UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
Under the Securities Exchange Act of 1934
For the Month of November 2023
001-36203
(Commission File Number)
CAN-FITE BIOPHARMA LTD.
(Exact name of Registrant as specified in its charter)
10 Bareket Street
Kiryat Matalon, P.O. Box 7537
Petach-Tikva 4951778, 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 ☐
The press release attached to this Form 6-K is hereby incorporated by reference into the registrant’s Registration Statements on
Form S-8 (File Nos. 333-227753 and 333-271384) and Form F-3 (File Nos. 333-195124, 333-236064, 333-249063 and 333-262055), to be a part
there of from the date on which this report is submitted, to the extent not superseded by documents or reports subsequently filed or furnished.
On
November 21, 2023, Can-Fite Biopharma Ltd. (the “Company”) entered into an inducement offer letter agreement (the
“Inducement Letter”) with a certain holder (the “Holder”) of certain of the Company’s existing
warrants to purchase up to (i) 1,363,637 of the Company’s American Depositary Shares (“ADS”), each ADS
representing 300 ordinary shares, no par value, issued on January 13, 2023 at an exercise price of $6.00 per ADS (the “January
2023 Series A Warrants”) and (ii) 600,000 of the Company’s ADSs issued on December 23, 2021 at an exercise price of
$5.50 per ADS (the “December 2021 Warrants” and together with the January 2023 Series A Warrants, the “Existing
Warrants”).
Pursuant
to the Inducement Letter, the Holder agreed to exercise for cash its Existing Warrants to purchase an aggregate of 1,963,637 of the
Company’s ADSs at a reduced exercise price of $1.53 per ADS in consideration of the Company’s agreement to issue new
warrants to purchase ADSs (the “New Warrants”), as described below, to purchase up to an aggregate of 3,927,274 ADSs
(the “New Warrant Shares”), at an exercise price of $1.75 per ADS. The Company expects to receive aggregate gross
proceeds of approximately $3.0 million from the exercise of the Existing Warrants by the Holder, before deducting placement agent
fees and other offering expenses payable by the Company. In addition, the Company has agreed to reduce the exercise price of certain
series B warrants to purchase 1,363,637 ADSs issued on January 13, 2023 and held by the Holder from $5.50 per ADS to $1.75 per ADS
and extend the term of such series B warrants to twenty months from the Closing Date (as defined below).
The
Company has engaged H.C. Wainwright & Co., LLC (the “Placement Agent”) to act as its exclusive placement agent in
connection with the transactions contemplated by the Inducement Letter and has agreed to pay the Placement Agent a cash fee equal to
7.0% of the aggregate gross proceeds received from the Holder’s exercise of the Existing Warrants, as well as a management fee
equal to 1.0% of the gross proceeds from the exercise of the Existing Warrants. The Company has also agreed to issue to the Placement Agent or its
designees warrants (the “Placement Agent Warrants”) to purchase up to 137,455 ADSs (representing 7.0% of the Existing
Warrants being exercised) which will have the same terms as the New Warrants except the Placement Agent Warrants will have an
exercise price equal to $1.9125 per share (125% of the reduced exercise price of the Existing Warrants). Similar to the New
Warrants, the Placement Agent Warrants will be immediately exercisable from the date of issuance until the five year anniversary of
such date. In addition, the Company has also agreed to pay the Placement
Agent $50,000 for non-accountable expenses and other out-of-pocket expenses
and $15,950 for clearing fees.
The
closing of the transactions contemplated pursuant to the Inducement Letter is expected to occur on or about November 24, 2023 (the “Closing
Date”), subject to satisfaction of customary closing conditions. The Company expects to use the net proceeds from these transactions
for funding research and development and clinical trials and for other working capital and general corporate purposes.
The
resale of the ADSs representing the Company’s ordinary shares underlying the (i) January 2023 Series A Warrants have been
registered pursuant to an existing registration statement on Form
F-1 (File No. 333-269485), declared effective by the Securities and Exchange Commission (the “SEC”) on February 10,
2023 and (ii) December 2021 Warrants have been registered pursuant to an existing registration statement on Form
F-3 (File No. 333-262055), declared effective by the SEC on January 14, 2022.
The
Company also agreed to file a registration statement on Form F-3 (or other appropriate form if the Company is not then Form F-3 eligible)
providing for the resale of the New Warrant Shares representing the Company’s ordinary shares issued or issuable upon the exercise
of the New Warrants (the “Resale Registration Statement”), as soon as practicable after the Closing Date, and to use commercially
reasonable efforts to have such Resale Registration Statement declared effective by the SEC within 90 days following the date of the Inducement
Letter and to keep the Resale Registration Statement effective at all times until no holder of the New Warrants owns any New Warrants
or New Warrant Shares. In the Inducement Letter, the Company agreed not to issue any ADSs, ordinary shares or ordinary share equivalents
or to file any other registration statement with the SEC (in each case, subject to certain exceptions) until 60 days after the Closing
Date. The Company also agreed not to effect or agree to effect any Variable Rate Transaction (as defined in the Inducement Letter) until
one (1) year after the Closing Date (subject to certain exceptions).
The
New Warrants, Placement Agent Warrants, the New Warrant Shares and the ADSs issuable upon the exercise of the Placement Agent Warrants
are being offered and sold pursuant to an exemption from the registration requirements under Section 4(a)(2) of the Securities Act of
1933, as amended (the “Securities Act”). The Holder has represented that it is an accredited investor as defined in Rule 501
of the Securities Act and has acquired such securities for their own account and has no arrangements or understandings for any distribution
thereof. The offer and sale of the foregoing securities is being made without any form of general solicitation or advertising. The New
Warrants, Placement Agent Warrants, the New Warrant Shares and the ADSs issuable upon the exercise of the Placement Agent Warrants have
not been registered under the Securities Act or applicable state securities laws. Accordingly, such securities may not be offered or sold
in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements
of the Securities Act and such applicable state securities laws.
This
Report on Form 6-K shall not constitute an offer to sell or the solicitation to buy nor shall there be any sale of the securities in any
state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state or jurisdiction.
Terms of the New Warrants
The
following summary of certain terms and provisions of the New Warrants is not complete and is subject to, and qualified in its entirety
by, the provisions of the New Warrants, the form of which is filed as Exhibit 10.2 to this Report on Form 6-K and is incorporated herein
by reference. The following description of the New Warrants is qualified in its entirety by reference to such exhibit.
Duration
and Exercise Price
Each
New Warrant will have an exercise price equal to $1.75 per ADS. The New Warrants will be immediately exercisable from the date of issuance
until the five year anniversary of the date of issuance. The exercise price and number of New Warrant Shares issuable upon exercise of
the New Warrants is subject to appropriate adjustment in the event of stock dividends, stock splits, subsequent rights offerings, pro
rata distributions, reorganizations, or similar events affecting our ADSs or ordinary shares and the exercise price.
Exercisability
The
New Warrants will be exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice
accompanied by payment in full for the number of ADSs purchased upon such exercise (except in the case of a cashless exercise as discussed
below). A holder (together with its affiliates) may not exercise any portion of such holder’s New Warrants to the extent that the
holder would own more than 4.99% (or, at the election of the holder, 9.99%) of our outstanding ordinary shares (including ADSs representing
ordinary shares) immediately after exercise, except that upon prior notice from the holder to us, the holder may increase or decrease
the amount of ownership of outstanding ordinary shares (including ADSs representing ordinary shares) after exercising the holder’s
New Warrants up to 9.99% of the number of our ordinary shares (including ADSs representing ordinary shares) outstanding immediately after
giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the New Warrants, provided that
any increase will not be effective until 61 days following notice to us.
Cashless
Exercise
If,
at the time a holder exercises its New Warrants, a registration statement registering the resale of the New Warrant Shares by the holder
under the Securities Act is not then effective or available, then in lieu of making the cash payment otherwise contemplated to be made
to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either
in whole or in part), the net number of shares of common stock determined according to a formula set forth in the New Warrants.
Trading
Market
There
is no established trading market for the New Warrants, and the Company does not expect an active trading market to develop. The Company
does not intend to apply to list the New Warrants on any securities exchange or other trading market. Without a trading market, the liquidity
of the New Warrants will be extremely limited.
Rights
as a Shareholder
Except
as otherwise provided in the New Warrants or by virtue of the holder’s ownership of our ADSs, such holder of New Warrants does not
have the rights or privileges of a holder of our ADSs or ordinary shares, including any voting rights, until such holder exercises such
holder’s New Warrants. The New Warrants will provide that the holders of the New Warrants have the right to participate in distributions
or dividends paid on our ADSs or ordinary shares.
