UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
For the month of June 2025
Commission File No.:001-35773
REDHILL BIOPHARMA LTD.
(Translation of registrant’s name into English)
21 Ha'arba'a Street, Tel Aviv, 6473921, Israel
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Entry into Any Market Purchase Agreement with Alumni Capital LP
On June 20, 2025, RedHill Biopharma Ltd. (the “Company”) entered into an Any Market Purchase Agreement (the
“Purchase Agreement”) with Alumni Capital LP, a Delaware limited partnership (the “ Purchaser”). Pursuant to the
Purchase Agreement, the Company has the right, but not the obligation, to sell to the Purchaser, from time to time, up to
$10,000,000 of American Depositary Shares (“ADSs”), each representing 10,000 ordinary shares (“Ordinary Shares”), par
value NIS 0.01 per share, of the Company, subject to the terms and conditions set forth in the Purchase Agreement.
The Company’s right to commence sales of ADSs to the Purchaser under the Purchase Agreement is subject to the
satisfaction of certain conditions, including that a registration statement of such ADSs is declared effective by the Securities
and Exchange Commission (the “Commencement Date”). From and after the Commencement Date, ending on the earlier
of (i) the date, if any, on which the ADSs cease trading on Nasdaq or on another U.S. stock exchange specified under the
Purchase Agreement, (ii) the purchase by the Purchaser of ADSs for an aggregate purchase price of $10 million, or (iii) 5:00
p.m. Eastern Time on June 30, 2026, the Company will control the timing and amount of any sales of ADSs to the
Purchaser. Actual sales of ADSs to the Purchaser under the Purchase Agreement, if any, will depend on a variety of factors
to be determined by the Company from time to time, including, among others, market conditions, the trading price of the
ADSs, and determinations by the Company as to the appropriate sources of funding and its operations.
Under the terms of the Purchase Agreement, the Company may, at its discretion, direct the Purchaser to purchase ADSs in
one or more tranches. The initial tranche may be up to $1,000,000 and will be priced at 82% of the lowest daily volume
weighted average price (“VWAP”) of the ADSs during the five consecutive trading days immediately prior to the date the
Company delivers (“Purchase Notice Date”) a purchase notice to the Purchaser (the “Purchase Notice,” and the Purchase
Notice for the initial tranche is called the “Initial Purchase Notice”).
From and after the closing of the purchase and sale of the ADSs in the initial tranche, the Company may, at its discretion,
direct the Purchaser to purchase the number of ADSs having an aggregate purchase price equal to the lesser of $500,000
or sixty percent (60%) of the average daily trading volume of the ADSs over the most recent five business days prior to the
respective Purchase Notice Date, unless waived upon mutual discretion between the Company and the Purchaser, up to an
amount no greater than an aggregate purchase price equal to $3,000,000, at a price equal to the lowest daily VWAP during
the five consecutive business days immediately prior to the Purchase Notice Date with respect to a Purchase Notice
multiplied by 90% (such Purchase Notice is called a “Regular Purchase Notice”).
In addition, from and after the closing of the purchase and sale of the ADSs in the initial tranche, the Company may, at its
discretion, also direct the Purchaser to purchase the number of ADSs having an aggregate purchase price equal to the
lesser of $500,000 or thirty percent (30%) of the trading volume of the ADSs beginning at 4:00 a.m. New York time on the
Purchase Notice Date and ending at the time on the Purchase Notice Date that the Purchase Notice has been received by
email by the Company, at a price equal to the lowest traded price of the ADSs on the Purchase Notice Date with respect to
a Purchase Notice multiplied by 96%.
As consideration for the Purchaser’s commitment, the Company issued to the Purchaser a warrant to purchase up to
333,333 ADSs (the “Commitment Warrants”) for a term of five years and an exercise price of $3.00 per ADS.
The Purchase Agreement contains customary representations, warranties, covenants, and indemnification provisions.
The Purchase Agreement also prohibits us from directing the Purchaser to purchase any ADSs (i) if those ADSs, when
aggregated with all other ADSs then held or beneficially owned by the Purchaser and its affiliates, would result in the
Purchaser and its affiliates holding or having beneficial ownership, at any single point in time, of more than 4.99% of the
number of ADSs outstanding immediately after the issuance of securities issuable pursuant to a Purchase Notice, or (ii)
where the issuance of such ADSs, when aggregated with all other ADSs and Ordinary Shares then held or beneficially
owned by the Purchaser and its affiliates, would result in the Purchaser and its affiliates holding or having beneficial
ownership, at any single point in time, of more than 4.99% of the Company’s issued share capital or voting rights in it
(unless and until the Company obtains the approval of its shareholders for the issuance of ADSs in excess of such amount),
in either case subject to the option to issue Prefunded Warrants in lieu of ADSs with respect to the sales pursuant to the
Initial Purchase Notice or any Regular Purchase Notice.
The Commitment Warrants were offered and sold, and the ADSs and Prefunded Warrants will be offered and sold, under an
exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”). This Form 6-K shall not
constitute an offer to sell or the solicitation of an offer to buy, nor shall such securities be offered or sold absent registration
or an applicable exemption from the registration requirements of the Securities Act.
The foregoing description of the Purchase Agreement and the Commitment Warrant does not purport to be complete and is
qualified in its entirety by reference to the full text of the Purchase Agreement, the form of Commitment Warrant, and the
form of Prefunded Warrant, which are filed as Exhibits 1.1, 4.1, and 4.2, respectively, to this Report on Form 6-K and are
incorporated herein by reference.
Exhibit Index
Exhibit No.
Description
1.1
Any Market Purchase Agreement, dated as of June 20, 2025.
4.1
Commitment Warrant, dated June 20, 2025.
4.2
Form of Prefunded Warrant
SIGNATURES
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, thereunto duly authorized.
REDHILL BIOPHARMA LTD.
(the “Registrant”)
Date: June 25, 2025
By:
/s/ Dror Ben-Asher
Name:
Dror Ben-Asher
Title:
Chief Executive Officer
Exhibit 1.1
Execution Version
ANY MARKET PURCHASE AGREEMENT
This Any Market Purchase Agreement (this “Agreement”), dated as of June 20, 2025 (the “Execution Date”), by and
between Redhill Biopharma Ltd., an Israeli corporation (the “Company”), and Alumni Capital LP, a Delaware limited
partnership (the “Investor”).
RECITALS
WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company wishes to sell and issue to
the Investor, and the Investor wishes to subscribe for and buy from the Company, up to $10,000,000 of the American
Depositary Shares (the “ADSs”), representing fully paid ordinary shares of the Company, par value NIS 0.01 per share
(“Ordinary Shares”), with each ADS representing ten thousand (10,000) Ordinary Shares.
WHEREAS, the Ordinary Shares (the “Underlying Ordinary Shares”) shall be deposited pursuant to a deposit
agreement (the “ADS Deposit Agreement”) dated as of December 26, 2012 among the Company, The Bank of New York
Mellon, as ADS Depositary (as defined below), and the owners and holders of ADSs from time to time, as such agreement
may be amended or supplemented.
WHEREAS, the offer and sale of the Securities issuable hereunder will be made in reliance upon Section 4(a)(2) and
Regulation D under the Securities Act and the rules and regulations promulgated thereunder, or upon such other exemption
from the registration requirements of the Securities Act as may be available with respect to any or all of the transactions to
be made hereunder.
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 Investor hereby
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings
specified or indicated (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“6-K” shall have the meaning set forth in Section 6.2.
“ADS Deposit Agreement” shall have the meaning specified in the recitals to this Agreement.
“ADS Depositary” shall mean The Bank of New York Mellon and any successor ADS depositary of the Company.
“ADSs” shall have the meaning specified in the recitals to this Agreement.
“Affiliate” shall mean, with respect to a Party, any individual, a corporation or any other legal entity, directly or
indirectly, controlling, controlled by or under common control with such Party. For purpose of this definition, the term
“control,” as used with respect to any corporation or other entity, means (a) direct or indirect ownership of fifty percent (50%)
or more of the securities or other ownership interests representing the voting rights or general partnership or membership
interest of such corporation or other entity or (b) the power to direct or cause the direction of the management or policies of
such corporation or other entity, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” shall have the meaning specified in the preamble hereof.
“At The Market Offering” means an offering into any existing trading market for the Company’s ADSs or Ordinary
Shares at other than a fixed price.
“Average Daily Trading Volume” shall mean the average daily trading volume of the ADSs on the Principal Market
over the most recent five (5) Business Days prior to the respective Purchase Notice Date.
“Bankruptcy Custodian” shall mean any receiver, trustee, assignee, liquidator, registered liquidator, small business
restructuring practitioner, or similar official under any Bankruptcy Law.
“Bankruptcy Law” shall mean Title 11, U.S. Code, any similar federal or state law, or any similar Israeli law
(including, without limitation, the Israel Insolvency and Financial/Economic Rehabilitation Act) for the relief or restructuring of
debtors.
“Beneficial Ownership Limitation” shall have the meaning specified in Section 8.2(f).
“Business Day” shall mean a day on which the Principal Market shall be open for business.
“Clearing Costs” shall mean all of the Investor’s broker and ADS Depositary costs with respect to the deposit of the
Purchase Notice Securities.
“Closing” shall mean any one of the closings of a purchase and sale of Purchase Notice Securities pursuant to
Section 2.3(d).
“Closing Date” shall mean the date on which a Closing occurs, to be no later than five Business Days after the
receipt of the applicable Purchase Notice.
“Commitment Amount” shall mean $10,000,000.
“Commitment Period” shall mean the period commencing on the date on which the Investor receives the
Commitment Warrant and ending on the earlier (i) the date on which the ADSs cease trading on an Eligible Market, (ii) the
date on which the Investor shall have purchased Purchase Notice Securities pursuant to this Agreement for an aggregate
purchase price equal to the Commitment Amount, or (iii) 5:00 p.m. Eastern Time on June 30, 2026.
“Commitment Securities” shall have the meaning set forth in Section 6.3.
“Commitment Warrants” shall mean the warrants to purchase ADSs representing Ordinary Shares being issued to
the Investor pursuant to Section 6.3 upon execution of this Agreement.
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“Commitment Warrant ADSs” shall mean ADSs representing Ordinary Shares issuable upon exercise of the
Commitment Warrants.
“Company” shall have the meaning specified in the preamble hereof.
“Custodian” shall mean Computershare, as custodian for the ADS Depositary.
“Damages” shall mean any loss, claim, damage, liability, cost, and expense (including, without limitation, reasonable
attorneys’ fees and disbursements and costs and expenses of expert witnesses and investigation).
“Dispute Submission Deadline” shall have the meaning set forth in Section 11.16(a).
“DRS” shall mean the DTC’s Direct Registration System.
“DRS ADSs” shall mean ADSs that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale, and (iii) timely credited by the Company to the Investor’s or its designee’s specified DRS account with
DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same
function.
“DRS Eligible” shall mean that (a) the ADSs are eligible at DTC for full services pursuant to DTC’s operational
arrangements, including, without limitation, transfer through DTC’s DRS system, (b) the Company has been approved
(without revocation) by the DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST
Program, (d) the Purchase Notice Securities and Commitment Securities are otherwise eligible for delivery via DRS, and (e)
the Transfer Agent does not have a policy prohibiting or limiting delivery of the Purchase Notice Securities and Commitment
Securities, as applicable, via DRS.
“DTC” shall mean The Depository Trust Company, or any successor performing substantially the same function for
the Company.
“DTC/FAST Program” shall mean the DTC’s Fast Automated Securities Transfer Program.
“DWAC” shall mean Deposit Withdrawal at Custodian as defined by DTC.
“DWAC ADSs” shall mean ADSs that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale, and (iii) timely credited by the Company to the Investor’s or its designee’s specified DWAC account with
DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same
function.
“DWAC Eligible” shall mean that (a) the ADSs are eligible at DTC for full services pursuant to DTC’s operational
arrangements, including, without limitation, transfer through DTC’s DWAC system, (b) the Company has been approved
(without revocation) by the DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST
Program, (d) the Purchase Notice Securities and Commitment Securities are otherwise eligible for delivery via DWAC, and
(e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Purchase Notice Securities and
Commitment Securities, as applicable, via DWAC.
“Eligible Market” shall mean the NYSE, the NYSE American, The Nasdaq Capital Market, The Nasdaq Global
Market, or The Nasdaq Global Select Market (or any nationally recognized successor to any of the foregoing).
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
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“Execution Date” shall mean the date set forth in the preamble of this Agreement.
“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.
“Forward Purchase Notice” shall mean a Purchase Notice issued by the Company selecting the Forward Purchase
Price at which to sell the Purchase Notice Securities subject to such Purchase Notice.
“Forward Purchase Notice Limitation” shall mean a number of ADSs having an aggregate purchase price equal to
the lesser of (i) $500,000 or (ii) thirty percent (30%) of the trading volume of the ADSs on the Principal Market beginning at
4:00 a.m. New York time on the Purchase Notice Date and ending at the time on the Purchase Notice Date that the
Purchase Notice has been received by email by the Investor.
“Forward Purchase Price” shall mean the lowest traded price of the ADSs on the Purchase Notice Date with respect
to a Purchase Notice, as determined by the Investor, multiplied by ninety six percent (96%). Any Purchase Notice setting
forth the Forward Purchase Price will be subject to the Forward Purchase Notice Limitation.
“Future SEC Documents” shall have the meaning set forth in Section 8.2(k).
“Indemnified Party” shall have the meaning set forth in Section 10.1.
“Indemnifying Party” shall have the meaning set forth in Section 10.1.
“Initial Purchase Notice” shall mean the first Purchase Notice issued by the Company pursuant to this Agreement.
“Initial Purchase Notice Limitation” shall mean $1,000,000.
“Initial Purchase Price” shall mean the lowest daily VWAP of the ADSs during the five (5) consecutive Business
Days immediately prior to the Purchase Notice Date with respect to the Initial Purchase Notice multiplied by eighty-two
percent (82%). The Initial Purchase Notice will be subject to the Initial Purchase Notice Limitation.
“Initial Registration Statement” shall have the meaning set forth in Section 7.1(a).
“Investor” shall have the meaning specified in the preamble to this Agreement.
“Lien” shall mean a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right, or
other restriction.
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“Material Adverse Effect” shall mean any effect on the business, operations, properties, or financial condition of the
Company that is material and adverse to the Company and/or any condition, circumstance, or situation that would prohibit or
otherwise materially interfere with the ability of the Company to enter into and perform its obligations under any Transaction
Document.
“NASDAQ” shall mean The NASDAQ Stock Market LLC.
“NYSE” shall mean the New York Stock Exchange.
“NYSE American” shall mean NYSE American LLC.
“Ordinary Shares” shall have the meaning specified in the recitals to this Agreement.
“Party” shall mean a party to this Agreement.
“Person” shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof.
“Prefunded Warrant” means, collectively, the Prefunded ADS purchase warrants that may be delivered to the
Investor at the Closing of the purchase and sale of Purchase Notice Securities pursuant to the Initial Purchase Notice in
accordance with Section 2.3 hereof, which Prefunded Warrants shall be exercisable immediately and shall expire when
exercised in full, in the form of Exhibit B attached hereto.
“Prefunded Warrant ADSs” means the ADSs issuable upon exercise of the Prefunded Warrants.
“Principal Market” shall mean any of the national securities exchanges (i.e. NYSE, NYSE American, NASDAQ), or
principal quotation systems (i.e. OTCQX, OTCQB, OTC Pink), or other principal exchange or recognized quotation system
which is at the time the principal trading platform or market for the ADSs.
“Purchase Notice Amount” shall mean the product of the number of Purchase Notice Securities referenced in the
Purchase Notice multiplied by the applicable Purchase Price in accordance with Section 2.1.
“Purchase Notice” shall mean a written notice from the Company, substantially in the form of Exhibit A hereto, to the
Investor setting forth the Purchase Notice Securities which the Company requires the Investor to purchase pursuant to the
terms of this Agreement.
“Purchase Notice Date” shall have the meaning specified in Section 2.3(a).
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“Purchase Notice Limitation” shall mean either the Initial Purchase Notice Limitation for a Purchase Notice electing
the Initial Purchase Price, the Regular Purchase Notice Limitation for a Purchase Notice electing the Regular Purchase
Price, or the Forward Purchase Notice Limitation for a Purchase Notice electing the Forward Purchase Price.
“Purchase Notice Securities” shall mean all ADSs representing Ordinary Shares, all Prefunded Warrants, and all
Prefunded Warrant ADSs to be issued to the Investor pursuant to Purchase Notices in accordance with the terms and
conditions of this Agreement.
“Purchase Price” shall mean either the Initial Purchase Price, the Regular Purchase Price, or the Forward Purchase
Price, as elected by the Company on each Purchase Notice.
“Registration Expenses” shall mean all expenses incurred in effecting any registration pursuant to this Agreement,
including, without limitation, all registration, qualification and filing fees (including fees with respect to filings required to be
made with FINRA, and any fees of the securities exchange or automated quotation system on which the ADSs are then
listed or quoted), printing expenses, escrow fees, fees and disbursements of counsel for the Company, fees and
disbursements of counsel for the Investor not to exceed $15,000, blue sky fees and expenses (including reasonable fees
and disbursements of counsel for the Investor in connection with blue sky compliance), and any fees and disbursements of
accountants retained by the Company incident to or required by any such registration.
“Registration Statement” shall have the meaning specified in Section 7.1(c).
“Registrable Securities” shall mean (i) Ordinary Shares underlying the Purchase Notice Securities, including the
Ordinary Shares underlying the Prefunded Warrant ADSs, (ii) the Ordinary Shares underlying the Commitment Warrant
ADSs, and (iii) any other equity security of the Company issued or issuable with respect to any such Securities by way of a
share dividend or share split or in connection with a combination of shares, capitalization, merger, consolidation or
reorganization; provided, however, that, as to any particular Registrable Security, such securities shall cease to be
Registrable Securities when: (1) a registration statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been sold, transferred, disposed of, or exchanged in
accordance with such registration statement; (2) such securities shall have ceased to be outstanding; (3) such securities
have been sold pursuant to Section 4(a)(1) of the Securities Act, including sales made pursuant to Rule 144 promulgated
thereunder; or (4) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or
other public securities transaction.
“Regular Purchase Notice Limitation” shall mean a number of ADSs having an aggregate purchase price equal to
the lesser of (i) $500,000 or (ii) sixty percent (60%) of the Average Daily Trading Volume, unless the Company and the
Investor mutually agree in writing to increase the Regular Purchase Notice Limitation to a number of ADSs in an amount not
to exceed an aggregate purchase price of $3,000,000.
“Regular Purchase Notice” shall mean a Purchase Notice issued by the Company selecting the Regular Purchase
Price at which to sell the Purchase Notice Securities subject to such Purchase Notice.
“Regular Purchase Price” shall mean the lowest daily VWAP of the ADSs during the five (5) consecutive Business
Days immediately prior to the Purchase Notice Date with respect to a Purchase Notice, as determined by the Investor,
multiplied by ninety percent (90%). Any Purchase Notice setting forth the Regular Purchase Price will be subject to the
Regular Purchase Notice Limitation.
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“Regulation D” shall mean Regulation D promulgated under the Securities Act.
“Required Dispute Documentation” shall have the meaning set forth in Section 11.16(a).
