
7,984
   
$
(9,853
)
 
$
(1,824
)
 
The accompanying notes are an integral part of the consolidated financial statements.
 
6

ADVANCED INHALATION THERAPIES (AIT) LTD.

CONSOLIDATED STATEMENTS OF CASH FLOWS
U.S. dollars in thousands

   
Year ended
December 31,
 
   
2015
   
2014
 
             
Cash flows from operating activities
           
             
Net loss
 
$
(3,482
)
 
$
(4,622
)
Adjustments to reconcile net loss to net cash used in operating activities:
               
Depreciation
   
26
     
20
 
Stock-based compensation and RSU's
   
447
     
241
 
Amortization of beneficial conversion feature and debts issuance costs in Convertible Notes
   
768
     
290
 
Revaluation of warrants to purchase Convertible Preferred A Shares
   
152
     
2,055
 
Imputed interest on convertible notes and loans from related party
   
217
     
83
 
Decrease (increase) in other accounts receivable
   
38
     
(3
)
Increase in trade payables
   
10
     
45
 
Increase in other accounts payable
   
166
     
8
 
                 
Net cash used in operating activities
   
(1,658
)
   
(1,883
)
                 
Cash flows from investing activities
               
                 
Purchase of property and equipment
   
(7
)
   
(18
)
                 
Net cash used in investing activities
   
(7
)
   
(18
)
                 
Cash flows from financing activities
               
                 
Proceeds from loan from related party
   
-
     
22
 
Proceeds from issuance of Convertible Note, net of issuance costs
   
1,239
     
1,830
 
Proceeds from issuance of Convertible Preferred A Shares, net of issuance costs
   
-
     
187
 
Proceeds from conversion of warrants into Convertible Preferred A Shares, net of issuance costs
   
540
     
-
 
Deferred IPO costs that were paid
   
(146
)
   
-
 
                 
Net cash provided by financing activities
   
1,633
     
2,039
 
                 
Increase (decrease) in cash and cash equivalents
   
(32
)
   
138
 
Cash and cash equivalents at the beginning of the year
   
161
     
23
 
                 
Cash and cash equivalents at the end of the year
 
$
129
   
$
161
 
                 
Supplemental disclosure of non‑cash financing activities:
               
                 
Conversion of warrants into Convertible Preferred A Shares
 
$
2,873
   
$
-
 

The accompanying notes are an integral part of the consolidated financial statements.
 
7

 
AD VANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 1:-
GENERAL

a.
Advanced Inhalation Therapies (AIT) Ltd. (the "Company") was incorporated in Israel on May 1, 2011 and commenced its operation in May 2012. The Company is an emerging Israeli drug development Company focusing on the development and commercialization of nitric oxide formulations for the treatment of respiratory infections and diseases. The AIT pipeline includes therapies against respiratory infections in acute and chronic diseases such as: bronchiolitis (RSV), cystic fibrosis (CF), pneumonia, and asthma .

The Company has not generated revenue from the sale of any product, and does not expect to generate significant revenue unless and until the obtaining of marketing approval and commercializing its products .

b.
On August 29, 2014, the Company established a wholly-owned subsidiary, Advanced Inhalation Therapies (AIT) Inc. ("Inc.") in USA which its principal business activity is to provide executive management and administrative support functions to the Company.

c.
Since its inception, the Company has devoted substantially most of its effort to business planning, research and development. The Company has incurred losses and has accumulated negative cash flow from operating activities amounted to $3,482 and $1,658 during the year ended December 31, 2015, respectively, and has an accumulated deficit of $9,853 as of December 31, 2015. These conditions raise substantial doubts about the Company's ability to continue as a going concern. The Company's ability to continue to operate is dependent upon raising additional funds to finance its activities. There are no assurances, however, that the Company will be successful in obtaining an adequate level of financing needed for the long-term development and commercialization of its products.

The consolidated financial statements do not include any adjustments with respect to the carrying amounts of assets and liabilities and their classification that might be necessary should the Company be unable to continue as a going concern.
 
NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES

The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States ("U.S. GAAP").

a.
Use of estimates:

The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates, judgments and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. The Company evaluates on an ongoing basis its assumptions. The Company's management believes that the estimates, judgment and assumptions used are reasonable based upon information available at the time they are made. These estimates, judgments and assumptions can affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the dates of the consolidated financial statements, and the reported amounts of expenses during the reporting periods. Actual results could differ from those estimates.
 
8

 
ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES (Cont.)
 
b.
Principles of consolidation:

The consolidated financial statements include the accounts of the Company and Inc. Inter-company balances and transactions including profits from inter-company sales not yet realized have been eliminated upon consolidation.

c.
Financial statements in U.S. dollars in thousands:

The majority of the Company's operations are currently conducted in Israel while a significant part of the Company's expenses and financing activities are denominated and determined in U.S. dollars. The Company's management believes that the U.S. dollar is the currency of the primary economic environment in which the Company operates and expects to continue to operate in the foreseeable future. Thus, the functional and reporting currency of the Company is the U.S. dollar.

The Company's transactions and balances denominated in U.S. dollars are presented at their original amounts. Non-dollar transactions and balances have been re-measured to U.S. dollars in accordance with the Accounting Standards Board (ASC) 830, "Foreign Currency Matters". All transaction gains and losses from re-measurement of monetary balance sheet items denominated in non-dollar currencies are reflected in the statements of comprehensive loss as financial income or expenses, as appropriate.

d.
Cash equivalents:

Cash equivalents are short-term highly liquid investments that are readily convertible to cash with original maturities of three months or less at acquisition.
 
 
e.
Restricted bank deposits:

Restricted bank deposits are pledged in favor of a bank which provides to the Company guarantees with respect to office lease agreements.

f.
Long-term lease deposits:

Long-term deposits include long-term deposits for leasing office under operating leases, presented at their cost.
 
9

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES (Cont.)
 
g.
Property and equipment, net:

Property and equipment are stated at cost, net of accumulated depreciation. Depreciation is calculated using the straight-line method over the estimated useful lives of the assets at the following rates:

   
%
     
Computers and electronic equipment
 
33
Office furniture and equipment
 
7-15
Clinical and medical equipment
 
15
Leasehold improvements
 
Over the shorter of the lease
term or useful economic life

h.
Impairment for long-lived assets:

The Company's long-lived assets are reviewed for impairment in accordance with ASC 360, whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to the future undiscounted cash flows expected to be generated by the assets. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell. During the years ended December 31, 2015 and 2014, no impairment losses have been identified.

i.
Severance pay:

The Company's liability for severance pay is pursuant to Section 14 of the Severance Compensation Act, 1963 ("Section 14"), all the employees are included under this section, and are entitled only to monthly deposits, at a rate of 8.33% of their monthly salary, made in the employee's name with insurance companies. Payments in accordance with Section 14 release the Company from any future severance payments in respect of those employees. The fund is made available to the employee at the time the employer-employee relationship is terminated, regardless of cause of termination. The severance pay liabilities and deposits under section 14 are not reflected in the balance sheet as the severance pay risks have been irrevocably transferred to the severance funds.
 
j.
Income taxes:

The Company accounts for income taxes in accordance with ASC 740, "Income Taxes". This topic prescribes the use of the liability method whereby deferred tax assets and liability account balances are determined based on differences between financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. The Company provides full valuation allowance, to reduce deferred tax assets to the amount that is more likely than not to be realized.

10

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES (Cont.)
 
