As filed with the Securities
and Exchange Commission on July 18, 2018
Registration No. 333-225610
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
AMENDMENT NO.
3
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES
ACT OF 1933
Medigus
Ltd.
(Exact Name of
Registrant as Specified in its Charter)
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State
of Israel
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3841
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Not
Applicable
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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Oded Yatzkan
7A Industrial
Park, P.O. Box 3030
Omer, 8496500,
Israel
Tel: +972-72-260-2200
Fax: +972-72-260-2237
(Address, including
zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Medigus USA LLC
140 Town &
Country Dr., Suite C
Danville, CA 94526,
USA
Tel: +1 925-217-4677
(Name, address,
including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Shachar Hadar
Meitar Liquornik Geva
Leshem Tal
16 Abba Hillel Silver Rd.
Ramat Gan 52506, Israel
Tel: +972-3-610-3100
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Oded Har-Even,
Esq.
Robert V. Condon, III, Esq.
Zysman, Aharoni, Gayer and
Sullivan & Worcester LLP
1633 Broadway
New York, NY 10019
Tel: 212-660-5000
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Gary Emmanuel,
Esq.
McDermott Will &
Emery LLP
340 Madison Ave.
New York, NY 10173
Tel: 212-547-5400
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Zvi Gabbay
Barnea & Co.
Electra City Tower
58 HaRakevet St.
Tel Aviv 6777016, Israel
Tel: +972-3-640-0600
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Approximate date of commencement of proposed
sale to the public:
As soon as practicable after effectiveness of this registration statement.
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment
filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☒
If an emerging growth company that prepares
its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B)
of the Securities Act. ☐
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant
to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 3 to Form F-1 Registration
Statement (No. 333-225610) is filed solely to file Exhibits 5.1, 5.2, 23.2 and 23.3, and to reflect such filings in the Index to
Exhibits. No change is made to the preliminary prospectus constituting Part I of the Registration Statement or Items 6, 7,
or 9 of Part II of the Registration Statement.
Part
II
Information
Not Required in Prospectus
Item 6. Indemnification of Office Holders
(including Directors).
Under the Companies Law, a company may
not exculpate an office holder from liability for a breach of a fiduciary duty. An Israeli company may exculpate an office holder
in advance from liability to the company, in whole or in part, for damages caused to the company as a result of a breach of duty
of care but only if a provision authorizing such exculpation is included in its articles of association. Our articles of association
include such a provision. The company may not exculpate in advance a director from liability arising out of a prohibited dividend
or distribution to shareholders.
Under the Companies Law and the Securities
Law, 5738-1968 (the “Securities Law”) a company may indemnify an office holder in respect of the following liabilities,
payments and expenses incurred for acts performed by him or her as an office holder, either in advance of an event or following
an event, provided its articles of association include a provision authorizing such indemnification:
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a monetary liability incurred by or imposed
on the office holder in favor of another person pursuant to a court judgment, including pursuant to a settlement confirmed
as judgment or arbitrator’s decision approved by a competent court. However, if an undertaking to indemnify an office
holder with respect to such liability is provided in advance, then such an undertaking must be limited to events which, in
the opinion of the board of directors, can be foreseen based on the company’s activities when the undertaking to indemnify
is given, and to an amount or according to criteria determined by the board of directors as reasonable under the circumstances,
and such undertaking shall detail the abovementioned foreseen events and amount or criteria;
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reasonable litigation expenses, including reasonable
attorneys’ fees, which were incurred by the office holder as a result of an investigation or proceeding filed against
the office holder by an authority authorized to conduct such investigation or proceeding, provided that such investigation
or proceeding was either (i) concluded without the filing of an indictment against such office holder and without the imposition
on him of any monetary obligation in lieu of a criminal proceeding; (ii) concluded without the filing of an indictment against
the office holder but with the imposition of a monetary obligation on the office holder in lieu of criminal proceedings for
an offense that does not require proof of criminal intent; or (iii) in connection with a monetary sanction;
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reasonable litigation expenses, including attorneys’
fees, incurred by the office holder or which were imposed on the office holder by a court (i) in a proceeding instituted against
him or her by the company, on its behalf, or by a third party, (ii) in connection with criminal indictment of which the office
holder was acquitted, or (iii) in a criminal indictment which the office holder was convicted of an offense that does not
require proof of criminal intent;
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a monetary liability imposed on the office holder
in favor of a payment for a breach offended at an Administrative Procedure (as defined below) as set forth in Section 52(54)(a)(1)(a)
to the Securities Law;
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expenses expended by the office holder with
respect to an Administrative Procedure under the Securities Law, including reasonable litigation expenses and reasonable attorneys’
fees; and
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any other obligation or expense in respect of
which it is permitted or will be permitted under applicable law to indemnify an office holder, including, without limitation,
matters referenced in Section 56H(b)(1) of the Securities Law.