“Rule 144” shall mean Rule 144 under the Securities Act or any similar provision then in force under the Securities
Act.
“SEC” shall mean the United States Securities and Exchange Commission.
“SEC Documents” shall have the meaning specified in Section 4.5.
“Securities” shall mean the Purchase Notice Securities and the Commitment Securities, collectively.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Share Equivalents” shall mean any securities of the Company entitling the holder thereof to acquire at any time
ADSs representing Ordinary Shares, including, without limitation, any debt, preferred shares, right, option, warrant or other
instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Ordinary Shares represented by ADSs.
“Subsidiary” shall mean any Person that the Company wholly owns or controls, or in which the Company, directly or
indirectly, owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to
Item 601(b)(21) of Regulation S-K promulgated under the Securities Act.
“Transaction Documents” shall mean this Agreement and all exhibits hereto.
“Transfer Agent” shall mean the The Bank of New York Mellon, and any successor transfer agent of the Company.
“Transfer Agent/ADS Depositary Confirmation” shall have the meaning specified in Section 2.2(c).
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“Transfer Agent/ADS Depositary Deliverables” shall have the meaning specified in Section 2.2(c).
“VWAP” shall mean, for any security as of any date, the dollar volume-weighted average price for such security on
the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal
securities exchange or securities market on which such security is then traded), during the period beginning at 9:30 a.m.,
New York time, and ending at 4:00 p.m., New York time, or if the foregoing does not apply, the dollar volume-weighted
average price of such security in any principal quotation system operated by OTC Markets Group Inc. or other principal
exchange or recognized quotation system which is at the time the principal trading platform or market for such security
during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, or, if no dollar volume-
weighted average price is reported, 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 in the “pink sheets” by OTC Markets Group Inc. If the VWAP cannot be
calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be
the fair market value as mutually determined by the Company and the Investor. If the Company and the Investor are unable
to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures
i n Section 11.16. All such determinations shall be appropriately adjusted for any share dividend, share split, share
combination, recapitalization, or other similar transaction during such period.
“Underlying Ordinary Shares” shall have the meaning specified in the recitals to this Agreement.
ARTICLE II
PURCHASE AND SALE OF SECURITIES
Section 2.1 Purchase Notices. Subject to the conditions set forth herein, at any time during the Commitment
Period, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a
Purchase Notice from time to time, to purchase, and the Investor shall have the obligation to purchase from the Company,
the number of Purchase Notice Securities set forth on the Purchase Notice at the Purchase Price, provided that the amount
of Purchase Notice Securities shall not (i) exceed the Purchase Notice Limitation, (ii) cause the Investor to beneficially own
more than the Beneficial Ownership Limitation as set forth in Section 8.2(f), or (iii) cause the Company to breach the
Companies Law as set forth in Section 8.2(g) unless and until the Company obtains the approval of its shareholders for the
issuance of Ordinary Shares in excess of such amount; provided, however, that the number of Purchase Notice Securities
set forth on the Initial Purchase Notice or any Regular Purchase Notice may exceed the limitations set forth in Section 2.1(ii)
and Section 2.1(iii) (as determined in the manner set forth in Sections 8.2(f) and Section 8.2(g), respectively) if, and only if,
the Purchase Notice Securities that are in excess of the lower of the limitation in Section 2.1(ii) and the limitation in Section
2.1(iii) are Prefunded Warrants in lieu of ADSs (in which case, the Initial Purchase Price shall be reduced by $0.0001 per
Prefunded Warrant). At the Company’s option, the Company may request, in writing, the Investor provide to the Company,
and the Investor shall promptly provide to the Company, the number of ADSs and/or Ordinary Shares beneficially owned by
the Investor and its Affiliates as determined in accordance with Section 13 of the Exchange Act, for the purposes of
determining if the issuance of Purchase Notice Securities will exceed the limitations set forth in Section 2.1(ii) and Section
2.1(iii). Unless waived by the Investor in writing, the Company may not deliver a subsequent Purchase Notice until the
Closing of an active Purchase Notice; provided, however, that the Company may deliver up to two (2) Forward Purchase
Notices on any given Business Day (subject to Section 2.3) if the Investor has sold all Purchase Notice Securities set forth
on the first Forward Purchase Notice delivered on such Business Day and has notified the Company by email at the email
address set forth in Section 11.17 that all such Purchase Notice Securities have been sold. If the Company delivers two (2)
Forward Purchase Notices on any given Business Day, the Company may not thereafter deliver a subsequent Purchase
Notice (whether Regular or Forward) until the Closing of such two Forward Purchase Notices. Notwithstanding the
foregoing, following the Investor’s receipt of a Forward Purchase Notice, if the Investor notifies the Company that the
Investor’s broker will not permit the Investor to sell Purchase Notice Securities prior to the Investor actually depositing such
Purchase Notice Securities from the Company into the Investor’s brokerage account, then the Investor shall be permitted to
decline to accept such Forward Purchase Notice, and such Forward Purchase Notice shall be null and void ab initio and of
no force or effect whatsoever (it being understood that the foregoing shall not apply to the Initial Purchase Notice or a
Regular Purchase Notice).
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Section 2.2
Purchase Price Election. For the Initial Purchase Notice, the Company must select the Initial
Purchase Price at which to sell the Purchase Notice Securities subject to such Initial Purchase Notice. For each subsequent
Purchase Notice, the Company shall have the right to select the Regular Purchase Price or the Forward Purchase Price at
which to sell the Purchase Notice Securities subject to such Purchase Notice.
Section 2.3 Deliveries; Closing.
( a ) Purchase Notice Delivery. In accordance with Section 2.1 and subject to the satisfaction of the
conditions set forth in Section 8.2, the Company shall instruct the ADS Depositary to issue and deliver the Purchase Notice
Securities either as DWAC ADSs or DRS ADSs to the Investor pursuant to Section 2.2(b) promptly after the delivery of each
Purchase Notice by email at the Investor’s email address set forth in Section 11.17. The Initial Purchase Notice and any
Regular Purchase Notice shall be deemed delivered on (i) the Business Day that such Purchase Notice has been received
by email by the Investor if such Purchase Notice is received on or prior to 8:00 a.m. New York time, or (ii) the next Business
Day if such Purchase Notice is received by email after 8:00 a.m. New York time on a Business Day or at any time on a day
which is not a Business Day. A Forward Purchase Notice shall be deemed delivered on (i) the Business Day that such
Purchase Notice has been received by email by the Investor if such Purchase Notice is received on or prior to 12:30 p.m.
New York time, or (ii) the next Business Day if such Purchase Notice is received by email after 12:30 p.m. New York time on
a Business Day or at any time on a day which is not a Business Day. The Business Day on which a Purchase Notice is
deemed delivered pursuant to this Section 2.3(a) shall be the “Purchase Notice Date”.
( b ) Issuance and Delivery of Underlying Ordinary Shares and Purchase Notice Securities. No later than
5:00 p.m. New York time on the first (1st) Business Day after the Purchase Notice Date, the Company shall (i) make proper
delivery to the Custodian for deposit on behalf of the Investor in accordance with the ADS Deposit Agreement of all of the
Ordinary Shares underlying the Purchase Notice Securities, (ii) pay to the ADS Depositary any fee payable under the ADS
Deposit Agreement for the issuance of the ADSs, and (iii) instruct the ADS Depositary to deliver such Purchase Notice
Securities to the Investor by registration in uncertificated form in the name of the Investor, by no later than 5:00 p.m., New
York Time on the second (2nd) Business Day after the Purchase Notice Date.
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(
c
) Alternative Delivery of Purchase Notice or Commitment Securities. If the Investor has resold
Purchase Notice Securities or Commitment Securities in a manner described under the caption “Plan of Distribution” in the
Registration Statement and otherwise in compliance with Section 5.3 of this Agreement, the Investor shall (i) send a
confirmation to the Transfer Agent and ADS Depositary setting forth the number of such Purchase Notice Securities or
Commitment Securities (as applicable) that have been so resold and the date of such resales (such confirmation, the
“Transfer Agent/ADS Depositary Confirmation”) and (ii) deliver to the Transfer Agent and ADS Depositary customary
documentation reasonably satisfactory to the Transfer Agent and ADS Depositary with respect to such resold Purchase
Notice Securities or Commitment Securities (as applicable), including a customary broker’s representation letter confirming,
among other things, that the Investor has resold such Commitment Securities or Purchase Notice Securities (as applicable)
in a manner described under the caption “Plan of Distribution” in the Registration Statement and otherwise in compliance
with Section 5.3 of this Agreement (including confirmation of compliance with any relevant prospectus delivery requirements)
(collectively, the “Transfer Agent/ADS Depositary Deliverables”). With respect to the Purchase Notice Securities or
Commitment Securities (as applicable) resold by the Investor as described in the preceding sentence and as to which the
Investor has delivered the Transfer Agent/ADS Depositary Deliverables with respect to such resold Purchase Notice
Securities or Commitment Securities (as applicable), in lieu of delivering such resold Purchase Notice Securities or
Commitment Securities (as applicable) to the Investor in accordance with Section 2.2(b), the Company shall (i) instruct the
Transfer Agent to issue and deposit Ordinary Shares with the Custodian under the terms of the ADS Deposit Agreement,
(ii) pay to the Depositary the fee payable under the ADS Deposit Agreement for the issuance of the ADS, and (iii) instruct
the ADSs Depositary, upon deposit of the Ordinary Shares with the Custodian and the payment of the ADS issuance fee by
the Company, to deliver and credit such Purchase Notice Securities or Commitment Securities (as applicable) using either
the DWAC or deliver order (DO) system maintained by DTC (or any similar program hereafter adopted by DTC performing
substantially the same function) to the account with DTC of the Investor’s designated broker-dealer as specified in the
Transfer Agent/ADS Depositary Deliverables with respect to such resold Purchase Notice Securities or Commitment
Securities (as applicable) at the time such Purchase Notice Securities or Commitment Securities (as applicable) would
otherwise have been required to be delivered to the Investor in accordance with Section 2.2(b). Concurrently with such
instruction and payment, the Company shall confirm to the ADS Depositary that the Registration Statement was effective
and could be relied upon to sell such ADSs as of the relevant date of sale and that the Investor is named as a selling
shareholder in the prospectus included in the Registration Statement. Any Purchase Notice Securities or Commitment
Securities (as applicable) so delivered (x) shall only be used by the Investor’s broker-dealer to deliver such Purchase Notice
Securities or Commitment Securities (as applicable) to DTC for the purpose of settling the Investor’s share delivery
obligations with respect to the sale of such Purchase Notice Securities or Commitment Securities (as applicable), which may
include delivery to other accounts of such broker-dealer and inclusion in the number of Purchase Notice Securities or
Commitment Securities (as applicable) delivered by that broker-dealer in “net settling” that broker-dealer’s trading of the
ADSs, including its positions with the broker-dealers of the respective persons who purchase such Purchase Notice
Securities or Commitment Securities (as applicable) from the Investor, and (y) shall remain “restricted securities” as such
term is defined in Rule 144(a)(3) under the Securities Act until so delivered.
( d ) Closing. The Investor shall pay to the Company the Purchase Notice Amount with respect to the
applicable Purchase Notice as full payment for such Purchase Notice Securities purchased by the Investor under the
applicable Purchase Notice via wire transfer of immediately available funds as set forth below on the Closing Date. All
payments made under this Agreement shall be made in lawful money of the United States of America by wire transfer of
immediately available funds to such account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of this
Agreement is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is a
Business Day.
10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants the following to the Company:
Section 3.1
Intent. The Investor is entering into this Agreement and purchasing the Securities for its own
account, and not as nominee or agent, for investment purposes and not with a view towards, or for a sale in connection with,
a “distribution” (as such term is defined in the Securities Act), and the Investor has no present arrangement (whether or not
legally binding) at any time to sell the Securities to or through any Person in violation of the Securities Act or any applicable
state securities laws; provided, however, that the Investor reserves the right to dispose of the Securities at any time in
accordance with federal and state securities laws and the applicable securities laws of any jurisdiction to such disposition.
Section 3.2 No Legal Advice From The Company. The Investor acknowledges that it has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment
and tax advisors. The Investor is relying solely on such counsel and advisors and not on any statements or representations
of the Company or any of its representatives or agents for legal, tax, or investment advice with respect to this investment,
the transactions contemplated by this Agreement or the securities laws of any jurisdiction.
Section 3.3
Accredited Investor. The Investor is an “accredited investor” (as such term is defined in Rule
501(a)(3) of Regulation D), and the Investor has such experience in business and financial matters that it is capable of
evaluating the merits and risks of an investment in the Securities. The Investor acknowledges that an investment in the
Securities is speculative and involves a high degree of risk.
Section 3.4
Authority. The Investor has the requisite power and authority to enter into and perform its
obligations under the Transaction Documents and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of the Transaction Documents and the consummation by it of the transactions contemplated hereby
and thereby have been duly authorized by all necessary action and no further consent or authorization of the Investor is
required. The Transaction Documents to which it is a party has been duly executed by the Investor, and when delivered by
the Investor in accordance with the terms hereof, will constitute the valid and binding obligation of the Investor enforceable
against it in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application.
Section 3.5 Not An Affiliate. The Investor is not an officer, director, or “affiliate” (as that term is defined in Rule
405 of the Securities Act) of the Company.
Section 3.6 Organization and Standing. The Investor is an entity duly formed, validly existing, and in good
standing under the laws of the State of Delaware with full right and limited partnership or similar power and authority to enter
into and to consummate the transactions contemplated by the Transaction Documents.
11
Section 3.7
Absence of Conflicts. The execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby and compliance with the requirements hereof and
thereof, will not (a) violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the
Investor, (b) violate any provision of any indenture, instrument or agreement to which the Investor is a party or is subject, or
by which the Investor or any of its assets is bound, or conflict with or constitute a material default thereunder, (c) result in the
creation or imposition of any lien pursuant to the terms of any such indenture, instrument or agreement, or constitute a
breach of any fiduciary duty owed by the Investor to any third party, or (d) require the approval of any third-party (that has
not been obtained) pursuant to any material contract, instrument, agreement, relationship or legal obligation to which the
Investor is subject or to which any of its assets, operations or management may be subject.
Section 3.8 Disclosure; Access to Information. The Investor has had an opportunity to review copies of the
SEC Documents filed on behalf of the Company and has had access to all publicly available information with respect to the
Company. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor is able
to bear the economic risk of an investment in the Securities including a total loss. The Investor has sought such accounting,
legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition
of the Securities. The Investor understands that no United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or
suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of
the Securities.
Section 3.9 Manner of Sale. At no time was the Investor presented with or solicited by or through any leaflet,
public promotional meeting, television advertisement or any other form of general solicitation or advertising.
Section 3.10 Restricted Securities. The Investor understands and agrees that (i) none of the issuances of the
Purchase Notice Securities have been or will be registered under the Securities Act or any state securities laws, (ii) the
Purchase Notice Securities will be “restricted securities” under Rule 144, and (iii) the Investor’s broker and the Company will
be required to deliver representation letters in form and substance acceptable to the ADS Depositary prior to settlement of
any resale of the Purchase Notice Securities pursuant to the Registration Statement. The Investor understands that the
ADSs and any securities issued in respect of or exchange for the ADSs, other than those issued and delivered pursuant to
Section 2.2(c), may be notated with the legend set forth in Section 9.1.
Section 3.11 No Prior Short Selling. At no time prior to the date of this Agreement (and no time prior to any
Closing hereunder) has any of the Investor, its agents, representatives, or Affiliates engaged in or effected, in any manner
whatsoever, directly or indirectly, any (i) “short sale” (as such term is defined in Section 242.200 of Regulation SHO of the
Exchange Act) of the Securities or (ii) hedging transaction which establishes a net short position with respect to the
Securities or any other securities of the Company.
12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC Documents, the Company represents and warrants the following to the Investor, as of
the Execution Date:
Section 4.1
Organization of the Company. The Company is an entity duly organized and validly existing
under the laws of the State of Israel, with the requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of its
organizational or charter documents. The Company is duly qualified to conduct business and is in good standing (to the
extent such concept exists under applicable law) 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 (to
the extent such concept exists under applicable law), as the case may be, could not have or reasonably be expected to
result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and authority or qualification. The Company has Subsidiaries as
disclosed in the SEC Documents.
Section 4.2 Authority. The Company has the requisite corporate power and authority to enter into and perform
its obligations under the Transaction Documents. The execution and delivery of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action and no further consent or authorization of the Company or its Board of Directors or shareholders
is required. The Transaction Documents have been duly executed and delivered by the Company and, when duly executed
by the Investor and delivered by the Company in accordance with the term hereof, constitute valid and binding obligations of
the Company enforceable against the Company in accordance with its terms, except (i) as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general application and (ii) to the extent the enforceability of any
provisions for indemnification may be limited by public policy.
Section 4.3 Capitalization. The capitalization of the Company as of the date hereof is as set forth on in the
SEC Documents, which include the number of Ordinary Shares (including Ordinary Shares represented by ADSs) owned
beneficially, and of record, by Affiliates of the Company as of the date hereof. Except as disclosed in the SEC Documents,
the Company has not issued any securities since its most recently filed periodic report under the Exchange Act, other than
pursuant to the exercise of employee share options under the Company’s share option plans, the issuance of ADSs or
Ordinary Shares to employees pursuant to the Company’s employee share purchase plans, and pursuant to the conversion
and/or exercise of Share Equivalents outstanding as of the date of the most recently filed periodic report under the
Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction Documents. Except as set forth in the SEC Documents and
this Agreement, 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 securities, or contracts, commitments, understandings, or
arrangements by which the Company is or may become bound to issue additional securities or Share Equivalents. The
issuance and sale of any Securities pursuant to this Agreement will not obligate the Company to issue securities of the
Company to any Person (other than the Investor) and will not result in a right of any holder of Company securities to adjust
the exercise, conversion, exchange, or reset price under any of such securities, except to the extent that the exercise or
conversion price of such securities are calculated based on the market price of the ADSs on the applicable exercise or
conversion date. Except for the Company’s outstanding preferred shares as set forth in the Company’s articles of
association, there are no outstanding securities or instruments of the Company that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings, or arrangements by which the Company is or may
become bound to redeem a security of the Company. The Company does not have any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan or agreement. Except as disclosed in the SEC Documents, there
are no shareholders agreements, voting agreements, or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s
shareholders.
13
Section 4.4 Listing and Maintenance Requirements. The ADSs are registered pursuant to Section 12(b) of
the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect
of, terminating the registration of the ADSs under the Exchange Act nor has the Company received any notification that the
SEC is contemplating terminating such registration. Except as disclosed in the SEC Documents, the Company has not, in
the twelve (12) months preceding the date hereof, received notice from the Principal Market on which the ADSs are or have
been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of
such Principal Market. Except as disclosed in the SEC Documents, the Company is in compliance with all such listing and
maintenance requirements and has no reason to believe that it will not continue to be in compliance with all such listing and
maintenance requirements in the foreseeable future.