The Company implements a two-step approach to recognize and measure uncertain tax positions.  The first step is to evaluate the tax position taken or expected to be taken in a tax return by determining if the weight of available evidence indicates that it is more likely than not that, on an evaluation of the technical merits, the tax position will be sustained on audit, including resolution of any related appeals or litigation processes. The second step is to measure the tax benefit as the largest amount that is more than 50% (cumulative basis) likely to be realized upon ultimate settlement. As of December 31, 2014, the Company has not recorded a liability for uncertain tax positions . As of December 31, 2015, the Company has recorded a liability for uncertain tax position in connection to implementation of cost plus method for certain services that have been provided by Inc. to the Company.

k.
Concentrations of credit risk:

Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash, cash equivalents and restricted bank deposits. Cash, cash equivalents and restricted bank deposits are invested in major banks in Israel and U.S. Management believes that the financial institutions that hold the Company's investments are financially sound and, accordingly, minimal credit risk exists with respect to these investments.

The Company has no off-balance-sheet concentration of credit risk such as foreign exchange contracts, option contracts or other foreign hedging arrangements.

l.
Legal and other contingencies:

The Company accounts for its contingent liabilities in accordance with ASC 450. A provision is recorded when it is both probable that a liability has been incurred and the amount of the loss can be reasonably estimated. With respect to legal matters, provisions are reviewed and adjusted to reflect the impact of negotiations, estimated settlements, legal rulings, advice of legal counsel and other information and events pertaining to a particular matter. As of December 31, 2015 and 2014, the Company is not a party to any litigation that could have a material adverse effect on the Company's business, financial position, results of operations or cash flows.
 
m.
Research and development expenses:

Research and development expenses are charged to the statement of comprehensive loss as incurred.
 
11

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES (Cont.)
 
n.
Fair value of financial instruments:

ASC 820, "Fair Value Measurements and Disclosures" ("ASC 820"), defines fair value as the price that would be received to sell an asset or paid to transfer a liability (i.e., the "exit price") in an orderly transaction between market participants at the measurement date.

In determining fair value, the Company uses various valuation approaches. ASC 820 establishes a hierarchy for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available. Observable inputs are inputs that market participants would use in pricing the asset or liability developed based on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the Company's assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best information available in the circumstances.

The hierarchy is broken down into three levels based on the inputs as follows:

Level 1 
-
Valuations based on quoted prices in active markets for identical assets that the Company has the ability to access.
     
Level 2 
-
Valuations based on one or more quoted prices in markets that are not active or for which all significant inputs are observable, either directly or indirectly.
     
Level 3 
-
Valuations based on inputs that are unobservable and significant to the overall fair value measurement.

The availability of observable inputs can vary from investment to investment and is affected by a wide variety of factors, including, for example, the type of investment, the liquidity of markets and other characteristics particular to the transaction. To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment and the investments are categorized as Level 3.

Warrants to purchase Convertible Preferred A Shares are classified within level 3 as the valuation inputs are unobservable and significant to the overall financial instrument (see also Note 7).

The carrying amounts of cash and cash equivalents, restricted bank deposits, trade payables, and other accounts payable approximate their fair value due to the short-term maturities of such instruments

12

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES (Cont.)

o.
Basic and diluted net loss per share:

The Company applies the two class method as required by ASC No. 260-10, "Earnings Per Share" ("ASC No. 260-10") which requires the income or loss per share for each class of shares (Ordinary and Preferred Shares) to be calculated assuming 100% of the Company's earnings are distributed as dividends to each class of shares based on their contractual rights. No dividends were declared or paid during the reported years.

According to the provisions of ASC No. 260-10, the Company's Convertible Preferred A Shares are not participating securities in losses and, therefore, are not included in the computation of net loss per share.

Basic net loss per share is computed based on the weighted average number of Ordinary Shares outstanding during each year.  Diluted net loss per share is computed based on the weighted average number of Ordinary Shares outstanding during each year plus dilutive potential equivalent Ordinary shares considered outstanding during the year, in accordance with ASC 260.

For the years ended December 31, 2015 and 2014, all outstanding Convertible Preferred A Shares, stock options, restricted share units and warrants have been excluded from the calculation of the diluted net loss per share as all such securities are anti-dilutive for all years presented.

p.
Warrants to purchase Convertible Preferred A Shares:

The Company accounts for freestanding warrants to purchase shares of its Convertible Preferred A Shares held by investors as a liability on its balance sheet at fair value according to the provisions of ASC 480, "Distinguishing Liabilities from Equity", as the underlying Convertible Preferred A Shares are contingently redeemable upon a deemed liquidation event and, therefore, may obligate the Company to transfer assets in the future. The warrants are subject to re-measurement to fair value at each balance sheet date and any change in fair value is recognized as a component of financial income (expense), net, on the statements of comprehensive loss (see also Note 7). The Company continues to adjust the liability for changes in fair value until the earlier of the exercise or expiration of the warrants, the completion of deemed liquidation event or the conversion of Convertible Preferred A Shares into Ordinary Shares.

q.
Stock-based compensation:

The Company accounts for stock-based compensation in accordance with ASC 718, "Compensation Stock Compensation", ("ASC 718"), which requires companies to estimate the fair value of equity based payment awards on the date of grant using an option pricing model. The value of the portion of the award that is ultimately expected to vest is recognized as an expense over the requisite or derived service period in the Company's consolidated statement of comprehensive loss.

13

 
ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 2: -
SIGNIFICANT ACCOUNTING POLICIES (Cont.)

The Company recognizes compensation expense for the value of its awards granted based on the accelerated method over the requisite or derived service period of each of the awards, net of estimated forfeitures. ASC 718 requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates.

The Company estimates the fair value of stock options granted using the Black-Scholes-Merton option-pricing model which requires a number of assumptions, of which the most significant are the fair market value of the underlying Ordinary Shares, expected stock price volatility and the expected option term. Expected volatility was calculated based upon historical volatilities of similar entities in the related sector index. The expected option term represents the period that the Company's stock options are expected to be outstanding and is determined based on the simplified method until sufficient historical exercise data will support using expected life assumptions. The risk-free interest rate is based on the yield from U.S. treasury bonds with an equivalent term. The expected dividend yield assumption is based on the Company's historical experience and expectation of no future dividend payouts. The Company has historically not paid cash dividends and has no foreseeable plans to pay cash dividends in the future.

The fair value of Ordinary Shares underlying the options was determined by the Company's management with the assistance of an independent valuation firm. Because there has been no public market for the Ordinary Shares, the Company's management has determined fair value of the Ordinary Shares at the time of grant by considering a number of objective and subjective factors including data from other comparable companies, operating and financial performance, the lack of liquidity of capital stock and general and industry specific economic outlook, amongst other factors. The fair value of the underlying Ordinary Shares shall be determined by management until such time as the Ordinary Shares are listed on an established stock exchange, national market system or other quotation system. For the years ended December 31, 2015 and 2014, the valuations were performed using the Hybrid Method by combining the Option Pricing Method, expected IPO method and a discounted cash flow model to determine the fair value of the Company's Ordinary Shares.

The fair value for options granted in 2015 and 2014 to employees and directors of the Company is estimated at the date of grant using a Black-Scholes-Merton Options pricing model with the following weighted average assumptions:
 
   
2015
   
2014
 
             
Dividend yield
   
0
%
   
0
%
Expected volatility
   
88.9
%
   
93.1
%
Risk-free interest
   
2.1%-3.5
%
   
1.04-1.84
%
Expected life (years)
   
5.5-6.25
     
5.3-6
 

The Company applies ASC 505-50, "Equity-Based Payments to Non-Employees" ("ASC 505") with respect to options and warrants issued to non-employees which requires the use of option valuation models to measure the fair value of the options and warrants at the measurement date.
 