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An “Administrative Procedure”
is defined as a procedure pursuant to chapters H3 (Monetary Sanction by the Israeli Securities Authority), H4 (Administrative
Enforcement Procedures of the Administrative Enforcement Committee) or I1 (Arrangement to prevent Procedures or Interruption of
procedures subject to conditions) to the
Under the Companies Law and the Securities
Law, a company may insure an office holder against the following liabilities incurred for acts performed by him or her as an office
holder if and to the extent provided in the company’s articles of association:
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a breach of a fiduciary duty to the company,
provided that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm the
company;
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a breach of duty of care to the company or to
a third party, to the extent such a breach arises out of the negligent conduct of the office holder;
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a monetary liability imposed on the office holder
in favor of a third party;
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a monetary liability imposed on the office holder
in favor of an injured party at an Administrative Procedure pursuant to Section 52(54)(a)(1)(a) of the Securities Law; and
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expenses incurred by an office holder in connection
with an Administrative Procedure, including reasonable litigation expenses and reasonable attorneys’ fees.
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Under the Companies Law, a company may
not indemnify, exculpate or insure an office holder against any of the following:
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a breach of fiduciary duty, except for indemnification
and insurance for a breach of the fiduciary duty to the company to the extent that the office holder acted in good faith and
had a reasonable basis to believe that the act would not prejudice the company;
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a breach of duty of care committed intentionally
or recklessly, excluding a breach arising out of the negligent conduct of the office holder;
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an act or omission committed with intent to
derive illegal personal benefit; or
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a civil or administrative fine or forfeit levied
against the office holder.
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Under the Companies Law, exculpation, indemnification
and insurance of office holders must be approved by the compensation committee and the board of directors and, with respect to
directors or controlling shareholders, their relatives and third parties in which such controlling shareholders have a personal
interest, also by the shareholders.
Our articles of association permit us to
exculpate, indemnify and insure our office holders to the fullest extent permitted or to be permitted by law. Our office holders
are currently covered by a directors’ and officers’ liability insurance policy. As of the date of this registration
statement on Form F-1, no claims for directors’ and officers’ liability insurance have been filed under this policy
and we are not aware of any pending or threatened litigation or proceeding involving any of our office holders, including our
directors, in which indemnification is sought.
We have entered into agreements with each
of our current director and officers exculpating them from a breach of their duty of care to us to the fullest extent permitted
by law, subject to limited exceptions, and undertaking to indemnify them to the fullest extent permitted by law, to the extent
that these liabilities are not covered by insurance. This indemnification is limited, with respect to any monetary liability imposed
in favor of a third party, to events determined as foreseeable by the board of directors based on our activities. The maximum
aggregate amount of indemnification that we may pay to our directors and officers based on such indemnification agreement is equal
to 25% of our shareholders’ equity pursuant to our latest audited or unaudited consolidated financial statements, as applicable,
as of the date of the indemnification payment. Such indemnification amounts are in addition to any insurance amounts. Each director
or officer who agrees to receive this letter of indemnification also gives his approval to the termination of all previous letters
of indemnification that we have provided to him or her in the past, if any. However, in the opinion of the SEC, indemnification
of office holders for liabilities arising under the Securities Act is against public policy and therefore unenforceable.