Section 4.5 SEC Documents; Disclosure. The Company has filed all reports, schedules, forms, statements
and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the one (1) year preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively referred to herein as the “SEC Documents”) on a timely
basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of
any such extension. As of their respective dates, the SEC Documents complied in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Documents when filed
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC Documents comply as to form and substance in
all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. The interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement fairly presents the information called for in all material
respects and has been prepared in accordance with SEC’s rules and guidelines applicable thereto. Such financial
statements have been prepared in accordance with International Financial Reporting Standards applied on a consistent
basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto
or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof
and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal, immaterial, year-end audit adjustments). Except with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might
constitute material, non-public information. The Company understands and confirms that the Investor will rely on the
foregoing representation in effecting transactions in securities of the Company.
Section 4.6 Valid Issuances. The Securities are duly authorized and, when issued and paid for in accordance
with the applicable Transaction Documents, will be duly and validly issued, fully paid, and non-assessable, free and clear of
all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents and
applicable federal and state securities laws and regulations. Assuming the accuracy of the representations of the Investor in
Article III of this Agreement and subject to the filings described in Section 4.7 of this Agreement, the Securities will be issued
in compliance with all applicable federal and state securities laws.
14
Section 4.7
No Conflicts. The execution, delivery, and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without
limitation, the issuance of the Purchase Notice Securities and Commitment Securities, do not and will not (a) result in a
violation of the Company’s articles of association, by-laws, or other organizational or charter documents, (b) conflict with, or
constitute a material default (or an event that with notice or lapse of time or both would become a material default) under,
result in the creation of any Lien upon any of the properties or assets of the Company, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement, indenture, instrument or any “lock-up” or similar
provision of any underwriting or similar agreement to which the Company is a party, or (c) result in a violation of any federal,
state or local law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is bound or affected (except for such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). The business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental entity, except for possible violations that either singly or in the aggregate do not
and will not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation
to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in
order for it to execute, deliver or perform any of its obligations under the Transaction Documents (other than (i) any SEC or
state securities filings that may be required to be made by the Company in connection with the execution of this Agreement
or the issuance of Securities pursuant hereto, or (ii) the filing of a Listing of Additional Shares Notification Form with the
Principal Market, which, in each case, have been made or will be made in a timely manner); provided that, for purposes of
the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Investor herein.
Section 4.8
No Material Adverse Effect. No event has occurred that has had or would reasonably be
expected to have a Material Adverse Effect on the Company that has not been disclosed in the SEC Documents.
Section 4.9
Litigation and Other Proceedings. Except as disclosed in the SEC Documents, there are no
material actions, suits, investigations, SEC inquiries, FINRA inquiries, NASDAQ inquiries, or similar proceedings (however
any governmental agency may name them) pending or, to the actual knowledge of the Company, threatened against or
affecting the Company or its properties, nor has the Company received any written or, or to the knowledge of the Company,
oral notice of any such action, suit, proceeding, SEC inquiry, FINRA inquiry, NASDAQ inquiry or investigation, which would
have a Material Adverse Effect. No judgment, order, writ, injunction or decree or award against the Company has been
issued by or, to the actual knowledge of the Company, requested of any court, arbitrator or governmental agency which
would have a Material Adverse Effect. There has not been, and to the actual knowledge of the Company, there is no
pending investigation by the SEC involving the Company or any current officer or director of the Company.
Section 4.10
Acknowledgment Regarding Investor’s Purchase of Securities. Based solely on the
Investor’s representations and warranties, the Company acknowledges and agrees that the Investor is acting solely in the
capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby and thereby
and that the Investor is not (i) an officer or director of the Company, or (ii) an “affiliate” (as defined in Rule 144) of the
Company. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and thereby,
and any advice given by the Investor or any of its representatives or agents in connection with this Agreement and the
transactions contemplated hereby and thereby is merely incidental to the Investor’s purchase of the Purchase Notice
Securities. The Company further represents to the Investor that the Company’s decision to enter into this Agreement has
been based solely on the independent evaluation by the Company and its representatives.
Section 4.11
No General Solicitation. Neither the Company, nor any Person acting on its behalf, has
engaged 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 Securities.
15
Section 4.12 No Integrated Offering. Assuming the accuracy of the Investor’s representations and warranties
set forth in Article III, none of the Company, its Affiliates, and any Person acting on their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering of the Securities to be integrated with prior offerings for purposes of (i) the Securities Act which would require
the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions,
including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any
of the securities of the Company are listed or designated, but excluding shareholder consents required to authorize and
issue the Securities or waive any anti-dilution provisions in connection therewith.
Section 4.13 Exempt Offering. Assuming the accuracy of the representations and warranties of such Investor
above, the offer, issue, and sale of the Securities hereunder are and will be exempt from the registration and prospectus
delivery requirements of the Securities Act, pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506(b) of
Regulation D and applicable state securities laws.
Section 4.14 Placement Agent; Other Covered Persons. The Company has not engaged any Person to act
as a placement agent, underwriter, broker, dealer, or finder in connection with the issuance and sale of the Securities to the
Investor hereunder. The Company is not aware of any Person that has been or will be paid (directly or indirectly)
remuneration for solicitation of the Investor in connection with the issuance and sale of any Securities.
Section 4.15
Registration Statement. At the time of the filing of any Registration Statement (as defined
in Section 7.1(c)), or any amendment thereto, and at the time any such Registration Statement or any amendment thereto
becomes effective, the Company shall have no knowledge of any untrue statement of a material fact in such Registration
Statement or omission of a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and, at the time any prospectus that is part of such
Registration Statement, or any amendment or supplement to such prospectus, is issued, the Company shall have no
knowledge of any untrue statement of a material fact in such prospectus, amendment, or supplement or omission of a
material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
16
ARTICLE V
COVENANTS OF INVESTOR
Section 5.1 Short Sales and Confidentiality. During the period from the Execution Date to the end of the
Commitment Period, neither the Investor, nor any Affiliate of the Investor acting on its behalf or pursuant to any
understanding with it, shall execute (i) any “short sale” (as such term is defined in Section 242.200 of Regulation SHO of the
Exchange Act) of the Securities or (ii) hedging transaction which establishes a net short position with respect to the
Securities or any other securities of the Company. For the purposes hereof, and in accordance with Regulation SHO, the
sale after delivery of the Purchase Notice of such number of Securities reasonably expected to be purchased under the
Purchase Notice shall not be deemed a short sale. The Investor shall, until such time as the transactions contemplated by
the Transaction Documents are publicly disclosed by the Company in accordance with the Exchange Act and the terms of
the Transaction Documents, maintain the confidentiality of the existence and terms of this transaction and the information
included in the Transaction Documents. Further, the Investor shall keep confidential the existence and terms of any
Purchase Notice issued by the Company, including the number of Purchase Notice Securities set forth therein, until publicly
disclosed by the Company in accordance with the Exchange Act and the terms of the Transaction Documents; provided that
the Investor may disclose such information (a) to its Affiliates or any of their respective officers, directors, managers,
employees agents, advisors, (including, without limitation, attorneys, accountants, consultants, and financial advisors),
brokers, custodians, prime brokers, the Company’s transfer agent, the Company’s outside auditors, or any other Person who
need to know such information to carry out the purposes of this Agreement, (b) if the Investor is required by legal process to
disclose such information; provided that Investor agrees to notify the Company of the existence, terms, and circumstances
of any such legal process so that the Company Party may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section 5.1, (c) if such disclosure is required by law, or (d) if such information
constitutes material, non-public information (following notice to and review by the Company of proposed disclosure).
Section 5.2 Compliance with Law; Trading in Securities. The Investor’s trading activities with respect to the
Securities shall be in compliance with all applicable state and federal securities laws and regulations and the rules and
regulations of the Principal Market.
Section 5.3
Resale of Securities. Without limiting the generality of Section 5.2, the Investor covenants and
agrees that it will resell the Securities only (a) pursuant to the Registration Statement in which the resale of such Securities
is registered under the Securities Act, in a manner described under the caption “Plan of Distribution” in such Registration
Statement, and in a manner in compliance with all applicable U.S. federal and state securities laws, rules, and regulations,
including, without limitation, any applicable prospectus delivery requirements of the Securities Act, or (b) in compliance with
an available exemption under the Securities Act. As a condition to any resale of the Securities, (x) the Company, the ADS
Depositary, or the Transfer Agent may require an opinion of the Company’s legal counsel, the form and substance of which
opinion shall be reasonably satisfactory to the Company, its legal counsel, the ADS Depositary, and the Transfer Agent to
the effect that such resale under subsection (a) or (b) has been either registered under the Securities Act pursuant to the
Registration Statement or does not require registration under the Securities Act pursuant to an available exemption
therefrom, respectively, and (y) the Investor shall provide to the Company, its legal counsel, the ADS Depositary, and the
Transfer Agent such representations by the Investor and/or the broker executing such resale or other documentation
required by the Company, its legal counsel, the ADS Depositary, and the Transfer Agent in support of such opinion. If the
Company fails to cause its legal counsel to provide the legal opinion described in the immediately preceding sentence in
connection with a resale effected pursuant to an exemption from registration under the Securities Act (including Section 4(a)
(1) of the Securities Act and the Rule 144 safe harbor thereunder) and if permitted by the ADS Depositary and the Transfer
Agent, the Investor shall have the right to provide an opinion of a legal counsel selected by the Investor, which opinion shall
be in form and substance satisfactory to the Company (together with any representations by the Investor and/or the broker
executing such resale or other documentation required by the Company, the ADS Depositary, and the Transfer Agent in
support of such opinion), the cost of which shall be borne by the Company. The Company shall also pay all costs
associated with any opinions delivered by its legal counsel.
17
ARTICLE VI
COVENANTS OF THE COMPANY
Section 6.1
Listing of ADSs. The Company shall use its commercially reasonable efforts to continue the
listing or quotation and trading of the ADSs on the Principal Market (including, without limitation, maintaining sufficient net
tangible assets, if required) and will comply in all material respects with the Company’s reporting, filing, and other obligations
under the bylaws or rules of the Principal Market.
Section 6.2
Filing of Report of Foreign Private Issuer. The Company agrees that it shall file a Report of
Foreign Private Issuer on Form 6-K, including the Transaction Documents as exhibits thereto, with the SEC within the time
required by the Exchange Act, relating to the execution of the transactions contemplated by, and describing the material
terms and conditions of, the Transaction Documents (the “6-K”). The Company shall permit the Investor to review and
comment upon the final pre-filing draft version of the 6-K at least two (2) Business Days prior to its filing with the SEC, and
the Company shall give reasonable consideration to all such comments. The Investor shall use its commercially reasonable
efforts to comment upon the final pre-filing draft version of the 6-K within one (1) Business Day from the date the Investor
receives it from the Company.
Section 6.3 Commitment Securities. In consideration for the Investor’s execution, delivery, and performance
under this Agreement, the Company shall issue to the Investor a warrant (the “Commitment Warrant”) valid for a term of
five (5) years, entitling the Investor to purchase ADSs (the “Commitment Warrant ADSs” and, collectively with the
Commitment Warrant, the “Commitment Securities”) with a value (calculated based on the then-current ADS to Ordinary
Share ratio pursuant to the ADS Deposit Agreement) equal to ten percent (10%) of the Commitment Amount divided by the
Exercise Price (as defined in the Commitment Warrant), which is based on a Company valuation of twelve million dollars
($12,000,000). The Exercise Price will be calculated by dividing the $12,000,000 valuation by the total number of
outstanding Ordinary Shares as of the Exercise Date (as defined in the Commitment Warrant) multiplied by the then-current
ADS to Ordinary Share ratio pursuant to the ADS Deposit Agreement. Upon issuance pursuant to this Section 6.3, the
Commitment Warrant shall constitute “restricted securities” as such term is defined in Rule 144 under the Securities Act and
the certificate or book-entry statement representing the Commitment Warrant shall bear a restrictive legend set forth Section
9.1 of this Agreement. The terms and conditions of the Commitment Warrant, including vesting schedule, expiration date,
and adjustments in the event of certain corporate actions, will be as set forth in the form attached hereto as Exhibit C.
Section 6.4 Subsequent Equity Sales. From the Closing Date with respect to the Initial Purchase Notice until
fifteen (15) days thereafter, the Company shall not issue, enter into any agreement to issue, or announce the issuance or
proposed issuance of, any ADSs or Ordinary Shares in an At The Market Offering at a price below the Initial Purchase Price
(in the case of Ordinary Shares, as adjusted to reflect the then-current ADS to Ordinary Share ratio pursuant to the ADS
Deposit Agreement).
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ARTICLE VII
REGISTRATION RIGHTS
Section 7.1 Registration.
(a) The Company shall file a registration statement covering (and to qualify under required U.S. state
securities laws, if any) the offer and sale of all Registrable Securities by the Investor on a continuous basis pursuant to
Rule 415, not later than fifteen (15) Business Days after the Execution Date, which registration statement shall be filed with
the SEC on Form F-1 (the “Initial Registration Statement”). The Company shall undertake to register the Registrable
Securities on Form F-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the
Initial Registration Statement then in effect until such time as a registration statement on Form F-3 covering the Registrable
Securities has been declared effective by the SEC.
(b) Notwithstanding the registration obligations set forth in Section 7.1(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, the Company agrees to promptly inform the Investor and use its
commercially reasonable efforts to file amendments to the Initial Registration Statement or a new registration statement (a
“New Registration Statement”) as required by the SEC, covering the maximum number of Registrable Securities permitted
to be registered by the SEC, on Form F-1 or such other form available to register for resale the Registrable Securities as a
secondary offering, subject to the provisions of Section 7.1(a).
(c) If the Company amends the Initial Registration Statement or files a New Registration Statement, as
the case may be, in accordance with Section 7.1(b) above, and if the SEC informs the Company that all of the remaining
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, the Company will use its commercially reasonable efforts to file with the SEC, as promptly as
possible, one or more additional registration statements on Form F-1 or F-3 or such other form that is available to register
for resale all of those Registrable Securities that were not registered for resale on the Initial Registration Statement, as
amended, or on the New Registration Statement. The Initial Registration Statement, a New Registration Statement, and any
other registration statements pursuant to which the Company seeks to register for resale any Registrable Securities shall
each be referred to herein as a “Registration Statement” and collectively as the “Registration Statements. ” The term
“Registration Statement(s)” shall include any prospectus, amendments and supplements to such registration statement or
prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
(d) The Company shall use its commercially reasonable efforts to (i) cause each Registration Statement
to be declared effective by the SEC as soon as practicable, and (ii) keep each Registration Statement continuously effective
under the Securities Act until the Investor ceases to hold Registrable Securities. Each Registration Statement shall provide
for any method or combination of methods of resale of Registrable Securities legally available to, and requested by, the
Investor, and shall comply with the relevant provisions of the Securities Act and Exchange Act. The Investor acknowledges
that it will be identified in each Registration Statement as an underwriter within the meaning of Section 2(a)(11) of the
Securities Act, and the Investor shall furnish all information reasonably requested by the Company for inclusion therein and
shall otherwise cooperate with the Company as reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement. If Form F-3 becomes available for the registration of the resale of all of the
Registrable Securities hereunder, the Company may use such Form; provided, however, if Form F-3 is not available for the
registration of the resale of all of the Registrable Securities hereunder, the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a registration statement on Form F-3 covering all of the Registrable
Securities has been declared effective by the SEC.
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Section 7.2 Expenses of Registration. All Registration Expenses incurred in connection with all registrations
pursuant to this Article VII shall be borne by the Company.
Section 7.3 Registration Procedures. In the case of each registration of Registrable Securities effected by
the Company pursuant to this Article VII, the Company will do the following:
(a) Prepare each Registration Statement, including all exhibits and financial statements required under
the Securities Act to be filed therewith, and before filing such Registration Statement, any prospectus or any amendments or
supplements thereto, furnish to the Investor copies of all documents prepared to be filed with the SEC, and the Investor and
its counsel will have a reasonable opportunity to review such document prior to their filing with the SEC;
(b) In accordance with Section 7.1, file with the SEC the Registration Statement relating to the
Registrable Securities, including all exhibits and financial statements required by the SEC to be filed therewith, and use its
commercially reasonable efforts to cause such Registration Statement(s) to become effective under the Securities Act as
soon as practicable;
(c) Prepare and file with the SEC such amendments, post-effective amendments, and supplements to
such Registration Statement and the prospectus used in connection with such Registration Statement as may be reasonably
requested by the Investor or as may be necessary to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration
Statement;
(d) Notify the Investor, , and confirm such notice in writing and provide copies of the relevant documents,
as soon as reasonably practicable after notice thereof is received by the Company (i) when the applicable Registration
Statement or any amendment thereto has been filed or becomes effective, and when the applicable prospectus or any
amendment or supplement to such prospectus has been filed, (ii) of any written comments by the SEC or any request by the
SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement,
prospectus or for additional information (whether before or, to the extent that such notice does not consist of material non-
public information as determined by the Company, after the effective date of the Registration Statement), (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any
other regulatory authority preventing or suspending the use of any preliminary or final prospectus or the initiation or
threatening of any proceedings for such purposes, and (iv) of the receipt by the Company of any notification with respect to
the suspension of any Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
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(e) Furnish such number of prospectuses, including any preliminary prospectuses, and other documents
incident thereto, including any amendment of or supplement to the prospectus, as the Investor (or its counsel) from time to
time may reasonably request;
(f) Register and qualify the securities covered by such Registration Statement under such other securities
or blue sky laws of such jurisdictions in the United States as shall be reasonably requested by the Investor; provided, that
the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions where it would not otherwise be required to qualify
or when it is not then otherwise subject to service of process;
(g) Notify each seller of Registrable Securities covered by such Registration Statement at any time when
a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of
which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances under which they were made, and following such notification
promptly prepare and file a post-effective amendment to such Registration Statement or a supplement to the related
prospectus or any document incorporated therein by reference, and file any other required document that would be
incorporated by reference into such Registration Statement and prospectus, so that such Registration Statement does not
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and that such prospectus does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and, in the case of a post-effective amendment to a
Registration Statement, use its commercially reasonable efforts to cause it to be declared effective as promptly as is
reasonably practicable, and give to the Investor a written notice of such amendment or supplement, and, upon receipt of
such notice, the Investor agrees not to sell any Registrable Securities pursuant to such Registration Statement until the
Investor’s receipt of copies of the supplemented or amended prospectus or until it receives further written notice from the
Company that such sales may re-commence;
(h) Use its commercially reasonable efforts to prevent, or obtain the withdrawal of, any order suspending
the effectiveness of any Registration Statement (and promptly notify in writing the Investor covered by such Registration
Statement of the withdrawal of any such order);
(i) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to such
Registration Statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective
date of such registration;
(j) If requested, cooperate with the Investor to facilitate the timely preparation and delivery of certificates
or establishment of book entry notations representing Registrable Securities to be sold and not bearing any restrictive
legends, including without limitation, procuring and delivering any opinions of counsel, certificates, or agreements as may be
necessary to cause such Registrable Securities to be so delivered;
(k) Cause all such Registrable Securities registered hereunder to be listed on each securities exchange
or automated quotation system on which similar securities issued by the Company are then listed;
(l) Promptly identify to the Investor any underwriter(s) participating in any disposition pursuant to such
Registration Statement and any attorney or accountant or other agent retained by any such underwriter or selected by the
Investor, make available for inspection by the Investor all financial and other records, pertinent corporate documents, and
properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to
supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as
necessary or advisable to verify the accuracy of the information in such Registration Statement and to conduct appropriate
due diligence in connection therewith;
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(m) Reasonably cooperate, and cause each of its principal executive officer, principal financial officer,
principal accounting officer, and all other officers and members of the management to fully cooperate in any offering of
Registrable Securities hereunder, which cooperation shall include, without limitation, assisting with the preparation of any
Registration Statement or amendment thereto with respect to such offering and all other offering materials and related
documents, and participation in meetings with underwriters, attorneys, accountants and potential shareholders;
(n) Otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations
of the SEC and make available to its shareholders an earnings statement (in a form that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty
(30) days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal quarter after the
effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which
requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 20-F,
40-F, and 6-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule
thereto;
(o) Reasonably cooperate with the Investor and each underwriter or agent, if any, participating in the
disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made
with FINRA, and use its commercially reasonable efforts to make or cause to be made any filings required to be made by an
issuer with FINRA in connection with the filing of any Registration Statement;
(p) If requested by the Investor, the Company shall as soon as practicable (i) incorporate in a prospectus
supplement or post-effective amendment such information as the Investor reasonably requests to be included therein
relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the
number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement
or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-
effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by
the Investor;
(q) Take all reasonable action to ensure that any “free writing prospectus” (as defined in the Securities
Act) utilized in connection with any registration covered by Article VII complies in all material respects with the Securities Act,
is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act
to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(r) Take all such other reasonable actions as are necessary or advisable in order to expedite or facilitate
the disposition of such Registrable Securities.