14

 
ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 2:-
SIGNIFICANT ACCOUNTING POLICIES (Cont.)

r.
Impact of recently issued accounting standards:

1.
In April 2015, the FASB Issued ASU 2015-03, "Interest-Imputation of Interest". ASU 2015-03 reduces the complexity of disclosing debt issuance costs and debt discount and premium on the balance sheet by requiring that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The effective date of ASU 2015-03 is for interim and annual reporting periods beginning after December 15, 2016. Early adoption is permitted. The new guidance will be applied retrospectively to each prior period presented. The ASU 205-03 has been early adopted by the Company.

2.
In February 2016, the FASB issued ASU 2016-02 - Leases (ASC 842), which sets      out the principles for the recognition, measurement, presentation and disclosure of   leases for both parties to a contract (i.e. lessees and lessors). The new standard requires lessees to apply a dual approach, classifying leases as either finance or operating leases based on the principle of whether or not the lease is effectively a financed purchase by the lessee. This classification will determine whether lease expense is recognized based on an effective interest method or on a straight line basis over the term of the lease, respectively. A lessee is also required to record a right-of-use asset and a lease liability for all leases with a term greater than 12 months regardless of their classification. Leases with a term of 12 months or less will be accounted for similar to existing guidance for operating leases today. The new standard requires lessors to account for leases using an approach that is substantially equivalent to existing guidance for sales-type leases, direct financing leases and operating leases. The ASU is expected to impact the Company's consolidated financial statements as we have certain operating lease arrangements. ASC 842 supersedes the previous leases standard, ASC 840 Leases. The standard is effective for fiscal years beginning after December 15, 2019, with early adoption permitted. The Company is currently in the process of evaluating the impact of the adoption of this standard on its consolidated financial statements.

3.
On March 30, 2016, the FASB issued ASU 2016-09, Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting which affect all entities that issue share-based payment awards to their employees and involve multiple aspects of the accounting for share-based payment transactions, including income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. ASU 2016-09 is effective for annual periods beginning after December 15, 2017, and interim periods within those annual periods. The Company is currently evaluating the impact of the guidance on its consolidated financial statements.

15

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 3:-
OTHER ACCOUNTS RECEIVABLE

   
December 31,
 
   
2015
   
2014
 
             
Prepaid expenses
 
$
5
   
$
17
 
Governments authorities
   
6
     
29
 
                 
   
$
11
   
$
46
 
 
NOTE 4:-        PROPERTY AND EQUIPMENT, NET

   
December 31,
 
   
2015
   
2014
 
Cost:
           
Computers and electronic equipment
 
$
23
   
$
19
 
Office furniture and equipment
   
10
     
10
 
Clinical and medical equipment
   
119
     
117
 
Leasehold improvement
   
3
     
2
 
                 
     
155
     
148
 
Accumulated depreciation:
               
Computers and electronic equipment
   
12
     
4
 
Office furniture and equipment
   
1
     
1
 
Clinical and medical equipment
   
49
     
31
 
Leasehold improvement
   
*) -
 
   
*) -
 
                 
     
62
     
36
 
                 
Depreciated cost
 
$
93
   
$
112
 

*)
Represents an amount lower than 1$.

Depreciation expenses for the years ended December 31, 2015 and 2014 were $26 and $20, respectively.
 
NOTE 5:-
OTHER ACCOUNTS PAYABLE

   
December 31,
 
   
2015
   
2014
 
             
Employees and payroll accruals
 
$
64
   
$
59
 
Income tax
   
127
     
-
 
Accrued expenses
   
525
     
285
 
                 
   
$
716
   
$
344
 

16

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 6:-
CONVERTIBLE NOTES

Starting December 2013 and until December 31, 2015, the Company entered into Convertible Notes Agreements ("Agreement") and received an aggregate amount of $3,158 ("Convertible Notes"), $586 out of which from related parties (see also Note 11e). Such Convertible Notes bear an interest rate of 8% per annum compounded annually and are convertible, with accrued interest, to the most senior shares of the Company. The maturity date of the Convertible Notes, unless converted earlier, is the earlier to occur of (i) December 12, 2017 or (ii) an event of default as defined in the Agreement. The conversion price was set to (i) $2.457 upon voluntary conversion, and (ii) the lowest of 66.6% of the price of the most senior shares of the Company or a price per share of $5.46 calculated in accordance with the valuation of the Company being $13,333 ("Discounted Conversion Price") upon mandatory conversion in case of a "triggering event" as defined in the Agreement.

According to the Agreement, upon a triggering event caused by a financing round of at least $2,000, the holders of the Convertible Notes will have the right to participate in the next equity round, and shall have the right to purchase an amount of the most senior class of shares to be issued to the investors in such equity round, at a discounted conversion price ("Participation Rights"). In the event of an initial public offering of the Company at the offering price reflecting a pre-money valuation of at least $20,000 ("Qualified IPO"), the Participation Rights will automatically expire and the holder will instead be granted options to purchase Ordinary Shares of the Company, for an aggregate price of the principal amount invested via Convertible Notes. The exercise price of the option will be equal to the Discounted Conversion Price. The options will remain exercisable until the earlier of two years from a Qualified IPO and an acquisition of the Company.

With respect to the aforesaid Convertible Notes, the Company applies ASC 470, "Debt with Conversion and Other Options" ("ASC 470"), pursuant to which the Company recognizes and measures the Beneficial Conversion Feature ("BCF") in the Convertible Notes at the commitment date by allocating a portion of the proceeds equal to the intrinsic value of the feature to additional paid-in-capital. The intrinsic value of the feature is calculated on the commitment date using the effective conversion price. The discount resulting from the BCF is amortized over the life of the Convertible Notes through financial expenses unless mandatorily converted earlier.

The Convertible Notes balance consists of the following:

   
December 31,
 
   
2015
   
2014
 
             
Opening balance
 
$
568
   
$
13
 
Receipt of Convertible Notes
   
1,277
     
1,830
 
BCF in respect of Convertible Notes
   
(1,239
)
   
(1,651
)
Amortization of BCF
   
759
     
290
 
Capitalization of debts issuance costs
   
(38
)
   
-
 
Amortization of debts issuance costs
   
9
     
-
 
Imputed interest
   
216
     
86
 
                 
   
$
1,552
   
$
568
 

17

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 6:-
CONVERTIBLE NOTES (Cont.)

Subsequent to December 31, 2015, the Company received additional proceeds amounted to $184 from issuance of Convertible Notes at the same terms as the aforesaid Convertible Notes. The related BCF of these additional Convertible Notes amounted to $180 (see also Note 14g).
 
NOTE 7:-
WARRANTS TO PURCHASE CONVERTIBLE PREFERRED A SHARES

As part of financing rounds that were occurred in November 2012 and August 2013, the Company has issued 203,508 and 16,281 warrants to purchase Convertible Preferred A Shares, respectively. The warrants are exercisable to Convertible Preferred A Shares on a 1:1 basis with an exercise price per share of $2.457.

In April 2014, following to financing rounds as mentioned above, the Company committed to issue 8,140 warrants to purchase up to 8,140 of the Company's Convertible Preferred A Shares to consultant in respect to services provided as part of the financing rounds.

The Company has allocated the gross proceeds in each financing round to the warrants based on their fair value at the issuance date and the residual amount was allocated to the Convertible Preferred A Shares. The Company has allocated the related direct and incremental issuance costs in each financing round to the warrants and the Convertible Preferred A shares issued based on the relative fair value at the issuance date.

In accordance with ASC 480 "Distinguishing Liabilities from Equity", the warrants to purchase Convertible Preferred A Shares are classified as a liability and re-measured to fair value at each reporting date. The changes in the fair value are recorded as an expense or income in the statements of comprehensive loss.