Item 7. Recent Sales of Unregistered
Securities.
Set forth below are the sales of all securities
by the Company during the three years preceding this offering, which were not registered under the Securities Act.
In November 2017, we issued investors warrants
to purchase up to a total of 101,250
ADSs representing 2,025,000 ordinary shares at an exercise
price of $9.00 per ADS.
In November 2017, we issued H.C. Wainwright &
Co. warrants to purchase up to a total of 14,175
ADSs representing 283,500 ordinary shares
at an exercise price of $10.00 per ADS as part of the consideration for its services as placement agent.
In December 2016, we issued investors warrants
to purchase of 9,968
ADSs representing 199,360 ordinary shares at an exercise price of $36.00
per ADS.
In December 2016, we issued Rodman &
Renshaw a unit of H.C. Wainwright & Co. warrants to purchase up to a total of
997 ADSs
representing 19,940 ordinary shares at an exercise price of $29.48 per ADS as part of the consideration for its services as placement
agent.
In December 2016, we issued Roth Capital
Partners and Maxim Group LLC warrants to purchase up to a total of 498
ADSs representing
9,965 ordinary shares at an exercise price of $36.00 per ADS as part of a “tail” fee consideration for its services
as placement agent.
In
September 2016, we issued to Roth Capital Partners and Maxim Group LLC warrants purchase up to 989 ADSs representing 19,780 ordinary
share at an exercise price of $57.50 per ADS as part of the consideration for its services as placement agent.
In July 2015, pursuant to a public offering
under our shelf prospectus in Israel, we raised approximately NIS 26.8 million (gross) (approximately $7 million) through the
issuance of a total of 705,250 of our ordinary shares at a price of NIS 38.00 per share and warrants exercisable into additional
352,625 of our ordinary shares. The warrants expired on July 8, 2018.
The foregoing issuances
of warrants to purchase ADSs in 2016 and 2017 were offered pursuant to Rule 506 of Regulation D and Section 4(a)(2) of the Securities
Act.
The foregoing issuances in 2015 were all
made outside of the United States pursuant to Regulation S or to U.S. entities pursuant to Section 4(a)(2) of the Securities Act.
The foregoing issuances were (i) adjusted
retroactively to reflect the 10:1 reverse share split effected on July 15, 2018 and the change in the ratio of ordinary shares
per ADS to twenty deposited ordinary shares per ADS effected on July 16, 2018, (ii) adjusted retroactively to reflect the
change
in the ratio of ordinary shares per ADS from five deposited ordinary shares per ADS to 50 deposited ordinary shares per ADS effected
on March 15, 2017
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and (iii) adjusted
retroactively to reflect
the
10:1 reverse share split and the change in the ratio of ordinary shares per ADS to five deposited ordinary shares per ADS effected
on November 6, 2015
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Item 8. Exhibits and Financial Statement Schedules.
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(a)
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The Exhibit Index is hereby incorporated herein
by reference.
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(b)
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Financial Statement Schedules.
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All Financial Statement Schedules have
been omitted because either they are not required, are not applicable or the information required therein is otherwise set forth
in the Registrant’s consolidated financial statements and related notes thereto.
Item 9. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement:
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i.
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To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
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ii.
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To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
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iii.
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To include any material information with respect
to the plan of distribution not previously disclosed in the registration statement or any material change to such information
in the registration statement.
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(2)
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That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3)
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To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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To file a post-effective amendment to the registration
statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout
a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus
is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required
by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
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(5)
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That, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser:
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If the registrant is relying on Rule 430B:
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A.
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Each prospectus filed by the registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
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B.
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Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness of the date of the first contract or sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract sale prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such
effective date; or
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ii.
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If the registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was
made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such date of first use.
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(6)
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That, for the purpose of determining liability
of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell securities to such purchaser:
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i.
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Any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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ii.
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Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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iii.
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The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned registrant or its securities provided by or
on behalf of the undersigned registrant; and
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iv.
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Any other communication that is an offer in
the offering made by the undersigned registrant to the purchaser.