Fundamental
Transactions
If at any time the New Warrants
are outstanding, the Company, either directly or indirectly, in one or more related transactions effects a Fundamental Transaction (as
defined in the New Warrant), a holder of New Warrants will be entitled to receive, upon exercise of the New Warrants, the kind and amount
of securities, cash or other property that such holder would have received had they exercised the New Warrants immediately prior to the
Fundamental Transaction. As an alternative, and at the holder’s option in the event of a Fundamental Transaction, exercisable at
any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public
announcement of the applicable Fundamental transaction), the Company shall purchase the unexercised portion of the Warrant from the holder
by paying to the holder an amount of cash equal to the Black Scholes Value (as defined in the Warrant) of the remaining unexercised portion
of the New Warrant on the date of the consummation of such Fundamental Transaction.
Waivers
and Amendments
The
New Warrants may be modified or amended or the provisions of the New Warrants waived with ours and the holder’s written consent.
The
forms of Inducement Letter, New Warrants and Placement Agent Warrants are attached as Exhibits 10.1, 10.2 and 10.3, respectively. The
description of the terms of the Inducement Letter and the New Warrants are not intended to be complete and are qualified in its entirety
by reference to such exhibits. The Inducement Letter contains customary representations, warranties and covenants by us which were made
only for the purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may
be subject to limitations agreed upon by the contracting parties.
Warning Concerning Forward Looking Statements
This
Report on Form 6-K contains statements which constitute forward looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995 and other securities laws. These forward looking statements are based upon the Company’s present intent, beliefs
or expectations, but forward looking statements are not guaranteed to occur and may not occur for various reasons, including some reasons
which are beyond the Company’s control. For example, this Report on Form 6-K states that the closing of the offering is expected
to close on or about November 24, 2023. In fact, the closing of the offering is subject to various conditions and contingencies as are
customary in similar purchase agreements in the United States. If these conditions are not satisfied or the specified contingencies do
not occur, this offering may not close. For this reason, among others, you should not place undue reliance upon the Company’s forward
looking statements. Except as required by law, the Company undertakes no obligation to revise or update any forward looking statements
in order to reflect any event or circumstance that may arise after the date of this Report on Form 6-K.
Exhibit Index
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.
| Date: November 22, 2023 |
By: |
/s/ Motti Farbstein |
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Motti Farbstein |
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Chief Executive Officer and
Chief Financial Officer |
Exhibit 10.1
Can-Fite
Biopharma Ltd.
November 21, 2023
Holder of Warrants to Purchase Ordinary Shares
Represented by American Depositary Shares Issued in January 2023 and December 2021
Re: Inducement Offer to Exercise Warrant to Purchase Ordinary
Shares Represented by American Depositary Shares Issued in January 2023 and December 2021
Dear Holder:
Can-Fite Biopharma Ltd. (the
“Company”) is pleased to offer to you (“Holder”, “you” or similar terminology)
the opportunity to receive (i) new warrants to purchase Ordinary Shares represented by ADSs, (ii) a reduction in the Exercise Price (as
defined in the Existing Warrants) of certain warrant to purchase 589,091,100 ordinary shares represented by 1,963,637 American Depositary
Shares held by you in consideration for exercising for cash such warrants, issued to you on December 23, 2021 and January 13, 2023 (having
exercise prices of $5.50 to $6.00 per ADS) (collectively, the “Existing Warrants”), as set forth on the signature page
hereto. The issuance and/or resale of the ADSs representing Ordinary Shares underlying the Existing Warrants (the “Existing Warrant
Shares”) has been registered pursuant to the registration statements on Form F-3 (File No. 333-262055) and F-1 File No. 333-269485)
(the “Registration Statements”). The Registration Statements are currently effective and, upon exercise of the Existing
Warrants pursuant to this letter agreement, will be effective for the issuance and resale of the Existing Warrant Shares. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the New Warrants (as defined herein).
The Company desires to reduce
the Exercise Price (as defined in the respective Existing Warrants) of the Existing Warrants to $1.53 per share (the “Reduced
Exercise Price”). In consideration for exercising for cash in full all of the Existing Warrants held by the Holder as set forth
on the Holder’s signature page hereto (the “Warrant Exercise”) on or before the Execution Time (as defined below),
the Company hereby offers to (A) to issue you or your designees new unregistered warrants to purchase (the “New Warrants”)
pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (“Securities Act”), to purchase up to 1,178,182,200
Ordinary Shares Represented by 3,927,274 ADSs (the “New Warrant Shares”), which New Warrants shall have an exercise
price per ADS equal to $1.75, subject to adjustment as provided in the New Warrants, will be exercisable at any time on or after the issuance
date and have a term of exercise of five (5) years from the issuance date, provided that, if such termination date is not a Trading Day,
the date that is the immediately following Trading Day, which New Warrants shall be substantially in the form as set forth in Exhibit
A hereto; and (B) to reduce the exercise price of $5.50 per ADS of certain Series B Warrants to purchase up to 409,091,100 ordinary
shares represented by 1,363,637 American Depositary Shares issued to the Holder in January 13, 2023 to $1.75 per ADS and a term of twenty
(20) months from the Closing Date (provided that, if such date is not a Trading Day, the date that is the immediately following Trading
Day).
The New Warrant certificate(s)
will be delivered at Closing (as defined below), and such New Warrants, together with any underlying ADSs representing Ordinary Shares
issued upon exercise of the New Warrants, will, unless and until registered, contain customary restrictive legends and other language
typical for an unregistered warrant and unregistered shares. Notwithstanding anything herein to the contrary, in the event that any Warrant
Exercise would otherwise cause the Holder to exceed the beneficial ownership limitations (“Beneficial Ownership Limitation”)
set forth in Section 2(e) of the Existing Warrants (or, if applicable and at the Holder’s election, 9.99%), the Company shall only
issue such number of Warrant Shares to the Holder that would not cause the Holder to exceed the maximum number of Warrant Shares permitted
thereunder, as directed by the Holder, with the balance to be held in abeyance until notice from the Holder that the balance (or portion
thereof) may be issued in compliance with such limitations, which abeyance shall be evidenced through the Existing Warrants which shall
be deemed prepaid thereafter (including the payment in full of the exercise price), and exercised pursuant to a Notice of Exercise in
the Existing Warrants (provided no additional exercise price shall be due and payable). The parties hereby agree that the Beneficial Ownership
Limitation for purposes of the Existing Warrants is as set forth on the Holder’s signature page hereto.
Expressly subject to the paragraph
immediately following this paragraph below, Holder may accept this offer by signing this letter agreement below, with such acceptance
constituting Holder’s exercise in full of the Existing Warrants for an aggregate exercise price set forth on the Holder’s
signature page hereto (the “Warrant Exercise Price”) on or before 1:30 p.m., Eastern Time, on November 21, 2023 (the
“Execution Time”).
Additionally, the Company
agrees to the representations, warranties and covenants set forth on Annex A attached hereto. Holder represents and warrants
that, as of the date hereof it is, and on each date on which it exercises any New Warrants it will be, an “accredited investor”
as defined in Rule 501 of Regulation D promulgated under the Securities Act, and agrees that the New Warrants will contain restrictive
legends when issued, and neither the New Warrants nor the ADSs and underlying Ordinary Shares issuable upon exercise of the New Warrants
will be registered under the Securities Act, except as provided in Annex A attached hereto. Also, Holder represents and
warrants that it is acquiring the New Warrants as principal for its own account and has no direct or indirect arrangement or understandings
with any other persons to distribute or regarding the distribution of the New Warrants or the New Warrant Shares (this representation
is not limiting Holder’s right to sell the New Warrant Shares pursuant to an effective registration statement under the Securities
Act or otherwise in compliance with applicable federal and state securities laws).
The Holder understands that
the New Warrants and the New Warrant Shares are not, and may never be, registered under the Securities Act, or the securities laws of
any state and, accordingly, each certificate, if any, representing such securities shall bear a legend substantially similar to the following:
“THIS SECURITY
HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.”
Certificates evidencing the
New Warrant Shares shall not contain any legend (including the legend set forth above), (i) while a registration statement covering the
resale of such New Warrant Shares is effective under the Securities Act, (ii) following any sale of such New Warrant Shares pursuant to
Rule 144 under the Securities Act, (iii) if such New Warrant Shares are eligible for sale under Rule 144 (assuming cashless exercise of
the New Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule
144 as to such New Warrant Shares and without volume or manner-of-sale restrictions, (iv) if such New Warrant Shares may be sold
under Rule 144 (assuming cashless exercise of the New Warrants) and the Company is then in compliance with the current public information
required under Rule 144 as to such New Warrant Shares, or (v) if such legend is not required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the Securities and Exchange Commission (the “Commission”)
and the earliest of clauses (i) through (v), the “Delegend Date”)). The Company shall cause its counsel to issue a
legal opinion to the Transfer Agent promptly after the Delegend Date if required by the Company and/or the Transfer Agent to effect the
removal of the legend hereunder, or at the request of the Holder, which opinion shall be in form and substance reasonably acceptable to
the Holder. From and after the Delegend Date, such New Warrant Shares shall be issued free of all legends. The Company agrees that following
the Delegend Date or at such time as such legend is no longer required under this Section, it will, no later than two (2) Trading Days
following the delivery by the Holder to the Company or the Transfer Agent of a certificate representing the New Warrant Shares issued
with a restrictive legend, along with such certificate(s) or other documentation reasonably requested by the Company’s counsel and/or
the Transfer Agent (within one (1) Trading Day following the delivery by the Holder to the Company or the Transfer Agent of a certificate
representing the New Warrant Shares, which request shall include the form of representation letter requested by this sentence), including
a customary representation letter, in form and substance reasonably acceptable to the Company’s counsel and/or the Transfer Agent
(such second (2nd) Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to the Holder
a certificate representing such shares that is free from all restrictive and other legends or, at the request of the Holder shall credit
the account of the Holder’s prime broker with the Depository Trust Company System as directed by the Holder.