In January and August 2015, the warrants were exercised to 219,789 Convertible Preferred A Shares for a total consideration of $540. In addition, 8,140 warrants were exercised to 8,140 Convertible Preferred A Shares with no exercise price.

In estimating the warrants' fair value, the Company used the following assumptions:

   
December 31,
 
   
2015
   
2014
 
             
Risk‑free interest rate(1)
   
1.49
%
   
0.62
%
Expected volatility(2)
   
88.9
%
   
93.1
%
Expected life (in years)(3)
   
1.95
     
1.00
 
Expected dividend yield(4)
   
0
%
   
0
%
Fair value:
               
Warrants
 
$
0.44-0.77
   
$
0.36-1.23
 

(1)
Risk free interest rate based on yield rates of non-index linked U.S. Federal Reserve treasury bonds.

18

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 7:-
WARRANTS TO PURCHASE CONVERTIBLE PREFERRED A SHARES (Cont.)

(2)
Expected volatility was calculated based on actual historical share price movements of companies in the same industry over a term that is equivalent to the expected term of the option.

(3)
Expected life was based on the contractual term of the warrants.

(4)
Expected dividend yield was based on the fact that the Company has not paid dividends to its shareholders in the past and does not expect to pay dividends to its shareholders in the future.

The following tabular presentation reflects the components of the liability associated with such warrants to purchase Convertible Preferred A Shares as of December 31, 2015:
 
   
Fair value
of Warrants to purchase Convertible Preferred A Shares
 
       
Balance at January 1, 2014
 
$
588
 
Fair value of warrants issued to finder fee (see also Note 10c1)
   
78
 
Revaluation of warrants' fair value
   
2,055
 
         
Balance at December 31, 2014
   
2,721
 
Revaluation of warrants' fair value upon conversion
   
152
 
Conversion of warrants into Convertible Preferred A Shares (see also Notes 10c2 and 10c3)
   
(2,873
)
         
Balance at December 31, 2015
 
$
-
 
 
NOTE 8:-
TAXES ON INCOME

a.
Tax rates applicable to the Company:

1.
Taxable income of the Company is subject to the Israeli corporate tax at the rates of 26.5% in 2014 and 2015.

2.
On January 5, 2016, the Israeli Parliament officially published the Law for the Amendment of the Israeli Tax Ordinance (Amendment 216), that reduces the standard corporate income tax rate from 26.5% to 25%.
 
19

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 8:-
TAXES ON INCOME (Cont.)
 
b.
Non-Israeli subsidiary, AIT Inc.:

AIT Inc. is subject to U.S. income taxes. The tax rates are compounded from a progressive federal tax of 35% in addition to a state and local taxes.
 
c.
Income taxes on non-Israeli subsidiaries:

Non-Israeli subsidiaries are taxed according to the tax laws in their respective country of residence. Neither Israeli income taxes, foreign withholding taxes nor deferred income taxes were provided in relation to undistributed earnings of the Company's foreign subsidiaries. This is because the Company has the intent and ability to reinvest these earnings indefinitely in the foreign subsidiaries and therefore those earnings are continually redeployed in those jurisdictions.

 
d.
Net operating losses carry forward:

Advanced Inhalation Therapies (AIT) Ltd. has accumulated losses for tax purposes as of December 31, 2015 in the amount of approximately $4,142 which may be carried forward and offset against taxable income in the future for an indefinite period.

 
e.
Deferred income taxes:

Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company's deferred tax assets are as follows:

   
December 31,
 
   
2015
   
2014
 
Deferred tax assets:
           
Operating loss carry forward
 
$
1,098
   
$
747
 
Reserves and allowances
   
8
     
6
 
Research and development
   
318
     
254
 
                 
Net deferred tax asset before valuation allowance
   
1,424
     
1,007
 
Valuation allowance
   
(1,424
)
   
(1,007
)
                 
Net deferred tax asset
 
$
-
   
$
-
 

In assessing the realization of deferred tax assets, management considers whether it is more likely than not that all or some portion of the deferred tax assets will not be realized. The ultimate realization of the deferred tax assets is dependent upon the generation of future taxable income during the periods in which temporary differences are deductible and net operating losses are utilized. Based on consideration of these factors, the Company recorded a full valuation allowance at December 31, 2015 and 2014.
 
20

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 8:-
TAXES ON INCOME (Cont.)
 
f.
Taxes on income for the year ended December 31, 2015 are comprised from taxes incurred as a result of the implementation of the cost plus service agreement between the Company and Inc.
 
g.
Loss (income) before taxes on income consists of the following:

   
December 31,
 
   
2015
   
2014
 
             
Domestic
 
$
3,453
   
$
4,622
 
Foreign
   
(98
)
   
-
 
                 
   
$
3,355
   
$
4,622
 

h.
The main reconciling item between the statutory tax rate of the Company and the effective tax rate is the recognition of valuation allowances in respect to deferred taxes relating to accumulated net operating losses carried forward due to the uncertainty of the realization of such deferred taxes.

i.
Accounting for uncertainty in income taxes:

A reconciliation of the beginning and ending amount of unrecognized tax benefits related to uncertain tax positions is as follows:

   
Year ended
December 31,
 
   
2015
   
2014
 
             
Balance at beginning of year
 
$
-
   
$
-
 
Additions for current year's tax position
   
127
     
-
 
                 
Balance at the end of year
 
$
127
   
$
-
 

The Company does not expect a reversal of unrecognized tax benefits in the next 12 months.

The Company and Inc. file income tax returns in Israel and U.S, respectively. As of December 31, 2015, the tax returns of the Company and Inc. are open to examination by the tax authorities from inception through 2015.

21

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 9:-       CONTINGENT LIABILITIES AND COMMITMENTS

a.
The Company is engaged in an operating lease agreement for its office facilities. Future minimum non-cancelable rental payments under the operating lease are $14 for the year ending December 31, 2016. Rent expenses for the years ended December 31, 2015 and 2014 amounted to $18 and $22, respectively.
 
b.
On October 22, 2013, the Company entered into certain patent license agreement with a third party pursuant to which the Company paid to the third party a non-refundable upfront fee amounted to $150 and is obligated to pay the third party 5% royalties of the licensed product revenues, but at least $50 per annum at the royalty period. As of December 31, 2015, the Company did not record any revenues and therefore no royalties were paid or accrued.
 
c.
On April 8, 2014, the Company signed a finder fee agreement pursuant to which among others the Company will grant to the finder fee of 6% of the Company's conversion shares to be actually issued to certain lenders upon actual conversion of the lender's Convertible Notes as described in Note 6.

d.
On March 4, 2015, the Company entered into an agreement with certain gas supplier pursuant to which the supplier will receive exclusivity on the US market in exchange for gas supply for clinical studies for Bronchiolitis.

e.
On August 3, 2015 ("Effective Date"), the Company entered into agreement with certain individual to serve as the Company's chairman of the Board of Directors pursuant to which, among others, the Company will pay as compensation and benefits upon consummation of Initial Public Offering ("IPO") (i) an annual retainer of $75 to be paid on equal installments and (ii) 492,624 restricted shares of the Company with vesting schedule of 50% if such shares to be vested after 6 month anniversary of the completion of an IPO and the remaining 50% of such shares after 18 month anniversary of the completion of an IPO. Upon closing change of control transaction, as defined in the agreement, the unvested options shall be accelerated and vested immediately.