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(b)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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(c)
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The undersigned registrant hereby undertakes that:
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(1)
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That for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form
of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
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(2)
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That for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Omer, State of Israel on July 18, 2018.
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Medigus Ltd.
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By:
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/s/
Christopher Rowland
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Name:
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Christopher Rowland
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Title:
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Chief Executive Officer
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Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signatures
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Title
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Date
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/s/
Christopher Rowland
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Chief Executive Officer and Director
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July 18, 2018
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Christopher Rowland
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/s/
Oded Yatzkan
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Chief Financial Officer
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July 18, 2018
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Oded Yatzkan
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*
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Chairman of the Board of Directors
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July 18, 2018
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Doron Birger
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Director
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July 18, 2018
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Eitan Machover
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Director
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July 18, 2018
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Efrat Venkert
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Director
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July 18, 2018
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Yuval Yanai
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*
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/s/
Christopher Rowland
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Christopher Rowland
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Attorney-in-fact
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Signature
of authorized representative in the United States
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant’s duly authorized representative has signed this registration statement on Form
F-1 in on this 18th day of July 2018.
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Medigus USA LLC
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By:
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/s/
Christopher Rowland
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Name:
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Christopher Rowland
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Title:
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Chief Executive Officer
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EXHIBIT INDEX
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Exhibit No.
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Description
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1.1
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Form
of Underwriting Agreement
(9)
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3.1
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Articles
of Association of Medigus Ltd., as amended
(9)
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4.1
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Form
of Warrant Agent Agreement between Medigus Ltd. and Computershare Inc., as warrant agent, including the Form of Series C Warrant
(9)
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4.2
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Form
of Pre-Funded Warrant
(9)
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4.3
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Form
of Underwriter Warrant
(9)
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4.4
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Form
of Series A Warrant to purchase Ordinary Shares Represented by American Depositary Shares issued in connection with the March
2017 Securities Purchase Agreement
(6)
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4.5
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Form
of Placement Agent Warrant to purchase Ordinary Shares Represented by American Depositary Shares issued in connection with
the March 2017 Securities Purchase Agreement
(6)
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4.6
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Form
of Deposit Agreement between Medigus Ltd., The Bank of New York Mellon as Depositary, and owners and holders from time to
time of ADSs issued thereunder, including the Form of American Depositary Shares
(2)
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5.1
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Form
of Opinion of Meitar Liquornik Geva Leshem Tal, Israeli counsel to the Registrant, as to the validity of the ordinary shares
(1)
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5.2
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Form
of Opinion of Zysman, Aharoni, Gayer and Sullivan & Worcester, LLP, U.S. counsel to the Registrant, as to the validity
of the warrants and units
(1)
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10.1
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Form
of Deposit Agreement between Medigus Ltd., The Bank of New York Mellon as Depositary, and owners and holders from time to
time of ADSs issued thereunder, including the Form of American Depositary Shares.
(2)
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10.2
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2013
Share Option and Incentive Plan
(2)
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10.3
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Series
A Option Plan
(2)
∞
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10.4
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Series
B Option Plan
(2)
∞
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10.5
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Compensation
Policy of Medigus Ltd.
(3)
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10.6
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Summary
of Lease Agreement between Medigus Ltd. and Tefen Yazamut Ltd. regarding main offices in Omer Industrial Park dated January
6, 2004, as amended.
(8) ∞
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10.7
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Form
of Indemnification and Exculpation Undertaking
(2)
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10.8
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Securities
Purchase Agreement by and between the Registrant and the purchasers named therein, dated September 8, 2016
(4)
|
|
10.9
|
|
Securities
Purchase Agreement by and between the Registrant and the purchasers named therein, dated November 30, 2016.
(5)
|
|
10.10
|
|
Form
of Warrant to purchase Ordinary Shares Represented by American Depositary Shares issued in connection with the November 2016
Securities Purchase Agreements
(6)
|
|
10.11
|
|
Securities
Purchase Agreement by and between the Registrant and the purchasers named therein, dated March 24, 2017.