In addition to the Holder’s
other available remedies, the Company shall pay to a Holder, in cash, (i) as partial liquidated damages and not as a penalty, for each
$1,000 of New Warrant Shares (based on the VWAP of the ADSs on the date such New Warrant Shares are submitted to the Transfer Agent) delivered
for removal of the restrictive legend, $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages
have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend and (ii)
if the Company fails to (a) issue and deliver (or cause to be delivered) to the Holder by the Legend Removal Date a certificate representing
the New Warrant Shares that is free from all restrictive and other legends and (b) if after the Legend Removal Date the Holder purchases
(in an open market transaction or otherwise) ADSs to deliver in satisfaction of a sale by the Holder of all or any portion of the number
of ADSs, or a sale of a number of ADSs equal to all or any portion of the number of ADSs that the Holder anticipated receiving from the
Company without any restrictive legend, then, an amount equal to the excess of the Holder’s total purchase price (including brokerage
commissions and other out-of-pocket expenses, if any) for the ADSs so purchased (including brokerage commissions and other out-of-pocket
expenses, if any) over the product of (A) such number of New Warrant Shares that the Company was required to deliver to the Holder by
the Legend Removal Date and for which the Holder was required to purchase shares to timely satisfy delivery requirements, multiplied by
(B) the weighted average price at which the Holder sold that number of ADSs.
If this offer is accepted
and the transaction documents are executed by the Execution Time, then as promptly as possible following the Execution Time, but in any
event no later than 2:00 p.m., Eastern Time, on the date hereof, the Company shall file issue a press release disclosing the material
terms of the transactions contemplated hereby and shall file a Report on Form 6-K with the Commission disclosing all material terms of
the transactions contemplated hereunder, including the filing with the Commission of this letter agreement as an exhibit thereto within
the time required by the Exchange Act. From and after the dissemination of such press release, the Company represents to you that it shall
have publicly disclosed all material, non-public information delivered to you by the Company, or any of its respective officers, directors,
employees or agents in connection with the transactions contemplated hereunder. In addition, effective upon the dissemination of such
press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether
written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates
on the one hand, and you and your Affiliates on the other hand, shall terminate. The Company represents, warrants and covenants that,
upon acceptance of this offer, the Warrant Shares shall be issued at Closing free of any legends or restrictions on resale by Holder.
No later than the second (2nd)
Trading Day following the date hereof, the closing (“Closing”) shall occur at such location as the parties shall mutually
agree. Unless otherwise directed by H.C. Wainwright & Co., LLC (the “Placement Agent”), settlement of the Warrant
Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Closing Date (as defined below),
the Company shall issue the Warrant Shares registered in the Holder’s name and address provided to the Company in writing and released
by the Transfer Agent directly to the account(s) at the Placement Agent identified by the Holder; upon receipt of such Warrant Shares,
the Placement Agent shall promptly electronically deliver such Warrant Shares to the Holder, and payment therefor shall concurrently be
made to the Company by the Placement Agent (or its clearing firm) by wire transfer to the Company). The date of the Closing of the Warrant
Exercise shall be referred to as the “Closing Date”.
This letter agreement shall
be construed and enforced in accordance with the laws of the State of New York, without regards to conflicts of laws principles. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough
of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby.
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Sincerely yours, |
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CAN-FITE BIOPHARMA LTD. |
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By: |
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Name: |
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Title: |
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[Holder Signature Page Follows]
Accepted and Agreed to:
Name of Holder: ________________________________________________________
Signature of Authorized Signatory of Holder:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Number of Existing Warrants: __________________
Aggregate Warrant Exercise Price at the Reduced
Exercise Price being exercised contemporaneously with signing this letter agreement: _________________
Existing Warrants Beneficial Ownership Blocker:
☐ 4.99% or ☐ 9.99%
New Warrants: _______________ (200% of the total
Existing Warrants being exercised)
New Warrants Beneficial Ownership Blocker: ☐
4.99% or ☐ 9.99%
DTC Instructions:
[Holder signature page to CANF Inducement Offer]
Annex A
Representations, Warranties
and Covenants of the Company. The Company hereby makes the following representations and warranties to the Holder:
| a) |
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one 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 “SEC Reports”). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Exchange Act and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company is not currently an issuer identified in Rule 144(i) under the Securities Act. |
| b) |
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this letter agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this letter agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, its board of directors or its shareholders in connection herewith other than in connection with the Required Approvals. This letter agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. |
| c) |
No Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any liens, claims, security interests, other encumbrances or defects upon any of the properties or assets of the Company in connection with, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding to which such Company is a party or by which any property or asset of the Company is bound or affected; or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company, taken as a whole, or in its ability to perform its obligations under this letter agreement. |
| d) |
Registration Obligations. The Company shall, as soon as reasonably practicable, file a registration statement on Form F-3 (or other appropriate form, including on Form F-1, if the Company is not then S-3 eligible) providing for the resale of the New Warrant Shares by the holders of the New Warrants (the “Resale Registration Statement”). The Company shall use commercially reasonable efforts to cause the Resale Registration Statement to become effective within ninety (90) calendar days following the date hereof and to keep the Resale Registration Statement effective at all times until no holder of the New Warrants owns any New Warrants or New Warrant Shares. |
| e) |
Trading Market. The transactions contemplated under this letter agreement comply with all the rules and regulations of NYSE American. |
| f) |
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of this letter agreement, other than: (i) the filings required pursuant to this letter agreement, (ii) application(s) or notice to each applicable Trading Market for the listing of the New Warrants and New Warrant Shares for trading thereon in the time and manner required thereby, (iii) such filings as are required to be made under applicable state securities laws and the Israeli Securities Authority and the Tel Aviv Stock Exchange, (iv) filings required by the Israeli Registrar of Companies, and (v) the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws (the “Required Approvals”). |
| g) |
Listing of ADSs. The Company hereby agrees to use best efforts to maintain the listing or quotation of the ADSs on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the New Warrant Shares on such Trading Market and promptly secure the listing of all of the New Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the ADSs traded on any other Trading Market, it will then include in such application all of the New Warrant Shares, and will take such other action as is necessary to cause all of the New Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its ADSs on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the ADSs for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer. |
| h) |
Subsequent Equity Sales. |
(i) From the date
hereof until sixty (60) days after the Closing Date, neither the Company nor any Subsidiary shall (A) issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any ADSs, Ordinary Shares or Ordinary Share Equivalents or (B) file any registration
statement or any amendment or supplement to any existing registration statement (other than (x) the Resale Registration Statement referred
to herein or (y) a registration statement on Form S-8 in connection with any employee benefit plan). Notwithstanding the foregoing, this
Section (h)(i) shall not apply in respect of an Exempt Issuance. “Exempt Issuance” means the issuance of (a) ADSs,
Ordinary Shares, options, restricted stock or restricted stock units to employees, consultants, contractors, advisors, officers or directors
of the Company pursuant to any stock or option plan or arrangement duly adopted for such purpose, by a majority of the non-employee members
of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services
rendered to the Company; provided, however, that any securities issued to consultants, contractors or advisors are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement
in connection therewith during the prohibition period in this Section (h)(i), (b) warrants to the Placement Agent in connection with the
transactions pursuant to this letter agreement (the “Placement Agent Warrants”) and any ADSs and the underlying Ordinary
Shares upon exercise of the Placement Agent Warrants and the ADSs and/or Ordinary Shares issuable upon the exercise or exchange of or
conversion of any securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into ADSs and/or
Ordinary Shares issued and outstanding on the date of this letter agreement, provided that such securities have not been amended since
the date of this letter agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion
price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, and (c)
securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company,
provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights
that require or permit the filing of any registration statement in connection therewith during the prohibition period in this Section
(h)(i), and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through
its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide
to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. “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, for purposes of this Section (h)(i).