The agreement shall commence as of the Effective Date and shall continue for a period of three years, subject to earlier termination as defined in the agreement.
 
f.
In August 2015, the Company entered into an Option Agreement ("Agreement") with a third party whereby the Company acquired for $25 the Option to purchase certain intellectual property assets and rights ("Option"). According to the Agreement, the Option is exercisable for a period of six months starting August 2015 (which was extended in 2016 for a period which is ended January 2017 ). Upon exercise of the Option , the Company will be obligated to pay an exercise price of $500 and will be required to make certain one-time development and sales milestone payments to the third party starting from the date when the Company will receive regulatory approval for the commercial sale of its first product candidate.
 
22

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 9:-       CONTINGENT LIABILITIES AND COMMITMENTS (Cont.)

In addition, the Company has issued to the third party a warrant to purchase up to such amount of Ordinary Shares of the Company in such number equal to $1,000 divided by 80% of the price per share of each Ordinary Share of the Company determined for the purposes of the Company's IPO. The warrant shall be exercisable, in whole or in part, until the seventh anniversary as of the date of grant of the warrant.

g.
The Company entered into employment agreements with certain employees and service agreements with certain vendors pursuant to which the Company will pay a one-time payment in the event the Company succeeds in achieving and consummating an IPO and/or financing round. As of December 31, 2015, the Company's contingent commitment in such regard amounted to approximately $318.
 
NOTE 10:-
 SHAREHOLDERS' DEFICIENCY

a.
Share capital:

1.
Ordinary Shares

The Ordinary Shares confer upon their holders the right to participate and vote in general shareholders meetings of the Company and to share in the distribution of dividends, if any, declared by the Company, and rights to receive a distribution of assets upon liquidation.

2.
Convertible Preferred A Shares:

The Convertible Preferred A Shares confer on the holders thereof all rights accruing to holders of Ordinary Shares in the Company and, in addition, bear the following rights (and such other rights set forth in the Company's AOA):

Voting - Every holder of Convertible Preferred A Shares shall have one vote for each Ordinary Share into which the Convertible Preferred A Shares held by him of record could be converted, on every resolution, without regard to whether the vote thereon is conducted by a show of hands, by written ballot or by any other means. The holders of each class of Convertible Preferred A Shares shall vote separately on all matters that by law or under the Articles of Association are subject to a class vote.

Conversion - Each Preferred A Share shall be convertible, without payment of additional consideration, by the holder thereof into Ordinary Shares at the option of the holder thereof, at any time after the date on which such Preferred A Share was issued by the Company. In addition, all Convertible Preferred A Shares are mandatorily convertible into Ordinary Shares simultaneously with the occurrence of the first to occur of (A) the consummation of an IPO of the Company’s Ordinary Shares, reflecting a pre-money valuation of the Company of no less than $20,000 and netting to the Company proceeds of no less than $5,000; or (B) the holders of the majority of the issued and outstanding Convertible Preferred A Shares elect to convert their Convertible Preferred A Shares into Ordinary Shares.

23

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 10:-
SHAREHOLDERS' DEFICIENCY (Cont.)

Dividend Preference - When, as, and if a dividend is declared and distributed, the holders of the Convertible Preferred A Shares shall be entitled to receive, prior to any distribution of dividends to the holders of Ordinary Shares, a dividend, up to the cumulative aggregate amount, with respect to all dividends distributed, of the Preferred A Preference Amount (as defined below). After the dividend preferences of the Convertible Preferred A Shares have been paid in full, the Convertible Preferred A Shares will participate pro-rata with the Ordinary Shares in the receipt of any additional dividends on an as-converted basis.

Liquidation Preference - In the event of any liquidation (including a deemed-liquidation event), each holder of Convertible Preferred A Shares, then outstanding, shall be entitled to be paid out of the assets available for distribution to the shareholders, whether capital, surplus, earnings, securities or assets of any kind (the "Liquidation Assets"), prior and in preference to any distribution, declaration or setting apart for payment of any amount made in respect of any other shareholder an amount per share equal to the original issue price plus 8% per annum, plus any accrued but unpaid dividends thereon, but minus any dividends previously declared and paid for such share ("Preferred A Preference Amount").

b.
On October 28, 2016, the Company's Board of Directors and the shareholders approved a reverse share split of all outstanding Ordinary Shares of the Company, by way of issuance and distribution of bonus shares without a change in nominal value of the Company's outstanding shares at a ratio of approximately 8.03 for 1.

For accounting purposes, all Ordinary Shares, warrants to purchase Ordinary Shares and Convertible Preferred A Shares, options to purchase Ordinary Shares and loss per share amounts have been adjusted to give retroactive effect to this reverse share split for all periods presented in these consolidated financial statements. Any fractional shares resulting from the reverse share split will be rounded up to the nearest whole share.

c.
Issuances of Convertible Preferred A Shares:

1.
In April 2014, as a part of the second installment to the Share Purchase Agreement ("SPA") dated November 2012, the Company issued 76,316 Convertible Preferred A Shares at a price per share of $2,457 for a total consideration of $187. In addition, the Company issued to consultant in respect to services provided as part of the SPA (i) 2,442 Convertible Preferred A Shares at par value on the issuance date (fair value of approximately $38 based on the Preferred A Share value as of the issuance date), and (ii) warrants to purchase up to 8,140 of the Company's Convertible Preferred A Shares (fair value of approximately $78 based on the Preferred A Share Warrants value as of the issuance date).

2.
In January 2015, one of the Company's shareholders exercised 101,754 warrants to 101,754 Convertible Preferred A Shares for a total consideration of $250 which reflects an exercise price of $2.457. Consequently, the Company issued additional 4,070 Convertible Preferred A Shares at par value on the issuance date to consultant in respect to exercise of 4,070 warrants.

24

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 10:-
SHAREHOLDERS' DEFICIENCY (Cont.)

3.
In August, 2015, the Company's shareholders exercised 118,035 warrants to 118,035 Convertible Preferred A Shares for a total consideration of $290 which reflects an exercise price of $2.457. Consequently, the Company issued additional 4,070 Convertible Preferred A Shares at par value on the issuance date to consultant in respect to exercise of 4,070 warrants.

In addition, the Company decided to grant to the aforementioned shareholders additional 5,902 warrants to purchase Convertible Preferred A Shares at par value with no exercise price which have been converted into 5,902 Convertible Preferred A Shares. Consequently, the Company issued additional 204 Convertible Preferred A Shares at par value to consultant in such respect.

d.
During the year ended December 31, 2015, the Company incurred direct and incremental costs related to the IPO, including among others, accounting, consulting, legal and printing fees of $352, which were capitalized as a non-current asset. As of December 31, 2015, $146 out of the aforementioned amount was paid.

e.
Stock options granted to employees:

In September and December 2013, the Company authorized through its 2013 Incentive Option Plan (the "2013 Plan"), the grant of options and Restricted Share Units ("RSU's") to officers, directors, advisors, management and other key employees. The Company reserved for grants of options up to 466,676 of the Company's Ordinary Shares. The options granted have generally between 2 to 4 years vesting terms and expire 10 years after the grant date. Certain options will be accelerated upon fulfillment of certain conditions. As of December 31, 2015, 192,263 options and RSU's were still available for future grants under 2013 Plan.

A summary of the Company's options activity for employees and directors under the Company's 2013 Plan is as follows:
 
     
Year ended
December 31, 2015
 
     
Number of options 
     
Weighted average exercise price 
     
Weighted average remaining contractual life 
 
                         
Options outstanding at beginning of year
   
68,859
   
$
1.20
     
8.84
 
Granted
   
90,688
     
5.46
     
9.67
 
Forfeited
   
(12,941
)
   
5.46
     
8.36
 
                         
Options outstanding at end of year
   
146,606
     
3.38
     
8.92
 
                         
Options vested and expected to be vested
   
146,606
     
3.38
     
8.92
 
                         
Options exercisable at end of year
   
61,636
   
$
0.73
     
7.91
 
 
25

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 10:-
SHAREHOLDERS' DEFICIENCY (Cont.)