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Section 7.4
Information by the Investor. The Investor shall furnish to the Company such information
regarding the Investor and the distribution proposed by the Investor as the Company may reasonably request in writing and
as shall be reasonably required in connection with any registration, qualification, or compliance referred to in this Article VII.
Section 7.5 Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations
of the SEC that may permit the sale of the Registrable Securities to the public without registration, the Company agrees to
do the following:
(a) Make and keep adequate current public information with respect to the Company available in
accordance with Rule 144 under the Securities Act;
(b) File with the SEC in a timely manner all reports and other documents required of the Company under
the Exchange Act; and
(c) So long as the Investor owns any Registrable Securities, furnish to the Investor forthwith upon written
request a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the
Exchange Act, or that it qualifies as a registrant whose securities may be resold pursuant to Form F-1 or Form F-3 (at any
time after the Company so qualifies) and such other reports and documents so filed as the Investor may reasonably request
in availing itself of any rule or regulation of the SEC allowing the Investor to sell any such securities without registration. The
Company further covenants that it shall take such further action as the Investor may reasonably request to enable the
Investor to sell from time to time Securities held by the Investor without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144, including providing any legal opinions.
Section 7.6 No Inconsistent Agreements. The Company has not entered, as of the date hereof, nor shall the
Company, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the
effect of impairing the rights granted to the Investor or otherwise conflict with the provisions hereof. Unless the Company
receives the consent of the Investor, the Company shall not file any other registration statements (other than registration
statements on Form F-4, Form F-8, Form F-10, or Form S-8 or any successor forms thereto) until all Registrable Securities
are registered pursuant to a Registration Statement that is declared effective by the SEC.
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ARTICLE VIII
CONDITIONS TO DELIVERY OF
PURCHASE NOTICE AND CONDITIONS TO CLOSING
Section 8.1 Conditions Precedent to the Obligation of the Company to Issue and Sell Purchase Notice
Securities. The obligation of the Company hereunder to issue and sell the Purchase Notice Securities to the Investor is
subject to the satisfaction of each of the conditions set forth below:
( a ) Accuracy of the Investor’s Representations and Warranties. The representations and warranties of
the Investor shall be true and correct in all material respects as of the Execution Date and as of the date of each Closing as
though made at each such time.
( b ) Performance by the Investor. The Investor shall have performed, satisfied, and complied in all
respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied, or complied
with by the Investor at or prior to each Closing.
(c) Principal Market Regulation. The trading of the ADSs shall not have been suspended by the SEC or
the Principal Market, or otherwise halted for any reason, and the Purchase Notice Securities shall have been approved for
listing or quotation on, and shall not have been delisted from or no longer quoted on, the Principal Market. The Company
shall have no obligation to issue any Purchase Notice Securities, and the Investor shall have no right to receive any
Purchase Notice Securities, if the issuance of such Purchase Notice Securities would not comply with Section 8.2(g).
Section 8.2
Conditions Precedent to the Obligation of the Investor to Purchase the Purchase Notice
Securities. The obligation of the Investor hereunder to purchase the Purchase Notice Securities is subject to the
satisfaction of each of the following conditions:
( a ) Effective Registration Statement. One or more Registration Statements, and any amendment or
supplement thereto, shall have been declared effective and shall remain effective for the resale of the Registrable Securities
(including reoffers by the Investor, affiliated purchasers, and selling agents of the Investor) at all times until the Closing with
respect to the subject Purchase Notice, the Company shall not have received notice that the SEC has issued or intends to
issue a stop order with respect to such Registration Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of such Registration Statement, either temporarily or permanently, or intends or has threatened to do so, and
no other suspension of the use of, or withdrawal of the effectiveness of, such Registration Statement shall exist. The
Investor shall not have received any notice from the Company that the prospectus contained in a Registration Statement
and/or any prospectus supplement or amendment thereto fails to meet the requirements of Section 5(b) or Section 10 of the
Securities Act.
( b ) Accuracy of the Company’s Representations and Warranties. The representations and warranties of
the Company shall be true and correct in all material respects as of the Execution Date and as of the date of each Closing
(except for representations and warranties specifically made as of a particular date).
( c ) Performance by the Company. The Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied, or
complied with by the Company at or prior to such Closing.
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( d ) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have
been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that
prohibits or directly and materially adversely affects any of the transactions contemplated by the Transaction Documents,
and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any
of the transactions contemplated by the Transaction Documents.
( e ) No Suspension of Trading in or Delisting of ADSs. The trading of the ADSs shall not have been
suspended by the SEC or the Principal Market, or otherwise halted for any reason, and the ADSs shall have been approved
for listing or quotation on and shall not have been delisted from or no longer quoted on the Principal Market. In the event of
a suspension, delisting, or halting for any reason, of the trading of the ADSs, as contemplated by this Section 8.2(e)
following delivery of a Purchase Notice and prior to the Closing for the Purchase Notice Securities for such Purchase Notice,
the Investor shall, subject to applicable securities laws, have the right to return to the Company any amount of Purchase
Notice Securities associated with such Purchase Notice, and the Commitment Amount with respect to such Purchase Notice
Securities, shall be refunded accordingly.
( f ) Beneficial Ownership Limitation. Except as provided in Section 2.1, the number of Purchase Notice
Securities to be purchased by the Investor at any time under this Agreement shall not exceed the number of such ADSs
that, when aggregated with all other ADSs and Ordinary Shares then “held” (as defined for purposes of the Israeli
Companies Law, 1999, as amended) or “beneficially owned” (as such term is defined under the Exchange Act) by the
Investor or its Affiliates, would result in the Investor together with its Affiliates “holding” or beneficially owning more than the
Beneficial Ownership Limitation (as defined below), as determined in accordance with the Companies Law and Section 13 of
the Exchange Act. For purposes of this Section 8.2(f), if the amount of Ordinary Shares outstanding is greater or lesser on a
Closing Date than on the date on which the Purchase Notice associated with such Closing Date is given, the amount of
Ordinary Shares outstanding on such Closing Date shall govern for purposes of determining whether the Investor would
beneficially own more than the Beneficial Ownership Limitation following a purchase on any such Closing Date. If the
Investor claims that compliance with a Purchase Notice would result in the Investor owning more than the Beneficial
Ownership Limitation, upon request of the Company, the Investor will provide the Company with evidence of the Investor’s
then existing ADSs, Ordinary Shares, and Share Equivalent beneficially owned. The “Beneficial Ownership Limitation”
shall be 4.99% of the voting power of the Company or of the number of Ordinary Shares and ADSs outstanding immediately
after to the issuance of Purchase Notice Securities issuable pursuant to a Purchase Notice. To the extent that the
Beneficial Ownership Limitation would be exceeded in connection with a Closing, the number of Securities issuable to the
Investor shall be reduced so it does not exceed the Beneficial Ownership Limitation (the “Reduction”) and, prior to and until
the Reduction, the Securities in excess of the Beneficial Ownership Limitation (the “Excess Securities”) shall be deemed to
have no voting rights nor any rights to receive distributions from the Company, and the Company shall therefore be required
to disregard any voting or distribution rights attached to such Excess Shares until such time that the Company is satisfied in
its discretion that the Investor is in compliance with the Beneficial Ownership Limitation.
(g) Principal Market Regulation. The Company shall have no right to issue and the Investor shall have no
obligation to purchase any Purchase Notice Securities if the issuance of the Underlying Ordinary Shares underlying such
Purchase Notice Securities would exceed the aggregate number of Underlying Ordinary Shares (taken together with the
issuance of all Commitment Securities, if any) which the Company may issue without breaching the Company’s obligations
under Section 270(5) of the Israeli Companies Law, 5759-1999 (the “Companies Law”), except that such limitation shall not
apply if the Company (1) obtains the approval of its shareholders as required by the Companies Law in excess of such
amount or (2) obtains a written opinion from outside counsel to the Company that the execution, delivery and performance
of this Agreement has been approved by all requisite corporate action which opinion shall be reasonably satisfactory to the
Investor. The number of ADSs and/or Ordinary Shares that the Company is authorized to issue under the Companies Law
without the requirement to seek the approval of its shareholders shall be appropriately adjusted for any share or stock
dividend, share or stock split, reverse share or stock split, or similar transaction. At the Company’s option, the Company
may request, in writing, the Investor provide to the Company, and the Investor shall promptly provide to the Company, the
number of ADSs and/or Ordinary Shares beneficially owned by the Investor and its Affiliates, for the purposes of determining
if the issuance of Purchase Notice Securities will breach the Companies Law.
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(h) No Knowledge. The Company shall have no knowledge of any event more likely than not to have the
effect of causing the effectiveness of a Registration Statement to be suspended or the prospectus contained in a
Registration Statement or any prospectus supplement thereto failing to meet the requirement of Sections 5(b) or 10 of the
Securities Act (which event is more likely than not to occur within the fifteen (15) Business Days following the Business Day
on which such Purchase Notice is deemed delivered).
(i) DWAC or DRS Eligibility. The Securities must be DWAC Eligible or DRS Eligible and not subject to a
“DTC chill.”
( j ) SEC Documents. All reports, schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC pursuant to the reporting requirements of the
Securities Act and the Exchange Act after the Execution Date (the “Future SEC Documents”) (1) shall have been filed with
the SEC within the applicable time periods prescribed for such filings under the Exchange Act, and (2) as of their respective
dates, such Future SEC Documents complied in all material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and other federal laws, rules and regulations applicable to such Future SEC Documents, and
none of such Future SEC Documents contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(k) Officer’s Certificate. At each Closing, the Company shall have delivered to the Investor a certificate of
an officer of the Company certifying that the Company has satisfied the conditions set forth in Section 8.2.
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ARTICLE IX
LEGENDS
Section 9.1
Restrictive Legend. The certificate(s) or book-entry statement(s) representing any Securities
issued pursuant to this Agreement (other than those issued pursuant to Section 2.2(c)), except as set forth below, shall bear
a restrictive legend in substantially the following form (and stop transfer instructions may be placed against transfer of any
such Securities):
THE ORDINARY SHARES UNDERLYING THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE
SECURITIES LAWS OF ANY OTHER JURISDICTIONS. AS A RESULT THESE SECURITIES (INCLUDING
THE ORDINARY SHARES UNDERLYING THESE SECURITIES) MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS
(PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM).
Section 9.2 Legend Removal. Upon the written request by the Investor to the Company if, at the time of such
request, the Investor covenants and agrees that it has resold or will resell the Securities only (a)(i) pursuant to the
Registration Statement in which the resale of such Securities is registered under the Securities Act, in a manner described
under the caption “Plan of Distribution” in such Registration Statement, and in a manner in compliance with all applicable
U.S. federal and state securities laws, rules, and regulations, including, without limitation, any applicable prospectus delivery
requirements of the Securities Act, or (ii) in compliance with an available exemption under the Securities Act, and
(b) concurrently with such request, the Investor delivers to the Company, its counsel, the Transfer Agent, and the ADS
Depositary a customary written certification that the requirements set forth in clause (a) are accurate, and if the Investor
resold the Securities under (a)(ii), to the extent the Company’s counsel or the Transfer Agent or the ADS Depositary
requires, additional customary requirements to qualify for the applicable exemption under the Securities Act, the Company
shall, no later than one (1) Trading Day following the delivery by the Investor to the Transfer Agent and/or ADS Depositary,
as applicable, of one or more legended certificates or book-entry statements representing any Securities subject to such
request, together with such other documentation from the Investor and its designated broker-dealer as the Transfer Agent
and/or ADS Depositary, as applicable, deem reasonably necessary and appropriate, authorize the Transfer Agent and/or
ADS Depositary, as applicable, to remove the Securities Act restrictive legend (and any stop transfer instructions placed
against transfer thereof) contemplated by Section 9.1 affixed to the Securities (as applicable) subject to such request. At
the times the Company authorizes the removal of the Securities Act restrictive legends on the Securities subject to such
request (and any stop transfer instructions placed against transfer thereof) pursuant to this Section 9.2, the Company shall,
at its sole expense, use its commercially reasonable efforts to cause its legal counsel to issue to the Transfer Agent and/or
ADS Depositary, as applicable, a legal opinion or direction letter authorizing the Transfer Agent and/or ADS Depositary, as
applicable, to remove the Securities Act restrictive legends contemplated by Section 9.1 on the Securities (as applicable)
subject to such request (which legal opinion or direction letter may be delivered to the Transfer Agent and/or ADS
Depositary, as applicable, in advance setting forth the conditions to the removal of such legends). The Company shall be
responsible for the fees of its Transfer Agent and ADS Depositary and the Company’s legal counsel associated with any
such legend removals. If counsel to the Company fails to provide a legal opinion reasonably satisfactory to the Transfer
Agent and/or ADS Depositary, as applicable, in accordance with this Section, the Investor shall have the right to provide an
opinion of counsel selected by the Investor, the cost of which shall be borne by the Company.
Section 9.3 Investor’s Compliance. Nothing in this Article IX shall affect in any way the Investor’s obligations
hereunder to comply with all applicable securities laws upon the sale of the Securities.
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ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification. Each Party (an “Indemnifying Party”) agrees to indemnify and hold harmless
the other Party along with its officers, directors, employees, and authorized agents (an “Indemnified Party”) from and
against any claim or suit by third parties for Damages resulting from or arising out of (i) any misrepresentation, breach of
warranty or nonfulfillment of or failure to perform any covenant or agreement on the part of the Indemnifying Party contained
in this Agreement, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or prospectus contained therein or prospectus supplement thereto, or
the omission or alleged omission therefrom of 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 any
preliminary prospectus or contained in the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein
were made, not misleading, or (iv) any violation by the Indemnifying Party of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law, as such
Damages are incurred by the Indemnified Party except to the extent that such Damages result primarily from the
Indemnified Party’s failure to perform any covenant or agreement contained in this Agreement or the Indemnified Party’s
negligent, recklessness or willful misconduct; provided, however, that the foregoing indemnity agreement shall not apply to
any Damages of the Indemnified Party to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made by the Indemnified Party in reliance upon and
in conformity with information furnished to the Indemnified Party by the Indemnifing Party for use in the Registration
Statement, any post-effective amendment thereof, prospectus contained therein, prospectus supplement thereto, or any
preliminary prospectus or final prospectus (as amended or supplemented); provided, further, that the Investor will indemnify
the Company in accordance with this Section 10.1 for Damages of the Company to the extent, but only to the extent, arising
out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made by the
Investor in reliance upon and in conformity with information furnished to the Company by the Investor for use in the
Registration Statement, any post-effective amendment thereof, prospectus contained therein, prospectus supplement
thereto, or any preliminary prospectus or final prospectus (as amended or supplemented); and provided, further, that in no
event shall any indemnity by the Investor under this Section 10.1 exceed the exceed the aggregate Purchase Price paid by
the Investor under this Agreement, except in the case of fraud or willful or illegal misconduct by the Investor.
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Section 10.2 Indemnification Procedures. Each Indemnified Party shall (i) give notice to the Indemnifying
Party promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought
(provided, that any delay or failure to so notify the indemnifying party shall relieve the Indemnifying Party of its obligations
hereunder only to the extent, if at all, that it is actually and materially prejudiced by reason of such delay or failure), and
(ii) permit the Indemnifying Party to assume the defense of such claim or any litigation resulting therefrom; provided that
counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may
participate in such defense at such party’s expense unless (w) the Indemnifying Party has agreed in writing to pay such fees
or expenses, (x) the Indemnifying Party shall have failed to assume the defense of such claim within a reasonable time after
receipt of notice of such claim from the Indemnified Party hereunder and employ counsel reasonably satisfactory to the
Indemnified Party, (y) the Indemnified Party has reasonably concluded (based upon advice of its counsel) that there may be
legal defenses available to it or other indemnified parties that are different from or in addition to those available to the
Indemnifying Party, or (z) in the reasonable judgment of any such person (based upon advice of its counsel) a conflict of
interest may exist between such person and the Indemnifying Party with respect to such claims (in which case, if the person
notifies the Indemnifying Party in writing that such person elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such claim on behalf of such
person). No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
Section 10.3 Contribution. If the indemnification provided for in this Article X is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any
other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and
the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or
omission. The Investor will not be required under this Article X to contribute any amount in excess of the aggregate
Purchase Price paid by the Investor under this Agreement, except in the case of fraud or willful misconduct by the Investor.
No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.
Section 10.4 Survival. The obligations of the Company and the Investor under this Article X shall survive the
completion of any offering of Registrable Securities in a registration under Article VII and otherwise shall survive the
termination of this Agreement until the expiration of the applicable period of the statute of limitations.
29
ARTICLE XI
MISCELLANEOUS
Section 11.1 Force Majeure. No Party shall be liable for any failure to fulfill its obligations hereunder due to
causes beyond its reasonable control, including but not limited to acts of God, epidemic or pandemic, natural disaster, labor
disturbances, terrorist attack, riots or wars, and any action taken, or restrictions or limitations imposed, by government or
public authorities.
Section 11.2 Governing Law. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Delaware without regard to the principles of conflicts of law.
Section 11.3 Assignment. The Transaction Documents shall be binding upon and inure to the benefit of the
Company and the Investor and their respective successors. Neither any of the Transaction Documents nor any rights of the
Investor or the Company hereunder may be assigned by either Party to any other Person.
Section 11.4 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the Company and
the Investor and their respective successors, and is not for the benefit of, nor may any provision hereof be enforced by, any
other Person, except as contemplated in Article X.
Section 11.5 Termination. This Agreement shall automatically terminate on the earlier of (i) the end of the
Commitment Period or (ii) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company
commences a voluntary case or any Person commences a proceeding against the Company, a Bankruptcy Custodian is
appointed for the Company or for all or substantially all of its property or the Company makes a general assignment for the
benefit of its creditors.