(ii) From the date
hereof until one (1) year following the Closing Date, the Company shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company nor any Subsidiary of ADSs, Ordinary Shares or Ordinary Share Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to
receive, additional ADSs or Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based
upon, and/or varies with, the trading prices of or quotations for the ADSs at any time after the initial issuance of such debt or equity
securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance
of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business
of the Company or the market for the ADSs or (ii) enters into, or effects a transaction under, any agreement, including, but not limited
to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined
price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently
canceled; provided, however, that, following the restrictive period set forth in Section (h)(i), the entry into and/or issuance of ADSs
in an “at the market” offering with the Placement Agent as sales agent shall not be deemed a Variable Rate Transaction. The
Holder shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition
to any right to collect damages.
| i) |
Form D; Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrants and New Warrant Shares as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrants and New Warrant Shares for, sale to the Holder at Closing under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Holder. |
Exhibit 10.2
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH
THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
WARRANT TO PURCHASE ORDINARY SHARES REPRESENTED
BY AMERICAN DEPOSITARY SHARES
CAN-FITE BIOPHARMA LTD.
| |
Initial Exercise Date: ___, 2023 |
| Warrant No.: 2023 - __ |
|
| |
Issuance Date: ___, 2023 |
Number of American Depositary Shares: ________________
THIS WARRANT TO PURCHASE ORDINARY
SHARES REPRESENTED BY AMERICAN DEPOSITARY SHARES (the “Warrant”) certifies that, for value received, _____________
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”) and on or prior
to 5:00 p.m. (New York City time) on ______________________1
(the “Termination Date”) but not thereafter, to subscribe for and purchase from Can-Fite BioPharma Ltd., an Israeli
limited company (the “Company”), up to ______ Ordinary Shares (the “Warrant Shares”) represented
by ________2 ADSs, as subject to adjustment hereunder (the
“Warrant ADSs”). The purchase price of one Warrant ADS shall be equal to the Exercise Price, as defined in Section
2(b).
Section 1. Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“ADS(s)”
means American Depositary Shares issued pursuant to the Deposit Agreement (as defined below), each representing three hundred (300) Ordinary
Shares.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to
remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers
on such day.
| 1 | Insert the date that is the five (5) years anniversary of
the Initial Exercise Date, provided that, if such date is not a Trading Day, insert the immediately following Trading Day. |
| 2 | 300 Ordinary Shares for each ADS. |
“Commission”
means the United States Securities and Exchange Commission.
“Deposit Agreement”
means the Deposit Agreement dated as of September 19, 2012, as amended and restated as of September 11, 2013, among the Company, The Bank
of New York Mellon as Depositary and the owners and holders of ADSs from time to time, as such agreement may be amended or supplemented.
“Depositary”
means The Bank of New York Mellon, as Depositary under the Deposit Agreement.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Letter Agreement”
means that certain letter agreement between the initial Holder hereof and the Company, dated as of November 21, 2023, pursuant to which
such initial Holder agreed to exercise one or more warrants to purchase shares of Common Stock and the Company agreed to issue to the
initial Holder this Warrant.
“Ordinary Share(s)”
means the ordinary shares of the Company, par value NIS 0.25 per share, and any other class of securities into which such securities may
hereafter be reclassified or changed.
“Ordinary Share Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares
or ADSs, including, without limitation, any debt, preferred share, 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.
“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.
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company required to be listed pursuant to Item 601(b)(21) of Regulation S-K.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is 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, the
OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transfer Agent”
means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed
in such capacity.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Letter Agreement.
Section 2. Exercise.
a) Exercise of
Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or
after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company)
and the Depositary of a duly executed pdf copy via e-mail of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid the Holder shall deliver the aggregate Exercise
Price of the Warrant ADSs thereby purchased by wire transfer or cashier’s check drawn on a United States bank or, if available,
pursuant to the cashless exercise procedure specified in Section 2(c) below. 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 be required. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased
all of the Warrant 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 one (1) Trading Day of receipt of such notice. The Holder and
any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant 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) Exercise Price.
The exercise price per ADS under this Warrant shall be $1.75, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise.
If at any time after the Issuance Date there is no effective registration statement registering, or no current prospectus available for,
the resale of the Warrant ADSs by the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a
“cashless exercise” in which the Holder shall be entitled to receive a number of Warrant ADSs equal to the quotient obtained
by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the ADSs on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”)
as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder;
and |
| (X) = | the number of Warrant ADSs that would be issuable upon
exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a
cashless exercise. |
“Bid
Price” 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 bid price of the ADSs for the time in question (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 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 ADSs 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.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs 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 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, or (c) 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 Securities then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If
Warrant ADSs are issued in such a cashless exercise, the parties acknowledge and agree that
in accordance with Section 3(a)(9) of the Securities Act, the holding period of the Warrants being exercised may be tacked on to the holding
period of the Warrant ADSs. The Company agrees not to take any position contrary to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of
Warrant ADSs Upon Exercise. Within 1 Trading day of the date that a Notice of Exercise is delivered to the Company, the Company shall
deposit the Warrant Shares subject to such exercise with The Bank of New York Mellon, the Depositary for the ADSs (the “Depositary”)
and instruct the Depositary to credit the account of the Holder’s prime broker with The Depository Trust Company through its Deposit/Withdrawal
At Custodian system (“DWAC”) if the Depositary is then a participant in such system and either (A) there is an effective
registration statement registering for resale of the Warrant Shares represented by the Warrant ADSs by the Holder or (B) the Warrant Shares
represented by the Warrant ADSs are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144
and the Warrant ADSs have been sold by the Holder prior to the Warrant ADS Delivery Date (as defined below), and otherwise by physical
delivery to the address specified by the Holder in the Notice of Exercise, by the date that is the earlier of (i) two (2) Trading Days
and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise
(such date, the “Warrant ADS Delivery Date”). If the Warrant ADSs can be delivered via DWAC, then in addition to the
delivery of the Warrant Shares to the Depositary, within one (1) Trading Day of the applicable exercise, the Depositary shall have received
from the Company any legal opinions or other documentation required by the Depositary to deliver such ADSs without legend and, if applicable
and requested by the Company prior to the Warrant ADS Delivery Date, the Depositary shall have received from the Holder a confirmation
of sale of the Warrant ADSs (provided the requirement of the Holder to provide a confirmation as to the sale of Warrant ADSs shall not
be applicable to the issuance of unlegended Warrant ADS’s upon a cashless exercise of this Warrant if the Warrant ADSs are then
eligible for resale pursuant to Rule 144(b)(1)). The Warrant Shares represented by the Warrant ADSs shall be deemed to have been issued,
and Holder or any other person so designated to be named therein shall be deemed to have become the beneficial owner of such Warrant Shares
represented by the Warrant ADSs for all purposes, as of the date the Warrant has been exercised, with payment to the Company of the Exercise
Price (or by cashless exercise, if permitted) and all taxes required to be paid by the Holder, if any, pursuant to Section 2(d)(vi) prior
to the issuance of such Warrant ADSs having been paid. 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.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the 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 Company fails to cause the Transfer Agent 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; provided, however, that the
Holder shall be required to return any Warrant ADSs or Warrant Shares subject to any such rescinded exercise notice concurrently with
the return to Holder of the aggregate Exercise Price paid to the Company for such Warrant ADSs and the restoration of Holder’s right
to acquire such Warrant ADSs pursuant to this Warrant (including, issuance of a replacement warrant certificate evidencing such restored
right).
iv. 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 Depositary to deliver 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.
v. No Fractional
Shares or Scrip. No fractional Warrant Shares or Warrant ADSs shall be issued upon the exercise of this Warrant. As to any fraction
of an ADS 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 ADS.
vi. 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 Depositary fees required
for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation
performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any
portion of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to the terms and conditions
of this Warrant and any such exercise shall be null and void and treated if never made, to the extent that after giving effect to such
exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of [4.99%/9.99%] (the “Maximum
Percentage”) of the number of Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of
the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by the Holder and the other Attribution Parties shall
include the number of Ordinary Shares underlying ADSs held by the Holder and all other Attribution Parties plus the number of Ordinary
Shares underlying ADSs issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made,
but shall exclude the number of Ordinary Shares underlying ADSs which would be issuable upon (A) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the
unexercised or unconverted portion of any other securities of the Company beneficially owned by the Holder or any other Attribution Party
subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(e). For purposes of this Section
3(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of this Warrant, in
determining the number of Ordinary Shares underlying ADSs the Holder may acquire upon the exercise of this Warrant without exceeding the
Maximum Percentage, the Holder may rely on the number of Ordinary Shares as reflected in (x) the Company’s most recent Annual Report on
Form 20-F, Current Report on Form 6-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement
by the Company or (3) any other written notice by the Company setting forth the number of Ordinary Shares outstanding (the “Reported
Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding
Ordinary Shares is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of
Ordinary Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership,
as determined pursuant to this Section 2(e), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number
of Warrant ADSs to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction
Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder
for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1)
Business Day confirm orally and in writing or by electronic mail to the Holder the number of Ordinary Shares then outstanding. In any
case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of
the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding
Share Number was reported. In the event that the issuance of Ordinary Shares to the Holder upon exercise of this Warrant results in the
Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number
of outstanding Ordinary Shares (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s
and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”)
shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess
Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return
to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder
may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease
the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase
in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii)
any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Warrants
that is not an Attribution Party of the Holder. For purposes of clarity, the Ordinary Shares issuable pursuant to the terms of this Warrant
in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes
of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this paragraph shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this Section 3(e) to the extent necessary to correct this paragraph or any portion
of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 2(e)
or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this
paragraph may not be waived and shall apply to a successor holder of this Warrant. “Attribution Parties” means, collectively,
the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or
from time to time after the issuance date, directly or indirectly managed or advised by the Holder’s investment manager or any of its
Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who
could be deemed to be acting as a group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership
of the Company’s Ordinary Shares would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section
13(d) of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties
to the Maximum Percentage.