As of December 31, 2015, the aggregated intrinsic value of outstanding and exercisable options is $ 242 and $ 201 , respectively. The aggregate intrinsic value represents the total intrinsic value (the difference between the deemed fair value of the Company's Ordinary Shares on the last day of fiscal 2015 and the exercise price, multiplied by the number of in-the-money options) that would have been received by the option holders had all option holders exercised their options on December 31, 2015. This amount is impacted by the changes in the fair market value of the Company's shares.

f.      Stock options granted to non-employees:

The Company granted options to certain non-employees under the Company's 2013 Plan and accounted for these options in accordance with ASC 505-50.

The outstanding options granted to the Company's non-employees are as follows:
 
Grant date
 
Number of options
   
Exercise
price
 
Expiration date
September 8, 2013
   
17,080
   
$
4.01
 
September 8, 2023
September 8, 2013
   
2,340
   
$
* ) -
September 8, 2023
December 29, 2013
   
3,511
   
$
4.01
 
December 29, 2023
April 8, 2014
   
9,158
    $
* ) -
  April 8, 2024
July 24, 2014
   
2,492
    $
5.46
   July 24, 2024
March 1, 2015
   
57,779
    $
5.46
  March 1, 2025
October 20, 2015
   
12,456
   
$
* ) -
 
October 20, 2025
December 1, 2015
   
11,210
   
$
5.46
 
December 1, 2025
                   
       116,026            
 
*)
Represents an amount lower than $1.

g.
Stock-based compensation expenses:

The stock-based compensation expense recognized in the consolidated financial statements for services received from employees, directors and non-employees is shown in the following table:

   
Year ended
December 31,
 
   
2015
   
2014
 
             
Research and development expenses
 
$
331
   
$
185
 
General and administrative expenses
   
98
     
56
 
                 
   
$
429
   
$
241
 
 
As of December 31, 2015, the total unrecognized estimated compensation cost related to non-vested stock options granted to employees, directors and non-employees prior to that date was $ 452 , which is expected to be recognized over a weighted average period of approximately 4  years.
26


ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 10:-
SHAREHOLDERS' DEFICIENCY (Cont.)
 
  The weighted average grant date fair value of options granted during the years ended December 31, 2015 and 2014 was $0. 55 and $1.2, respectively.
 
h.
On August 31, 2015, the Company's Board of Directors approved grant of 11, 781 RSU's to one of the Board of Directors' members with a vesting schedule of three years from September 3, 2015. During the year ended December 31, 2015, expenses amounted to $18 have been recognized in the general and administrative expenses.
 
NOTE 11:-
RELATED PARTIES BALANCES AND TRANSACTIONS

Balances with related parties:

   
December 31,
 
   
2015
   
2014
 
             
Convertible Notes (e)
 
$
586
   
$
280
 
                 
Other accounts payable (b), (c), (f)
 
$
17
   
$
21
 
                 
Loan from related party (a)
 
$
29
   
$
28
 

Related parties' expenses:
   
Year ended
December 31,
 
   
2015
   
2014
 
Amounts charged to:
           
             
General and administrative expenses (d), (f)
 
$
227
   
$
96
 
                 
Research and Development expenses (b), (c)
 
$
76
   
$
103
 
                 
Financial expense (a), (e)
 
$
50
   
$
91
 

a.
On April 9, 2012, the Company signed a loan agreement with one of its shareholders for a total amount of $27. The loan bears an interest of 3% per annum and is payable on the earlier of December 31, 2015 or in two installments of $20 and $7. On November 2012, an amount of $20 was repaid by the Company.

On February 10, 2014, the Company signed a loan agreement with one of its shareholders for a total amount of $22. The loan bears an interest of 4% per annum and is payable at December 31, 2015.

b.
On September 9, 2012, the Company signed an agreement (which was amended at November 8, 2012) with a consultant, who is also one of the Company's shareholders. According to the agreement and amendment, the consultant will serve as the Company's Chief Medical Officer for a consideration of approximately $3 per month. For the years ended December 31, 2015 and 2014, the company recorded expenses in the amount of $56 and $43, respectively.

27

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 11:-
RELATED PARTIES BALANCES AND TRANSACTIONS (Cont.)

c.
On December 15, 2012, the Company signed an agreement with a consultant, who is also one of the Company's shareholders. According to the agreement and amendment, the consultant will serve as the Company's Chief Scientific Officer based on hourly rate. For the years ended December 31, 2015 and 2014, the company recorded expenses in the amount of $20 and $60.

d.
On November 26, 2012, the Company signed an agreement with a consultant, who is also a related party of the Company. According to the agreement, the Company will receive legal and notary services from the consultant. For the years ended December 31, 2015 and 2014, the Company recorded expenses in the amounts of $15 and $51, respectively.

e.
Commencing December 2013, the Company signed a certain convertible note agreements of which consideration of $586 and $280 were with related parties as of December 31, 2015 and 2014 respectively (see also Note 6 for further details). The Convertible notes bear an interest rate of 8% per annum compounded annually. For the years ended December 31, 2015 and 2014, the Company recorded finance expenses in the amounts of $50 and $91, respectively.

f.
On October 1, 2014, the Company signed an agreement with a consultant, who is also one of the Company's shareholders. According to the agreement, the consultant will serve as the Company's Chief Executive Officer based on monthly rate. For the years ended December 31, 2015 and 2014, the Company recorded expenses in the amount of $212 and $45, respectively.

Subsequent to December 31, 2015, the Company entered into loan agreement with existing shareholders pursuant to which the Company received amount of $230 which bears an interest rate of 16% per annum (See also Note 14e).
 
NOTE 12:-
FINANCIAL EXPENSES, NET

   
Year ended
December 31,
 
   
2015
   
2014
 
Financial expenses, net:
           
Bank charges and other
 
$
5
   
$
5
 
Imputed interest expense   in respect to Convertible Notes
   
216
     
86
 
Foreign currency translation adjustments, net
   
5
     
30
 
Amortization of debt issuance costs
   
9
     
-
 
Amortization of BCF in respect to Convertible Notes
   
759
     
290
 
                 
   
$
994
   
$
411
 

28

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 13:-
BASIC AND DILUTED NET LOSS PER SHARE

The following table sets forth the computation of the Company's basic and diluted net loss per share of Ordinary Share:

   
Year ended
December 31
 
   
2015
   
2014
 
             
Net comprehensive income
 
$
(3,482
)
 
$
(4,622
)
Convertible Preferred A Shares accumulated dividend (*)
   
(182
)
   
(185
)
                 
Net loss attributable to Ordinary shares as reported
 
$
(3,664
)
 
$
(4,807
)
                 
Shares used in computing net loss per share of Ordinary shares, basic and diluted
   
1,448,363
     
1,448,363
 
                 
Net loss per share of Ordinary share, basic and diluted
   
(2.53
)
   
(3.32
)

(*)
The net loss used for the computation of basic and diluted net loss per share include the compounded dividend of eight percent per annum which shall be distributed to shareholders in case of distributable assets determined in the AOA under the liquidation preference right (See also Note 10a2)

Convertible securities such as warrants to purchase Convertible Preferred A Shares, Convertible Preferred A Shares, RSU's and stock options to grantees under the 2013 Plan, have been excluded from the calculation of the diluted net loss per share since their effect was anti-dilutive.
 