(6)
|
|
10.12
|
|
Securities
Purchase Agreement by and between the Registrant and the purchasers in the registered direct offering dated November 24, 2017.
(7)
|
|
10.13
|
|
Form
of Warrant to purchase Ordinary Shares Represented by American Depositary Shares issued in connection with the November 24,
2017, Securities Purchase Agreement.
(7)
|
|
21.1
|
|
List
of Subsidiaries
(2)
|
|
23.1
|
|
Consent of Kesselman and Kesselman, Member Firm of PricewaterhouseCoopers International Limited
(9)
|
|
23.2
|
|
Consent
of Meitar Liquornik Geva Leshem Tal, Israeli counsel to the Registrant (included in Exhibit 5.1)
(1)
|
|
23.3
|
|
Consent
of Zysman, Aharoni, Gayer and Sullivan & Worcester, LLP, U.S. counsel to the Registrant (included in Exhibit 5.2)
(1)
|
|
24.1
|
|
Power of Attorney (included
in the signature page of the Registration Statement)
(9)
|
|
(1)
|
Filed herewith.
|
|
(2)
|
Previously filed with the Securities and Exchange
Commission on May 7, 2015, as an exhibit to the Registrant’s annual report on Form 20-F (File No 001-37381) and
incorporated by reference herein.
|
|
(3)
|
Previously filed with the Securities and Exchange
Commission on March 30, 2016, as an exhibit to the Registrant’s annual report on Form 20-F (File No 001-37381)
and incorporated by reference herein.
|
|
(4)
|
Previously filed with the Securities and Exchange
Commission on September 8, 2016, as exhibit to the Registrant’s report on Form 6-K (File No 001-37381) and incorporated
by reference herein.
|
|
(5)
|
Previously filed with the Securities and Exchange
Commission on December 1, 2016, as exhibit to the Registrant’s report on Form 6-K (File No 001-37381) and incorporated
by reference herein.
|
|
(6)
|
Previously filed with the Securities and Exchange
Commission on March 23, 2017, as an exhibit to the Registrant’s registration statement on Form F-1 (File 333-216155)
and incorporated by reference herein.
|
|
(7)
|
Previously filed with the Securities and Exchange
Commission on November 24, 2017, as an exhibit to the Registrant’s report on Form 6-K (File No 001-37381) and incorporated
by reference herein.
|
|
(8)
|
Previously filed with the Securities and Exchange
Commission on March 22, 2018, as an exhibit to the Registrant’s annual report on Form 20-F (File No 001-37381) and incorporated
by reference herein.
|
|
(9)
|
Previously filed.
|
|
∞
|
English translation of original Hebrew document.
|
8
Exhibit 5.1
July 18, 2018
Medigus Ltd.
7A Industrial Park, P.O. Box 3030
Omer, 84965
Israel
Ladies and Gentlemen:
We have acted as Israeli
counsel to Medigus Ltd. (the “
Company
”), an Israeli company, in connection with the registration by the Company
(including in connection with an over-allotment option granted to the underwriters) of up to $46,000,000 of: (A) units, with each
unit consisting of (i) one American Depositary Share (an “
ADS
”), each representing 20 ordinary shares, par
value 1.00 per share of the Company (the "
Ordinary Shares
"), and (ii) series C warrants (the “
Series
C Warrants
”, and together with the ADSs, the “
Units
”) to purchase one ADS per such warrant, and (B)
pre-funded units, with each pre-funded unit consisting of (i) a pre-funded warrant (the “
Pre-funded Warrants
”)
to purchase one ADS, and (ii) one Series C Warrant (together with the Pre-funded Warrants, the “
Pre-funded Units
”),
and up to $1,006,250 of warrants (the “
Underwriters Warrants
”, and together with the Units and the Pre-funded
Units, the ADSs, the Series C Warrants, the Pre-Funded Warrants and the Ordinary Shares, the “
Securities
”)
to purchase ADSs, issued to the Underwriters (as defined below). The Securities are being registered by the Company, which has
engaged H.C. Wainwright & Co., LLC (the “
Underwriters
”) to act as underwriters in connection with a public
offering of the Company (the “
Offering
”). The proposed maximum aggregate offering price of the Units proposed
to be sold in the Offering will be reduced on a dollar-for-dollar basis based on the aggregate offering price of any Pre-funded
Units offered and sold in the Offering, and the proposed maximum aggregate offering price of the Pre-funded Units to be sold in
the offering will be reduced on a dollar-for-dollar basis based on the aggregate offering price of any Units sold in the Offering. This
opinion letter is rendered pursuant to Item 8(a) of Form F-1 promulgated by the United States Securities and Exchange Commission
(the “
SEC
”) and Items 601(b)(5) and (b)(23) of the SEC’s Regulation S-K promulgated under the United
States Securities Act of 1933, as amended (the “
Securities Act
”).