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 its 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), as applicable, (ii) subdivides
outstanding Ordinary Shares or ADSs into a larger number of shares or ADSs, as applicable, (iii) combines (including by way of reverse
share split) outstanding Ordinary Shares or ADSs into a smaller number of shares or ADSs, as applicable, or (iv) issues by reclassification
of Ordinary Shares, ADSs or any shares of capital stock of the Company, as applicable, then in each case the Exercise Price shall be multiplied
by a fraction of which the numerator shall be the number of ADSs (excluding treasury shares, if any) outstanding immediately before such
event and of which the denominator shall be the number of ADSs outstanding immediately after such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged.
Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) [RESERVED]
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Ordinary Share Equivalents or rights to purchase shares, 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 Ordinary Shares or ADSs acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Maximum Percentage) 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, to the extent that the Holder’s right to
participate in any such Purchase Right would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled
to participate in such Purchase Right to such extent (or beneficial ownership of such 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 Maximum Percentage).
d) 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, shares 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 Ordinary Shares or ADSs acquirable upon complete
exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Maximum Percentage)
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,
to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Maximum Percentage,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the 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 Maximum Percentage).
e) Fundamental
Transactions. The Company shall not enter into or be party to a Fundamental Transaction (as defined below) unless the Successor Entity
(as defined below) assumes in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this
Section 3(e) pursuant to written agreements, including agreements, if so requested by the Holder, to deliver to each holder of the Warrants
in exchange for such Warrants a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Warrant, including, without limitation, an adjusted exercise price equal to the value for the Ordinary Shares reflected by the
terms of such Fundamental Transaction, and exercisable for a corresponding number of shares of capital stock equivalent to the Ordinary
Shares represented by 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 Ordinary Shares pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such adjustments to the 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). Any
security issuable or potentially issuable to the Holder pursuant to the terms of this Warrant on the consummation of a Fundamental Transaction
shall be registered and freely tradable by the Holder without any restriction or limitation or the requirement to be subject to any holding
period pursuant to any applicable securities laws if any securities issued to any other equityholder of the Company are registered on
Form F-4 or any successor form. Upon the occurrence or consummation of any Fundamental Transaction, and it shall be a required condition
to the occurrence or consummation of any Fundamental Transaction that, the Company and the Successor Entity or Successor Entities, jointly
and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly and severally succeed
to, and be added to the term “Company” under this Warrant (so that from and after the date 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 Company and the Successor Entity or Successor Entities, jointly and severally,
may exercise every right and power of the Company prior thereto and 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 in this Warrant, and, solely at the request of the Holder, if the Successor Entity and/or Successor Entities is a publicly
traded corporation whose common stock is quoted on or listed for trading on a Trading Market in the United States, shall deliver (in addition
to and without limiting any right under this Warrant) to the Holder in exchange for this Warrant a security of the Successor Entity and/or
Successor Entities evidenced by a written instrument substantially similar in form and substance to this Warrant and exercisable for a
corresponding number of shares of capital stock of the Successor Entity and/or Successor Entities (the “Successor Capital Stock”)
equivalent to the Ordinary Shares underlying 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 (such corresponding number of shares of Successor Capital Stock
to be delivered to the Holder shall be equal to the quotient of (i) the aggregate dollar value of all consideration (including cash consideration
and any consideration other than cash (“Non-Cash Consideration”), in such Fundamental Transaction, as such values are
set forth in any definitive agreement for the Fundamental Transaction that has been executed at the time of the first public announcement
of the Fundamental Transaction or, if no such value is determinable from such definitive agreement, as determined in accordance with Section
5(a) with the term “Non-Cash Consideration” being substituted for the term “Exercise Price”) that the Holder would
have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination date
for the event resulting in such Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction
or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction (without regard to any
limitations on the exercise of this Warrant) divided by (ii) the per share closing sale price of such corresponding capital stock on the
Trading Day immediately prior to the consummation or occurrence of the Fundamental Transaction), and with an identical exercise price
to the Exercise Price hereunder (such adjustments to the number of shares of capital stock and such exercise price being for the purpose
of protecting after the consummation or occurrence of such Fundamental Transaction the economic value of this Warrant that was in effect
immediately prior to the consummation or occurrence of such Fundamental Transaction, as elected by the Holder solely at its option). Upon
occurrence or consummation of the Fundamental Transaction, and it shall be a required condition to the occurrence or consummation of such
Fundamental Transaction that, the Company and the Successor Entity or Successor Entities shall deliver to the Holder confirmation that
there shall be issued upon exercise of this Warrant at any time after the occurrence or consummation of the Fundamental Transaction, as
elected by the Holder solely at its option, ADSs, Successor Capital Stock or, in lieu of the ADSs or Successor Capital Stock (or other
securities, cash, assets or other property purchasable upon the exercise of this Warrant prior to such Fundamental Transaction), such
shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights),
which for purposes of clarification may continue to be ADSs, if any, that the Holder would have been entitled to receive upon the happening
of such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction,
had this Warrant been exercised immediately prior to such Fundamental Transaction or the record, eligibility or other determination date
for the event resulting in such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted
in accordance with the provisions of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to the
occurrence or consummation of any Fundamental Transaction pursuant to which holders Ordinary Shares or ADSs are entitled to receive securities,
cash, assets or other property with respect to or in exchange for Ordinary Shares or ADSs (a “Corporate Event”), the
Company shall make appropriate provision to insure that, and any applicable Successor Entity or Successor Entities shall ensure that,
and it shall be a required condition to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have the
right to receive upon exercise of this Warrant at any time after the occurrence or consummation of the Corporate Event, ADSs or Successor
Capital Stock or, if so elected by the Holder, in lieu of ADSs (or other securities, cash, assets or other property) purchasable upon
the exercise of this Warrant prior to such Corporate Event (but not in lieu of such items still issuable under Sections 3(c) and 3(d),
which shall continue to be receivable on the ADSs or on the such shares of stock, securities, cash, assets or any other property otherwise
receivable with respect to or in exchange for ADSs), such shares of stock, securities, cash, assets or any other property whatsoever (including
warrants or other purchase or subscription rights and any Ordinary Shares) which the Holder would have been entitled to receive upon the
occurrence or consummation of such Corporate Event or the record, eligibility or other determination date for the event resulting in such
Corporate Event, had this Warrant been exercised immediately prior to such Corporate Event or the record, eligibility or other determination
date for the event resulting in such Corporate Event (without regard to any limitations on exercise of this Warrant). The provisions of
this Section 3(e) shall apply similarly and equally to successive Fundamental Transactions and Corporate Events. “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another
Person, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company
or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Persons, or (iii) make,
or allow one or more Persons to make, or allow the Company to be subject to or have its Ordinary Shares be subject to or party to one
or more persons making, a purchase, tender or exchange offer that is accepted by the holders of more than either (x) 50% of the outstanding
Ordinary Shares, (y) 50% of the outstanding Ordinary Shares calculated as if any Ordinary Shares held by all Persons making or party to,
or Affiliated with any Persons making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of
Ordinary Shares such that all Persons making or party to, or Affiliated with any Person making or party to, such purchase, tender or exchange
offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding
Ordinary Shares, or (iv) consummate a securities purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with one or more Persons whereby all such Persons, individually or in the aggregate,
acquire, either (x) more than 50% of the outstanding Ordinary Shares, (y) more than 50% of the outstanding Ordinary Shares calculated
as if any Ordinary Shares held by all the Persons making or party to, or Affiliated with any Person making or party to, such securities
purchase agreement or other business combination were not outstanding; or (z) such number of Ordinary Shares such that the Persons become
collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding Ordinary Shares,
or (v) reorganize, recapitalize or reclassify its Ordinary Shares such that such modified Ordinary Shares no longer have the residual
right to dividends or distributions from the Company or the residual right to vote on matters given to the common shareholders under Israeli
law, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related
transactions, allow any Person individually or the Persons in the aggregate to be or become the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender,
tender offer, exchange, reduction in outstanding Ordinary Shares, merger, consolidation, business combination, reorganization, recapitalization,
spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of more than
either (x) 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares, (y) 50% of the aggregate
ordinary voting power represented by issued and outstanding Ordinary Shares not held by all such Persons as of the date of this Warrant
calculated as if any Ordinary Shares held by all such Persons were not outstanding, or (z) a percentage of the aggregate ordinary voting
power represented by issued and outstanding Ordinary Shares or other equity securities of the Company sufficient to allow such Persons
to effect a statutory short form merger or other transaction requiring other shareholders of the Company to surrender their Ordinary Shares
without approval of the shareholders of the Company or (C) directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to
circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion
of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction. Notwithstanding
anything contained herein, any transaction which results in a Company subsidiary that is not wholly-owned by the Company becoming a wholly-owned
subsidiary of the Company shall not be considered a “Fundamental Transaction” and shall not otherwise trigger any adjustment
or rights under this Warrant. “Successor Entity” means one or more Person or Persons (or, if so elected by the Holder,
the Company or Parent Entity (as defined below)) formed by, resulting from or surviving any Fundamental Transaction or one or more Person
or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with which such Fundamental Transaction shall have been
entered into. “Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person,
including such entity whose common stock or equivalent equity security is quoted or listed on a Trading Market, or, if there is more than
one such Person or such entity, such Person or entity with the largest public market capitalization as of the date of consummation of
the Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors,
the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the
same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders
of ADSs or Ordinary Shares of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of
cash, stock or any combination thereof, or whether the holders of ADSs or Ordinary Shares are given the choice to receive from among alternative
forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of ADSs or Ordinary Shares of
the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of ADSs or Ordinary Shares will be
deemed to have received ADSs or ordinary shares of the Successor Entity (which Entity may be the Company following such Fundamental Transaction)
in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal
to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date,
(B) an expected volatility equal to the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day
annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction,
(C) the underlying price per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately
preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental
Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining
option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the
Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available
funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation
of the Fundamental Transaction.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of an ADS, as the case may be. For purposes
of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number
of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
g) Notice to
Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by e-mail 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.