Section 11.6 Entire Agreement. The Transaction Documents, together with the exhibits thereto, contain the
entire understanding of the Company and the Investor with respect to the matters covered herein and therein and supersede
all prior agreements and understandings, oral or written, with respect to such matters.
Section 11.7 Fees and Expenses. Except as expressly set forth in the Transaction Documents or any other
writing 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 incidental to the negotiation, preparation, execution, delivery, and
performance of the Transaction Documents. Notwithstanding the foregoing, the Parties agree that the amount of twenty
thousand dollars ($20,000), representing legal fees of the Investor for this Agreement and the transactions related hereto,
shall be deducted from the applicable Purchase Price to be paid by the Investor to the Company for the Purchase Notice
Securities, pursuant to the first Purchase Notice delivered pursuant to this Agreement.
Section 11.8 Clearing Costs. The Company shall pay the Clearing Cost associated with each Closing, any
Transfer Agent fees in connection with the issuance of any Securities (including any fees required for same-day processing
of any instruction letter delivered by the Company), any ADS Depositary fees in connection with the issuance of any
Securities under this Agreement and the Deposit Agreement (including any fees required for same-day processing of any
instruction letter delivered by the Company), stamp taxes, and other taxes and duties levied on the Company in connection
with the delivery of any Securities to the Investor.
30
Section 11.9
Counterparts and Execution. The Transaction Documents may be executed in multiple
counterparts, each of which may be executed by less than all of the Parties, all of which together will constitute one
instrument, will be deemed to be an original, and will be enforceable against the Parties. The Transaction Documents may
be delivered to the other Party hereto by email of a copy of the Transaction Documents bearing the signature of the Party so
delivering the Transaction Documents. The Parties agree that this Agreement shall be considered signed when the
signature of a Party is delivered by .PDF, DocuSign or other generally accepted electronic signature. Such .PDF, DocuSign,
or other generally accepted electronic signature shall be treated in all respects as having the same effect as an original
signature.
Section 11.10 Severability. If any provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision;
provided that such severability shall be ineffective if it materially changes the economic benefit of this Agreement to any
Party.
Section 11.11 Further Assurances. Each Party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other Party may reasonably request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
Section 11.12 Agreement Not to be Construed Against Drafter. The Parties acknowledge that they have
had an adequate opportunity to review this Agreement and to submit the same to legal counsel for review and comment.
The Parties agree that the rule of construction that a contract be construed against the drafter, if any, shall not be applied in
the interpretation and construction of this Agreement.
Section 11.13
Titles and Subtitles. The titles and subtitles used in this Agreement are used for the
convenience of reference and are not to be considered in construing or interpreting this Agreement.
Section 11.14
Amendments; Waivers. No provision of this Agreement may be amended other than by a
written instrument signed by both Parties hereto and no provision of this Agreement may be waived other than in a written
instrument signed by the Party against whom enforcement of such waiver is sought. No failure or delay in the exercise of
any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right, power, or privilege preclude other or further exercise thereof or of any other right, power, or privilege.
Section 11.15
Publicity. The Company and the Investor shall consult with each other in issuing any press
releases or otherwise making public statements with respect to the transactions contemplated hereby and no Party shall
issue any such press release or otherwise make any such public statement, other than as required by law or for legal
compliance, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or
delayed, except that no prior consent shall be required if such disclosure is required by law, in which case the disclosing
Party shall provide the other Party with prior notice of such public statement. The Investor acknowledges that the
Transaction Documents may be deemed to be “material contracts,” as that term is defined by Item 601(b)(10) of Regulation
S-K, and that the Company may therefore be required to file such documents as exhibits to reports or registration
statements filed under the Securities Act or the Exchange Act. The Investor further agrees that the status of such
documents and materials as material contracts shall be determined solely by the Company, in consultation with its counsel.
31
Section 11.16 Dispute Resolution.
(a)
Purchase Price, Purchase Notice Limitation, or VWAP .
(i) In the case of a dispute relating to the applicable Purchase Price, applicable Purchase Notice
Limitation, or VWAP (as the case may be) (including, without limitation, a dispute relating to the determination of any of the
foregoing), the Company or the Investor (as the case may be) shall submit the dispute to the other Party via facsimile or
electronic mail within five (5) Business Days after the Party learned of the circumstances giving rise to such dispute. If the
Investor and the Company are unable to promptly resolve such dispute relating to such Purchase Price, Purchase Notice
Limitation, or VWAP (as the case may be), at any time after the second (2nd) Business Day following such initial notice by
the Company or the Investor (as the case may be) of such dispute to the Company or the Investor (as the case may be),
then the Company and the Investor may select an independent, reputable investment bank as mutually agreed upon to
resolve such dispute. If the Parties cannot agree upon such an investment bank within ten (10) Business Days of the date
of the initial notice, the Parties shall submit the dispute to arbitration pursuant to Section 11.16(b).
(ii) The Investor and the Company shall each deliver to such investment bank (A) a copy of the initial
dispute submission so delivered in accordance with the above and (B) written documentation supporting its position with
respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately
following the date on which such investment bank was selected (the “Dispute Submission Deadline”) (the documents
referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute
Documentation”) (it being understood and agreed that if either the Investor or the Company fails to so deliver all of the
Required Dispute Documentation by the Dispute Submission Deadline, then the Party who fails to so submit all of the
Required Dispute Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written
documentation or other support to such investment bank with respect to such dispute and such investment bank shall
resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank prior
to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company and the Investor or
otherwise requested by such investment bank, neither the Company nor the Investor shall be entitled to deliver or submit
any written documentation or other support to such investment bank in connection with such dispute (other than the
Required Dispute Documentation).
(iii) The Company and the Investor shall cause such investment bank to determine the resolution of such
dispute and notify the Company and the Investor of such resolution no later than ten (10) Business Days immediately
following the Dispute Submission Deadline. The fees and expenses of such investment bank shall be borne by the losing
Party, and such investment bank’s resolution of such dispute shall be final and binding upon all Parties. The terms of this
Agreement, each other applicable Transaction Document, and the Required Dispute Documentation shall serve as the basis
for the selected investment bank’s resolution of the applicable dispute, such investment bank shall be entitled (and is hereby
expressly authorized) to make all findings, determinations and the like that such investment bank determines are required to
be made by such investment bank in connection with its resolution of such dispute and in resolving such dispute such
investment bank shall apply such findings, determinations and the like to the terms of this Agreement and any other
applicable Transaction Documents.
32
(iv) Both the Company and the Investor expressly acknowledge and agree that (i) this Section 11.16(a)
constitutes an agreement to arbitrate between the Company and the Investor (and constitutes an arbitration agreement)
under § 5701, et seq. of the Delaware Code Title 10 with respect to the dispute described in Section 11.16(a)(i) and that
both the Company and the Investor are authorized to apply for an order to compel arbitration pursuant to Delaware Code
Title 10 § 5703 in order to compel compliance with this Section 11.16(a).
(
b
) Jurisdiction. Subject to Section 11.16(a), each party hereby irrevocably submits that any dispute,
controversy, or claim arising out of or relating to this Agreement or any Transaction Document (including whether any such
dispute is arbitrable), shall be submitted to the exclusive jurisdiction of the Chancery Court of the State of Delaware and the
United States District Court for the District of Delaware. Each party hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of 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 to such party at the address for such 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. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. The Company and the Investor agree that all dispute
resolution proceedings in accordance with this Section 11.16 may be conducted in a virtual setting.
Section 11.17 Notice All notices, demands, requests, consents, approvals, and other communications required
or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (a) personally served, (b) delivered
by reputable air courier service with charges prepaid for next Business Day delivery, or (c) transmitted by hand delivery, or
email as a PDF (with read receipt or a written confirmation of delivery or receipt), addressed as set forth below or to such
other address as such Party shall have specified most recently by written notice given in accordance herewith. Any notice or
other communication required or permitted to be given hereunder shall be deemed effective upon hand delivery or delivery
by email at the address designated below (if delivered on a Business Day during normal business hours where such notice
is to be received), or the first Business Day following such delivery (if delivered other than on a Business Day during normal
business hours where such notice is to be received).
The addresses for such communications shall be:
If to the Company:
Address: 21 Ha’arba’a Street, Tel Aviv 6473921, Israel
Telephone: 972-3-541-3131
E-mail: dror@redhillbio.com
If to the Investor:
Address: 601 Brickell Key Drive, Suite 700, Miami, FL 33131
Telephone: (917) 793-1173
E-mail: operations@alumnicapital.com
Either Party hereto may from time to time change its address or email for notices under this clause by giving prior written
notice of such changed address to the other party hereto.
[Signature Page Follows]
33
Execution Version
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective officers
thereunto duly authorized as of the Execution Date.
REDHILL
BIOPHARMA
LTD.
By: /s/ Dror Ben-Asher
/s/ Razi Ingber
Name:
Dror
Ben-
Asher
Title: CEO
Razi Ingber
CFO
Date: June 20, 2025
June 20, 2025
ALUMNI CAPITAL LP
By:
ALUMNI CAPITAL
GP LLC
By: /s/ Ashkan Mapar
Name: Ashkan Mapar
Title: Manager
Date: June 20, 2025
EXHIBIT A
FORM OF PURCHASE NOTICE
TO: ALUMNI CAPITAL LP
We refer to the Any Market Purchase Agreement, dated as of June 20, 2025 entered into by and between Redhill Biopharma
Ltd. and you (the “Agreement”). Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have
the same meaning when used herein.
We hereby certify that, as of the date hereof, the conditions set forth in Article VIII of the Agreement are satisfied, and we
hereby elect to exercise our right pursuant to the Agreement to require you to purchase ___________ Purchase Notice
Securities at the following Purchase Price (select only one):
☐ Intial Purchase Price. The Company acknowledges and agrees that the amount of Purchase Notice Securities shall not
exceed the Initial Purchase Notice Limitation. Any Purchase Notice Securities in excess of the lower of the limitation in
Section 2.1(ii) of the Agreement and the limitation in Section 2.1(iii) of the Agreement will be Prefunded Warrants in lieu of
ADSs, and the Initial Purchase Price shall be reduced by $0.0001 per Prefunded Warrant. Accordingly, the Purchase
Number of ADSs: ______________________
Number of Prefunded Warrants: ___________
☐ Regular Purchase Price. The Company acknowledges and agrees that the amount of Purchase Notice Securities shall
not exceed the Purchase Notice Limitation applicable to such Purchase Notice or the Beneficial Ownership Limitation. To
the extent the Beneficial Ownership Limitation has been exceeded, you are requested to advise the Company promptly.
Such notice to the Company shall state the reduced amount of Purchase Notice Securities to sold hereby that shall not
exceed the Beneficial Ownership Limitation.
☐ Forward Purchase Price. The Company acknowledges and agrees that the amount of Purchase Notice Securities shall
not exceed the Purchase Notice Limitation applicable to such Purchase Notice or the Beneficial Ownership Limitation. To
the extent the Beneficial Ownership Limitation has been exceeded, you are requested to advise the Company promptly.
Such notice to the Company shall state the reduced amount of Purchase Notice Securities to sold hereby that shall not
exceed the Beneficial Ownership Limitation.
Attached is an Officer’s Certificate pursuant to Section 8.2(k) of the Agreement.
The Company’s wire instructions are as follows:
[Insert Wire Instructions]
REDHILL BIOPHARMA LTD.
By:
Name: [●]
Title: [●]
Date: [●]
Acknowledged, received and agreed by:
ALUMNI CAPITAL LP
By: ALUMNI CAPITAL GP LLC
By:
Name: Ashkan Mapar
Title: Manager
Date: [●]
Execution Version
EXHIBIT B
FORM OF PREFUNDED WARRANT
Execution Version
EXHIBIT C
FORM OF COMMITMENT WARRANT
Exhibit 4.1
NEITHER THIS SECURITY NOR THE ORDINARY SHARES OR AMERICAN DEPOSITARY SHARES UNDERLYING THE
SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTIONS. AS A RESULT, THESE
SECURITIES (INCLUDING THE ORDINARY SHARES AND THE AMERICAN DEPOSITARY SHARES UNDERLYING
THESE SECURITIES) MAY NOT BE OFFERED, TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
ACT OR APPLICABLE STATE SECURITIES LAWS (PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR
IN A TRANSACTION NOT SUBJECT THERETO).
Warrant No. [__________]
WARRANT
REDHILL BIOPHARMA LTD.
Initial Exercise Date: June 20, 2025
THIS ADS PURCHASE WARRANT TO PURCHASE FULLY PAID ORDINARY SHARES REPRESENTED BY
AMERICAN DEPOSITARY SHARES (the “Warrant”) certifies that, for value received, Alumni Capital LP or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any
time on or after June 20, 2025 (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the five (5)
year anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from
Redhill Biopharma Ltd., an Israeli company (the “Company”), up to Three Billion Three Hundred Thirty-Three Million Three
Hundred Thirty Thousand (3,333,330,000) of the Company’s fully paid ordinary shares, no par value (“Ordinary Shares”),
represented by American Depositary Shares (“ADSs”), with each ADS representing ten thousand (10,000) Ordinary Shares,
in the amounts and the price per share as set forth in Section 2 (as subject to adjustment hereunder, the “Warrant ADSs”).
Section 1. Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
“ADSs” shall mean the Company’s American Depositary Shares representing fully paid Ordinary Shares of the
Company, with each ADS representing ten thousand (10,000) Ordinary Shares.
“ADS Depositary” shall mean The Bank of New York Mellon and any successor ADS depositary of the Company.
“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 in and construed under Rule 405 under the Securities
Act.
“Alternate Consideration” shall have the meaning specified in Section 3(d).
“Approved Equity Plan” means any employee benefit plan or agreement which has been approved by the board of
directors of the Company prior to or subsequent to the date hereof pursuant to which Ordinary Shares, ADSs, and Options
may be issued to any employee, officer, consultant, or director for services provided to the Company in their capacity as
such.
“Attribution Parties” shall have the meaning specified in Section 2(f)(i).
“Beneficial Ownership Limitation” shall have the meaning specified in Section 2(f)(i).
“Bloomberg” means Bloomberg L.P.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the
United States, or any day on which banking institutions in the State of New York are authorized or required by law or other
governmental action to close.
“Buy-In” shall have the meaning specified in Section 2(e)(iv).
“Commission” means the United States Securities and Exchange Commission.
“Company” means Redhill Biopharma Ltd., an Israeli company.
“Companies Law” means the Israeli Companies Law, 5759-1999.
“Convertible Securities” means any stock, shares, or other security (other than Options) that is at any time and under
any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the
holder thereof to acquire, any Ordinary Shares or ADSs.
“Distribution” shall have the meaning specified in Section 3(c).
“DWAC” shall have the meaning specified in Section 2(e)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
“Exercise Price” shall have the meaning specified in Section 2(c).
2
“Fundamental Transaction” shall have the meaning specified in Section 3(d).
“Holder” means Alumni Capital LP, a Delaware limited partnership, or its assigns.
“Initial Exercise Date” means June 20, 2025.
“Notice of Exercise” shall have the meaning specified in Section 2(a).
“Options” means any rights, warrants, options, or restricted share units to subscribe for, purchase, or otherwise
acquire Ordinary Shares, ADSs, or Convertible Securities.
“Ordinary Shares” means the ordinary shares of the Company, no par value per share.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of
any kind.
“Purchase Rights” shall have the meaning specified in Section 3(b).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Share Equivalents” means any securities of the Company or its Subsidiaries which would entitle the holder thereof to
acquire at any time Ordinary Shares or ADSs, including, without limitation, any debt, preferred stock, right, option, warrant or
other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder
thereof to receive, Ordinary Shares or ADSs.
“Standard Settlement Period” shall have the meaning specified in Section 2(e)(i).
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
3
“Successor Entity” shall have the meaning specified in Section 3(d).
“Termination Date” means the five (5) year anniversary of the Initial Exercise Date.
“Trading Day” means a day on which the principal Trading Market is open for trading; provided, however, that if the
ADSs are not listed or quoted on the Trading Market, then Trading Day shall mean any day except Saturday, Sunday, and
any day which shall be a legal holiday or a day on which banking institutions in the State of New York or State of Delaware
are authorized or required by law or other government action to close.
“Trading Market” means any of the following markets or exchanges on which the ADSs are listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transfer Agent” means the current transfer agent of the Company, and any successor transfer agent of the
Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs
are then listed or quoted on a Trading Market, the daily volume weighted average price of the ADSs for such date (or the
nearest preceding date) on the Trading Market on which the ADSs are then listed or quoted as reported by Bloomberg
(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 OTCQB or OTCQX
is not a Trading Market, the volume weighted average price of the ADSs for such date (or the nearest preceding date) on
OTCQB or OTCQX as applicable, (c) if the ADSs are not then listed or quoted for trading on OTCQB or OTCQX and if prices
for the ADSs are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of
reporting prices), the most recent bid price per share of the ADSs so reported, or (d) in all other cases, the fair market value
of an ADS as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the
Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the
Company.
“Warrant” means this Warrant.
“Warrant ADSs” shall have the meaning specified in the preamble of this Warrant.
“Warrant ADS Delivery Date” shall have the meaning specified in Section 2(e)(i).
“Warrant Register” shall have the meaning specified in Section 4(c).
“Warrant Shares” means the Ordinary Shares underlying the Warrant ADSs.
4
Section 2. Exercise.
(a) Exercise of Warrant. Exercise of the purchase rights for Warrant ADSs represented by this Warrant may be
made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by
delivery to the Company (or such other office or agency of the Company as it may designate by notice in writing to the
registered Holder at the address of the Holder appearing on the books of the Company) of a duly executed notice of
exercise in the form annexed hereto as Exhibit A (a “Notice of Exercise”), which may be delivered in a .PDF format via
electronic mail pursuant to the notice provisions set forth in Section 5(i). Within two (2) Trading Days of the date said Notice
of Exercise is delivered to the Company (or within three (3) Trading Days of the date said Notice of Exercise is delivered to
the Company if the Notice of Exercise is received after 12 p.m. EST on such day), the Company shall have received
payment of the aggregate Exercise Price of the Warrant ADSs thereby purchased by wire transfer or cashier’s check drawn
on a United States bank. 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. The Company shall be entitled to conclusively
assume the genuineness of any signature on any Notice of Exercise delivered to the Company pursuant to this Section 2(a),
the legal capacity and competency of all natural persons signing any Notice of Exercise so delivered, the authenticity of any
Notice of Exercise so delivered, the conformity to an authentic original of any Notice of Exercise so delivered as certified,
authenticated, conformed, photostatic, facsimile, or electronic and the authenticity of the original of such Notice of Exercise.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the
Company until the Holder has purchased all of the Warrant ADSs 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 ADSs available hereunder shall have the effect of lowering the outstanding
number of Warrant ADSs purchasable hereunder in an amount equal to the applicable number of Warrant ADSs purchased.
The Holder and the Company shall maintain records showing the number of Warrant ADSs purchased and the date of such
purchases. The Company shall deliver any objection to any Notice of Exercise within two (2) Business Days of receipt of
such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant ADSs hereunder, the number of
Warrant ADSs available for purchase hereunder at any given time may be less than the amount stated on the face
hereof.
( b ) Number of Warrant ADSs. Subject to the terms and conditions set forth herein, the aggregate number of
Warrant ADSs that Holder shall have the right to purchase from the Company hereunder shall 333,333 Warrant ADSs.