In connection with
this opinion, we have examined the originals, or photocopies or copies, certified or otherwise identified to our satisfaction,
of registration statement on Form F-1 (Registration Statement No. 333-225610) (the “
Registration Statement
”)
filed by the Company with the SEC, the Company’s articles of association (the "
Articles
"), resolutions of
the Company’s board of directors (the “
Board
”) which have heretofore been approved and relate to the Offering
and such statutes, regulations, corporate records, documents, certificates and such other instruments that we have deemed relevant
and necessary for the basis of our opinions hereinafter expressed. In such examination, we have assumed: (i) the authenticity of
original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us
as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the corporate
records, documents, certificates and instruments we have reviewed; (iv) the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof; and (v) the legal capacity of all natural persons.
We are members of
the Israel Bar and we express no opinion as to any matter relating to the laws of any jurisdiction other than the laws of the State
of Israel and have not, for the purpose of giving this opinion, made any investigation of the laws of any other jurisdiction than
the State of Israel.
On the basis of the
foregoing, and in reliance thereon, we are of the opinion that (i) upon payment to the Company of the consideration in such amount
and form as shall be determined by the Board or an authorized committee thereof, the Ordinary Shares underlying the ADSs, when
issued and sold in the Offering as described in the Registration Statement, will be duly validly issued, fully paid and non-assessable
and (ii) the Ordinary Shares underlying the ADSs to be issued upon the exercise of the Series C Warrants, the Pre-funded Warrants
and the Underwriters Warrants, when issued and sold by the Company and delivered by the Company against receipt of the exercise
price therefor as shall be determined by the Board or an authorized committee thereof, in accordance with and in the manner described
in the Registration Statement and the applicable warrants, will be validly issued, fully paid and non-assessable.
We hereby consent
to the filing of this opinion as an exhibit to the Company’s Registration Statement and to the use of our name wherever it
appears in the Registration Statement. In giving such consent, we do not believe that we are “experts” within the meaning
of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the SEC issued thereunder with
respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
Zysman, Aharoni,
Gayer and Sullivan & Worcester LLP, U.S. counsel to the Company, may rely on the opinions given herein in rendering their opinion
of even date herewith in connection with the Registration Statement.
|
Very truly yours,
|
|
|
|
|
|
/s/ Meitar Liquornik Geva Leshem Tal, Law Offices
|
|
|
Meitar Liquornik Geva Leshem Tal, Law Offices
|
|
Exhibit 5.2
July 18, 2018
Medigus Ltd.