ii. 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, (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 is a party, any sale or transfer
of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Ordinary Shares are converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by e-mail to the Holder at its e-mail as
it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares 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 of record shall be entitled to exchange their Ordinary Shares 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 delivering 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 the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a 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.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights
hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. 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.
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 Issue Date 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) Transfer Restrictions.
If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not
be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities
or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements
pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant,
as the case may be, 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 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.
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant 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.
Section 5. Miscellaneous.
a) [RESERVED]
b) No Rights
as 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 of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth
in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section
2(c) or 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.
c) 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 stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
d) 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.
e) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Ordinary Shares and a sufficient
number of shares to provide for the issuance of the Warrant ADSs and underlying Ordinary Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such Warrant ADSs may be issued as provided herein without violation
of any applicable law or regulation, or of any requirements of the applicable Trading Market upon which the Ordinary Shares and ADSs may
be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant 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 Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant 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.
f) Jurisdiction.
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 New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this 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 other manner permitted
by law. 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 Shares and Warrant ADSs acquired upon the exercise of this Warrant, if not registered and the
Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
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 the fact that all rights
hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred
by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices.
Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed
to the Company, at Can-Fite BioPharma Ltd., 10 Bareket Street, Kiryat Matalon, P.O. Box 7537, Petach-Tikva 4951778, Israel, Attention:
Motti Farbstein, email address: Motti@canfite.co.il, 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 5:30 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 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) 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 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. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
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, on one hand, and the
Holder, on the other hand.
n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
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)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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CAN-FITE BIOPHARMA LTD. |
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NOTICE OF EXERCISE
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CAN-FITE BIOPHARMA LTD. |
The
Bank of New York Mellon
(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 (check applicable box):
☐ in lawful money of the United
States; or
☐ if permitted the cancellation
of such number of Warrant ADSs as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant
with respect to the maximum number of Warrant ADSs purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please register and issue
said Warrant ADSs in the name of the undersigned or in such other name as is specified below:
DTC Participant name and number: ________________________
Contact of DTC Participant: _______________________
Telephone Number of Participant Contact:
_____________________
(4) Accredited Investor.
If the Warrant is being exercised via cash exercise, the undersigned is an “accredited investor” as defined in Regulation
D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ________________________________________________________________________
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 ADSs.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
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| Dated: _______________ __, ______ |
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15
Exhibit 10.3
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH
THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
WARRANT TO PURCHASE ORDINARY SHARES REPRESENTED
BY AMERICAN DEPOSITARY SHARES
CAN-FITE BIOPHARMA LTD.
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Warrant No.: 2023 - _______ |
Initial Exercise Date: November 24, 2023 |
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Issuance Date: November 24, 2023 |
Number of American Depositary Shares: ________________
THIS WARRANT TO PURCHASE ORDINARY
SHARES REPRESENTED BY AMERICAN DEPOSITARY SHARES (the “Warrant”) certifies that, for value received, _____________
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”) and on or prior
to 5:00 p.m. (New York City time) on November 24, 2028 (the “Termination Date”) but not thereafter, to subscribe for
and purchase from Can-Fite BioPharma Ltd., an Israeli limited company (the “Company”), up to ______ Ordinary Shares
(the “Warrant Shares”) represented by ________1
ADSs, as subject to adjustment hereunder (the “Warrant ADSs”). The purchase price of one Warrant ADS shall be equal
to the Exercise Price, as defined in Section 2(b). This Warrant is issued pursuant to that certain engagement letter, dated as of November
16, 2023, by and between the Company and H.C. Wainwright & Co., LLC.
Section 1. Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“ADS(s)”
means American Depositary Shares issued pursuant to the Deposit Agreement (as defined below), each representing three hundred (300) Ordinary
Shares.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to
remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers
on such day.
| 1 | 300 Ordinary Shares for each ADS. |
“Commission”
means the United States Securities and Exchange Commission.
“Deposit Agreement”
means the Deposit Agreement dated as of September 19, 2012, as amended and restated as of September 11, 2013, among the Company, The Bank
of New York Mellon as Depositary and the owners and holders of ADSs from time to time, as such agreement may be amended or supplemented.
“Depositary”
means The Bank of New York Mellon, as Depositary under the Deposit Agreement.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Ordinary Share(s)”
means the ordinary shares of the Company, par value NIS 0.25 per share, and any other class of securities into which such securities may
hereafter be reclassified or changed.
“Ordinary Share Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares
or ADSs, including, without limitation, any debt, preferred share, 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.
“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.
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company required to be listed pursuant to Item 601(b)(21) of Regulation S-K.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is 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, the
OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transfer Agent”
means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed
in such capacity.
Section 2. Exercise.
a) Exercise of
Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or
after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company)
and the Depositary of a duly executed pdf copy via e-mail of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid the Holder shall deliver the aggregate Exercise
Price of the Warrant ADSs thereby purchased by wire transfer or cashier’s check drawn on a United States bank or, if available,
pursuant to the cashless exercise procedure specified in Section 2(c) below. 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 be required. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased
all of the Warrant 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 one (1) Trading Day of receipt of such notice. The Holder and
any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant 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) Exercise Price.
The exercise price per ADS under this Warrant shall be $1.9125, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise.
If at any time after the Issuance Date there is no effective registration statement registering, or no current prospectus available for,
the resale of the Warrant ADSs by the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a
“cashless exercise” in which the Holder shall be entitled to receive a number of Warrant ADSs equal to the quotient obtained
by dividing [(A-B) (X)] by (A), where:
(A) = as applicable:
(i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1)
both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant
to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation
NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading
Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the ADSs on the principal Trading Market
as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice
of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within
two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant
to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a
Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day;
(B) = the Exercise
Price of this Warrant, as adjusted hereunder; and
(X) = the number
of Warrant ADSs that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless exercise.