(c) Exercise Price. The exercise price per Warrant ADS shall $3.00 per ADS.
(d) Restrictive Legend; Legend Removal.
5
i
. Restrictive Legend. The certificate(s) or book-entry statement(s) representing any Warrant ADSs
issued hereunder, except as set forth below, shall bear a restrictive legend in substantially the following form (and stop
transfer instructions may be placed against transfer of any such Securities):
THE ORDINARY SHARES UNDERLYING THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE
SECURITIES LAWS OF ANY OTHER JURISDICTIONS. AS A RESULT THESE SECURITIES (INCLUDING
THE ORDINARY SHARES UNDERLYING THESE SECURITIES) MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS
(PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM).
i i . Legend Removal. Upon the written request by the Holder to the Company if, at the time of such
request, the Holder covenants and agrees that it has resold or will resell the Warrant ADSs only (A)(i) pursuant to an
effective registration statement registering the issuance of the Warrant ADSs to, or resale of the Warrant ADSs by, the
Holder under the Securities Act, in a manner described under the caption “Plan of Distribution” in such registration
statement, in a manner in compliance with all applicable U.S. federal and state securities laws, rules, and regulations,
including, without limitation, any applicable prospectus delivery requirements of the Securities Act, or (ii) in compliance with
an available exemption under the Securities Act, and (B) concurrently with such request, the Holder delivers to the
Company, its counsel, the Transfer Agent, and the ADS Depositary a customary written certification that the requirements
set forth in clause (a) are accurate, and if the Holder resold the Warrant ADSs under (A)(ii), to the extent the Company’s
counsel or the Transfer Agent or the ADS Depositary requires, additional customary requirements to qualify for the
applicable exemption under the Securities Act, the Company shall, no later than one (1) Trading Day following the delivery
by the Holder to the Transfer Agent and/or ADS Depositary, as applicable, of one or more legended certificates or book-
entry statements representing any Securities subject to such request, together with such other documentation from the
Holder and its designated broker-dealer as the Transfer Agent and/or ADS Depositary, as applicable, deem reasonably
necessary and appropriate, authorize the Transfer Agent and/or ADS Depositary, as applicable, to remove the Securities
Act restrictive legend (and any stop transfer instructions placed against transfer thereof) contemplated by Section 2(d)(i)
affixed to the Warrant ADSs (as applicable) subject to such request. At the times the Company authorizes the removal of
the Securities Act restrictive legends on the Warrant ADSs subject to such request (and any stop transfer instructions placed
against transfer thereof) pursuant to this Section 2(d)(ii)), the Company shall, at its sole expense, use its commercially
reasonable efforts to cause its legal counsel to issue to the Transfer Agent and/or ADS Depositary, as applicable, a legal
opinion or direction letter authorizing the Transfer Agent and/or ADS Depositary, as applicable, to remove the Securities Act
restrictive legends contemplated by Section 2(d)(i) on the Warrant ADSs (as applicable) subject to such request (which legal
opinion or direction letter may be delivered to the Transfer Agent and/or ADS Depositary, as applicable, in advance setting
forth the conditions to the removal of such legends). The Company shall be responsible for the fees of its Transfer Agent
and ADS Depositary and the Company’s legal counsel associated with any such legend removals. If counsel to the
Company fails to provide a legal opinion reasonably satisfactory to the Transfer Agent and/or ADS Depositary, as applicable,
in accordance with this Section, the Holder shall have the right to provide an opinion of counsel selected by the Holder, the
cost of which shall be borne by the Company.
6
(e) Mechanics of Exercise.
i
. Delivery of Warrant ADSs Upon Exercise. Upon delivery by the Holder of a Notice of Exercise in
accordance with Section 2(a), the Company shall cause the Warrant ADSs purchased hereunder to be transmitted by the
ADS Depositary to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through the deliver order (DO) system maintained by DTC (or any similar program hereafter adopted by
DTC performing substantially the same function) or its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company
is then a participant in such system and either (A) the legend has been properly removed from the Warrant in accordance
with Section 2(d)(ii) or (B) there is an effective registration statement permitting the issuance of the Warrant ADSs to or
resale of the Warrant ADSs by Holder, and otherwise by physical delivery of a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number of Warrant ADSs to which the Holder is entitled pursuant
to such exercise to the address specified by the Holder in the Notice of Exercise. In any case, delivery will be made by the
date that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of Exercise and (ii) the
number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of
Exercise (provided that delivery shall be two (2) Trading Days after delivery to the Company of said Notice of Exercise if the
Company receives the Notice of Exercise after 12 p.m. EST on such day) (such date, the “Warrant ADS Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of
record of the Warrant ADSs with respect to which this Warrant has been exercised, irrespective of the date of delivery of the
Warrant ADSs, provided that payment of the aggregate Exercise Price is received by the Warrant ADS Delivery Date. If the
Company fails for any reason to deliver to the Holder the Warrant ADSs subject to a Notice of Exercise by the Warrant ADS
Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of
Warrant ADSs subject to such exercise (based on the VWAP of the ADSs on the date of the applicable Notice of Exercise),
$10 per Trading Day (increasing to $20 per Trading Day on the fourth Trading Day after the Warrant ADS Delivery Date) for
each Trading Day after such Warrant ADS Delivery Date until such Warrant ADSs are delivered or Holder rescinds such
exercise. The Company agrees to maintain a transfer agent and ADS Depositary that is a participant in the DTC/FAST
program so long as this Warrant remains outstanding and exercisable. As used herein, “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 ADSs as in effect on the date of delivery of the Notice of Exercise.
i i . Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the
Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the
Warrant ADSs, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased
Warrant ADSs called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Holder fails to make payment of the aggregate Exercise Price of the Warrant
ADSs pursuant to a Notice of Exercise within two (2) Trading Days of the date said Notice of Exercise is delivered to the
Company by wire transfer or cashier’s check drawn on a United States bank, then the Company will have the right to
rescind such exercise. If the Company fails to cause the ADS Depositary to transmit to the Holder the Warrant ADSs
pursuant to Section 2(e)(i) by the Warrant ADS Delivery Date, then the Holder will have the right to rescind such exercise.
7
i v . Compensation for Buy-In on Failure to Timely Deliver Warrant ADSs Upon Exercise. In addition to
any other rights available to the Holder, if the Company fails to cause the ADS Depositary to transmit to the Holder the
Warrant ADSs in accordance with the provisions of Section 2(e)(i) above pursuant to an exercise on or before the Warrant
ADS Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or
otherwise) or the Holder’s brokerage firm otherwise purchases, ADSs to deliver in satisfaction of a sale by the Holder of the
Warrant ADSs which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in
cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if
any) for the ADSs so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant ADSs that the
Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell
order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of
the Warrant and equivalent number of Warrant ADSs for which such exercise was not honored (in which case such exercise
shall be deemed rescinded) or deliver to the Holder the number of ADSs that would have been issued had the Company
timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases ADSs having a
total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of ADSs with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company
shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss.
Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver ADSs upon exercise of the Warrant as required pursuant to the terms hereof; provided that the ADS Depositary may
close its books to deposits of shares for issuance of ADSs at its discretion in accordance with the terms of the ADS Deposit
Agreement.
v . No Fractional Shares or Scrip. No fractional shares or scrip representing fractional ADSs or Ordinary
Shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be
entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such
final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
v i . Charges, Taxes, and Expenses. Issuance of Warrant ADSs shall be made without charge to the
Holder for any issue or transfer tax or other incidental expense in respect of the issuance of Warrant ADSs, all of which
taxes and expenses shall be paid by the Company, and such Warrant ADSs shall be issued in the name of the Holder or in
such name or names as may be directed by the Holder; provided, however, that in the event that Warrant ADSs are to be
issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by
the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all fees
charged by the ADS Depositary, the Transfer Agent, and the Depository Trust Company (or other established clearing
corporation) required for processing of any Notice of Exercise.
vii. Closing of Books. The Company will not close its shareholder books or records in any manner which
prevents the timely exercise of this Warrant pursuant to the terms hereof.
8
(f) Holder’s Exercise Limitations.
i. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any
other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”), “holds” or would “hold” (as defined for purposes of the Israeli Companies Law, 1999, as amended (the “Companies
Law”) or would “beneficially own” (as defined for purposes of Section 13(d) of the 1934 Act) in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of calculating “beneficial ownership” under this Section 2(f), the
number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the
number of Ordinary Shares represented by ADSs issuable upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the number of Ordinary Shares represented by ADSs which would be
issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of
its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other Share Equivalents) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(f), “beneficial ownership” shall be
calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it
being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in
accordance therewith. For purposes of this Section 2(f), “holdings” shall be calculated in accordance with the Companies
Law. To the extent that the limitation contained in this Section 2(f) applies, the determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of
which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of
Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify
or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant that are in non-
compliance with the Beneficial Ownership Limitation, it being understood that the Company has the right to confirm that any
exercise does not result in “holdings” of the Holder exceeding the Beneficial Ownership Limitation. In addition, a
determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(f), in determining the
number of outstanding Ordinary Shares and ADSs, a Holder may rely on the number of outstanding Ordinary Shares and
ADSs as reflected in (A) the Company’s most recent Annual Report on Form 20-F, Report of Foreign Private Issuer on Form
6-K or other public filings filed with the Commission, as the case may be, (B) a more recent public announcement by the
Company, or (C) a more recent written notice by the Company, the Transfer Agent or the ADS Depositary setting forth the
number of ADSs outstanding. Upon the written request of a Holder (which, for clarity, includes electronic mail), the
Company shall within one Trading Day confirm orally and in writing to the Holder the number of ADSs then outstanding. In
any case, the number of outstanding ADSs shall be determined after giving effect to the conversion or exercise of securities
of the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding
ADSs was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of ADSs outstanding immediately
after giving effect to the issuance of ADSs issuable upon exercise of this Warrant. The Holder, upon notice to the Company,
may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(f), provided that the Beneficial
Ownership Limitation in no event exceeds 4.99% of the number of ADSs outstanding immediately after giving effect to the
issuance of ADSs upon exercise of this Warrant held by the Holder and the provisions of this Section 2(f) shall continue to
apply. Any change in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 2(f) to correct this paragraph (or any portion hereof) which may be defective or
inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a
successor holder of this Warrant.
9
ii. To the extent the exercise of any portion of this Warrant requires the Company to receive the approval
of the Company’s shareholders pursuant to NASDAQ Capital Market Listing Rules or the corporate or securities laws of any
other applicable jurisdiction (including but not limited to Section 270(5) of the Companies Law), the Company shall not effect
such exercise of this Warrant, and a Holder shall not have the right to exercise any such portion of this Warrant, pursuant to
Section 2 or otherwise, unless and until such approval has been received by the Company.
Section 3. Certain Adjustments.
(a) Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share
dividend or otherwise makes a distribution or distributions on Ordinary Shares or ADSs or any other equity or equity
equivalent securities payable in Ordinary Shares or ADSs (which, for avoidance of doubt, shall not include any ADSs issued
by the Company upon exercise of this Warrant), (ii) subdivides outstanding Ordinary Shares or ADSs into a larger number of
Ordinary Shares or ADSs, (iii) combines (including by way of reverse share split) outstanding Ordinary Shares or ADSs into
a smaller number of Ordinary Shares or ADSs, or (iv) issues by reclassification of Ordinary Shares or ADSs or any shares of
capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator
shall be the number of Ordinary Shares (excluding treasury Ordinary Shares, if any) outstanding immediately before such
event (including those representing ADSs) and of which the denominator shall be the number of Ordinary Shares
outstanding immediately after such event (including those representing ADSs), and the number of ADSs issuable upon
exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination, or re‑classification.
( b ) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, during such
time as this Warrant is outstanding, if at any time the Company grants, issues or sells any Share Equivalents or rights to
purchase stock, warrants, securities or other property pro rata to the record holders of any class of Ordinary Shares or
ADSs (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of ADSs
acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without
limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary
Shares or ADSs are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the
extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or “holding”
or “beneficial ownership” of such Ordinary Shares or ADSs as a result of such Purchase Right to such extent) and such
Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Beneficial Ownership Limitation).
10
( c ) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or
make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Ordinary Shares or ADSs,
by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other
similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall
be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder
had held the number of ADSs acquirable upon complete exercise of this Warrant (without regard to any limitations on
exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a
record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Ordinary
Shares or ADSs are to be determined for the participation in such Distribution (provided, however, that, to the extent that the
Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the “holding” or
“beneficial ownership” of any Ordinary Shares or ADSs as a result of such Distribution to such extent) and the portion of
such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or
completely exercised at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the
benefit of the Holder until the Holder has exercised this Warrant.
11
( d ) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or
indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another
Person (other than for the purpose of changing the jurisdiction of incorporation of the Company or a holding company for the
Company), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other
disposition of all or substantially all of its assets (on a consolidated basis) in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed
pursuant to which holders of Ordinary Shares or ADSs are permitted to sell, tender or exchange their shares for other
securities, cash or property and has been accepted by the holders of greater than 50% of the voting power of the
outstanding securities of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Ordinary Shares or ADSs or any compulsory share exchange
pursuant to which the Ordinary Shares or ADSs are effectively converted into or exchanged for other securities, cash or
property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share
purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off,
merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires
greater than 50% of the outstanding shares Ordinary Shares (including those representing ADSs) or greater than 50% of the
voting power of the outstanding securities of the Company (not including any Ordinary Shares or ADSs held by the other
Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such share
purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent
exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder
(without regard to any limitation in Section 2(f) on the exercise of this Warrant), the number of ADSs or other capital stock of
the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of ADSs
for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in
Section 2(f) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price
shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one ADS in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the
Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash, or property
to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall
cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this
Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by
the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver
to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially
similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of
such Successor Entity (or its parent entity) equivalent to the ADSs acquirable and receivable upon exercise of this Warrant
(without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of
shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and
substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added
to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental
Transaction, each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company
and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly
and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity
or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant with the same
effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the
Company herein.
12
(e) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th
of a share, as the case may be. For purposes of this Section 3, the number of ADSs or Ordinary Shares, as applicable,
deemed to be issued and outstanding as of a given date shall be the sum of the number of ADSs or Ordinary Shares
(excluding treasury ADSs or Ordinary Shares, if any, as applicable) issued and outstanding.
(f) Notice to Holder.
i . Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of
this Section 3, the Company shall promptly deliver via electronic mail to the Holder a notice setting forth the Exercise Price
after such adjustment and any resulting adjustment to the number of Warrant ADSs and setting forth a brief statement of the
facts requiring such adjustment.
i
i
. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other
distribution in whatever form) on the Ordinary Shares or ADSs, (B) the Company shall declare a special nonrecurring cash
dividend on or a redemption of the Ordinary Shares or ADSs, (C) the Company shall authorize the granting to all holders of
the Ordinary Shares or ADSs rights or warrants to subscribe for or purchase any shares of capital stock of any class or of
any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of
the Ordinary Shares or ADSs, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any
sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares or
ADSs are converted into other securities, cash, or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation, or winding up of the affairs of the Company, then, in each case, the Company shall cause to be
delivered via electronic mail to the Holder at its last address as it shall appear upon the Warrant Register of the Company, at
least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution, redemption, rights, or warrants, or if a record is
not to be taken, the date as of which the holders of Ordinary Shares or ADSs of record to be entitled to such dividend,
distributions, redemption, rights, or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, or share exchange is expected to become effective or close, and the date as of which it
is expected that holders of the Ordinary Shares or ADSs of record shall be entitled to exchange their Ordinary Shares or
ADSs for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or
share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect
the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this
Warrant constitutes, or contains, material, non-public information regarding the Company or any of its Subsidiaries, the
Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 6-K. The Holder
shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date
of the event triggering such notice except as may otherwise be expressly set forth herein.
13
( g ) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the
Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any
period of time deemed appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
( a ) Transferability. Subject to compliance with any applicable securities laws and the provisions below, this
Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto as Exhibit B duly executed by the Holder or its agent or
attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and,
if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment and shall
issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly
be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this
Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this
Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a
new holder for the purchase of Warrant ADSs without having a new Warrant issued. If, at the time of the surrender of this
Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant
to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii)
eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule
144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the
case may be, to provide to the Company and the Depositary an opinion of counsel selected by the transferor and
reasonably acceptable to the Company and the Depositary, the cost of which shall be borne by the Company and the form
and substance of which opinion shall be reasonably satisfactory to the Company and the Depositary, to the effect that such
transfer does not require registration of such transferred Warrants or Warrant Shares or Warrant ADSs under the Securities
Act.
(b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at
the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new
Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any
transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this
Warrant except as to the number of Warrant ADSs issuable pursuant thereto.
14
(
c
) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
( d ) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is
acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant ADSs issuable upon such exercise, for its
own account and not with a view to or for distributing or reselling such Warrant ADSs or any part thereof in violation of the
Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities
Act; provided, however, that the Investor reserves the right to dispose of the Warrant ADSs at any time in accordance with
federal and state securities laws and the applicable securities laws of any jurisdiction relevant to such disposition and subject
to compliance with the terms of this Warrant.
Section 5. Miscellaneous.
( a ) No Rights as ADS Holder or Shareholder Until Exercise; No Settlement in Cash. This Warrant does not
entitle the Holder to any voting rights, dividends or other rights as a shareholder or ADS holder of the Company prior to the
exercise hereof as set forth in Section 2(a), except as expressly set forth in Section 3. Without limiting any rights of a Holder
to receive cash payments pursuant to Section 2(e)(i) and Section 2(e)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
( b ) Loss, Theft, Destruction, or Mutilation of Warrant. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft, destruction, or mutilation of this Warrant or any stock
certificate relating to the Warrant ADSs, and in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and
cancellation of such Warrant or ADS certificate, if mutilated, the Company will make and deliver a new Warrant or ADS
certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or ADS certificate.
(c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be
exercised on the next succeeding Business Day.