NOTE 14:-
SUBSEQUENT EVENTS
 
a.
The Company evaluates events or transactions that occur after the balance sheet date but prior to the issuance of the consolidated financial statements to identify matters that require additional disclosure. For its annual consolidated financial statements as of December 31, 2015 and for the year then ended, the Company evaluated subsequent events through January 20, 2017 , the date that the consolidated financial statements were issued. Except as described below, the Company has concluded that no subsequent event has occurred that require disclosure.
 
b.
In January 2016, the Company entered into an agreement for line of a renewable credit amounted to $51 from a commercial bank for a period of one month with imputed interest in rate of 4.4%. As of the signature date of these consolidated financial statements, the aforesaid line of credit is still outstanding.

c.
In January 2016, the Company's Board of Directors approved the extension of the exercise period of 85,474 warrants that have been issued to strategic adviser to purchase 85,474 Ordinary Shares of the Company with an exercise price of $8.19 from October 3, 2016 to December 31, 2017 or until the fifth anniversary from October 3, 2013 if event of IPO was occurred until December 31, 2016. Such extension will be accounted pursuant to ASC 718 as a modification.

29

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data

NOTE 14:-
SUBSEQUENT EVENTS (Cont.)

d.
On June 24, 2016 ("Effective Date"), the Company entered into agreement with certain individual to serve as the Company's member of the Board of Directors pursuant to which, among the others, the Company will pay as compensation and benefits upon consummation of Initial Public Offering ("IPO") (i) an annual retainer of $40 to be paid on equal installments; (ii) one-time bonus amounted to $150 with 30 days from completion of an IPO and (iii) restricted shares equal to 3% of all issued and outstanding fully diluted shares of the Company after the completion of an IPO (including any green shoe or similar) with vesting schedule of 33.33% of such shares to be vested immediately upon the completion of an IPO, 33.33% of such shares to be vested after 6 month anniversary of the completion of an IPO and the remaining 33.33% of such shares after 12 month anniversary of the completion of an IPO. Upon closing change of control transaction, as defined in the agreement, the unvested options shall be accelerated and vested immediately.

The agreement shall commence as of the Effective Date and shall continue for a period of three years, subject to earlier termination as defined in the agreement.

e.
In September and October 2016, the Company entered into loan agreement with existing shareholders pursuant to which the Company received amount of $230 ("Loan"). The Loan bears an interest rate of 16% per annum. The term of the repayment of the Loan in full will be 12 months from the date it was funded. In case that full payment of the Loan at any time within 90 days of the funding, a minimum interest rate of 4% of the Loan shall be paid along with the Loan principal.

f.
Subsequent to the balance sheet date, the convertible loans terms were changed such that immediately prior and subject to the consummation of the Company's IPO, the conversion discounted price will be amended such that it will be 60.5% of the price of the most senior shares of the Company upon mandatory conversion in the event of a "triggering event" (as defined in the agreement, e.g. initial public offering) and the Participation Rights which should have been granted will be forfeited.

g.
Subsequent to December 31, 2015, the Company received additional proceeds amounted to $184 from issuance of Convertible Notes at the same terms and privileges of the Convertible Notes as mentioned in Note 6. The related BCF of these additional Convertible Notes amounted to $180.

h.
On October 28, 2016, the Company's Board of Directors and the shareholders approved a reverse share split of all outstanding Ordinary Shares of the Company, by way of issuance and distribution of bonus shares without a change in nominal value of the Company's outstanding shares at a ratio of approximately 8.03 for 1.

For accounting purposes, all Ordinary Shares, warrants to purchase Ordinary Shares and Convertible Preferred A Shares, options to purchase Ordinary Shares and loss per share amounts have been adjusted to give retroactive effect to this reverse share split for all periods presented in these consolidated financial statements. Any fractional shares resulting from the reverse share split will be rounded up to the nearest whole share.

30

ADVANCED INHALATION THERAPIES (AIT) LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
U.S. dollars in thousands, except share data
 
NOTE 14:-
SUBSEQUENT EVENTS (Cont.)
 
i.
In November 2016, the Company's Chief Executive Officer has waived certain obligations of the Company to him in total amount of $99.
 
j.
On January 13, 2017 AITT, a Delaware corporation , and a wholly- owned subsidiary of AITT, Red Maple Ltd.  (“Merger Sub”), and the Company closed the transaction that was the subject of an Agreement and Plan of Merger and Reorganization dated December 29, 2016, as amended by that Amendment No. 1 to the Merger Agreement dated January 12, 2017 (the “Merger Agreement”). The Merger Agreement provides for (i) the merger of Merger Sub with and into the Company (the “Israeli Merger”), and (ii) the exchange of the Company’s shareholders’ shares of the Company's Ordinary Shares for shares of AITT common stock along with the other conditions set forth in the Merger Agreement, culminating with the Company, as the surviving entity in the Israeli Merger, being a wholly-owned subsidiary of AITT (the “Merger”).  The Israeli Merger was consummated on December 29, 2016 and the Merger closed on January 13, 2017. At the Closing of the Merger, all outstanding Series A Preferred Shares and convertible notes of the Company were converted into Ordinary shares of the Company.

k.
In December 2016 and January 2017, the Company entered into a securities purchase and registration rights agreement ("SPA") with certain investors. According to the SPA, the Company will sell Units in the minimum aggregate amount of $10,000 and up to maximum aggregate amount of $25,000.
 
Each Unit comprise one Ordinary share, NIS 0.01 par value per share, and one five-year warrant to purchase one Ordinary share at an exercise price of $6.9 per share. Each Unit is sold at a price per Unit of $6.
 
Immediately prior to the Closing of the Merger, the Company closed on approximately $10,200 of financing from the Investors under the SPAs and was obligated to issue the Investors an aggregate of 1,701,616 Ordinary Shares and warrants to acquire 1,701,616 Ordinary Shares.
 
31



Exhibit 99.3

Kokicare, Inc.
UNAUDITED PRO FORMA INTERIM CONSOLIDATED BALANCE SHEET
 As of September 30, 2016

   
Historical
AITT Inc.
30-Sep-16
   
Historical
AIT Ltd.
30-Sep-16
   
Pro forma
Adjustments
   
Note
   
Pro forma
Consolidated
 
                               
ASSETS
                             
                               
CURRENT ASSETS:
                             
Cash and cash equivalents
 
$
3
   
$
20
   
$
9,710
     
A,D
 
$
9,733
 
Restricted bank deposits
   
-
     
12
     
-
             
12
 
Other accounts receivable
   
-
     
11
     
-
             
11
 
                                         
Total current assets
   
3
     
43
     
9,710
             
9,756
 
                                         
NON-CURRENT ASSETS:
                                       
                                         
Property and equipment, net
   
-
     
66
     
-
             
66
 
                                         
Total non-current assets
   
0
     
66
     
-
             
66
 
                                         
TOTAL ASSETS
 
$
3
   
$
109
   
$
9,710
           
$
9,822
 
                                         
LIABILITIES AND SHAREHOLDERS' DEFICIENCY
                                       
                                         
CURRENT LIABILITIES:
                                       
Line of credit
 
$
-
   
$
53
   
$
-
           
$
53
 
Trade payables
   
6
     
466
     
(6
)
   
D
   
466
 
Other accounts payable
   
1
     
967
     
(1
)
   
D
   
967
 
Loans from a related party
   
10
     
99
     
(10
)
   
D
   
99
 
                                         
Total current liabilities
   
17
     
1,585
     
(17
)
           
1,585
 
                                         
Convertible notes
   
20
     
2,547
     
(2,567
)
   