7A Industrial Park, P.O. Box 3030
Omer, 84965 Israel
Re:
Registration Statement on Form F-1
Ladies and Gentlemen:
This opinion is furnished
to you in connection with a Registration Statement on Form F-1 (Registration No. 333-225610) (as amended to date, the “Registration
Statement”) filed by Medigus Ltd., an Israeli company (the “Company”), with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the registration
(including in connection with an over-allotment option granted to the Underwriter (as defined below)) and proposed maximum aggregate
offering price by the Company of up to (A) $46,000,000 of (I) units, with each unit consisting of (i) one American Depositary Share
(the “ADSs” and collectively referred to as the “Initial ADSs”) in the aggregate, each representing twenty
ordinary shares, par value NIS 1.00 per share of the Company (the “Ordinary Shares”), and (ii) warrants (the “Warrants”,
and together with the Initial ADSs, the “Units”) to purchase one ADS per such Warrant, and (II) pre-funded units (the
“Pre-Funded Units”), with each Pre-Funded Unit consisting of (i) a pre-funded warrant (the “Pre-Funded Warrants”)
to purchase one ADS per such Pre-Funded Warrant, and (ii) one Warrant (together with the Pre-Funded Warrant, the “Pre-Funded
Units”) to purchase one ADS per such Warrant, and (B) a proposed maximum aggregate offering price of up to $1,006,250 of
warrants (the “Underwriter Warrants”, and together with the Units and the Pre-Funded Units, the “Securities”)
issued to the Underwriter to purchase ADSs. The Securities are being registered by the Company, which has engaged H.C. Wainwright
& Co., LLC (the “Underwriter”) to act as the underwriter in connection with a public offering of the Company (the
“Offering”).
We are acting as U.S. securities
counsel for the Company in connection with the Registration Statement. We have examined signed copies of the Registration Statement
and have also examined and relied upon minutes of meetings of the Board of Directors of the Company as provided to us by the Company,
the articles of association of the Company, as restated and/or amended to date, and such other documents as we have deemed necessary
for purposes of rendering the opinion hereinafter set forth.
In our examination of the
foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter
documents and the legal competence of all signatories to such documents. Other than our examination of the documents indicated
above, we have made no other examination in connection with this opinion. Because the agreement governing the Warrants (the “Warrant
Agreement”), the Pre-Funded Warrants and Underwriter Warrants contain provisions stating that they are to be governed by
the laws of the State of New York, we are rendering this opinion as to New York law. We are admitted to practice in the State of
New York, and we express no opinion as to any matters governed by any law other than the law of the State of New York. With respect
to the Ordinary Shares underlying the Initial ADSs and the Ordinary Shares underlying the ADSs underlying the Warrants, the Pre-Funded
Warrants and the Underwriter Warrants being duly and validly issued, fully paid and non-assessable, we have relied on the opinion
of Meitar Liquornik Geva Leshem Tal filed as an exhibit to the Registration Statement as filed with the Commission.
Based upon and subject
to the foregoing, we are of the opinion that, when the Registration Statement has become effective under the Securities Act, the
Warrant Agreement, and each of the Units, the Pre-Funded Units, the Warrants, the Pre-Funded Warrants and Underwriter Warrants,
if and when issued and paid for in accordance with the terms of the Offering, will be valid and binding obligations of the Company
enforceable against the Company in accordance with their terms.
The opinion set forth
herein is rendered as of the date hereof, and we assume no obligation to update such opinion to reflect any facts or circumstances
which may hereafter come to our attention or any changes in the law which may hereafter occur (which may have retroactive effect).
In addition, the foregoing opinions are qualified to the extent that (a) enforceability may be limited by and be subject to general
principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law (including,
without limitation, concepts of notice and materiality), and by bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' and debtors' rights generally (including, without limitation, any state or federal law in respect of
fraudulent transfers); and (b) no opinion is expressed herein as to compliance with or the effect of federal or state securities
or blue sky laws.
This opinion is rendered to
you in connection with the Registration Statement. This opinion may not be relied upon for any other purpose, or furnished to,
quoted or relied upon by any other person, firm or corporation for any purpose, without our prior written consent, except that
(A) this opinion may be furnished or quoted to judicial or regulatory authorities having jurisdiction over you, and (B) this opinion
may be relied upon by purchasers and holders of the Securities currently entitled to rely on it pursuant to applicable provisions
of federal securities law.
We hereby consent to the
filing of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to this firm under the caption “Legal
Matters” in the Registration Statement and in any Registration Statement pursuant to Rule 462(b) under the Securities Act.
In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
|
|
Very
truly yours,
/s/
Zysman, Aharoni, Gayer and Sullivan & Worcester LLP
Zysman,
Aharoni, Gayer and Sullivan & Worcester LLP
|