15
( d ) Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Ordinary Shares a sufficient number of shares to provide for the deposit of
Ordinary Shares for the issuance of the Warrant ADSs upon the exercise of any purchase rights under this Warrant. The
Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Ordinary Shares and Warrant ADSs upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as may be necessary to assure that such Ordinary Shares
Warrant ADSs may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the ADSs may be listed. The Company covenants that all Warrant ADSs which may be
issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights
represented by this Warrant and payment for such Warrant ADSs in accordance herewith, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this
Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value
of any Ordinary Shares or Warrant ADSs above the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant ADSs upon the exercise of this Warrant, and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant ADSs for which this Warrant is
exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
16
( e ) Depositary Instructions. The Company covenants and agrees that it will, at all times during the period the
Warrant is outstanding, maintain a duly qualified independent ADS Depositary. Subject to Section 5(g), the Company
warrants that it will not direct its ADS Depositary not to transfer or delay, impair, and/or hinder its ADS Depositary in
transferring (or issuing and delivering) (electronically or in certificated form) any certificate or book-entry statement for
Warrant ADSs to be issued to the Holder upon exercise of or otherwise pursuant to this Warrant as and when required by
this Warrant (provided, however, that the ADS Depositary shall not be required to remove restrictive legends from the
Warrant ADSs if it has not received customary and reasonable documentation with respect to such removal to its
satisfaction and in accordance with this Warrant). Nothing in this Section shall affect in any way the Holder’s obligations to
comply with all applicable prospectus delivery requirements, if any, upon resale of the Warrant ADSs. As a condition to any
resale of the Warrant ADSs, (x) the Company, the ADS Depositary or the Transfer Agent may require an opinion of the
Company’s legal counsel, the form and substance of which opinion shall be reasonably satisfactory to the Company, its legal
counsel, the ADS Depositary, and the Transfer Agent to the effect that such resale has been registered under the Securities
Act pursuant to the Registration Statement or does not require registration under the Securities Act pursuant to an available
exemption therefrom, and (y) the Investor shall provide to the Company, its legal counsel, the ADS Depositary, and the
Transfer Agent such representations by the Investor and/or the broker executing such resale or other documentation
required by the Company, its legal counsel, the ADS Depositary, and the Transfer Agent in support of such opinion. If the
Company fails to cause its legal counsel to provide the legal opinion described in the immediately preceding sentence in
connection with a resale effected pursuant to an exemption from registration under the Securities Act (including Section 4(a)
(1) of the Securities Act and the Rule 144 safe harbor thereunder) and if permitted by the ADS Depositary and the Transfer
Agent, the Investor shall have the right to provide an opinion of a legal counsel selected by the Investor and reasonably
acceptable to the Company, which opinion shall be in form and substance satisfactory to the Company (together with any
representations by the Investor and/or the broker executing such resale or other documentation required by the Company,
the ADS Depositary, and the Transfer Agent in support of such opinion), the cost of which shall be borne by the Company.
The Company shall also pay all costs associated with any opinions delivered by its legal counsel. If the Company or a
Holder provides such an opinion and such sale or transfer is effected, the Company shall permit the transfer, and, in the
case of the Warrant ADSs, promptly instruct its ADS Depositary to issue and deliver one or more certificates or book-entry
statements, free from restrictive legend, in such name and in such denominations as specified by the Holder with respect to
such Warrant ADSs. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to the Holder, by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this Section 5(e) may be inadequate and agrees,
in the event of a breach or threatened breach by the Company of the provisions of this Section, that the Holder shall be
entitled, in addition to all other available remedies, to an injunction restraining any breach and requiring immediate transfer,
without the necessity of showing economic loss and without any bond or other security being required.
17
( f ) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this
Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware,
without regard to the principles of conflicts of law thereof. Each party hereby irrevocably submits that any dispute,
controversy, or claim arising out of or relating to this Warrant shall be submitted to the exclusive jurisdiction of the Chancery
Court of the State of Delaware and the United States District Court for the District of Delaware. Each party hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of 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 to such party at the
address for such notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES
NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. The
Company and the Holder agree that all dispute resolution proceedings in accordance with this Section 5(f) may be
conducted in a virtual setting. If either party shall commence an action, suit, or proceeding to enforce any provisions of this
Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or
proceeding.
(g) Restrictions. The Holder acknowledges that the Warrant ADSs acquired upon the exercise of this Warrant,
if not registered, will have restrictions upon resale imposed by state and federal securities laws.
( h ) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on
the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers, or remedies,
notwithstanding that all rights hereunder terminate on the Termination Date. If the Company fails to comply with any
provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such
amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in
otherwise enforcing any of its rights, powers or remedies hereunder.
(i) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder
including, without limitation, any Notice of Exercise, shall be in writing and delivered personally or by e-mail, addressed to
the Company, at 21 Ha’arba’a Street, Tel Aviv 6473921, Israel, Attention: Dror Ben-Asher, Chief Executive Officer, email
address: dror@redhillbio.com or such other email address or address as the Company may specify for such purposes by
notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder
shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed
to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other
communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if
such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 4:30 p.m. (New
York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is
delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 4:30 p.m.
(New York City time) on any Trading Day or (iii) upon actual receipt by the party to whom such notice is required to be
given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding
the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a
Current Report on Form 6-K.
18
(j) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise
this Warrant to purchase Warrant ADSs, and no enumeration herein of the rights or privileges of the Holder, shall give rise to
any liability of the Holder for the purchase price of any Ordinary Shares or ADSs or as a shareholder of the Company,
whether such liability is asserted by the Company or by creditors of the Company.
(k) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery
of damages, will be entitled to specific performance of its rights under this Warrant, without the necessity of showing
economic loss and without any bond or other security being required. The Company agrees that monetary damages may
not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby
agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be
adequate.
( l ) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company
and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any
Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant ADSs.
( m ) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written
consent of the Company and the Holder.
( n ) Severability. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or
unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable
shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of this Warrant so long as this
Warrant as so modified continues to express, without material change, the original intentions of the parties as to the subject
matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that
would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the
prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s).
( o ) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for
any purpose, be deemed a part of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly
authorized as of the Initial Exercise Date.
REDHILL BIOPHARMA LTD.
By: /s/ Dror Ben-Asher
Name: Dror Ben-Asher
Title: CEO
June 20, 2025
By: /s/ Razi Ingber
Name: Razi Ingber
Title: CFO
June 20, 2025
19
EXHIBIT A
NOTICE OF EXERCISE
TO: REDHILL BIOPHARMA LTD.
(1) The undersigned hereby elects to purchase ________ Warrant ADSs of the Company pursuant to the terms
of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with
all applicable transfer taxes, if any.
(2) Payment shall take the form of lawful money of the United States.
(3) Please register and issue said Warrant ADSs in the name of the undersigned or in such other name as is
specified below:
______________________________
The Warrant ADSs shall be delivered to the following DWAC Account Number:
______________________________
______________________________
______________________________
( 4 ) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act of 1933, as amended.
(
5
) Notice of Ordinary Shares “held” (as defined in the Israeli Companies Law, 1999, as amended:
___________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity:
___________________________________________________________________
Signature of Authorized Signatory of Investing Entity:
_________________________________________________
Name of Authorized Signatory:
___________________________________________________________________
Title of Authorized Signatory:
___________________________________________________________________
Date: _______________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the
Warrant to purchase Warrant ADSs.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please Print)
Address:
Phone Number:
Email Address:
(Please Print)
______________________________________
______________________________________
Dated: _______________ __, ______
Holder’s Signature:
Holder’s Address:
Exhibit 4.2
NEITHER THIS SECURITY NOR THE ORDINARY SHARES OR AMERICAN DEPOSITARY SHARES UNDERLYING THE
SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTIONS. AS A RESULT THESE
SECURITIES (INCLUDING THE ORDINARY SHARES AND THE AMERICAN DEPOSITARY SHARES UNDERLYING
THESE SECURITIES) MAY NOT BE OFFERED, TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
ACT OR APPLICABLE STATE SECURITIES LAWS (PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR
IN A TRANSACTION NOT SUBJECT THERETO).
PREFUNDED ADS PURCHASE WARRANT
REDHILL BIOPHARMA LTD.
Warrant ADSs: [●]
Issue Date: [●], 2025
THIS PREFUNDED ADS PURCHASE WARRANT TO PURCHASE FULLY PAID ORDINARY SHARES
REPRESENTED BY AMERICAN DEPOSITARY SHARES (the “Warrant”) certifies that, for value received, Alumni Capital
LP or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after [●], 2025 (the “Initial Exercise Date”) and until this Warrant is exercised in full
(the “Termination Date”) but not thereafter, to subscribe for and purchase from Redhill Biopharma Ltd., an Israeli company
(the “Company”), up to [●] of the Company’s fully paid ordinary shares, no par value (“Ordinary Shares”), represented by
American Depositary Shares (“ADSs”), with each ADS representing ten thousand (10,000) Ordinary Shares, in the amounts
and the price per share as set forth in Section 2 (as subject to adjustment hereunder, the “Warrant ADSs”).
Section 1. Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
“ADSs” shall mean the Company’s American Depositary Shares representing fully paid Ordinary Shares of the
Company, with each ADS representing ten thousand (10,000) Ordinary Shares.
“ADS Depositary” shall mean The Bank of New York Mellon and any successor ADS depositary of the
Company.
“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 in and construed under Rule 405
under the Securities Act.
“Alternate Consideration” shall have the meaning specified in Section 3(d).
“Attribution Parties” shall have the meaning specified in Section 2(e)(i).
“Beneficial Ownership Limitation” shall have the meaning specified in Section 2(e)(i).
“Bloomberg” means Bloomberg L.P.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in
the United States, or any day on which banking institutions in the State of New York are authorized or required by law
or other governmental action to close.
“Buy-In” shall have the meaning specified in Section 2(d)(iv).
“Commission” means the United States Securities and Exchange Commission.
“Company” means Redhill Biopharma Ltd., an Israeli company.
“Companies Law” means the Israeli Companies Law, 5759-1999.
“Distribution” shall have the meaning specified in Section 3(c).
“DWAC” shall have the meaning specified in Section 2(d)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exercise Price” shall have the meaning specified in Section 2(b).
“Fundamental Transaction” shall have the meaning specified in Section 3(d).
“Holder” means Alumni Capital LP, a Delaware limited partnership, or its assigns.
“Initial Exercise Date” means [●], 2025.
“Notice of Exercise” shall have the meaning specified in Section 2(a).
2
“Ordinary Shares” means the ordinary shares of the Company, no par value per share.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other
entity of any kind.
“Purchase Rights” shall have the meaning specified in Section 3(b).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Share Equivalents” means any securities of the Company or its Subsidiaries which would entitle the holder
thereof to acquire at any time Ordinary Shares or ADSs, including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or
otherwise entitles the holder thereof to receive, Ordinary Shares or ADSs.
“Standard Settlement Period” shall have the meaning specified in Section 2(d)(i).
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or
indirect subsidiary of the Company formed or acquired after the date hereof.
“Successor Entity” shall have the meaning specified in Section 3(d).
“Termination Date” means the date this Warrant is exercised in full.
“Trading Day” means a day on which the principal Trading Market is open for trading; provided, however, that if
the ADSs are not listed or quoted on the Trading Market, then Trading Day shall mean any day except Saturday,
Sunday, and any day which shall be a legal holiday or a day on which banking institutions in the State of New York or
State of Delaware are authorized or required by law or other government action to close.
3
“Trading Market” means any of the following markets or exchanges on which the ADSs are listed or quoted for
trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the New York Stock Exchange, OTCQB, or OTCQX (or any successors to any of the
foregoing).“Transfer Agent” means the current transfer agent of the Company, and any successor transfer agent of
the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the
ADSs are then listed or quoted on a Trading Market, the daily volume weighted average price of the ADSs for such
date (or the nearest preceding date) on the Trading Market on which the ADSs are then listed or quoted as reported
by Bloomberg (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
OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the ADSs for such date (or the
nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the ADSs are not then listed or quoted for trading
on OTCQB or OTCQX and if prices for the ADSs are then reported on the Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the
ADSs so reported, or (d) in all other cases, the fair market value of an ADS as determined by an independent
appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and
reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant” means this Warrant.
“Warrant ADSs” shall have the meaning specified in the preamble of this Warrant.
“Warrant ADS Delivery Date” shall have the meaning specified in Section 2(d)(i).
“Warrant Register” shall have the meaning specified in Section 4(c).
“Warrant Shares” means the Ordinary Shares underlying the Warrant ADSs.
4
Section 2. Exercise.
( a ) Exercise of Warrant. Exercise of the purchase rights for Warrant ADSs represented by this Warrant
may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the
Termination Date by delivery to the Company (or such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a
duly executed notice of exercise in the form annexed hereto as Exhibit A (a “Notice of Exercise”), which may be
delivered in a .PDF format via electronic mail pursuant to the notice provisions set forth in Section 5(i). Within two (2)
Trading Days of the date said Notice of Exercise is delivered to the Company (or within three (3) Trading Days of the
date said Notice of Exercise is delivered to the Company if the Notice of Exercise is received after 12 p.m. EST on
such day), the Company shall have received payment of the aggregate Exercise Price of the Warrant ADSs thereby
purchased by wire transfer or cashier’s check drawn on a United States bank. 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. The Company shall be entitled to conclusively assume the genuineness of any signature on any
Notice of Exercise delivered to the Company pursuant to this Section 2(a), the legal capacity and competency of all
natural persons signing any Notice of Exercise so delivered, the authenticity of any Notice of Exercise so delivered,
the conformity to an authentic original of any Notice of Exercise so delivered as certified, authenticated, conformed,
photostatic, facsimile, or electronic and the authenticity of the original of such Notice of Exercise. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
until the Holder has purchased all of the Warrant ADSs 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 ADSs available hereunder shall have the effect of lowering the
outstanding number of Warrant ADSs purchasable hereunder in an amount equal to the applicable number of
Warrant ADSs purchased. The Holder and the Company shall maintain records showing the number of Warrant
ADSs purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within two (2) Business Days of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase
of a portion of the Warrant ADSs hereunder, the number of Warrant ADSs available for purchase hereunder at
any given time may be less than the amount stated on the face hereof.
5
( b ) Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of
$0.0001 per Warrant ADS, was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently,
no additional consideration (other than the nominal exercise price of $0.0001 per Warrant ADS) shall be required to
be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not be entitled to the
return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any
reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date.
The remaining unpaid exercise price per ADS under this Warrant shall be $0.0001, subject to adjustment hereunder
(the “Exercise Price”).
(c) Restrictive Legend; Legend Removal.
i
. Restrictive Legend. The certificate(s) or book-entry statement(s) representing any
Warrant ADSs issued hereunder, except as set forth below, shall bear a restrictive legend in
substantially the following form (and stop transfer instructions may be placed against transfer of any
such Securities):
THE ORDINARY SHARES UNDERLYING THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTIONS. AS A
RESULT THESE SECURITIES (INCLUDING THE ORDINARY SHARES UNDERLYING THESE
SECURITIES) MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE ACT OR APPLICABLE STATE SECURITIES LAWS (PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM).
i i . Legend Removal. Upon the written request by the Holder to the Company if, at the time
of such request, the Holder covenants and agrees that it has resold or will resell the Warrant ADSs only
(A)(i) pursuant to an effective registration statement registering the issuance of the Warrant ADSs to or
resale of Warrant ADSs by the Holder under the Securities Act, in a manner described under the
caption “Plan of Distribution” in such registration statement, in a manner in compliance with all
applicable U.S. federal and state securities laws, rules, and regulations, including, without limitation, any
applicable prospectus delivery requirements of the Securities Act, or (ii) in compliance with an available
exemption under the Securities Act, and (B) concurrently with such request, the Holder delivers to the
Company, its counsel, the Transfer Agent, and the ADS Depositary a customary written certification that
the requirements set forth in clause (a) are accurate, and if the Holder resold the Warrant ADSs under
(A)(ii), to the extent the Company’s counsel or the Transfer Agent or the ADS Depositary requires,
additional customary requirements to qualify for the applicable exemption under the Securities Act, the
Company shall, no later than one (1) Trading Day following the delivery by the Holder to the Transfer
Agent and/or ADS Depositary, as applicable, of one or more legended certificates or book-entry
statements representing any Securities subject to such request, together with such other documentation
from the Holder and its designated broker-dealer as the Transfer Agent and/or ADS Depositary, as
applicable, deem reasonably necessary and appropriate, authorize the Transfer Agent and/or ADS
Depositary, as applicable, to remove the Securities Act restrictive legend (and any stop transfer
instructions placed against transfer thereof) contemplated by Section 2(c)(i) affixed to the Warrant ADSs
(as applicable) subject to such request. At the times the Company authorizes the removal of the
Securities Act restrictive legends on the Warrant ADSs subject to such request (and any stop transfer
instructions placed against transfer thereof) pursuant to this Section 2(c)(ii)), the Company shall, at its
sole expense, use its commercially reasonable efforts to cause its legal counsel to issue to the Transfer
Agent and/or ADS Depositary, as applicable, a legal opinion or direction letter authorizing the Transfer
Agent and/or ADS Depositary, as applicable, to remove the Securities Act restrictive legends
contemplated by Section 2(c)(i) on the Warrant ADSs (as applicable) subject to such request (which
legal opinion or direction letter may be delivered to the Transfer Agent and/or ADS Depositary, as
applicable, in advance setting forth the conditions to the removal of such legends). The Company shall
be responsible for the fees of its Transfer Agent and ADS Depositary and the Company’s legal counsel
associated with any such legend removals. If counsel to the Company fails to provide a legal opinion
reasonably satisfactory to the Transfer Agent and/or ADS Depositary, as applicable, in accordance with
this Section, the Holder shall have the right to provide an opinion of counsel selected by the Holder, the
cost of which shall be borne by the Company.
6
(d) Mechanics of Exercise.
i . Delivery of Warrant ADSs Upon Exercise. Upon the delivery by the Holder of a Notice of
Exercise in accordance with Section 2(a),the Company shall cause the Warrant ADSs purchased
hereunder to be transmitted by the ADS Depositary to the Holder by crediting the account of the
Holder’s or its designee’s balance account with The Depository Trust Company through the deliver
order (DO) system maintained by DTC (or any similar program hereafter adopted by DTC performing
substantially the same function) or its Deposit or Withdrawal at Custodian system (“DWAC”) if the
Company is then a participant in such system and either (A) the legend has been properly removed from
the Warrant in accordance with Section 2(c)(ii) or (B) there is an effective registration statement
permitting the issuance of the Warrant ADSs to or resale of the Warrant ADSs by Holder, and otherwise
by physical delivery of a certificate, registered in the Company’s share register in the name of the
Holder or its designee, for the number of Warrant ADSs to which the Holder is entitled pursuant to such
exercise to the address specified by the Holder in the Notice of Exercise. In any case, delivery will be
made by the date that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the
Notice of Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (provided that delivery shall be two (2) Trading
Days after delivery to the Company of said Notice of Exercise if the Company receives the Notice of
Exercise after 12 p.m. EST on such day) (such date, the “Warrant ADS Delivery Date”). Upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the
holder of record of the Warrant ADSs with respect to which this Warrant has been exercised,
irrespective of the date of delivery of the Warrant ADSs, provided that payment of the aggregate
Exercise Price is received by the Warrant ADS Delivery Date. If the Company fails for any reason to
deliver to the Holder the Warrant ADSs subject to a Notice of Exercise by the Warrant ADS Delivery
Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for
each $1,000 of Warrant ADSs subject to such exercise (based on the VWAP of the ADSs on the date of
the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the
fourth Trading Day after the Warrant ADS Delivery Date) for each Trading Day after such Warrant ADS
Delivery Date until such Warrant ADSs are delivered or Holder rescinds such exercise. The Company
agrees to maintain a transfer agent and ADS Depositary that is a participant in the DTC/FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “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 ADSs as in effect on the date of delivery of the
Notice of Exercise.
i i . Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in
part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the
time of delivery of the Warrant ADSs, deliver to the Holder a new Warrant evidencing the rights of the
Holder to purchase the unpurchased Warrant ADSs called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Holder fails to make payment of the aggregate Exercise Price
of the Warrant ADSs pursuant to a Notice of Exercise within two (2) Trading Days of the date said
Notice of Exercise is delivered to the Company by wire transfer or cashier’s check drawn on a United
States bank, then the Company will have the right to rescind such exercise. If the Company fails to
cause the ADS Depositary to transmit to the Holder the Warrant ADSs pursuant to Section 2(d)(i) by the
Warrant ADS Delivery Date, then the Holder will have the right to rescind such exercise.