B,D
 
   
-
 
                                         
TOTAL LIABILITIES
   
37
     
4,132
     
(2,584
)
           
1,585
 
                                         
SHAREHOLDERS' DEFICIENCY:
                                       
Common stock
   
1
     
29
     
24
     
A, B,C
   
54
 
Preferred stock
   
-
     
16
     
(16
)
   
   
-
 
Additional paid- in capital
   
4
     
8,531
     
13,622
     
A, B,D
   
22,157
 
Treasury stock
   
-
     
-
     
(24
)
   
   
(24
)
Deficit accumulated
   
(39
)
   
(12,599
)
   
(1,312
)
   
   
(13,950
)
                                         
Total shareholders' deficiency
   
(4,023
)
   
(4,023
)
   
12,294
             
8,237
 
                                         
TOTAL LIABILITIES AND SHAREHOLDERS' DEFICIENCY
 
$
3
   
$
109
   
$
9,710
           
$
9,822
 

See accompanying notes to consolidated interim financial statements
 


Kokicare, Inc.
PRO FORMA CONSOLIDATED INTERIM STATEMENTS OF COMPREHNSIVE LOSS
For the Nine Months Ended September 30, 2016

   
Historical
AITT Inc.
30-Sep-16
   
Historical
AIT Ltd.
30-Sep-16
   
Pro forma
Adjustments
   
Note
   
Pro forma
Consolidated
 
                               
Operating expenses:
                             
  Research and development expenses
 
$
-
   
$
573
   
$
-
         
$
573
 
  General and administrative expenses
   
29
     
523
     
-
           
552
 
  Costs related to aborted IPO
   
-
     
621
     
-
           
621
 
                                       
Operating loss
   
29
     
1,717
     
-
           
1,746
 
                                       
Financial expense, net
   
1
     
990
     
1,312
   
B
   
2,303
 
                                       
Loss before taxes on income
   
30
     
2,707
     
1,312
           
4,049
 
                                       
Tax on income
   
-
     
39
     
-
           
39
 
                                       
Net comprehensive loss
 
$
30
   
$
2,746
   
$
1,312
         
$
4,088
 
                                       
Net basic and diluted loss per share
 
$
0.29
                         
$
0.77
 
                                       
Weighted average number of Ordinary Shares used in computing basic and diluted net loss per share
   
103,200
                           
5,311,479
 

See accompanying notes to consolidated interim financial statements


Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

1.  Description of the Acquisition and Basis of Presentation

On January 13, 2017 ("Merger Date"), AITT Inc. (formerly: "KokiCare, Inc."), a Delaware corporation, and a wholly- owned subsidiary of AITT, Red Maple Ltd. ("Merger Sub"), and the Company closed the transaction that was the subject of an Agreement and Plan of Merger and Reorganization dated December 29, 2016, as amended by that Amendment No. 1 to the Merger Agreement dated January 12, 2017 (the "Merger Agreement"). The Merger Agreement provides for (i) the merger of Merger Sub with and into the Company (the “Israeli Merger"), and (ii) the exchange of the Company’s shareholders’ shares of the Company's Ordinary Shares for shares of AITT common stock along with the other conditions set forth in the Merger Agreement, culminating with the Company, as the surviving entity in the Israeli Merger, being a wholly-owned subsidiary of AITT (the "Merger"). The Israeli Merger was consummated on December 29, 2016 and the Merger closed on January 13, 2017. At the Closing of the Merger, all outstanding Series A Preferred Shares and convertible notes of the Company were converted into Ordinary shares of the Company.

Immediately prior to the closing of the Merger, AIT Ltd. closed on approximately $10,209 thousand of financing from the investors under the Share Purchase Agreement and was obligated to issue the participated investors an aggregate of 1,701,616 units, each is sold at a price per unit of $6.00 and consists of one ordinary share, NIS 0.01 par value per share, and warrant. Each warrant may be exercised to one ordinary share at an exercise price of $6.90 per share within an exercise period of five years from the closing date.

The organizational history of AIT Ltd. is described in AIT’s audited consolidated financial statements as of September 30, 2016, which are included elsewhere in this Report on Form 8-K.
 
Basis of Presentation
 
Certain disclosures normally included in consolidated financial statements prepared in accordance with generally accepted accounting principles in the United States have been condensed or omitted as permitted by SEC rules and regulations.
 
These pro forma unaudited interim consolidated financial statements are not necessarily indicative of the results of operations that would have been achieved had the transaction actually taken place at the dates indicated and do not purport to be indicative of future position or operating results.
 
The unaudited pro forma interim consolidated balance sheet was prepared combining the historical balance sheet of AIT Ltd. and AITT Inc. at September 30, 2016, as described above.
 
The unaudited pro forma interim consolidated statement of comprehensive loss includes the historical operations of AIT Ltd. and AITT Inc. for the period of nine months ended September 30, 2016, as described above .
 
Effective January 13, 2017, AIT Ltd. ("AIT") acquired AITT, Inc. ("AITT" or "Company"), a Delaware corporation, whereby AITT was the legal acquirer and AIT the accounting acquirer. 
 
2.  Pro Forma Adjustments and Assumptions

The accompanying unaudited pro forma consolidated interim financial information gives effect to the Share Exchange as if it had occurred at an earlier date, and has been prepared for illustrative purposes only and is not necessarily indicative of the consolidated interim financial position or results of operations in future periods or the results that actually would have been realized had AIT and AITT been a combined company during the specified periods. The unaudited pro forma consolidated interim balance sheet set forth below represents the combined interim financial position of AIT and AITT as of September 30, 2016, as if the reverse acquisition occurred on September 30, 2016. The unaudited pro forma consolidated interim statement of comprehensive loss for the period of nine months ended September 30, 2016 represents the combined results of operations of AIT and AITT, as if the reverse acquisition occurred on the first day of the period presented.
 
The pro forma adjustments were based on the preliminary information available at the time of the preparation of the unaudited pro forma consolidated interim financial information. The unaudited pro forma consolidated interim financial information, including the notes thereto, are qualified in their entirety by reference to, and should be read in conjunction with, the historical consolidated interim financial statements incorporated included with this Form 8-K.

 
A.
Reflect the issuance of 1,701,616 units, each unit is sold at a price per unit of $6.00 and consists of one ordinary share, NIS 0.01 par value per share, and one warrant, for gross consideration of approximately $10,210 thousand. Direct and incremental issuance costs amounted to approximately $180 thousand which was offset from the additional paid in capital.


 
B.
Upon closing of the Merger, the outstanding convertible notes have been converted into 1,397,068 Ordinary Shares, NIS 0.01 par value per share, of AIT. Following such conversion, the remaining beneficial conversion feature and issuance debt costs in respect to the convertible notes amounted to $1,294 and $18 thousand, respectively, were amortized immediately through financial expenses.

 
C.
Upon closing of the Merger, the outstanding 759,086 Preferred A Shares have been converted into 759,086 Ordinary Shares, NIS 0.01 par value per share, of AIT.

 
D.
According to the agreement and plan of merger and reorganization, AIT is required to make a cash payment to AITT in total amount of $320 thousand (the "Cash Purchase Price") in order to assume all of its existing obligations which amounted to $37 at the Merger Date and to repurchase 90,000 shares of its common stock at a price per share of $0.2667 (on a post-reverse stock split basis as mentioned below). It was agreed between the parties that the excess of Cash Purchase Price beyond the existing obligations will be distributed to the former stockholders of AITT as a dividend (representing a price of $2.5 per share cash dividend to 103,200 outstanding shares of AITT's common stock after effect of 100-to-one reverse stock split) and to redeem certain of its shares of common stock held by AITT's principal stockholder.