“Bid
Price” 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 bid price of the ADSs for the time in question (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 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 ADSs 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.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs 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 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, or (c) 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 Securities then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If
Warrant ADSs are issued in such a cashless exercise, the parties acknowledge and agree that
in accordance with Section 3(a)(9) of the Securities Act, the holding period of the Warrants being exercised may be tacked on to the holding
period of the Warrant ADSs. The Company agrees not to take any position contrary to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of
Warrant ADSs Upon Exercise. Within 1 Trading day of the date that a Notice of Exercise is delivered to the Company, the Company shall
deposit the Warrant Shares subject to such exercise with The Bank of New York Mellon, the Depositary for the ADSs (the “Depositary”)
and instruct the Depositary to credit the account of the Holder’s prime broker with The Depository Trust Company through its Deposit/Withdrawal
At Custodian system (“DWAC”) if the Depositary is then a participant in such system and either (A) there is an effective
registration statement registering for resale of the Warrant Shares represented by the Warrant ADSs by the Holder or (B) the Warrant Shares
represented by the Warrant ADSs are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144
and the Warrant ADSs have been sold by the Holder prior to the Warrant ADS Delivery Date (as defined below), and otherwise by physical
delivery to the address specified by the Holder in the Notice of Exercise, by the date that is the earlier of (i) two (2) Trading Days
and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise
(such date, the “Warrant ADS Delivery Date”). If the Warrant ADSs can be delivered via DWAC, then in addition to the
delivery of the Warrant Shares to the Depositary, within one (1) Trading Day of the applicable exercise, the Depositary shall have received
from the Company any legal opinions or other documentation required by the Depositary to deliver such ADSs without legend and, if applicable
and requested by the Company prior to the Warrant ADS Delivery Date, the Depositary shall have received from the Holder a confirmation
of sale of the Warrant ADSs (provided the requirement of the Holder to provide a confirmation as to the sale of Warrant ADSs shall not
be applicable to the issuance of unlegended Warrant ADS’s upon a cashless exercise of this Warrant if the Warrant ADSs are then
eligible for resale pursuant to Rule 144(b)(1)). The Warrant Shares represented by the Warrant ADSs shall be deemed to have been issued,
and Holder or any other person so designated to be named therein shall be deemed to have become the beneficial owner of such Warrant Shares
represented by the Warrant ADSs for all purposes, as of the date the Warrant has been exercised, with payment to the Company of the Exercise
Price (or by cashless exercise, if permitted) and all taxes required to be paid by the Holder, if any, pursuant to Section 2(d)(vi) prior
to the issuance of such Warrant ADSs having been paid. 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.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the 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 Company fails to cause the Transfer Agent 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; provided, however, that the
Holder shall be required to return any Warrant ADSs or Warrant Shares subject to any such rescinded exercise notice concurrently with
the return to Holder of the aggregate Exercise Price paid to the Company for such Warrant ADSs and the restoration of Holder’s right
to acquire such Warrant ADSs pursuant to this Warrant (including, issuance of a replacement warrant certificate evidencing such restored
right).
iv. 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 Depositary to deliver 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.
v. No Fractional
Shares or Scrip. No fractional Warrant Shares or Warrant ADSs shall be issued upon the exercise of this Warrant. As to any fraction
of an ADS 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 ADS.
vi. 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 Depositary fees required
for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation
performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any
portion of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to the terms and conditions
of this Warrant and any such exercise shall be null and void and treated if never made, to the extent that after giving effect to such
exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the number of Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of
the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by the Holder and the other Attribution Parties shall
include the number of Ordinary Shares underlying ADSs held by the Holder and all other Attribution Parties plus the number of Ordinary
Shares underlying ADSs issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made,
but shall exclude the number of Ordinary Shares underlying ADSs which would be issuable upon (A) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the
unexercised or unconverted portion of any other securities of the Company beneficially owned by the Holder or any other Attribution Party
subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(e). For purposes of this Section
3(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of this Warrant, in
determining the number of Ordinary Shares underlying ADSs the Holder may acquire upon the exercise of this Warrant without exceeding the
Maximum Percentage, the Holder may rely on the number of Ordinary Shares as reflected in (x) the Company’s most recent Annual Report on
Form 20-F, Current Report on Form 6-K or other public filing with the Commission, as the case may be, (y) a more recent public announcement
by the Company or (3) any other written notice by the Company setting forth the number of Ordinary Shares outstanding (the “Reported
Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding
Ordinary Shares is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of
Ordinary Shares then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership,
as determined pursuant to this Section 2(e), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number
of Warrant ADSs to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction
Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder
for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1)
Business Day confirm orally and in writing or by electronic mail to the Holder the number of Ordinary Shares then outstanding. In any
case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of
the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding
Share Number was reported. In the event that the issuance of Ordinary Shares to the Holder upon exercise of this Warrant results in the
Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number
of outstanding Ordinary Shares (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s
and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”)
shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess
Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return
to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder
may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease
the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase
in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii)
any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Warrants
that is not an Attribution Party of the Holder. For purposes of clarity, the Ordinary Shares issuable pursuant to the terms of this Warrant
in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes
of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this paragraph shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this Section 3(e) to the extent necessary to correct this paragraph or any portion
of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 2(e)
or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this
paragraph may not be waived and shall apply to a successor holder of this Warrant. “Attribution Parties” means, collectively,
the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or
from time to time after the issuance date, directly or indirectly managed or advised by the Holder’s investment manager or any of its
Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who
could be deemed to be acting as a group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership
of the Company’s Ordinary Shares would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section
13(d) of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties
to the Maximum Percentage.
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 its 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), as applicable, (ii) subdivides
outstanding Ordinary Shares or ADSs into a larger number of shares or ADSs, as applicable, (iii) combines (including by way of reverse
share split) outstanding Ordinary Shares or ADSs into a smaller number of shares or ADSs, as applicable, or (iv) issues by reclassification
of Ordinary Shares, ADSs or any shares of capital stock of the Company, as applicable, then in each case the Exercise Price shall be multiplied
by a fraction of which the numerator shall be the number of ADSs (excluding treasury shares, if any) outstanding immediately before such
event and of which the denominator shall be the number of ADSs outstanding immediately after such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged.
Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) [RESERVED]
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Ordinary Share Equivalents or rights to purchase shares, 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 Ordinary Shares or ADSs acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Maximum Percentage) 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, to the extent that the Holder’s right to
participate in any such Purchase Right would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled
to participate in such Purchase Right to such extent (or beneficial ownership of such 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 Maximum Percentage).
d) 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, shares 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 Ordinary Shares or ADSs acquirable upon complete
exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Maximum Percentage)
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,
to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Maximum Percentage,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the 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 Maximum Percentage).
e) Fundamental
Transactions. The Company shall not enter into or be party to a Fundamental Transaction (as defined below) unless the Successor Entity
(as defined below) assumes in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this
Section 3(e) pursuant to written agreements, including agreements, if so requested by the Holder, to deliver to each holder of the Warrants
in exchange for such Warrants a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Warrant, including, without limitation, an adjusted exercise price equal to the value for the Ordinary Shares reflected by the
terms of such Fundamental Transaction, and exercisable for a corresponding number of shares of capital stock equivalent to the Ordinary
Shares represented by 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 Ordinary Shares pursuant to such Fundamental Transaction and
the value of such shares of capital stock, such adjustments to the 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). Any
security issuable or potentially issuable to the Holder pursuant to the terms of this Warrant on the consummation of a Fundamental Transaction
shall be registered and freely tradable by the Holder without any restriction or limitation or the requirement to be subject to any holding
period pursuant to any applicable securities laws if any securities issued to any other equityholder of the Company are registered on
Form F-4 or any successor form. Upon the occurrence or consummation of any Fundamental Transaction, and it shall be a required condition
to the occurrence or consummation of any Fundamental Transaction that, the Company and the Successor Entity or Successor Entities, jointly
and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly and severally succeed
to, and be added to the term “Company” under this Warrant (so that from and after the date 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 Company and the Successor Entity or Successor Entities, jointly and severally,
may exercise every right and power of the Company prior thereto and 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 in this Warrant, and, solely at the request of the Holder, if the Successor Entity and/or Successor Entities is a publicly
traded corporation whose common stock is quoted on or listed for trading on a Trading Market in the United States, shall deliver (in addition
to and without limiting any right under this Warrant) to the Holder in exchange for this Warrant a security of the Successor Entity and/or
Successor Entities evidenced by a written instrument substantially similar in form and substance to this Warrant and exercisable for a
corresponding number of shares of capital stock of the Successor Entity and/or Successor Entities (the “Successor Capital Stock”)
equivalent to the Ordinary Shares underlying 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 (such corresponding number of shares of Successor Capital Stock
to be delivered to the Holder shall be equal to the quotient of (i) the aggregate dollar value of all consideration (including cash consideration
and any consideration other than cash (“Non-Cash Consideration”), in such Fundamental Transaction, as such values are
set forth in any definitive agreement for the Fundamental Transaction that has been executed at the time of the first public announcement
of the Fundamental Transaction or, if no such value is determinable from such definitive agreement, as determined in accordance with Section
5(a) with the term “Non-Cash Consideration” being substituted for the term “Exercise Price”) that the Holder would
have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination date
for the event resulting in such Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction
or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction (without regard to any
limitations on the exercise of this Warrant) divided by (ii) the per share closing sale price of such corresponding capital stock on the
Trading Day immediately prior to the consummation or occurrence of the Fundamental Transaction), and with an identical exercise price
to the Exercise Price hereunder (such adjustments to the number of shares of capital stock and such exercise price being for the purpose