7
i v. Compensation for Buy-In on Failure to Timely Deliver Warrant ADSs Upon Exercise. In
addition to any other rights available to the Holder, if the Company fails to cause the ADS Depositary to
transmit to the Holder the Warrant ADSs in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant ADS Delivery Date, and if after such date the Holder is
required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s
brokerage firm otherwise purchases, ADSs to deliver in satisfaction of a sale by the Holder of the
Warrant ADSs which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the
Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase
price (including brokerage commissions, if any) for the ADSs so purchased exceeds (y) the amount
obtained by multiplying (1) the number of Warrant ADSs that the Company was required to deliver to
the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise
to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the
portion of the Warrant and equivalent number of Warrant ADSs for which such exercise was not
honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of ADSs that would have been issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Holder purchases ADSs having a total purchase price of
$11,000 to cover a Buy-In with respect to an attempted exercise of ADSs with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding
sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the
Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right
to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver ADSs upon exercise of the Warrant as required pursuant to the terms hereof; provided that the
ADS Depositary may close its books to deposits of shares for issuance of ADSs at its discretion in
accordance with the terms of the ADS Deposit Agreement.
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional ADSs
or Ordinary Shares shall be issued upon the exercise of this Warrant. As to any fraction of a share
which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its
election, either pay a cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price or round up to the next whole share.
v i . Charges, Taxes, and Expenses. Issuance of Warrant ADSs shall be made without
charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance
of Warrant ADSs, all of which taxes and expenses shall be paid by the Company, and such Warrant
ADSs shall be issued in the name of the Holder or in such name or names as may be directed by the
Holder; provided, however, that in the event that Warrant ADSs are to be issued in a name other than
the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder and the Company may require, as a
condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
The Company shall pay all fees charged by the ADS Depositary, the Transfer Agent, and the Depository
Trust Company (or other established clearing corporation) required for processing of any Notice of
Exercise.
vii. Closing of Books. The Company will not close its shareholder books or records in any
manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
8
(e) Holder’s Exercise Limitations.
i. The Company shall not effect any exercise of this Warrant, and a Holder shall not have
the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that
after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the
Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the
Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”), “holds” or would “hold” (as
defined for purposes of the Israeli Companies Law, 1999, as amended (the “Companies Law”) or would
“beneficially own” (as defined for purposes of Section 13(d) of the 1934 Act) in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of calculating “beneficial ownership” under this
Section 2(e), the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and
Attribution Parties shall include the number of Ordinary Shares represented by ADSs issuable upon
exercise of this Warrant with respect to which such determination is being made, but shall exclude the
number of Ordinary Shares represented by ADSs which would be issuable upon (i) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates
or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any
other securities of the Company (including, without limitation, any other Share Equivalents) subject to a
limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by
the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for
purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d)
of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by
the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required
to be filed in accordance therewith. For purposes of this Section 2(f), “holdings” shall be calculated in
accordance with the Companies Law. To the extent that the limitation contained in this Section 2(e)
applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall
be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion
of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the
Company shall have no obligation to verify or confirm the accuracy of such determination and shall have
no liability for exercises of this Warrant that are in non-compliance with the Beneficial Ownership
Limitation, it being understood that the Company has the right to confirm that any exercise does not
result in “holdings” of the Holder exceeding the Beneficial Ownership Limitation. In addition, a
determination as to any group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes
of this Section 2(e), in determining the number of outstanding Ordinary Shares and ADSs, a Holder may
rely on the number of outstanding Ordinary Shares and ADSs as reflected in (A) the Company’s most
recent Annual Report on Form 20-F, Report of Foreign Private Issuer on Form 6-K or other public filings
filed with the Commission, as the case may be, (B) a more recent public announcement by the
Company, or (C) a more recent written notice by the Company, the Transfer Agent or the ADS
Depositary setting forth the number of ADSs outstanding. Upon the written request of a Holder (which,
for clarity, includes electronic mail), the Company shall within one Trading Day confirm orally and in
writing to the Holder the number of ADSs then outstanding. In any case, the number of outstanding
ADSs shall be determined after giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder or its Affiliates since the date as of which such number of
outstanding ADSs was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of
ADSs outstanding immediately after giving effect to the issuance of ADSs issuable upon exercise of this
Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event
exceeds 4.99% of the number of ADSs outstanding immediately after giving effect to the issuance of
ADSs upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any change in the Beneficial Ownership Limitation will not be effective until the 61st
day after such notice is delivered to the Company. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to
correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The limitations contained in this paragraph shall
apply to a successor holder of this Warrant.
9
ii. To the extent the exercise of any portion of this Warrant requires the Company to receive
the approval of the Company’s shareholders pursuant to NASDAQ Capital Market Listing Rules or the
corporate or securities laws of any other applicable jurisdiction (including but not limited to Section
270(5) of the Companies Law), the Company shall not effect such exercise of this Warrant, and a
Holder shall not have the right to exercise any such portion of this Warrant, pursuant to Section 2 or
otherwise, unless and until such approval has been received by the Company.
Section 3. Certain Adjustments.
( a ) Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a
share dividend or otherwise makes a distribution or distributions on Ordinary Shares or ADSs or any other equity or
equity equivalent securities payable in Ordinary Shares or ADSs (which, for avoidance of doubt, shall not include any
ADSs issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding Ordinary Shares or ADSs
into a larger number of Ordinary Shares or ADSs, (iii) combines (including by way of reverse share split) outstanding
Ordinary Shares or ADSs into a smaller number of Ordinary Shares or ADSs, or (iv) issues by reclassification of
Ordinary Shares or ADSs or any shares of capital stock of the Company, then in each case the Exercise Price shall
be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares (excluding treasury
Ordinary Shares, if any) outstanding immediately before such event (including those representing ADSs) and of
which the denominator shall be the number of Ordinary Shares outstanding immediately after such event (including
those representing ADSs), and the number of ADSs issuable upon exercise of this Warrant shall be proportionately
adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made
pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination, or re‑classification.
( b ) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, during
such time as this Warrant is outstanding, if at any time the Company grants, issues or sells any Share Equivalents or
rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Ordinary
Shares or ADSs (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of ADSs acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of Ordinary Shares or ADSs are to be determined for the grant, issue or sale of such
Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase
Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled
to participate in such Purchase Right to such extent (or “holding” or “beneficial ownership” of such Ordinary Shares or
ADSs as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in
abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation).
10
(c) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare
or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Ordinary Shares
or ADSs, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in
each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder
would have participated therein if the Holder had held the number of ADSs acquirable upon complete exercise of this
Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership
Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken,
the date as of which the record holders of Ordinary Shares or ADSs are to be determined for the participation in such
Distribution (provided, however, that, to the extent that the Holder's right to participate in any such Distribution would
result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate
in such Distribution to such extent (or in the “holding” or “beneficial ownership” of any Ordinary Shares or ADSs as a
result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit
of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised at the time of
such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the
Holder has exercised this Warrant.
11
( d ) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly
or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into
another Person (other than for the purpose of changing the jurisdiction of incorporation of the Company or a holding
company for the Company), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of its assets (on a consolidated basis) in one or a
series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by
the Company or another Person) is completed pursuant to which holders of Ordinary Shares or ADSs are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of
greater than 50% of the voting power of the outstanding securities of the Company, (iv) the Company, directly or
indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the
Ordinary Shares or ADSs or any compulsory share exchange pursuant to which the Ordinary Shares or ADSs are
effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or
indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of
arrangement) with another Person or group of Persons whereby such other Person or group acquires greater than
50% of the outstanding shares Ordinary Shares (including those representing ADSs) or greater than 50% of the
voting power of the outstanding securities of the Company (not including any Ordinary Shares or ADSs held by the
other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party
to, such share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that
would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction,
at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the
number of ADSs or other capital stock of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such
Fundamental Transaction by a holder of the number of ADSs for which this Warrant is exercisable immediately prior
to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant).
For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to
such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one ADS in such
Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in
a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If
holders of Ordinary Shares or ADSs are given any choice as to the securities, cash, or property to be received in a
Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it
receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any
successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to
assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this
Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and
approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option
of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a
written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding
number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the ADSs acquirable and
receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to
such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares
of capital stock (but taking into account the relative value of the ADSs pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the
purpose of protecting the economic value of this Warrant immediately prior to the consummation of such
Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the
occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under
this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and
every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the
Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly
and severally with the Company, may exercise every right and power of the Company prior thereto and the
Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this
Warrant with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and
severally, had been named as the Company herein.
12
( e ) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest
1/100th of a share, as the case may be. For purposes of this Section 3, the number of ADSs or Ordinary Shares, as
applicable, deemed to be issued and outstanding as of a given date shall be the sum of the number of ADSs or
Ordinary Shares (excluding treasury ADSs or Ordinary Shares, if any, as applicable) issued and outstanding.
(f) Notice to Holder.
i . Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any
provision of this Section 3, the Company shall promptly deliver via electronic mail to the Holder a notice
setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of
Warrant ADSs and setting forth a brief statement of the facts requiring such adjustment.
i i . Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any
other distribution in whatever form) on the Ordinary Shares or ADSs, (B) the Company shall declare a
special nonrecurring cash dividend on or a redemption of the Ordinary Shares or ADSs, (C) the
Company shall authorize the granting to all holders of the Ordinary Shares or ADSs rights or warrants to
subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of
any shareholders of the Company shall be required in connection with any reclassification of the
Ordinary Shares or ADSs, any consolidation or merger to which the Company (or any of its
Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory
share exchange whereby the Ordinary Shares or ADSs are converted into other securities, cash, or
property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation, or
winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered
via electronic mail to the Holder at its last address as it shall appear upon the Warrant Register of the
Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights, or warrants, or if a record is not to be taken, the date as of which the
holders of Ordinary Shares or ADSs of record to be entitled to such dividend, distributions, redemption,
rights, or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, or share exchange is expected to become effective or close, and the date as of
which it is expected that holders of the Ordinary Shares or ADSs of record shall be entitled to exchange
their Ordinary Shares or ADSs for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided in this
Warrant constitutes, or contains, material, non-public information regarding the Company or any of its
Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a
Current Report on Form 6-K. The Holder shall remain entitled to exercise this Warrant during the period
commencing on the date of such notice to the effective date of the event triggering such notice except
as may otherwise be expressly set forth herein.
13
( g ) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the
Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and
for any period of time deemed appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
( a ) Transferability. Subject to compliance with any applicable securities laws and the provisions below,
this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or
in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a
written assignment of this Warrant substantially in the form attached hereto as Exhibit B duly executed by the Holder
or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon
such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this
Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The
Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
ADSs without having a new Warrant issued. If, at the time of the surrender of this Warrant in connection with any
transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective
registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for
resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144,
the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as
the case may be, to provide to the Company and the Depositary an opinion of counsel selected by the transferor and
reasonably acceptable to the Company and the Depositary, the cost of which shall be borne by the Company and the
form and substance of which opinion shall be reasonably satisfactory to the Company and the Depositary, to the
effect that such transfer does not require registration of such transferred Warrants or Warrant Shares or Warrant
ADSs under the Securities Act.
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( b ) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation
hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations
in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with
Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant ADSs issuable pursuant
thereto.
( c ) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of
any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
( d ) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it
is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant ADSs issuable upon such exercise,
for its own account and not with a view to or for distributing or reselling such Warrant ADSs or any part thereof in
violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted
under the Securities Act; provided, however, that the Investor reserves the right to dispose of the Warrant ADSs at
any time in accordance with federal and state securities laws and the applicable securities laws of any jurisdiction
relevant to such disposition and subject to compliance with the terms of this Warrant.
Section 5. Miscellaneous.
( a ) No Rights as ADS Holder or Shareholder Until Exercise; No Settlement in Cash. This Warrant does
not entitle the Holder to any voting rights, dividends, or other rights as a shareholder or ADS holder of the Company
prior to the exercise hereof as set forth in Section 2(a), except as expressly set forth in Section 3. Without limiting any
rights of a Holder to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall
the Company be required to net cash settle an exercise of this Warrant.
( b ) Loss, Theft, Destruction, or Mutilation of Warrant. The Company covenants that upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate relating to the Warrant ADSs, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon
surrender and cancellation of such Warrant or ADS certificate, if mutilated, the Company will make and deliver a new
Warrant or ADS certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or ADS certificate.
15
( c ) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such
right may be exercised on the next succeeding Business Day.
(d) Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Ordinary Shares a sufficient number of shares to provide for the deposit of
Ordinary Shares for the issuance of the Warrant ADSs upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of issuing the necessary Ordinary Shares and Warrant ADSs upon the exercise of the
purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to
assure that such Ordinary Shares Warrant ADSs may be issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Trading Market upon which the ADSs may be listed. The Company
covenants that all Warrant ADSs which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant ADSs
in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying
out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of
Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Ordinary Shares or Warrant ADSs above the amount payable therefor upon
such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant ADSs
upon the exercise of this Warrant, and (iii) use commercially reasonable efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable
the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant ADSs for which this
Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction
thereof.
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(e) Depositary Instructions. The Company covenants and agrees that it will, at all times during the period
the Warrant is outstanding, maintain a duly qualified independent ADS Depositary. Subject to Section 5(g), the
Company warrants that it will not direct its ADS Depositary not to transfer or delay, impair, and/or hinder its ADS
Depositary in transferring (or issuing and delivering) (electronically or in certificated form) any certificate or book-entry
statement for Warrant ADSs to be issued to the Holder upon exercise of or otherwise pursuant to this Warrant as and
when required by this Warrant (provided, however, that the ADS Depositary shall not be required to remove restrictive
legends from the Warrant ADSs if it has not received customary and reasonable documentation with respect to such
removal to its satisfaction and in accordance with this Warrant). Nothing in this Section shall affect in any way the
Holder’s obligations to comply with all applicable prospectus delivery requirements, if any, upon resale of the Warrant
ADSs. As a condition to any resale of the Warrant ADSs, (x) the Company, the ADS Depositary or the Transfer
Agent may require an opinion of the Company’s legal counsel, the form and substance of which opinion shall be
reasonably satisfactory to the Company, its legal counsel, the ADS Depositary, and the Transfer Agent to the effect
that such resale has been registered under the Securities Act pursuant to the Registration Statement or does not
require registration under the Securities Act pursuant to an available exemption therefrom, and (y) the Investor shall
provide to the Company, its legal counsel, the ADS Depositary, and the Transfer Agent such representations by the
Investor and/or the broker executing such resale or other documentation required by the Company, its legal counsel,
the ADS Depositary, and the Transfer Agent in support of such opinion. If the Company fails to cause its legal
counsel to provide the legal opinion described in the immediately preceding sentence in connection with a resale
effected pursuant to an exemption from registration under the Securities Act (including Section 4(a)(1) of the
Securities Act and the Rule 144 safe harbor thereunder) and if permitted by the ADS Depositary and the Transfer
Agent, the Investor shall have the right to provide an opinion of a legal counsel selected by the Investor and
reasonably acceptable to the Company, which opinion shall be in form and substance satisfactory to the Company
(together with any representations by the Investor and/or the broker executing such resale or other documentation
required by the Company, the ADS Depositary, and the Transfer Agent in support of such opinion), the cost of which
shall be borne by the Company. The Company shall also pay all costs associated with any opinions delivered by its
legal counsel. If the Company or a Holder provides such an opinion and such sale or transfer is effected, the
Company shall permit the transfer, and, in the case of the Warrant ADSs, promptly instruct its ADS Depositary to
issue and deliver one or more certificates or book-entry statements, free from restrictive legend, in such name and in
such denominations as specified by the Holder with respect to such Warrant ADSs. The Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the intent and
purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at law
for a breach of its obligations under this Section 5(e) may be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Section, that the Holder shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach and requiring immediate transfer, without the
necessity of showing economic loss and without any bond or other security being required.
17
( f ) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of
this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law thereof. Each party hereby irrevocably submits that any
dispute, controversy, or claim arising out of or relating to this Warrant shall be submitted to the exclusive jurisdiction
of the Chancery Court of the State of Delaware and the United States District Court for the District of Delaware.
Each party hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of 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 to such party at the address for such notices to it under this Warrant and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. The Company and the Holder agree that all
dispute resolution proceedings in accordance with this Section 5(f) may be conducted in a virtual setting. If either
party shall commence an action, suit, or proceeding to enforce any provisions of this Warrant, the prevailing party in
such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other
costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
( g ) Restrictions. The Holder acknowledges that the Warrant ADSs acquired upon the exercise of this
Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.
(
h
) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right
hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights,
powers, or remedies, notwithstanding that all rights hereunder terminate on the Termination Date. If the Company
fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company
shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited
to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any
amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
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( i ) Notices. Any and all notices or other communications or deliveries to be provided by the Holders
hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally or by e-
mail, addressed to the Company, at 21 Ha’arba’a Street, Tel Aviv 6473921, Israel, Attention: Dror Ben-Asher, Chief
Executive Officer, email address: dror@redhillbio.com or such other email address or address as the Company may
specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be
provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally
recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder
appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed
given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-
mail at the e-mail address set forth in this Section prior to 4:30 p.m. (New York City time) on any date, (ii) the next
Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail
address set forth in this Section on a day that is not a Trading Day or later than 4:30 p.m. (New York City time) on
any Trading Day, or (iii) upon actual receipt by the party to whom such notice is required to be given. To the extent
that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company
or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 6-K.
( j ) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to
exercise this Warrant to purchase Warrant ADSs, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of the Holder for the purchase price of any Ordinary Shares or ADSs or as a shareholder
of the Company, whether such liability is asserted by the Company or by creditors of the Company.
( k ) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights under this Warrant, without the necessity of
showing economic loss and without any bond or other security being required. The Company agrees that monetary
damages may not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this
Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a
remedy at law would be adequate.
( l ) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and
obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns
of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of
Warrant ADSs.
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( m ) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
(n) Severability. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid
or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or
unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and
the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this
Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s)
in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the
practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in
good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the
effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
(o) Headings. The headings used in this Warrant are for the convenience of reference only and shall not,
for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly
authorized as of the date first above indicated.
REDHILL BIOPHARMA LTD.
By:__________________________________________
Name: Dror Ben-Asher
Title: Chief Executive Officer
EXHIBIT A
NOTICE OF EXERCISE
TO: REDHILL BIOPHARMA LTD.
(1) The undersigned hereby elects to purchase ________ Warrant ADSs of the Company pursuant to the
terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together
with all applicable transfer taxes, if any.
(2) Payment shall take the form of in lawful money of the United States
(3) Please register and issue said Warrant ADSs in the name of the undersigned or in such other name
as is specified below:
_______________________________
The Warrant ADSs shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(
4
) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D
promulgated under the Securities Act of 1933, as amended.
( 5 ) Notice of Ordinary Shares “held” (as defined in the Israeli Companies Law, 1999, as amended:
___________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity: ___________________________________________________________
Signature of Authorized Signatory of Investing Entity: _____________________________________
Name of Authorized Signatory: _______________________________________________________
Title of Authorized Signatory: ________________________________________________________
Date: ____________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the
Warrant to purchase Warrant ADSs.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please Print)
Address:
Phone Number:
Email Address:
(Please Print)
______________________________________
______________________________________
Dated: _______________ __, ______
Holder’s Signature:
Holder’s Address: