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