of protecting after the consummation or occurrence of such Fundamental Transaction the economic value of this Warrant that was in effect
immediately prior to the consummation or occurrence of such Fundamental Transaction, as elected by the Holder solely at its option). Upon
occurrence or consummation of the Fundamental Transaction, and it shall be a required condition to the occurrence or consummation of such
Fundamental Transaction that, the Company and the Successor Entity or Successor Entities shall deliver to the Holder confirmation that
there shall be issued upon exercise of this Warrant at any time after the occurrence or consummation of the Fundamental Transaction, as
elected by the Holder solely at its option, ADSs, Successor Capital Stock or, in lieu of the ADSs or Successor Capital Stock (or other
securities, cash, assets or other property purchasable upon the exercise of this Warrant prior to such Fundamental Transaction), such
shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights),
which for purposes of clarification may continue to be ADSs, if any, that the Holder would have been entitled to receive upon the happening
of such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction,
had this Warrant been exercised immediately prior to such Fundamental Transaction or the record, eligibility or other determination date
for the event resulting in such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted
in accordance with the provisions of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to the
occurrence or consummation of any Fundamental Transaction pursuant to which holders Ordinary Shares or ADSs are entitled to receive securities,
cash, assets or other property with respect to or in exchange for Ordinary Shares or ADSs (a “Corporate Event”), the
Company shall make appropriate provision to insure that, and any applicable Successor Entity or Successor Entities shall ensure that,
and it shall be a required condition to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have the
right to receive upon exercise of this Warrant at any time after the occurrence or consummation of the Corporate Event, ADSs or Successor
Capital Stock or, if so elected by the Holder, in lieu of ADSs (or other securities, cash, assets or other property) purchasable upon
the exercise of this Warrant prior to such Corporate Event (but not in lieu of such items still issuable under Sections 3(c) and 3(d),
which shall continue to be receivable on the ADSs or on the such shares of stock, securities, cash, assets or any other property otherwise
receivable with respect to or in exchange for ADSs), such shares of stock, securities, cash, assets or any other property whatsoever (including
warrants or other purchase or subscription rights and any Ordinary Shares) which the Holder would have been entitled to receive upon the
occurrence or consummation of such Corporate Event or the record, eligibility or other determination date for the event resulting in such
Corporate Event, had this Warrant been exercised immediately prior to such Corporate Event or the record, eligibility or other determination
date for the event resulting in such Corporate Event (without regard to any limitations on exercise of this Warrant). The provisions of
this Section 3(e) shall apply similarly and equally to successive Fundamental Transactions and Corporate Events. “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another
Person, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company
or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Persons, or (iii) make,
or allow one or more Persons to make, or allow the Company to be subject to or have its Ordinary Shares be subject to or party to one
or more persons making, a purchase, tender or exchange offer that is accepted by the holders of more than either (x) 50% of the outstanding
Ordinary Shares, (y) 50% of the outstanding Ordinary Shares calculated as if any Ordinary Shares held by all Persons making or party to,
or Affiliated with any Persons making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of
Ordinary Shares such that all Persons making or party to, or Affiliated with any Person making or party to, such purchase, tender or exchange
offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding
Ordinary Shares, or (iv) consummate a securities purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with one or more Persons whereby all such Persons, individually or in the aggregate,
acquire, either (x) more than 50% of the outstanding Ordinary Shares, (y) more than 50% of the outstanding Ordinary Shares calculated
as if any Ordinary Shares held by all the Persons making or party to, or Affiliated with any Person making or party to, such securities
purchase agreement or other business combination were not outstanding; or (z) such number of Ordinary Shares such that the Persons become
collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding Ordinary Shares,
or (v) reorganize, recapitalize or reclassify its Ordinary Shares such that such modified Ordinary Shares no longer have the residual
right to dividends or distributions from the Company or the residual right to vote on matters given to the common shareholders under Israeli
law, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related
transactions, allow any Person individually or the Persons in the aggregate to be or become the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender,
tender offer, exchange, reduction in outstanding Ordinary Shares, merger, consolidation, business combination, reorganization, recapitalization,
spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of more than
either (x) 50% of the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares, (y) 50% of the aggregate
ordinary voting power represented by issued and outstanding Ordinary Shares not held by all such Persons as of the date of this Warrant
calculated as if any Ordinary Shares held by all such Persons were not outstanding, or (z) a percentage of the aggregate ordinary voting
power represented by issued and outstanding Ordinary Shares or other equity securities of the Company sufficient to allow such Persons
to effect a statutory short form merger or other transaction requiring other shareholders of the Company to surrender their Ordinary Shares
without approval of the shareholders of the Company or (C) directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to
circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion
of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction. Notwithstanding
anything contained herein, any transaction which results in a Company subsidiary that is not wholly-owned by the Company becoming a wholly-owned
subsidiary of the Company shall not be considered a “Fundamental Transaction” and shall not otherwise trigger any adjustment
or rights under this Warrant. “Successor Entity” means one or more Person or Persons (or, if so elected by the Holder,
the Company or Parent Entity (as defined below)) formed by, resulting from or surviving any Fundamental Transaction or one or more Person
or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with which such Fundamental Transaction shall have been
entered into. “Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person,
including such entity whose common stock or equivalent equity security is quoted or listed on a Trading Market, or, if there is more than
one such Person or such entity, such Person or entity with the largest public market capitalization as of the date of consummation of
the Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors,
the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the
same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders
of ADSs or Ordinary Shares of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of
cash, stock or any combination thereof, or whether the holders of ADSs or Ordinary Shares are given the choice to receive from among alternative
forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of ADSs or Ordinary Shares of
the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of ADSs or Ordinary Shares will be
deemed to have received ADSs or ordinary shares of the Successor Entity (which Entity may be the Company following such Fundamental Transaction)
in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental
Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal
to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date,
(B) an expected volatility equal to the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day
annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction,
(C) the underlying price per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately
preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental
Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining
option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the
Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available
funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation
of the Fundamental Transaction.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of an ADS, as the case may be. For purposes
of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number
of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
g) Notice to
Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by e-mail 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.
ii. 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, (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 is a party, any sale or transfer
of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Ordinary Shares are converted into
other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by e-mail to the Holder at its e-mail as
it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares 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 of record shall be entitled to exchange their Ordinary Shares 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 delivering 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 the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a 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.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights
hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. 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.
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 Issue Date 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) Transfer Restrictions.
If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not
be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities
or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements
pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant,
as the case may be, 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 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.
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant 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.
Section 5. Miscellaneous.
a) [RESERVED]
b) No Rights
as 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 of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth
in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section
2(c) or 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.
c) 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 stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
d) 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.
e) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Ordinary Shares and a sufficient
number of shares to provide for the issuance of the Warrant ADSs and underlying Ordinary Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such Warrant ADSs may be issued as provided herein without violation
of any applicable law or regulation, or of any requirements of the applicable Trading Market upon which the Ordinary Shares and ADSs may
be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant 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 Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant 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.
f) Jurisdiction.
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 New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this 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 other manner permitted
by law. 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 Shares and Warrant ADSs acquired upon the exercise of this Warrant, if not registered and the
Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
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 the fact that all rights
hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred
by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices.
Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed
to the Company, at Can-Fite BioPharma Ltd., 10 Bareket Street, Kiryat Matalon, P.O. Box 7537, Petach-Tikva 4951778, Israel, Attention:
Motti Farbstein, email address: Motti@canfite.co.il, 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 5:30 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 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) 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 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. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
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, on one hand, and the
Holder, on the other hand.
n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
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)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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CAN-FITE BIOPHARMA LTD. |
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By: |
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Name: |
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Title: |
NOTICE OF EXERCISE
| To: |
CAN-FITE BIOPHARMA LTD. |
The
Bank of New York Mellon
(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 (check applicable box):
☐ in lawful money of the United
States; or
☐ if permitted the cancellation
of such number of Warrant ADSs as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant
with respect to the maximum number of Warrant ADSs purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please register and issue
said Warrant ADSs in the name of the undersigned or in such other name as is specified below:
DTC Participant name and number: ________________________
Contact of DTC Participant: _______________________
Telephone Number of Participant Contact:
_____________________
(4) Accredited Investor.
If the Warrant is being exercised via cash exercise, the undersigned is an “accredited investor” as defined in Regulation
D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ________________________________________________________________________
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 ADSs.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
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| Address: |
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(Please Print) |
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| Dated: _______________ __, ______ |
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| Holder’s Signature: _________________ |
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